Court File and Parties

COURT FILE NO.: 12-10084 DATE: 2017-01-11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Ahmed Saghier Defendant

COUNSEL: J. Carnegie, for the Crown R. Sheppard, for the defendant

HEARD: January 4, 2017

BEFORE: Garson J.

On appeal from the Conviction on Sentence of the Honourable Madam Justice J. LeRoy on May 4, 2015 and January 25, 2016.

Introduction and Background

[1] The appellant appeals both his convictions and sentence on four counts of assault contrary to s. 266 of the Criminal Code of Canada, R.S.C., 1985, c. C-46.

[2] The appellant was convicted on four counts of assault (and acquitted on three counts of assault) after a lengthy and bifurcated trial that commenced on May 7, 2015 and concluded with sentence on January 25, 2016.

[3] The appellant was sentenced to 30 days jail to be served intermittently and 12 months’ probation (along with some ancillary orders).

[4] The appellant was arrested on July 31, 2012 for assaults between December 2006 and January 2010. During the material times, the appellant and the complainant were either dating or engaged to be married. The parties met at a TD Canada Trust call centre where they worked together in 2007 and the relationship ended when the parties separated in 2009.

[5] For the purposes of this appeal, I need only briefly outline the details of the four assaults the complainant gave evidence about during the proceeding.

[6] At trial, the complainant testified about four specific incidents of assault:

(i) Hospital – sometime in January or February 2008 the appellant was arguing with the complainant and suddenly started hitting and kicking her in the head and ribs and grabbing her by the hair. After the complainant said she was in pain, the appellant brought her to hospital where she told the nurse attending to her that “she got into a fight at the bar with a girl”. In cross-examination the complainant denied telling the nurse that her boyfriend assaulted her. [1] This incident resulted in pain in her neck and head, missing clumps of hair, bruises to her ribs and a black eye.

(ii) Ring – sometime during 2008-2009, the appellant became angry and grabbed the complainant’s hair and pulled out chunks of her hair. She saved the tufts of loose hair. In response, she took her engagement ring off and pretended to throw it out the window. Like the previous assault, she did not report the assault to police or tell any family or friends.

(iii) Birthday Party – on or near July 20, 2009, the parties attended a birthday party. The appellant became angry at the way the complainant was driving and punched her in the ribs and later shoved her to the ground and pushed her causing scrapes and bleeding to her wrists and knees. This incident was not reported to police or friends.

(iv) New Year’s Eve – on or about December 31, 2009 after attending a party, the appellant started arguing with the complainant and started bashing her head and body with his arms as she covered her head and “rolled up like a ball” to try and protect herself. The complainant suffered a swollen face and lips which were observed by her mother. Police were not contacted and no explanation was provided to her mother as to the cause of her injuries.

[7] The catalyst for her reporting these incidents was a fight that occurred between the appellant and the complainant’s brother at a bar. This was the “last straw”. She had earlier reported to police at UWO (where she attended university in 2010) that she had safety concerns relating to the appellant following her. She also reported the abuse to her family doctor in September 2010. She participated in a student exchange program in the Fall of 2010 and gave evidence that one of her reasons for going to France was to break free from the appellant. She went to the police within 30 minutes of her brother’s fight taking place. She admitted that her brother told her that he punched the appellant but didn’t tell the police this information when asked repeatedly.

[8] At the conclusion of the complainant’s testimony, the Crown sought to have her emergency medical records admitted pursuant to s. 30(1) of the Evidence Act (Canada), R.S.C., 1985, c. C-5, as business records to rebut the allegation of recent fabrication put to the complainant in her cross-examination. The trial judge admitted the records into evidence.

Grounds of Appeal - Conviction

[9] The appellant raises three main grounds of appeal against conviction:

(i) The trial judge erred in her assessment of the complainant’s credibility;

(ii) The trial judge failed to consider the timing and suspicious circumstances surrounding the reporting of the incidents to police; and

(iii) The trial judge erred in relying on the conversations by the complainant with nurses at the hospital (recorded in the hospital records) as prior consistent statements when they were in fact inconsistent with the evidence given by the complainant at trial.

[10] Although not specifically pled, the appellant also suggested that the reasons of the trial judge were insufficient.

Grounds of Appeal - Sentence

[11] The appellant raises the following ground of appeal against sentence:

(i) The trial judge failed to properly consider in her Reasons for Sentence the request for a conditional sentence in accordance with s. 742.1 (a) of the Criminal Code.

Standard of Review – Conviction

[12] A trial judge’s finding of fact and assessment of credibility are entitled to a significant degree of deference from a reviewing court. Absent palpable and overriding error or otherwise being clearly wrong, unreasonable or unsupported by the evidence, such findings and assessments should not be disturbed: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Horton, 2014 ONCA 616, 116 W.C.B. (2d) 228.

[13] A legal error made in the assessment of credibility may displace the deference and require appellate intervention: see R. v. Luceno, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34.

