ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-17-40000016-00AP
DATE: 20180201
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMED HELAL
M. MacDonald, for the Respondent
E. Neubauer, for the Appellant
HEARD: December 12, 2017
s.a.Q. akhtar j.
[1] On appeal from the conviction entered on 18 November 2016 by Justice Leslie C. Pringle of the Ontario Court of Justice.
Factual Background
[2] The appellant was convicted of sexual assault, contrary to s. 271 of the Criminal Code, and of entering a dwelling house contrary to s. 349.1 of the Code.
[3] On October 16, 2015, the complainant, a 22 year old woman, was living at an apartment building in Toronto with her girlfriend, K.S., and K.S’s mother. In the morning hours, the appellant, a next door neighbour, knocked on the apartment door and the complainant answered after checking to see who it was through the door’s peephole. The appellant asked if the complainant’s mother was home and engaged in further conversation. After informing the appellant to return later, the complainant attempted to close the door but the appellant prevented her from doing so by entering the apartment asking her if she had “any free time.” After the complainant ordered him to leave, the appellant lifted up her shirt and grabbed her breast. The complainant further testified that she thought that the appellant had placed his mouth on her breast.
[4] The appellant repeatedly told the complainant to remain quiet and warned her “don’t tell your mom.” At some point he asked the complainant: “how much do you charge?”
[5] The complainant pushed the appellant back to the threshold of the door. As she did so, she felt his hand reach inside the top of her pants and touch her pubic hair. She pleaded with the appellant to stop and he complied, leaving the apartment so she could lock the door. Shortly thereafter, the complainant called K.S. to tell her what had occurred and then reported the matter to the police.
[6] K.S. confirmed the complainant’s telephone call and gave evidence of her emotional state describing her as “very frantic… breathing really heavy, crying”. K.S. also told the court that she confronted the appellant over the incident and, after she persisted in her questions, the appellant admitted the acts but asked her not to involve the police.
[7] The Crown also introduced the 911 call made by the complainant and two reports prepared by the Centre of Forensic Sciences stating that the appellant could not be excluded as the source of DNA found on the complainant’s left breast, right cheek, and left cheek.
[8] The appellant denied the allegations. He told the court that, as he was unemployed, he would often assist his neighbours in running errands. He testified that, on the morning of October 16, 2015, he had driven his family to school and went to the apartment to enquire if K.S.’s mother, M., needed help. When the complainant opened the door, the appellant thought she was one of M.’s daughters.
[9] According to the appellant, the complainant invited him into the apartment and began to make sexual advances. He told the court that the complainant exposed her breasts and asked him whether he would like “to have fun with this wet pussy” as she pulled her clothing down to reveal her genital area. Taking her up on her invitation, the appellant began to touch the complainant’s vagina and asked if she had any “free time” so that they could continue.
[10] The appellant testified that the complainant replied that she had sufficient time but there could be no further sexual activity in the apartment because her sister was present. The appellant decided that he would check that there was no one in his own apartment so that they could resume their sexual activity there. The complainant agreed. The appellant then asked the complainant how much the sex would cost and she told him that he could pay later.
[11] After confirming his unit was vacant, the appellant returned to the complainant’s apartment but she told him to wait outside. Seeing another neighbour, the appellant had a revelation and realised that what he was doing was contrary to his religious beliefs, and had been caused by the devil or some other evil source. Instead of waiting for the complainant, the appellant accompanied a neighbour to a local store to help with grocery shopping. When he came back, he found the complainant and her mother waiting. They were armed with a broom and a knife and began to shout at him. The appellant testified that he apologised to them but felt he had done nothing illegal.
[12] The appellant insisted that the complainant fully consented to any sexual activity that had occurred.
[13] The central issue in this case was credibility. The trial judge rejected the appellant’s evidence finding that it did not raise a reasonable doubt. Turning to the Crown’s case, she accepted the complainant’s evidence and found the appellant guilty.
Grounds of Appeal
[14] The appellant advances the following grounds of appeal:
The trial judge rejected the appellant’s evidence on the basis of speculation rather than fact;
The trial judge applied different standards of scrutiny when assessing the testimony of the complainant and the appellant;
The trial judge misapprehended material parts of the evidence.
Did the Trial Judge Rely on Speculation in Rejecting the Appellant’s Evidence?
[15] After reminding herself of the test in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge gave three reasons for rejecting the appellant’s evidence. This passage is reproduced as follows:
First, it seemed exceedingly far-fetched that a 22-year-old would throw herself at a stranger who was over 30 years her senior. While I take Mr. Rabinovitch’s point, that simply because an event is farfetched doesn’t mean it didn’t happen, it’s definitely a factor to consider in this case.
Second, Mr. Helal’s account in court was often emphatic and loud regarding what he said happened, yet he was unable to recall what [the complainant]was wearing when she came to the door and, according to his account, thrust herself upon him. While he insisted that she was the one propositioning him, he couldn’t say whether she was wearing a shirt at the time, couldn’t recall if she was wearing a bra, and couldn’t recall what she was wearing down below except that it was short.
Finally, his account that [the complainant] was pushing herself on him, at the same time that she was telling him her sister was upstairs, made no sense.
[16] The appellant takes issue with all three reasons suggesting that the trial judge engaged in speculation rather than factual analysis. I disagree.
