ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

COURT FILE NO.: SCA(P) 677/14
DATE: 2015 11 20

B E T W E E N:

HER MAJESTY THE QUEEN

S. Latimer, for the Respondent

Respondent

• and -

AAMER RAZZAQ

E. Chozik, for the Appellant

Appellant

HEARD: November 20, 2015, at Brampton

REASONS FOR JUDGMENT

[on appeal from conviction by
Ready J. on August 7, 2014]

HILL J.

[1] The appellant was convicted at trial of assaulting his wife, N.R.

[2] The sole prosecution witness at trial was N.R. The appellant testified on his own behalf and denied the alleged assault. An eyewitness to the relevant short time period, the appellant’s mother, testified to seeing an argument between her son and daughter-in-law. As well, she heard N.R. call her son an “invalid” observed her son being pushed by N.R. The witness did not see the appellant assault N.R.

[3] On April 30, 2014, the first day of trial, N.R. testified that when the appellant came home in the evening of July 3, 2013 an argument broke out between them in the course of which she was grabbed by the right arm and by the neck more than once. The complainant denied pushing the appellant.

[4] During N.R’s in-chief testimony at trial, an audio-recording was produced said to have been made by the complainant on her cellphone contemporaneous with the alleged assault.

[5] The audiotape had been included in the Crown disclosure provided to the defence in advance of trial. As a result of discussions at a pre-trial, counsel for the appellant (not Ms. Chozik) formed the view that as he did not receive a transcript of the tape before trial, the tape would not be introduced at trial. No transcript was created prior to trial. At trial, Crown counsel (not Mr. Latimer) described the tape as “the best evidence available”.

[6] Defence counsel objected to admission of the tape further submitting that if the tape were to be admitted he would bring a motion “to have the media produced for examination”. More specifically, counsel wanted production of “whatever it was recorded on in the first place” – “I’d like to see the original media that it was recorded on and have it examined”.

[7] The trial judge admitted the tape as Exhibit #1 and ordered the Crown to prepare the transcript before defence counsel would be called upon to cross-examine N.R. In the words of the trial judge: “that is as far as I am going on that issue”. The audiotape was played.

[8] The complainant testified in-chief that when the police attended the residence on July 3, 2013 she told the female officer that she had “a recording of him [the appellant] yelling”. The witness added, “I told the female officer exactly what I told you today in the court” – she told “the officer that she was assaulted”.

[9] Also, during N.R’s in-chief testimony, two photos were produced. The witness variously described them as “taken prior to the incident” and taken on July 4, 2013. The complainant testified that she took the photos which depict a visible bruise on an arm. It is not apparent which arm or whether from viewing the photos, it is the complainant’s arm. The photos are undated.

[10] The trial was adjourned for over three months to August 5, 2014 for cross-examination of the complainant. During questioning by defence counsel, N.R. gave this evidence:

(1) she had no special education in computers

(2) on July 3, 2013, she “told the police everything that [she] testified [to] in court here on the previous day”

(3) she made the Exhibit # 1 tape-recording on July 3, 2013 on her Blackberry phone

(4) sometime between July 3 and 23, 2013, she transferred the recording from the Blackberry device to her “old phone”

(5) when she went to a shelter on July 23/24, 2013, accompanied by the police, she told the police “in general” that her husband had been “very insulting” toward her – she made no mention of a tape-recording to the police

(6) she made a complaint to the police 2 to 4 days after going to the shelter that she had been assaulted on July 3, 2013

(7) challenged that she had “edited” the recording during the transfer from the Blackberry, N.R. responded “No”

[11] The appellant testified on his own behalf and called three further witnesses. In summary, the appellant’s testimony included this information:

(1) he argued with the complainant on July 3, 2013

(2) they both yelled and swore at one another as his mother watched from upstairs - multiple times, the complainant called him an “invalid” which upset him – this insult does not appear in Exhibit #1

(3) the appellant wears a brace on his left leg as a result of contracting polio as a child – on returning home, he was in the course of removing the brace when N.R. tried to push him a couple of times - he asked her each time not to – after one push, he supported himself on a door

(4) at no time did he grab or strike N.R.

(5) the police attended on July 3, 2013 in response to N.R.’s call to them – before the officers departed, the male officer told him that this was “a domestic dispute, domestic verbal dispute” and that if he and his wife could not live together they should seek out legal help

(6) during the evening of July 23, 2013, after three weeks of restored normalcy in the household, he told N.R. that he believed that they should separate – N.R was unhappy with this and her reaction was to rush out of the house with their baby to the next door neighbour’s house (S. Nguyen) and to have the police called

(7) he considers N.R. to be very computer literate

(8) as to the Exhibit # 1 tape recording, according to the appellant “parts of the communication are missing” – “I… believe the recording has been altered … so it really …benefits her”

(9) on July 28, 2013 he was arrested for assaulting N.R.

