R. v. Khan, 2016 ONSC 6610
CITATION: R. v. Khan, 2016 ONSC 6610
COURT FILE NO.: 83/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
SHAH KHAN Appellant
Darren J. Hogan, for the Crown, Respondent
Shah Khan, Appellant, on his own behalf
HEARD: October 21, 2016
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
[1] Shah Khan, the Appellant, was on the board of directors at a condominium in Toronto. Morgan Dalanna was a maintenance worker. There was a long and tortured history between Mr. Khan and Mr. Dalanna. On September 26, 2014 Mr. Khan made a threat against Mr. Dalanna. He was arrested on September 28, 2014. He was released on bail the next day, September 29, 2014. One of the bail conditions was that he was to have no contact with Mr. Dalanna. Another condition was that he was not to be within 150 meters of Mr. Dalanna.
[2] Mr. Khan was charged with breaching one of his bail conditions. Mr. Dalanna testified at trial that on September 30, 2014 Mr. Khan approached him in front of 330 Dixon Road, the building where they both lived (although Mr. Khan was required to move as a condition of his bail). Mr. Khan came well within the 150 meters and talked to him. Mr. Dalanna also testified that the same thing happened on October 1, 2014 although Mr. Khan was not charged in relation to that alleged breach.
[3] Mr. Khan testified. He stated that he was in bed sick on September 29, 2014. His wife also testified that he was sick in bed that day.
[4] The trial judge, Mr. Justice DiZio of the Ontario Court of Justice, did not believe the evidence of Mr. Khan or his wife and found that it did not leave him in a state of reasonable doubt. In contrast, he found the evidence of Mr. Dalanna to be credible. Although Justice DiZio’s reasons were very brief, this was a very simple case involving three brief witnesses. This was a classic example of a case where the credibility of the witnesses determined the issues.
[5] Mr. Khan filed a lengthy factum and made submissions in this Court. His submissions essentially amounted to a disagreement with the findings of fact of the trial judge. He also argued that the trial judge failed to consider the “conspiracy” against him.
[6] Obviously the credibility findings of a trial judge are entitled to great deference. An appellate court should not substitute its view of the evidence for that of the trial judge, which is essentially what Mr. Khan is asking me to do: R. v. C.P. (2001), 2001 24180 (ON CA), 140 O.A.C. 196 (C.A.). An appeal court should not conduct a microscopic analysis of the trial judge’s reasons: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.).
[7] It is not necessary to deal with the issue of the alleged conspiracy against Mr. Khan. The evidence before the trial judge as a whole supported the conviction. Mr. Khan was unable to demonstrate how the errors made by the trial judge, if errors they were, were material to the trial judge’s reasoning process. The appeal is dismissed.
R.F. Goldstein J.
Released: October 24, 2016
CITATION: R. v. Khan, 2016 ONSC 6610
COURT FILE NO.: 83/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
SHAH KHAN Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.