[17] First, paragraphs of the trial judge’s reasons cannot be read in isolation but in the context of the evidence, submissions, and the reasons as a whole. The judge made it clear that she believed the complainant’s evidence, finding it to make sense alongside the rest of the evidence in the case. It should be remembered that the judge also had the benefit of K.S.’s evidence and the 911 call.
[18] In this context, the judge’s conclusion that, it was far-fetched that the 22 year old complainant would throw herself at the appellant, a person much older and barely known to her, was more than reasonable.
[19] I reject the appellant’s description of the judge’s analysis as being speculation. A judge is entitled to assess the truthfulness of a witness by reference to the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: R. v. M.G. (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at para. 28 quoting O’Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A). That was exactly what the judge did in this case.
[20] This ground of appeal fails.
Uneven Scrutiny of the Evidence
[21] The appellant further argues that the judge applied different standards of scrutiny whilst assessing the respective testimonies of the complainant and the appellant.
[22] There is an established line of jurisprudence that acknowledges the high threshold set for this ground of appeal to succeed and the rarity of its success: R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 26; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 97; R. v. George, 2016 ONCA 464, [2016] O.J. No. 3116, at para. 35; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 18.
[23] In essence, this argument becomes a criticism of the trial judge’s findings of credibility to which appellate courts award great deference. This route of attack invariably transforms into “a thinly-veneered invitation to re- assess the trial judge's credibility determinations and to re-try the case on an arid, printed record”: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23.
[24] The test for assessing different standards of scrutiny was set out by Doherty J.A. in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59:
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.
[25] In my view, the appellant has failed to identify anything in the judge’s reasons that would fall within the description set out in Howe.
[26] The inconsistencies in the complainant’s evidence relied upon by the appellant were minor and could not possibly have impacted her credibility. It was more than reasonable for the trial judge to have ignored or dismissed them. It must be emphasised that a trial judge’s determination on the significance of inconsistencies is to be given great deference on appeal: R. v. Petzelt (2005), 2005 CanLII 12680 (ON CA), 197 O.A.C. 72, at para. 3; R. v. J.H. (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 46; R. v. Doodnaught, 2017 ONCA 781, at paras. 80. It is also worth noting that the judge need not detail each and every finding on every disputed fact: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20; R. v. Campbell, 2017 ONCA 209, [2017] O.J. No. 1371, at para. 15; Doodnaught, at para. 81.
[27] With respect to the appellant’s own evidence, I agree that his emphatic nature and loudness whilst testifying were not factors affecting his credibility. This, however, was one of several reasons given for rejecting his version of events. There is no doubt that the appellant’s inability to remember whether the complainant was wearing a bra or underwear was a proper item of consideration. The appellant testified that the complainant invited him to fondle her breasts and touch her genitals. This was not an everyday occurrence and it defies common sense that in these unique circumstances the appellant would not be able to recall whether the complainant was wearing under clothing. It could hardly be said that disbelief of this point constituted an unjustified standard of assessment of the appellant’s testimony.
Finally, it is no error for the judge to reject aspects of the appellant’s testimony on the basis of a reasoned acceptance of the complainant’s testimony: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, at para. 53; R. v Roy, 2017 ONCA 30, at para. 23.
[28] An objective view of the record does not reveal differing standards of scrutiny of evidence. For these reasons, this ground of appeal also fails.
Misapprehension of Evidence
[29] The appellant complains that the trial judge misapprehended his testimony erroneously causing a rejection of his evidence and the incorrect imputation of a motive to commit the offence.
[30] In R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60, the Court of Appeal for Ontario summarised the law on misapprehension of evidence in the following way:
A misapprehension of the evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge's reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge's treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T.) (2009), 2009 ONCA 613, 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.
[31] The appellant points to two items in advancing this ground of appeal.
[32] First, he claims that the trial judge’s conclusion that the appellant’s testimony that the complainant “was pushing herself on him, at the same time she was telling him her sister was upstairs, made no sense” was a misapprehension of the evidence. According to the appellant he provided “full explanation” as to why the complainant might have made advances even though her sister was in the apartment. With respect, this does not constitute a misapprehension of the appellant’s evidence but a rejection of it, something within the purview of the trial judge.
[33] Second, the judge’s view that the appellant’s made no sense is perfectly reasonable: if the complainant wanted to have sex with the appellant, as he testified, there was no reason for her to put off the appellant by telling him that her sister was at home when she was not.
[34] Third, the appellant argues that the judge committed a similar error when determining the appellant’s motive for committing the offence. In her reasons, the judge articulated the motivation for the offence by stating:
I agree with Mr. Rabinovitch that [the complainant’s] account of a stranger accosting her and sexually assaulting her at her door was surprising. However, considering Mr. Helal’s own evidence about how he viewed [the complainant], it seemed entirely understandable to me. By his own account, Mr. Helal found the complainant to be very, very sexy. He acknowledged that he was unable to control himself and that he had acted contrary to his conscience with her.
[35] According to the appellant this was an error because the appellant testified that he “did not find the complainant attractive but found her sexually suggestive actions and comments to be attractive.”
[36] I disagree. At one point in his cross-examination, the appellant did agree that he found the complainant to be “sexy” even though later on he added that it was her actions that formed the basis for his attraction. Again, the judge’s reasons were not a misapprehension of the appellant’s evidence but an acceptance that he was sexually aroused by the complainant. That acceptance was accompanied by a rejection that the complainant had acted in a provocative manner causing the appellant to become aroused.
[37] For the above reasons the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 1 February 2018
COURT FILE NO.: CR-17-40000016-00AP
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMED HELAL
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.