Court File and Parties
COURT FILE NO.: CR-15-0015-AP DATE: 2016, July 5
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Alsadeq Fadl El Mawal Appellant
Counsel: A. Zagouras, for the RESPONDENT Michael Pretsell, Counsel for the APPELLANT
HEARD: June 15, 2016
SUMMARY CONVICTION APPEAL
TAUSENDFREUND, J
Decision
[1] The appellant appeals his conviction of March 30, 2015 at Belleville by Justice Hunter on the charge of utter a threat contrary to s. 264.1(1)(b) of the Criminal Code of Canada.
[2] He appeals his conviction on the basis that the trial Judge:
a) Gave insufficient reasons, thus making his decision incapable of meaningful appellant review and b) On his acceptance of the evidence of the complainant over the evidence of the appellant, rather than basing his decision on whether or not he was left with a reasonable doubt as to the guilt of the appellant.
Evidence at Trial
[3] The appellant and the complainant had resided in a two year common law relationship in London, Ontario. They separated in April 2014 when the complainant and their son moved to Belleville, Ontario where her parents resided.
[4] Thereafter they maintained sporadic contact mostly by telephone.
[5] The complainant gave the following account of a telephone call made to her by the appellant on November 26, 2014:
- The appellant told her that he was now living in Belleville and that he could see into the windows of her house from where he was then living.
- He was watching her and their son.
- He also said that he saw a gay man in a red and beige sweater coming in and out of her back door.
- He told her that if he found out that another man was in her life or their son’s life that he would burn them all.
[6] The appellant testified. Relevant parts of his evidence are these:
- He spoke to the complainant by telephone on November 24, 2014.
- He tried to talk to her about the “guy” he observed in her house and wanted to talk about the other men in her life.
- He did not speak to her again either directly or by telephone after November 24, 2014.
- He had spoken to the complainant earlier by telephone on November 9, 2014.
- On that occasion he told her that he was moving to Belleville at the end of the month.
[7] Although he did not directly deny the complainant’s evidence of his threat to her to “burn her out”, he indirectly did so by testifying that he had no further contact with her after November 24, 2014.
[8] A summary of the reasons given by the trial Judge is the following:
On the issue of a count in the information which the trial Judge then dismissed and which alleged a threat by the appellant to the complainant on November 9, 2014, the trial Judge stated:
. . . I am not satisfied that the Crown has established proof beyond a reasonable doubt, and I say that primarily because of the very fair, honest, and frank evidence of [the Complainant] whom I found to be a very truthful witness, and I have no reason to disbelieve her. She conceded matters that were not in her favour, and certainly in my view, was neither exaggerating nor showed any vindictiveness in her evidence towards [the Appellant] and that her main concern which was reflected in her non-prosecutorial stance on November the 9th established in my view, her credibility.
With respect to the charge on which he convicted the appellant, the trial Judge stated that he believed the charge was made out referring to the telephone call of November 26, 2014 as related by the complainant. The trial Judge stated that her evidence was consistent with what the appellant himself had said in his evidence.
He referred to the fact that the appellant had conceded that he was moving to Belleville, that he had made it very clear that he was concerned about the other male who may have been in the complainant’s home, that he had made observations of that fact and that it was of concern to him.
The trial Judge further stated that he was satisfied on the evidence of the complainant that the threat was substantiated by the appellant’s own statements and he accepted that the threat was made.
Analysis
[9] The verdict may be set aside “when the reasons of the trial Judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached”: see R. v. Biniaris, 2000 SCC 15, [2000] 1 SCR 381 at para 37.
[10] The SCC stated in R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 621 on the applicable test on a review of a finding of credibility by a trial Judge:
- . . .the appeal court must defer to the conclusions of the trial Judge unless a palpable or over riding error can be shown. It is not enough that there is a difference of opinion with the trial Judge. . . it is only where the court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can . . . overturn the trial court’s verdict. With respect to the credibility of witnesses, the same standard applies.
[11] The SCC stated further in Gagnon at para 13:
. . . reasons are required from a trial Judge to demonstrate the basis for an acquittal or a conviction. Failure to do so is an error of law.
[12] The appellant testified. He inferentially denied the evidence of the complainant regarding the threat. As the appellant had testified, principles of R. v. W.(D.), [1991] 1 SCR 742 are in play. As stated by the SCC in R. v. C.L.Y., 2008 SCC 2, [2008] 1 SCR 5:
. . . verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence. 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.”
[Referencing the 3 steps articulated in W.(D.) (supra)]. . . this court has 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].
. . . as Fish J. A. noted in dissent in R. v. Levasseur (1994), 89 C.C.C. (3d) 508 (Que. C.A.) at p. 532, in language approved by this court (, [1994] 3 S.C.R. 518):
The trial judge must make it indisputably clear to the jury that reaching a verdict is not simply a question of choosing the more believable of the two competing stories. . .
[14] I also note these comments by the SCC in R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3 at para 66:
. . . the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where a complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful. . . It followed of necessity that he rejected the accused’s evidence where it conflicted with the evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.
[15] Although the trial Judge did not specifically refer to W.(D.), I note that both counsel in their submissions did. On that basis, I am satisfied that this experienced trial judge was alive to the required application of W.(D.) as it relates to the two competing versions of the alleged threat he heard in this trial. I find that the trial judge’s reference to the manner in which the complainant testified and that he had no reason to disbelieve her applied equally to the telephone call of November 26, as it did to the parties’ telephone call of November 9th.
[16] I find that without specifically mentioning W.(D.), the trial judge correctly applied the principles of that decision in his reasons. He found that the evidence of the accused substantiated the allegation of the threat described by the complainant in her evidence.
[17] Accordingly, the appeal is dismissed.
Tausendfreund, J Released: July 5, 2016