CITATION: R. v. Alam, 2016 ONSC 6841

COURT FILE NO.: 29/16

DATE: 20161103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MOHAMMAD JUNAID ALAM

Appellant

Elizabeth Stokes, for the Crown, Respondent

Bryan Badali and Deepa Negandhi, for the Appellant

HEARD: October 21, 2016

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on summary conviction appeal

BACKGROUND

Background

1In the early morning hours of October 2, 2014, the Appellant and another man “sucker punched” the complainant, Yusuf Khan. Mr. Khan’s jaw was broken in two places.

2The Appellant was charged with one count of assault causing bodily harm. The Crown elected to proceed summarily. The trial was short. Mr. Khan, the complainant, was the only Crown witness. He testified that he knew The Appellant from work. They both worked as drywallers. The complainant testified that they had a dispute over the phone on October 1, 2014. He believed that the dispute had something to do with his failure to find work for the Appellant’s friend, Abu.

3The complainant left work in the early morning hours of October 2, 2014. He took public transit home. As he was walking home at around 1:30 or 1:45 am the Appellant and Abu got out of a car, confronted him, and then sucker-punched him. He described a combination of argument and a two-on-one fight. The next day he went to the hospital. His jaw was x-rayed. It was fractured in two places. He told the triage nurse that he had fallen up some stairs. When he returned to the hospital a few days later he told the doctor that he had been in a fight with two men. He did not initially want to go to the police. It as his mother who called them.

4The defence called four witnesses: Barbara Gousavaris, the triage nurse; Omar Alam, the Appellant’s younger brother; Imram Karimi, Omar Alam’s friend; and Akmal Chaudhry, another friend of the Appellant. The Appellant did not testify.

5Omar Alam and Imram Karimi both testified that they were with the Appellant when the assault occurred. Akmal Chaudhry testified that he had been with the complainant earlier that evening. They were removing some doors at the Appellant’s girlfriend’s apartment. Mr. Chaudhry testified that the complainant fell on some stairs and got up rubbing his face.

6The trial judge, Mr. Justice Merenda of the Ontario Court of Justice, rejected the alibi evidence. He found that it was concocted. He accepted the evidence of the complainant. He found the Appellant guilty. He sentenced him to nine months imprisonment and two years of probation.

ANALYSIS

Analysis

7The Appellant appeals his conviction and his sentence. He says that the trial judge made four legal errors in convicting him:

• That the trial judge erroneously drew an adverse inference of credibility against the defence witness Mr. Chaudhry;

• That the trial judge applied uneven scrutiny to the evidence of the defence witnesses and the evidence of the complainant;

• That the trial judge failed to apply the second branch of W.D.; and,

• That the Trial judge gave insufficient reasons.

8The Appellant’s counsel says that the errors require a new trial.

9The Appellant also appeals his sentence. He says that the sentence was demonstrably unfit. He says that the sentence of 9 months should be varied and a sentence of 90 days intermittent should be substituted.

10With regard to the conviction appeal, in my respectful view, the Appellant simply disagrees with the trial judge’s credibility assessments. That is not a basis upon which to allow an appeal. There was no question that the evidence was capable of supporting the finding of guilt: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 42. I also find that the sentence was not demonstrably unfit. I will deal with each of the grounds in turn.

(a) Did the trial judge erroneously draw an adverse inference of credibility against the defence witness Mr. Chaudhry?

Did the trial judge erroneously draw an adverse inference of credibility against the defence witness Mr. Chaudhry?

11Mr. Badali, for the Appellant, argues that the trial judge misapprehended the evidence of the defence witness Mr. Chaudhry and therefore misapprehended the defence theory. He says that the trial judge treated Mr. Chaudhry as an alibi witness. In fact, Mr. Chaudhry was not an alibi witness. He concedes that the trial judge was entitled to reject the alibi evidence but argues that by improperly characterizing Mr. Chaudhry’s evidence as alibi evidence it coloured his overall evaluation of the alibi.

12I respectfully disagree. The trial judge understood the theory of the defence but rejected it. He clearly understood the differences between the various defence witnesses. He did not misapprehend the defence theory. The trial judge rejected the alibi evidence.

13The theory advanced by the defence was that the assault did not happen because the Appellant was with Omar Alam and Imram Karimi. Mr. Chaudhry’s evidence was intended to bolster the credibility of the alibi by casting doubt on the complainant’s version of how he was injured.

14A trier of fact is entitled to a high standard of deference on credibility issues: Biniaris at para. 24. An appellate court cannot intervene on the basis of a misapprehension of evidence unless the misapprehension played an essential role in the judge’s reasoning process. Mere inaccuracies do not constitute reversible error: R. v. Cloutier, 2011 ONCA 484 at para. 60.

15The witnesses Omar Alam and Imram Karimi did not disclose the alibi to the police. The trial judge drew an adverse inference from that. He was entitled to do so: R. v. Cleghorn, 1995 63 (SCC), [1995] 3 S.C.R. 175 at paras. 3-4.