[12] Son Nguyen testified that after the appellant was arrested, he was contacted by the complainant by phone. She encouraged him to help her out by changing a statement that he had given to state that he had seen the appellant hit her. He refused: “I told her that I cannot lie”.

[13] Exhibit # 1 is approximately 3 minutes and 41 seconds in duration. The appellant can be heard aggressively demanding that his wife apologize to his mother about a matter. The appellant yells and swears throughout. He states at one point, “Don’t touch me”. Subsequently, N.R. says “Don’t push me” on four occasions in rapid succession immediately after which the appellant states, apparently to his mother at the top of the stairs, “Ma, I begged her stop”.

[14] The trial judge delivered oral reasons for judgment on August 7, 2014. The transcript of the reasons is 18 paragraphs, 14 of which make reference to the Exhibit #1 tape-recording accepted as pivotal real and “reliable” evidence corroborating the complainant’s account while not supporting the appellant’s version that N.R. was the aggressor, yelling, and calling him an “invalid”. The trial judge also considered the photos to be corroboration.

[15] The trial judge considered that there had only been “a bald assertion” by the appellant that the tape had been “doctored or edited” and that only in closing argument were submissions made about “continuity and the original recording device”.

[16] The trial judge accepted that there were “weaknesses” with the complainant’s evidence including her delayed reporting of the assault and the evidence of Mr. Nguyen.

[17] On the latter point, while the trial judge did not disbelieve Mr. Nguyen’s evidence that he had been asked to falsely say that he had seen assaultive behaviour, in her view the corroboration of the tape overcame any credibility concerns about N.R. despite this evidence.

[18] During the perfection process of the conviction appeal, on application by the appellant, Exhibit #1 was ordered released by Durno J. for examination by a forensic computer expert, Martin Musters.

[19] Apart from what might be described as conventional grounds of appeal relating to the trial court’s reasons, the appellant applied to have the summary conviction appeal court receive fresh evidence in the form of:

(1) the Forensic Analysis Report of June 26, 2015 prepared by Mr. Musters

(2) the Peel Regional Police Services (PRPS) occurrence report of Constables Mearns and Bonsfield relating to their July 3, 2013 attendance at the residence occupied by N.R. and the appellant (PRPS General Occurrence Report – Occurrence: PR 130384717 Dispute – Disturbance – Family…@ 2013/07/03).

[20] With his customary fairness, after review of the materials, including inquiries of Mr. Musters, Mr. Latimer agreed that the submitted fresh evidence comfortably met the test for admission as established in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759.

[21] The parties were in agreement, and correctly so, that with an adjournment of the trial from April 30 to August 5, 2014 the trial judge ought to have permitted the defence the opportunity to have Exhibit #1 released for expert examination. Preparation of a transcript was not responsive to the concerns raised by the appellant’s trial counsel.

[22] The Forensic Analysis Report includes these conclusions:

For the purpose of this report the following information … was provided to CFI and was considered to be factual:

1. This was a recording that was made on a Blackberry phone on July 3, 2013
2. The recording was transferred to another phone at some point between July 3 and July 23, 2013
3. The recording was provided to police on July 23 or July 24 of 2013.

Based on our analysis, we can conclude the following

1. This audio file was not the file recorded on a Blackberry.
2. This audio file was recorded on a Windows based computer.
3. There is an edit to the audio file at 2:29.0918.
4. There are two sounds that appear to be “mouse clicks”, one at the end of the audio.
5. The latest version of the audio was created on July 29, 2013. We cannot determine the date associated with any of the anomalies mentioned above in our report.

For the reasons stated above, it is our conclusion that this audio file has been altered.

[23] As to point number 3, Mr. Muster was unable to determine whether the edit involved a “splice” or a section of the original audio file “cut out”.

[24] The Peel Regional Police occurrence report reads as follows:

On Wednesday, July 3, 2013, at approximately 6:30 p.m., police attended 3864 Henrietta Way, in the City of Mississauga, for the report of a verbal domestic.

Upon arrival, police spoke to the complainant, [N.R.] The complainant advised earlier this evening she had made dinner and then was putting her daughter to bed, when her mother-in-law began an argument with her, over leaving the stove a mess. The complainant tried explaining to her that she would clean it up once the child was in bed, however the mother-in-law continued to argue with her. The complainant called her husband to explain what had happened and he demanded that she apologize to her mother-in-law.

At 6:15 p.m., the complainant’s husband arrived home from work, and the argument continued with him demanding that she apologize to her mother-in-law. He then placed one hand on her back, and one hand on the railing, attempting to walk with her up the stairs to encourage her to apologize, and at that time she called police as she was concerned that the situation may escalate.

Police spoke to both parties who explained that they have separated numerous times over the last couple of years, however, they both wanted to make things work between them for the sake of their daughter.

The complainant’s husband agreed to take his mother to his sister’s house for the evening, giving both parties the chance to cool off.

The complainant explained to police that when her husband was trying to walk her up the stairs, it was not in an assaultive manner. It should also be mentioned that the complainant’s husband suffers from polio and has difficulty with mobility and requires the assistance of a walking device.