[14] A trial judge’s reasons are to be read as a whole and the trial judge need not detail her finding on each piece of evidence so long as there is a logical link between the findings on the evidence and the verdict. The trial judge occupies a unique position in being able to see and hear witnesses and a lifeless transcript and selective review of the trial record cannot replicate the unfolding of the narrative at trial: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; and R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.).

Discussion

[15] It is not the role of an appellate court to essentially retry the case and substitute its own opinion of the credibility of witnesses. Nor is it proper to embark on a fresh analysis of the factual arguments made at trial and considered by the trial judge: see R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; and R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at paras. 39 – 40.

Credibility Assessment

[16] The appellant argues that potential corroboration exists with respect to only one of the four incidents (with the remaining three incidents having no corroborating evidence). The complainant’s mother, sister, and friend all testified seeing the complainant with a black eye.

[17] There is no requirement at law that the evidence of a complainant in an allegation of domestic assault be corroborated.

[18] The trial judge was alive to the contradictions between what the complainant told the hospital staff took place and what she testified to at trial. At p. 18 of her Reasons for Judgment, she states:

The medical records contradict the complainant’s evidence at trial, that she told the nurses at the hospital that she was in a fight with a girl at a bar. Why the complainant maintained that position at trial in the face of this contradictory evidence, is difficult to understand and was not satisfactorily explained by her, but it does not detract sufficiently from her credibility on the elements of assault number one or the other offences, in my view. She is simply mistaken about that and was not, in my view, trying to deliberately mislead the court. [2] [Emphasis added.]

[19] There is no evidence before me that the trial judge engaged in speculation.

[20] Her findings of fact are based on reasonable and permissible inferences drawn from the evidence.

[21] The trial judge accepts the complainant’s explanation for her delay in reporting these incidents to the police and found this evidence to be “compelling and sufficient to rebut an allegation of recent fabrication”. [3]

[22] The trial judge described the complainants internal inconsistencies as “few in number and minor in nature” and concluded that they did not “detract from her credibility as a witness to the events themselves”. [4]

[23] The trial judge is alive to the extensive arguments raised at trial regarding the reliability of the complainant’s evidence. She outlines a non-exhaustive list of these concerns at p. 20 of her Reasons. She is also aware of the many arguments advanced by the appellant at trial (and reargued on appeal) as listed at pp. 13 – 15 of her Reasons.

[24] She properly identifies a number of other witnesses who confirm some of the injuries sustained by the complainant on one count of assault.

[25] In the end, she accepts the complainants “explanations for her lies to family and friends, her delay in disclosure and the timing of her disclosure”. [5] There are many legitimate and compelling reasons why a victim of domestic violence may delay the reporting of such incidents. The trial judge was clearly mindful of the appellant’s position regarding the timing of the disclosure and the potential motive to fabricate.

[26] Substantial deference must be afforded to findings of credibility made by the trial judge. Although such findings were stated at the outset of her Reasons, the trial judge provided ample justification and explanation for the basis for such findings.

[27] This was a classic case about credibility. I can find no palpable or overriding error in the trial judge’s assessment and findings regarding credibility.

[28] There was sufficient evidence to support the complainant’s version of events. The trial judge properly assesses both the credibility and reliability of the evidence of the complainant in accordance with the Court of Appeal’s guidance in R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at paras. 33–34.

[29] The appellant did not testify. The trial judge determined that the Crown had established proof beyond a reasonable doubt on four assaults. In light of her credibility findings and findings of fact, she was entitled to do so.

Use of Hospital Records

[30] The trial judge at p. 40 of the Appeal Book, provided Reasons for allowing the Crown to admit the evidence of hospital records as business records in accordance with s. 30 of the Evidence Act (Canada), for purposes of rebutting the allegation of recent fabrication.

[31] In her Reasons, the trial judge is aware of the inconsistency between what the complainant testified to at trial, ie. she told the nurse that she got into a fight with a girl at the bar, and what the nurse recorded in her notes; namely that she was assaulted by her boyfriend. The complainant specifically denied ever having reported to the nurse that she had been assaulted by a male who was her boyfriend.

[32] However, the evidence is consistent with her testimony at trial that the appellant assaulted her on the occasion that brought her to the hospital.

[33] The decision of the trial judge to admit this evidence for the limited purpose of rebutting the allegation of recent fabrication was not an error: See R. v. C.L. (1999), 124 O.A.C. 45 (Ont. C.A.), at paras. 14–16; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; and R. v. Jackson, 2013 ONCA 632, 311 O.A.C. 121, at paras. 85–90. And she was careful not to rely on this evidence for any other impermissible reason – ie. to bolster the credibility of the complainant. [6]

Sufficiency of Reasons

[34] It is well established that a trial judge on a criminal trial has a duty to give reasons. This duty informs the parties why the decision was made, provides public accountability, and permits effective and meaningful appellate review: see R.E.M., at paras. 11 and 14.

[35] Although not specifically pled in the formal grounds for appeal, the appellant now argues that the reasons given by the trial judge were inadequate. Adequacy must be assessed in the context of the evidence and arguments at trial.

[36] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46, Binnie J. set out the following test:

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that count intervene.

[37] Therefore, the trial judge must give reasons that provide a logical pathway or connection between the decision and the basis for that decision.