16I agree with Mr. Badali that Mr. Chaudhry’s evidence was not true alibi evidence in the sense that it did not exclude the Appellant as the perpetrator. I also agree that there was no obligation on Mr. Chaudhry to disclose his evidence to the police. It is true that the trial judge mentioned the “alibi evidence” of the “three witnesses” more than once. In his summary of the evidence, however, he clearly understood that the purpose of Mr. Chaudhry’s evidence was to bolster the alibi by raising a reasonable doubt about the cause of the complainant’s injuries. A reading of the reasons as a whole shows that the trial judge evaluated the evidence of the three defence witnesses together for a very good reason. It was because he found that Mr. Chaudhry, Omar Alam, and Imram Karimi had likely colluded and fabricated their evidence. That is why he had doubts about Mr. Chaudry’s evidence, not because he misapprehended it.

(b) Did the trial judge apply uneven scrutiny to the evidence of the defence and the evidence of the complainant?

Did the trial judge apply uneven scrutiny to the evidence of the defence and the evidence of the complainant?

17Mr. Badali argues that the trial judge applied uneven scrutiny to the evidence of the defence witnesses and the evidence of the complainant. He says that the trial judge simply accepted the evidence of the complainant without any real analysis. In contrast, he spent a great deal of time on the evidence of the defence witnesses.

18Where a trial judge applies uneven scrutiny, it effectively reverses the onus on the accused. Mr. Badali says that in this case the trial judge used speculation to dismiss the defence evidence.

19Again, I disagree. As counsel for the Appellant candidly notes, this is a difficult argument for an appellant to make: R. v. J.H. (1995), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont.C.A.) As Doherty J.A. noted in that case:

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

20The Appellant points to the difference in the way that the trial judge scrutinized the recollection of the defence witnesses and the recollection of the complainant. He notes that the trial judge spent a great deal of time on the credibility of the defence witnesses. In contrast, he simply noted that there were inconsistencies in the evidence of the complainant with no real analysis.

21It is true that the trial judge spent more time dealing with the credibility of the defence evidence. Respectfully, that is beside the point. Uneven scrutiny means that the trial judge applied a different standard to the defence and Crown witnesses. It does not mean that the trial judge spent too much time analyzing the credibility of the defence witnesses and not enough time analyzing the credibility of the complainant.

22There was no doubt that there were issues with the complainant’s testimony. He initially told the triage nurse at the hospital, for example, that he had fallen. When he went back to the hospital a few days later, he told the hospital nurse that he had been assaulted. The trial judge noted that evidence both in his summary and in his analysis. It is true that his analysis was very brief. The complainant, however, explained those contradictions in his testimony. The trial judge was entitled to accept the explanation, which he did. The trial judge was clearly aware of the inconsistencies – he noted them – and was satisfied that they did not impact the credibility of the complainant. I do not see this as uneven scrutiny.

23Context matters: this case did not depend on identity. The complainant knew his assailants. Either the fight happened or it didn’t. If the trial judge rejected the evidence of the alibi witnesses then the only evidence about the fight was the complainant’s. The fact and nature of the assault was uncontested. The uneven scrutiny argument usually arises (although does not have to) where an accused and a complainant give different accounts of the same event. That is not the case here.

24At the end of the day, the defence submission on this point is really that the trial judge failed to resolve issues in the complainant’s evidence. It is true that the trial judge did not resolve every inconsistency. He was not required to.

(c) Did the trial judge fail to apply the second branch of W.D.?

Did the trial judge fail to apply the second branch of W.D.?

25The Appellant agrees that the trial judge articulated the W.D. principles correctly, but failed to apply it in the context of all the evidence at trial: R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742. In particular, he says that the trial judge failed to consider whether the evidence of Mr. Chaudhry was capable of raising a reasonable doubt, the so-called second branch of W.D.

26With respect, the trial judge did consider the evidence of Mr. Chaudhry. He considered it and found that it was contrived. He simply did not believe it. He did not need to go any further.

27I respectfully adopt the observations of my colleague Code J. in R. v. Edwards, 2012 ONSC 3373 at para. 20 in applying the so-called “second branch” of W.D.:

Accordingly, the so-called "second branch" of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an "alternative" to complete belief or complete rejection and arises where a trier cannot "resolve the conflicting evidence" and cannot find "exactly where the truth of the matter lay", as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not "able to select one version in preference to the other", as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completely rejected Edwards' account and completely accepted T.B.'s account. In other words, he was able to resolve the conflict in the evidence and he was not left in a state of uncertainty. By stating definitively, "I disbelieve the defendant", the trial judge could not have been left in reasonable doubt by that testimony.

28A trial judge is not required to recite the W.D. formula in any particular way, although Justice Merenda did cite it in the standard way. His reasons show without a doubt that he properly instructed himself:

If I believe that the Appellant was elsewhere and not near and outside Mr. Khan’s home in the early morning hours of October 2, 2014, when the offence was alleged to have been committed, then I must find the Appellant not guilty.