No further police action required.

[25] The fresh evidence is admitted. It is credible, relevant to the credibility of the testimonial accounts of the complainant and the appellant at trial, and in light of all of the trial evidence would reasonably have affected the result.

[26] The impact of the forensic examination of the audiotape, by a qualified expert accepted as independent and impartial, is that the complainant manipulated real evidence and lied to the trial court in denying such alteration. This amounts to perjury and wilful obstruction of justice. Her actions respecting Exhibit #1 deprived the trier of fact of the entire context of the relevant three-to-four-minute time period under review at trial.

[27] The will-say evidence of the Peel Regional Police officers derived from the occurrence report contradicts the complainant’s assertion at trial that she reported the neck and arm-grabbing assault to them on July 3, 2013. The officers were duty-bound to make accurate notes. It is inconceivable that the appellant would not have been charged or extracted from the scene had N.R. reported the assault as she claimed. As such, the officers’ evidence further damages the credibility of N.R’s version of events.

[28] While recognizing that the issue of due diligence is not an immutable precondition to the admissibility of fresh evidence on appeal, Mr. Latimer agreed that it was not a concern insofar as the history of the audiotape and given the concerns the defence expressed at trial. While the Peel Regional Police occurrence report was in the prosecution disclosure package, its relevance is certainly heightened by the forensic revelations respecting Exhibit #1.

[29] Turning to the subject of remedy, whether an order for a new trial or entry of an acquittal, Mr. Latimer informed this Court that the Crown has undertaken not to re-prosecute Mr. Razzaq. Crown counsel submitted that:

Musters’ evidence impacts, but does not extinguish, the reliability of the recording at a subsequent trial. The core portion of the recording, prior to the two minute mark, where the assault is allegedly occurring, does not contain any indicia of editing or alteration. Further, the broader evidentiary picture includes the complainant’s testimony and photos of her alleged injuries. While that evidence will have to be weighed in context with all of the evidence, including the defence evidence, the Respondent’s position is that this weighing process is the jurisdiction of a trial judge and not an appellate court. The Respondent’s decision not to re-prosecute is irrelevant to the question of remedy.

[30] While it is accurate to say that the initial part of the audio-recording, where no editing has occurred, does capture the complainant saying, “Don’t push me”, it cannot be said what preceded the recorded segment, whether these utterances were a response to what was happening after N.R. pushed the appellant, or whether the “push” was simply the appellant’s hand on her back as they mounted the stairs as she described to the police on July 3, 2013. In closing submissions at trial, defence counsel stated that the original recording may simply have revealed consensual shoving by two people.

[31] The photos are of negligible probative value given that they are not independent of the complainant, do not themselves identify N.R. and cannot be dated. No other witness describes seeing bruising at the relevant time.

[32] The complainant’s credibility is in shambles. Put in the vernacular, she has moved to the super-Vetrovec-witness category – apparently having perjured herself at trial respecting report of the assault on July 3, 2013, and, as to the integrity of the Exhibit #1 recording, as well as wilful attempts to obstruct justice through evidence tampering and actively encouraging Nguyen to provide false evidence.

[33] The audiotape and the photos are incapable of rehabilitating the complainant before any reasonable and properly instructed trier of fact. There is no reasonable prospect of conviction were a re-trial to be ordered.

[34] Where an appeal court decides to quash a conviction, it has a discretion to order a new trial or to direct an acquittal: R. v. Catton, 2015 ONCA 13, at para. 38. As stated in R. v. Mekonnen, 2013 ONCA 414, at paras. 53-4, this discretion takes account of “both fairness and the public interest”.

[35] This is an appropriate case for an acquittal having regard to the totality of the circumstances including:

(1) there is no reasonable prospect of conviction given the severely damaged credibility of the complainant and the discovery of clandestinely altered real evidence

(2) the trial judge would have dismissed the charge but for her view that she could rely on what she believed was an unedited tape

(3) it is now well over two years since the appellant was charged

(4) the appellant has borne the expenses of a 3-day trial followed by an appeal including the cost of an expert report to undercover a miscarriage of justice

(5) the appellant has served the sentence imposed at trial

(6) the Crown has no intention of re-prosecuting the appellant.

[36] The Court is indebted to Mr. Latimer for his professional handling of the appeal in the very best tradition of Crown law officers.

[37] The appeal is allowed. The conviction is quashed and an acquittal is entered.

Hill J.

Date: November 20, 2015

COURT FILE NO.: SCA(P) 677/14
DATE: 2015 11 20

ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)

RE: R. v. AAMER RAZZAQ

COUNSEL: S. Latimer, for the Respondent
E. Chozik, for the Appellant

HEARD: November 20, 2015, at Brampton

REASONS FOR JUDGMENT
[on appeal from conviction by
Ready J. on August 7, 2014]

Hill J.

DATE: November 20, 2015