COURT FILE NO.: 14-DV6438
DATE: 2018/04/11
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. Manouchehr Zarei
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: John H. Hale, Counsel for the Defendant, Appellant Moiz Karimjee, Counsel for the Crown, Respondent
HEARD: March 21, 2018
ENDORSEMENT
[1] On September 4th, 2015 following a five day trial in the Ontario Court of Justice sitting as a Summary Conviction Court, Mr. Zarei was convicted of assaulting his wife and uttering death threats. Specifically, he was found guilty of one count of assault causing bodily harm (s. 267 (b) of the Criminal Code) and two counts of threatening death (s. 264.1 (2) of the Code). He appeals those convictions. He requests the conviction be set aside and a new trial ordered.
[2] For the reasons that follow, the appeal is dismissed.
Background & Evidence at Trial
[3] The background is set out in detail in the reasons for judgment. I will simply highlight the most pertinent facts.
[4] The complainant and the defendant were married in Iran in 1993 and immigrated to Canada with their daughter in 2013. Although the complainant alleges a long history of abuse at the hands of her husband, the offences with which the defendant was charged took place in Ottawa in March of 2014.
[5] When the family arrived in Ottawa, they lived with the complainant’s brother while waiting to move into an apartment in the building where her parents lived. According to the findings of fact in the court below, the parties argued frequently and on at least one previous occasion, the defendant had threatened to kill the complainant and her family. He also threatened to leave the country with their daughter.
[6] Because of these arguments, the complainant began to sleep in her daughter’s room at some point in February of 2014. It was her evidence that this angered the defendant and on one occasion he struck her. These are the background facts as found at trial.
[7] On March 31st, 2014 the complainant was lying down in the daughter’s room when the defendant came in and yelled at her. According to the evidence he told her that if she was still in the daughter’s room when he returned, he would kill her. The complainant testified that she told him he could not behave like that. He then put his hands around her neck and pressed on her throat though he did not choke her into unconsciousness. He then repeated the threat to kill her. During a subsequent argument when her father was present, the defendant is said to have threatened again to kill the complainant if she “did not obey me or allows others to interfere”.
[8] Although the complainant did not lose consciousness during the initial strangulation, she subsequently suffered a dizzy spell and lost consciousness. She was helped by family members. No one else witnessed the strangulation but there were witnesses to the threats and the aftermath.
[9] None of this was immediately reported to the police. Apparently, the complainant spoke to another brother in Iran and consulted with a lawyer. The involvement of the police arose following a subsequent hospital visit brought about by what appears to have been a panic attack. Though no one else witnessed the strangling incident, other family members did testify to seeing a red mark on her neck.
[10] At the trial, the judge found several of the witnesses to be less than credible but she nevertheless accepted the evidence of the complainant and rejected that of the defendant. The defendant had proposed the theory that the complaints were motivated by the complainant’s brother and family who hoped to get rid of him by having him deported. The judge did not accept that theory.
[11] In her decision, the judge applied the analysis required by R. v. W. (D.)[^1] She rejected the evidence of the accused as unreliable. She found that because of the volume of “inconsistencies, incongruities and bias” in his evidence, his evidence was unreliable and “cannot raise a reasonable doubt.” The judge then went on to consider if the Crown had otherwise proven the allegations beyond a reasonable doubt.
[12] While identifying weaknesses in the evidence of the complainant’s brother and daughter, the trial judge found the evidence given by the complainant and her father to be “straightforward” and she found the explanations given by the complainant of any inconsistencies to be reasonable. She found that overall, the complainant’s evidence was credible and reliable and was supported by the evidence of her father. The judge accepted the complainant’s evidence of what transpired in the apartment on March 31st, 2014.
[13] The court found that the accused had threatened the complainant and partially strangled her and found he had repeated threats to her parents. The accused was convicted.
Grounds for Appeal
[14] The appellant abandoned his appeal against sentence. He appeals against conviction on two grounds. Firstly, he argues that the trial judge erred in her credibility analysis by examining the complainant’s evidence in isolation rather than within the context of other Crown evidence. In essence, the appellant argues that having found the brother’s evidence and the daughter’s evidence to be unreliable, the judge should have been far more sceptical of the complainant’s evidence.
[15] The second basis of appeal is an argument that the trial judge applied a stricter standard of scrutiny to the appellant’s evidence that to that of the complainant. In effect this is a complaint that the judge approached the assessment of credibility in a manner that was not even handed. In the view of the appellant, the trial judge fixed on inconsistencies in the evidence of the accused but glossed over inconsistencies in the evidence of the complainant.
Analysis
[16] The appellant seeks to challenge findings of fact. As such, the appellant has a heavy burden of showing that a conviction cannot reasonably be supported on the evidence. The question is not whether this court agrees with the findings and conclusions of the trial judge but whether those conclusions demonstrate “palpable and overriding error”. In short, the verdict must be unreasonable and one which could not properly be reached on the record before the court of first instance.[^2]
[17] It is true that a finding of fact may be found to be unreasonable if the trial judge clearly misdirected herself on appropriate legal principles, failed to properly apply rules of evidence or exhibited bias in the treatment of the evidence.[^3] That is not the case here.
[18] The record does not substantiate the argument that the judge misapplied principles of weighing evidence. A judge does not have to set out with scientific precision how he or she arrived at findings of fact.[^4] It is apparent in reading the transcript that the trial judge believed the complainant and her father and did not believe the accused. This is the purview of the trial judge.
[19] It is true that evidence should not be artificially compartmentalized and the judge making findings of fact is obliged to consider all of the evidence in its proper context.[^5] It could be an error, for example, to base a credibility finding solely on the demeanour of the complainant without also considering all of the evidence which corroborates or fails to corroborate her evidence. The transcript does not support the argument that was done here. In the final analysis, it is for the trier of fact to determine what weight to give to the evidence and how to interpret it.
[20] Far from demonstrating unfairness to the accused, the transcript demonstrates that the trial judge was at pains to be fair. She did not accept all of the evidence tendered by the Crown but nevertheless she was favourably impressed by the testimony of the plaintiff and her father.
[21] In conclusion, I am not persuaded of any error in the court below. The appeal is dismissed.
Mr. Justice Calum MacLeod
Date: April 11, 2018
COURT FILE NO.: 14-DV6438
DATE: 2018/04/11
ONTARIO SUPERIOR COURT OF JUSTICE
RE: R. v. Manouchehr Zarei
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: John H. Hale, Counsel for the Defendant, Appellant Moiz Karimjee, Counsel for the Crown, Respondent
endorsement
Mr. Justice Calum MacLeod
Released: April 11, 2018
[^1]: 1991 CanLII 93 (SCC), [1991] 1 SCR 742 [^2]: See R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 621 [^3]: The requirements for the “uneven scrutiny” argument are discussed in R. v. Chanmany, 2016 ONCA 576, (2016) 338 CCC (3d) 578 (Ont. CA) [^4]: Supra @ para. 54 [^5]: See R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345