ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 149/14
DATE: 20151222

B E T W E E N:

HER MAJESTY THE QUEEN

Jennifer Graham, for the Respondent

Respondent

• and -

MAHMOOD MOSHREF

Jennifer A.Y. Trehearne, for the Appellant

Appellant

HEARD: December 14, 2015 at Brampton

REASONS FOR JUDGMENT

[On appeal from the judgment of S.R. Clarke J.
dated October 22, 2013]

F. Dawson J.

1Mahmood Moshref appeals his convictions following a three day trial before S. Clark J. of the Ontario Court of Justice of two counts of assault and two counts of assault with a weapon. The appellant submits that the trial judge erred by making improper use of prior consistent statements made by the complainant to two of her neighbours shortly after the fourth and final assault.

The Evidence Relevant to the Ground of Appeal

2The complainant testified that she and the appellant had been in a domestic relationship for three years. They had one child and by the time she left the appellant on May 7, 2012 she was pregnant with their second child. She testified that the relationship was rocky and that the appellant became controlling and physically abusive. The complainant acknowledged that she also thought the appellant was having an affair. She described four incidents of assault culminating with a final assault on May 7, 2012.

3The complainant testified that after the final assault she went to the home of her neighbours. She was bruised and very upset. Her neighbours, Jeffery Menbreno (also known as Jeffery Tinoco) and Nelson Moldonado, asked her what happened and assisted her in contacting her mother. Her mother came and got her and this was the beginning of her separation from the appellant. The complainant did not go to the police immediately to report what had occurred.

4The Crown called the neighbours and the complainant’s aunt to testify. The aunt gave evidence about injuries she observed to the complainant. No issues arise concerning the aunt’s evidence.

5The Crown also called the two neighbours. Crown counsel asked questions which elicited evidence about the complainant’s emotional state and demeanour on May 7, 2012, about bruises observed on the complainant and the details of what the complainant told them about the alleged assaults.

6The accused testified and denied that any of the alleged assaults had occurred. Accordingly, his evidence provided no explanation for the appellant’s bruises. The appellant also called his sister to contradict evidence given by the complainant to the effect that the complainant had previously advised the appellant’s sister about the appellant’s abusive conduct.

7The main issue at the trial was the credibility of the complainant and of the appellant and his sister.

8No objection was made at trial to the admissibility of the evidence of the neighbours which is now the basis for the appeal.

The Reasons for Judgment

9After hearing final submissions the trial judge took a break and delivered his reasons for judgment later the same day. Those reasons were given orally and occupy 77 pages of transcript. They give the impression of having been thoroughly prepared.

10The trial judge’s analysis commences at page 58 of the transcript of his reasons. Prior to that he summarized the evidence in great detail on a witness by witness basis in relation to each of the four alleged assaults. It would appear that the trial judge had likely been preparing summaries of the evidence in that fashion as the trial progressed.

11In his analysis the trial judge made a number of findings of fact which were relevant to his assessment of the credibility of the various witnesses and to his ultimate verdict. He also described the instructions he had given to himself concerning various principles to be applied in relation to those matters. I note, however, that he did not refer to the principles concerning the impermissible and permissible uses of prior consistent statements.

12From pages 65 to 71 of his reasons the trial judge explained why he was impressed with the complainant’s evidence and why he accepted it. Elsewhere in his reasons he explained why he did not accept the evidence of the appellant or his sister and why the defence evidence did not raise a reasonable doubt.

13At page 71 of his reasons the trial judge said the following, which has become the focus of the appeal:

The Court also accepts the evidence of the other three Crown witnesses. Each was candid, balanced and forthright without any personal motive or agenda. Their evidence, individually and collectively, gives comfort to the Court in making the findings of fact in this case. I am referring to the aunt and the two neighbours.

The Arguments on Appeal

14The appellant submits that in the passage quoted above the trial judge fell into error by using the evidence of the neighbours about what the complainant said to them as prior consistent statements to bolster the complainant’s credibility.

15The appellant submits that this interpretation of what happened at trial is supported by three factors. First, the nature of the questions asked by the Crown show that the Crown was intent on eliciting full details of what the complainant said to the neighbours. Second, the appellant stresses the use that the trial judge made of the neighbours’ evidence in his reasons. Not only did he say during his analysis that he took comfort in his other findings from their evidence, but he previously summarized their evidence in great detail, including the parts that could only be characterized as prior consistent statements. Third, the appellant emphasizes the total lack of discussion of the limited use that could properly be made of such evidence in the trial judge’s otherwise detailed and extensive reasons.