[38] I am mindful that by some estimates, more than 95% of all criminal cases are dealt with in the Ontario Court of Justice. This is a high volume court and trial judges deliver both oral and written judgments on a daily basis. It would be wrong to require them to explain in detail every essential point upon which they based their decision or verdict: see R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29.

[39] The appellant is entitled to know why the judge decided what she did. The requirement is not one of perfection or exactitude but rather one of fairness. The appellant must know that his arguments were heard, properly understood, and fairly dealt with. A trial judge sitting alone need not expressly state the findings on each piece of evidence or controverted fact, provided the findings as a whole logically connect the evidence to the outcome.

[40] An examination of the Reasons for Judgment reveals that the trial judge articulates her conclusions and the basis for reaching such results.

[41] Her Reasons demonstrate that she understood and considered the litany of arguments and positions raised by the appellant in reaching her decision.

Conclusion – Conviction Appeal

[42] In the result, the appeal against conviction is dismissed.

Sentence Appeal

Standard of Review

[43] A sentence should only be varied where there has been an error in principle, an overlooked relevant factor that impacts on the sentence imposed, or the sentence is manifestly unfit: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Shropshire, [1995] 4 S.C.R. 277; R. v. M (C.A.), [1996] 1 S.C.R. 500; and R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163.

[44] Any error in law or principle may permit appellate intervention and allow the reviewing judge to substitute his or her views or opinion for that of the trial judge.

[45] Proportionality, both with respect to the gravity of the offence and the responsibility of the offender, is paramount in measuring the fitness of a sentence: see Lacasse at paras. 51 – 54.

[46] In cases involving domestic violence, courts have emphasized the principles of general and specific deterrence in order to protect the public. Where significant bodily harm has been inflicted a custodial term should normally be imposed: see R. v. Inwood, (1989), 32 O.A.C. 287 (Ont. C.A.), at para. 26.

Discussion

[47] In her thoughtful Reasons for Sentence, the trial judge acknowledged the positive nature of the appellant’s pre-sentence report which described the appellant as a devoted family man and hard-working employee, his lack of criminal antecedents, his three years on bail without incident, his gainful employment and the significant impact these changes have had on the appellant.

[48] She carefully balanced the above mitigating factors with a victim impact statement that showed the complainant continued to deal with the significant and long-lasting impact of these events and remained fearful of the appellant.

[49] After reviewing the principles of sentencing as set out in s.718 of the Criminal Code she considers the appropriateness of a discharge and determines that it is not appropriate in the circumstances. She concluded this analysis by noting “that a period of custody is required.” [7]

[50] Having determined that the need for specific deterrence has been satisfied she properly addressed the principles of general deference and denunciation.

[51] Although it would have been preferable for the trial judge to articulate reasons why she was not imposing a conditional sentence, I am satisfied that her Reasons, read as a whole, make clear that she properly considered and rejected the availability of a conditional sentence. Simply put, her failure to articulate such reasons does not equate itself to a finding that she failed to give full and fair consideration to the imposition of a conditional sentence.

[52] Her Reasons demonstrated that she was aware of the defence request for a conditional sentence and ultimately determined that the mitigating factors in this case were sufficient to permit the appellant to serve his sentence intermittently.

[53] The wide latitude afforded the sentencing judge includes the latitude of whether or not to impose a conditional sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 127, section 13.

[54] Although I may have chosen to exercise my discretion differently, there is nothing in her Reasons for Sentence that demonstrates a failure to consider or overemphasize any relevant factors nor was the sentence imposed demonstrably unfit.

[55] In Proulx, at para. 114, the Supreme Court of Canada made clear that where punitive objectives, such as denunciation and deterrence, are pressing, incarceration will generally be the preferable sanction, notwithstanding that restorative goals may still be achieved by imposing a conditional sentence.

[56] The trial judge was alive to the appropriate principles of sentencing. She properly considered the circumstances of the appellant and the relevant aggravating and mitigating circumstances. She considered alternatives to incarceration and applied the appropriate sentencing principles. She imposed a sentence that was within the acceptable range in the circumstances. These were a series of assaults with multiple injuries that were more than mere trifling and transient in nature.

[57] Her discretion merits substantial deference on review.

Conclusion

[58] In the result the appeal against sentence is dismissed.

[59] The appellant shall surrender himself to the required correctional facility by 7:00 p.m. on Friday, January 20, 2017 to continue to serve the balance of his remaining intermittent sentence.

“Justice M. A. Garson” Justice M. A. Garson Released: January 11, 2017

Footnotes

[1] The nurse testified and relying on her notes from the medical records, confirmed she recorded what the patient said and that if the patient said she was in a fight with a girl at a bar, she would have recorded it in the medical records.

[2] See lines 17 – 22.

[3] See p. 17, line 32; p. 18, line 2.

[4] See Reasons for Judgment – p. 18, lines 27 – 31.

[5] See Reasons for Judgment – p. 22, line 47.

[6] See discussion about the rule against prior consistent statements in R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, at p. 70.

[7] see Reasons for Sentence p. 9, line 14.