If I do not believe the evidence that the Appellant was elsewhere when the offence was allged to have been committed but that there is evidence that raises a reasonable doubt in my mind that the Appellant committed the offence, then he must be acquitted.

If I do not believe the evidence that the Appellant was not outside Mr. Khan’s home when the offence was alleged to have been committed and that evidence does not raise a reasonable doubt that the Appellant committed it, I must consider further whether the rest of the evidence in this case that I accept satisfies me beyond a reasonable doubt that the Appellant committed the offence as charged.

(d) Did the trial judge give insufficient reasons?

Did the trial judge give insufficient reasons?

29The Appellant’s argument is that the trial judge needed to show that he had properly grappled with the evidence. Here, he argues, there was simply no analysis of the complainant’s evidence. That evidence founded the conviction. He had an obligation to deal with the inconsistencies. This amounted to insufficient reasons.

30I disagree. An appeal court is entitled to intervene where a trial judge had failed to express him or herself such that meaningful appellate review is not possible. Meaningful appellate review is not possible where the trial judge’s path to conviction is unclear: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

31Respectfully, the Appellant’s real argument is simply that he disagrees with the trial judge’s assessment of the complainant’s credibility. He says that the trial judge should have done a better job. An appellate court may not interfere simply because the trial judge should have done a better job expressing him or herself: Sheppard at para. 55. Here, the trial judge’s path to conviction was very clear. He rejected the defence evidence and accepted the evidence of the complainant. Meaningful appellate review is possible.

(e) Was the sentence demonstrably unfit?

Was the sentence demonstrably unfit?

32The Appellant makes three arguments about the fitness of sentence:

• He argues that the trial judge failed to properly apply the principle of parity;

• He also argues that the trial judge failed to consider whether to impose an intermittent sentence; and,

• That the errors resulted in a sentence that was manifestly unfit.

33I disagree that the trial judge erred in principle or that the sentence was manifestly unfit.

34The trial judge first considered the Appellant’s antecedents. He noted that the Appellant has support in the community, including a girlfriend and family. He also noted that the Appellant had employment prospects. He then considered the Appellant’s criminal record. The Appellant has a short but terrible criminal record. The Appellant was convicted in 2007 of aggravated assault. He received a sentence of seven years. He was also convicted of offences related to possession of firearms and ammunition. He committed the assault in this case only thirty days after completing his parole on the earlier offences.

35The trial judge then considered the defence position. Defence counsel argued that his client should receive a conditional or intermittent sentence. The trial judge rejected that argument, applying the principles in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. The trial judge said little about rejecting an intermittent sentence. The Appellant argues that this was an error. The trial judge, he argues, should have considered an intermittent sentence.

36There is no merit to that argument. The trial judge considered and rejected a conditional sentence because he found that it would endanger the safety of the community and would fail to fulfill important sentencing principles. The trial judge also pointed to the fact that a conditional sentence would not meet the objectives of denunciation and deterrence. The trial judge also found that a conditional sentence would fail to instil a sense of responsibility in the offender. A similar analysis would apply to an intermittent sentence. Given the circumstances of the offence and the offender – a violent assault carried out only one month after the warrant expiry date of a seven-year aggravated assault sentence – the trial judge’s rejection of an intermittent or conditional sentence was unassailable. Certainly, it did not disclose an error in principle such that an appellate court should intervene.

37The same point can be made about the parity argument. The Appellant particularly points to the fact that defence counsel submitted several cases to the trial judge setting out what the defence counsel said was the appropriate range. The sentencing cases submitted by defence counsel ranged in penalty from conditional sentences to six months. Where a trial judge considers imposing a sentence that significantly exceeds the Crown’s submissions, then he or she should invite further submissions and authorities from counsel: R. v. Hagen, 2011 ONCA 749. I am unaware of any authority for the proposition that a trial judge may not exceed the range of sentence submitted by defence counsel.

38The Appellant also argues that the trial judge imposed a sentence that was demonstrably unfit. A sentence that is demonstrably unfit is one that is disproportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 53.

39In imposing sentence, the trial judge stated this about the offence:

This was a pre-meditated cowardly attack by two thugs, one of whom was the accused, on a man who was coming home from work in the early morning hours of October 2^nd, 2014.

40The evidence well supported the trial judge’s comment. The Appellant administered a severe unprovoked beating on the complainant. He had just completed a seven-year sentence for aggravated assault. The notion that a 9-month sentence is disproportionate under these circumstances is simply unsupportable.

41The sentence appeal is therefore dismissed, with one variation. As the Crown concedes, the Appellant should be credited for 49 days of pre-sentence custody. At 1.5:1, that means he will receive 74 days of credit. His sentence is varied to reflect that concession.

DISPOSITION

Disposition

42The conviction appeal is dismissed. The sentence is reduced by 74 days.

R.F. Goldstein J.