Court File and Parties

COURT FILE NO.: CR 17 663-00AP DATE: 2018 09 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Christina Sibian, for the Crown Respondent

- and -

FAWZI KAMAKH Anser Farooq, for the Appellant Appellant

HEARD: September 13, 2018

REASONS FOR JUDGMENT

Baltman, J.

[1] This is an appeal by the accused from his conviction by Bovard J. of criminal harassment under s. 264(2) of the Criminal Code.

[2] The appellant relies on three grounds:

1. Trial counsel’s conduct amounted to ineffective assistance of counsel, undermining the appellant’s right to a fair trial;
2. The trial judge erred in refusing to allow the appellant to further cross-examine the complainant after a Browne v. Dunn issue arose, resulting in an unfair trial; and
3. The evidence did not support a finding of guilt on criminal harassment.

[3] For the following reasons I would dismiss the appeal in its entirety.

Factual Background

[4] The following is a summary of the undisputed evidence from trial.

[5] The appellant was at the relevant time a self-employed electrical contractor. The complainant worked at an electrical supply store as a counter sales person.

[6] The appellant frequently ordered and picked up supplies from the store. He developed a fondness for the complainant and made several overtures to her, which she rejected. He nonetheless persisted, alleging that she was “playing a game” and in fact wanted him to pursue her.

[7] Eventually, the management discontinued his account and banned him from the store. Moreover, the complainant, her supervisor, some co-workers and the police told the appellant that the complainant wanted nothing to do with him and to stay away from her.

[8] When the appellant continued in his efforts, the police charged him with this offence. Shortly after, he alleged that the complainant was in fact stalking him, a claim she denied.

Submissions and Analysis

Issue #1: Did the trial counsel’s conduct undermine the appellant’s right to a fair trial?

[9] Trial counsel was the appellant’s third lawyer on this matter. Before the appellant was arraigned trial counsel advised the court that, against his recommendations, the appellant declined to consider a settlement offer made by the Crown and that the appellant refused to sign written instructions to that effect.

[10] The appellant argues trial counsel breached his duty by disclosing those discussions to the court. I agree it would have been preferable for counsel not to divulge that information to the court. However, the bar for establishing ineffective assistance of counsel is high. More importantly, our Court of Appeal has stated that “the burden is on the appellant to establish not only that trial counsel’s performance was incompetent, but crucially, that the appellant was sufficiently prejudiced by counsel’s inadequate performance that it amounts to a miscarriage of justice”: R. v. D.S., 2017 ONCA 131, at para. 11. See also R. v. Archer (2005), 202 C.C.C. (3d) 60, at paras. 118-121; R. v. S. (R.), 2016 ONCA 655, at para. 44.

[11] In this case there is no indication whatsoever that the impugned statements by counsel affected the trial judge’s neutrality or the fairness of the trial process. On the contrary, the trial judge repeatedly cautioned against any further disclosure of solicitor client communications and instead encouraged the appellant and trial counsel to attempt, if possible, to resolve their dispute. Following a recess the appellant advised the court he wished to proceed with the trial and wished to have trial counsel continue to represent him. The trial proceeded in that fashion until the end of the appellant’s evidence, whereupon he fired his counsel and represented himself for the remainder of the trial.

[12] Furthermore, it is clear from the record that the evidence supporting a conviction in this case was prodigious. I cannot see how the impugned remarks by counsel made any difference to what was already an overwhelming case for the Crown.

Issue #2: Did the trial judge err in refusing to allow the appellant to further cross-examine the complainant after the Browne v. Dunn issue arose?

[13] During his testimony at trial the appellant asserted that, contrary to the Crown’s allegations, the complainant had in fact stalked him. Because defence counsel failed to put those allegations to the complainant when cross-examining her, the trial judge permitted the Crown to adduce reply evidence from the complainant to rebut any suggestion that she had pursued the appellant. However, the trial judge denied defence counsel’s request to cross-examine the complainant’s reply evidence on this point.

[14] As the trial judge himself later noted, he may have erred in disallowing cross-examination of this reply evidence. The issue, however, is moot, as the Crown decided not to rely on the complainant’s reply testimony. To the extent the trial judge considered any allegations of her “stalking” it was based solely on the appellant’s testimony on that issue, and the obvious absurdity of his assertions. The Crown did not need reply evidence to demonstrate that any allegations of reciprocal stalking were utterly unfounded. It was clear from all the other evidence that the appellant knew the complainant had declined his many advances and wanted nothing to do with him.

Issue #3: Did the trial judge err in concluding the evidence supported a finding of guilt?

[15] The appellant concedes that the evidence establishes the actus reus of the offence. He disputes, however, two elements of the mens rea requirement set out by our Court of Appeal in R. v. Kosikar, [1999] O.J. No. 3569 (C.A.), namely a) the appellant knew that the complainant was harassed or was reckless or wilfully blind as to whether she was harassed, and b) the conduct caused the complainant to fear for her safety.

[16] Given the following evidence, neither objection is tenable:

• The complainant told the appellant to leave her alone and that she was uncomfortable with his advances;
• Her co-worker told the appellant that the complainant was afraid of him, and he then apologized;
• The appellant was barred from a business he had regularly attended as a customer because of his conduct toward the complainant;
• After the complainant reported the problem to the police, P.C. Oldham told the appellant to no longer attend the business or have contact with the complainant.

[17] That evidence completely undermines any suggestion by the appellant that the complainant was “playing a game” or acting “hard to get”. Not only was she afraid of him, but he knew – or was wilfully blind to the fact – that she had firmly and unequivocally rejected him. Nonetheless he continued in his pursuit.

Conclusion

[18] For the reasons set out above the appeal is dismissed.

Baltman J. Released: September 17, 2018