16The appellant acknowledges that the neighbours’ evidence did contain some admissible content. That would include their testimony as to the complainant’s demeanour and upset emotional state on May 7, 2012 and the fact that the neighbours saw bruises on the complainant. The appellant is also prepared to agree that some of the neighbours’ evidence may have been admissible for context, to explain how the neighbours came into contact with the complainant and made their observations. I would add that some of the evidence assisted in unfolding the narrative with respect to contacting the complainant’s mother and in relation to the ending of the relationship between the complainant and the appellant. However, the appellant stresses all the other details going to consistency that were not necessary to address these matters.

Analysis

17It is well known that the prior consistent statements of a witness are generally inadmissible at trial. Such statements are usually lacking in probative value and are self-serving. Such statements can be easily fabricated. Furthermore, repeating a statement usually does not make it any more likely to be true. See R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; and R. v. Demetrius, 2003 16618 (ON CA), [2003] O.J. No. 3728 (C.A.), at para. 12.

18There are a number of recognized exceptions to this general exclusionary rule, such as to rebut an allegation of recent fabrication. That exception has no application here. In addition, such evidence may be led where it is necessary or of meaningful assistance to the trier of fact in understanding the unfolding of the narrative. However, in those circumstances the use of the evidence must be limited to that purpose alone. It must not be considered as buttressing the credibility of the witnesses on the basis of consistency. In a jury trial appropriate limiting instructions are required when any of the recognized exceptions to the rule are invoked. See R. v. J.E.F., 1993 3384 (ON CA), [1993] 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), at para. 42.

19In this case the neighbours made certain observations of the complainant on May 7, 2012 which the appellant concedes were relevant and admissible. They testified they observed bruises on the complainant’s hands. The complainant testified that the appellant punched her hands when she took a defensive posture. They also observed that the complainant was emotionally distraught, evidence admissible to offer potential confirmation that she had been subjected to an upsetting event.

20These items of admissible evidence could only be understood in the context of the unfolding of the events. Nonetheless, counsel for the appellant is correct in her submission that not all of the details that were elicited by the Crown and which were referred to by the trial judge when he summarized the evidence, were required to provide the context necessary to understand the unfolding of the narrative.

21What we are left with in the impugned passage is a statement that is ambiguous with respect to which parts of the neighbours’ evidence the trial judge used to gain “comfort” in relation to his findings of fact. Did he use only the admissible aspects of their evidence and appropriately limit the use of evidence tendered to provide context and unfold the narrative, or did he go further and rely on the consistent details which he carefully summarized prior to his analysis?

22This question must be answered having regard to the principle that in the absence of a clear indication of error judges are presumed to know the law which they work with every day. Numerous cases have stated and applied this principle: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 47; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 51; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 664; R. v. J.R., 2014 QCCA 869, at paras. 26-31.

23Of particular assistance in resolving the difficulty arising from the ambiguity of the passage of the trial judge’s reasons are the following words of Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-5, cited with approval in R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5., at para. 11:

A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [p. 204]

Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law: R. v. Smith (1989), 1989 ABCA 187, 95 A.R. 304 (C.A.) at pp. 312-13; affirmed 1990 99 (SCC), [1990] 1 S.C.R. 991, 109 A.R. 160, 111 N.R. 144. [pp. 203-4]

24I conclude that these words have direct application in the case before me. I would also make reference to R. v. J.H., 2014 NLCA 25. There the Newfoundland and Labrador Court of Appeal was considering a case in which the appellant submitted that the trial judge erred by relying on evidence of post-offence conduct without indicating that she was aware of the need for caution in relying on such evidence. At para. 56 the Court held as follows:

We have not been shown, nor have we been able to find, any authority for the contention that a trial judge sitting alone must articulate a self-caution when considering post-offence conduct evidence. This is doubtless because judges are presumed to be cautious when assessing evidence. In fact, it is judges who are responsible for identifying the need for cautioning juries with respect to the pitfalls of drawing irrational or unreasonable inferences from certain evidence. Judges are expected to draw only reasonable inferences from evidence, and they must be presumed to know and apply this law unless the record demonstrates otherwise.

While these comments are in relation to post-offence conduct it seems to me that they are of general application.

25The appellant has not persuaded me that the record establishes that the trial judge erred. There was no objection when the evidence was tendered. The admissible parts of the evidence were embedded in the rest of the neighbours’ accounts. This was a judge alone trial. I am far from satisfied that the failure to object was not tactical in these circumstances.

26While the trial judge summarized details of the neighbours’ evidence which went beyond what was necessary to assist in understanding the permissible uses of their evidence, that was part of a process of his comprehensively summarizing virtually all of the evidence in the record. Consequently, I am unable to conclude that this has the implication which the appellant contends it does.

27In these circumstances, the authorities I have referred to compel me to assume that the trial judge knew the law and that he was referring to comfort he had derived only from the admissible parts of the neighbours’ evidence.

28The appeal is dismissed.

F. Dawson J.

Released: December 22, 2015

COURT FILE NO.: SCA(P) 149/14
DATE: 20151222

ONTARIO
SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT