Court File and Parties

COURT FILE NO.: SC 17/86; SC 17/91; SC 17/93 DATE: 20181211 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Kamber Adiman; R. v. Sefkan Adiman; R. v. Ferhat Adiman and Mazlum Adiman

BEFORE: Molloy J.

COUNSEL: Andrew Max, for the Crown (Respondent) Paul Calarco, for Kamber Adiman (Appellant) Craig Bottomley, for Ferhat Adiman and Mazlum Adiman (Appellants) Nicholas Xynnis, for Sefkan Adiman (Appellant)

HEARD: October 16, 2018

Endorsement

The Appeal

[1] This is an appeal from the decision of Shandler J. of the Ontario Court of Justice on June 1, 2017 convicting the four appellants of assault causing bodily harm and the appellant Ferhat Adiman of threatening death. The trial judge found that on August 4, 2015, the four accused, acting in concert and having planned their actions beforehand, attacked and assaulted the complainant Serdar Tutuman. The trial judge further found that, during an earlier incident on August 3, 2015, Ferhat Adiman had threatened to kill Mr. Tutuman.

[2] In addition to the offences for which the appellants were convicted, there were four weapons-related charges: Sefkan Adiman was charged with assaulting Mr. Tutuman with a weapon and possession of that weapon (a piece of lumber); and Ferhat Adiman was charged with assaulting Mr. Tutuman with a weapon and possession of that weapon (a knife). The trial judge dismissed all of those charges. There is no appeal from that aspect of his decision.

[3] Subsequently, the trial judge sentenced Ferhat Adiman to 100 days’ imprisonment and suspended sentence with respect to the other three accused. There is no appeal from any of these sentences.

Count 6: Threatening Death

[4] Ferhat Adiman and Serdar Tutuman had a heated exchange on August 3, 2015, in the course of which Mr. Adiman threw a cup of coffee in Mr. Tutuman’s face. The only charge in relation to this incident was Count 6 on the information, alleging that Mr. Adiman uttered a threat to cause death to Mr. Tutuman. At trial, Mr. Tutuman testified that Mr. Adiman told him he had “an account he want to settle with [him]” and that when Mr. Tutuman closed his shop at midnight, he would be “taking care of [him] in the forest.” Mr. Tutuman said that he did not know what Mr. Adiman meant by that remark. However, he said he was afraid because he believed Mr. Adiman was going to “do something very bad” to him.

[5] In his reasons, the only factual finding made by the trial judge with respect to this charge was that Mr. Adiman threatened Mr. Tutuman. The trial judge provided no analysis for convicting Mr. Adiman of threatening death, and may not have averted to how the threatening charge was particularized in the indictment. While it could be possible to construe Mr. Adiman’s words as threatening bodily harm, there is no available inference that it was a threat to kill Mr. Tutuman, nor was it even understood that way by Mr. Tutuman.

[6] The finding of guilt on the charge of threatening death is unsupported by any evidence at trial and is an unreasonable verdict. It is set aside.

Count 1: Assault Causing Bodily Harm—Issues Raised

[7] All four accused raise similar and overlapping grounds of appeal with respect to their convictions for assault causing bodily harm, as follows:

(i) the trial judge failed to deal with the individual roles of each accused and the application of self-defence principles in respect of each of them;

(ii) the trial judge placed undue emphasis on demeanour in assessing the credibility of the complainant;

(iii) the trial judge ignored or failed to appreciate relevant evidence;

(iv) the trial judge drew inferences that were speculative, rather than evidence-based;

(v) the trial judge failed to distinguish between the credibility and reliability of the complainant’s evidence and failed to justify reliance on the complainant’s evidence in light of internal conflicts in his evidence, as well as against the evidence of other witnesses; and

(vi) the trial judge failed in his reasons to provide a rational basis for rejecting the defence evidence and accepting the complainant’s evidence.

[8] Although none of the appellants asserted as an independent ground of appeal that the trial judge reached an unreasonable verdict or that his decision should be set aside for failure to provide sufficient reasons, both propositions were raised, at least peripherally in the course of argument, and I have therefore addressed those issues as well.

The Standard of Review to be Applied on Appeal

[9] The factual findings made by the trial judge are entitled to deference on appeal and this court must not interfere in the absence of “palpable and overriding error.” It is not the task of the reviewing court to second guess the weight ascribed to the evidence by the trial judge, nor to substitute its assessment of the evidence for that of the trial judge. [1]

[10] The trial judge, having seen and heard the witnesses testify, has a unique advantage in determining issues of credibility. Provided the trial judge gives a rational explanation for findings of credibility and applies the correct legal principles, the appellate court will not intervene. A verdict based on credibility findings will only be unreasonable if the trial judge’s assessments of credibility “cannot be supported on any reasonable view of the evidence.” [2]

[11] It is a reversible error if the trial judge has fundamentally misapprehended material evidence, or failed to take into account relevant evidence, provided those errors played an essential part in the reasoning process leading to conviction. [3] However, sufficiency of reasons is not a stand-alone ground of appeal. The trial judge is not required to refer to every single piece of evidence in the course of his reasons. The reasons must be read within the context of the evidence as a whole. Reasons will be considered adequate if they provide a sufficient basis for the reviewing court to understand what has been decided and why that decision was made. [4] In particular, it is well-recognized that the process of articulating reasons for findings of credibility can be difficult and, provided a rational basis for the findings is set out, deference will be accorded. [5]

Rejection of the Evidence of Ferhat Adiman

[12] The Crown’s evidence at trial consisted of the testimony of the complainant, paramedics who treated him at the scene, and two independent eye witnesses who witnessed parts of the altercation, as well as the complainant’s medical records. The sole defence witness was the accused, Ferhat Adiman. The trial judge correctly stated and applied the principles in R. v. W.D. [6] as to the manner of assessing credibility in a case where there are competing versions of the events as between the Crown and defence witnesses.

[13] The trial judge did not believe Ferhat Adiman’s evidence with respect to key aspects of the incidents that occurred on both August 3 and August 4, 2015. With respect to the earlier incident, he found that Mr. Adiman’s version of Mr. Tutuman being the aggressor defied common sense. He also found that Mr. Adiman exaggerated and embellished his version of the event, including that six to seven people had to hold Mr. Tutuman back from attacking him and that he was scared to leave his shop after the attack. He also referred to internal inconsistencies in Mr. Adiman’s evidence. With respect to the August 4 incident, the trial judge rejected Mr. Adiman’s contention that it was pure coincidence that he happened to be in the same café as Mr. Tutuman the very next night, and that his brother and two cousins happened to arrive at the very moment Mr. Tutuman attacked him again immediately after stepping outside that café. He found these coincidences to be implausible. The trial judge also noted that Mr. Adiman’s evidence that he suggested that Mr. Tutuman step aside with him so that they could talk made no sense in light of his earlier evidence that he was afraid of Mr. Tutuman. He found Mr. Adiman’s evidence that he could discern Mr. Tutuman’s anger from his pattern of breathing to be inconsistent with his evidence that he needed to go outside with Mr. Tutuman because it was too loud inside the café to talk. Most importantly, he found Mr. Adiman’s version of the altercation with Mr. Tutuman to be completely inconsistent with the objectively proven injuries sustained by Mr. Tutuman. According to Mr. Adiman, the only contact any of the appellants had with Mr. Tutuman was to pull him off one of them when they were being attacked and that he received only incidental hits and pushes. However, Mr. Tutuman was bleeding from the head and mouth when the paramedics arrived and he lost consciousness three times while being transported to the hospital in the ambulance, during which periods he was unresponsive to verbal and painful stimuli. Upon arrival at the hospital, he was noted to be actively vomiting, with his eyes closed and unconscious. He had a broken nose and blood in his urine. He needed to be intubated. He was admitted to hospital and held there for four days before being released home.

[14] These findings of credibility were completely open to the trial judge. He was entitled to draw common sense inferences from the evidence, and none of his findings amounted to impermissible speculation as suggested by some of the appellants. Further, I find the trial judge’s reasons for rejecting Mr. Adiman’s evidence to be both careful and cogent. I understand from his reasons why he made the findings he did. There is no basis to interfere.

Assessment of the Complainant’s Evidence

[15] I do not accept the argument of the appellants that the trial judge failed to distinguish between credibility and reliability in assessing Mr. Tutuman’s evidence, or that he erred in accepting parts of his evidence after finding serious conflicts between parts of his own evidence and the evidence of others.

[16] The trial judge found Mr. Tutuman to be a truthful, credible witness. Notwithstanding that finding, the trial judge found many aspects of Mr. Tutuman’s evidence to be unreliable. He ascribed these problems with respect to unreliability to Mr. Tutuman’s confusion and inability to accurately recall details because of the traumatic impact of the event and the injuries he sustained, as well as his attempts to piece together the events of the evening after the fact. The trial judge was careful to distinguish reliability issues and those relating to credibility. He accepted that Mr. Tutuman was trying to provide his honest recollection of the events, even though his recollection was not always accurate.

[17] I find no merit to the appellants’ argument that the trial judge failed to distinguish between credibility and reliability in his reasons. In my view, the reasons demonstrate that the trial judge was fully aware of this distinction. For example, he stated (at p. 12, lines 5-12):

Following that initial attack, however, I am unable to fully accept Mr. Tutuman’s recollection of the subsequent events. I accept that Mr. Tutuman was giving the Court his honest recollection of those events but it also seems clear that his ability to accurately recall those events as the assault unfolded was impacted.

[18] The trial judge was alive to the unreliability of Mr. Tutuman’s evidence with respect to aspects of the assault that occurred after he was initially attacked outside of the café. In this regard, it is clear that the trial judge noted and gave weight to: conflicts between Mr. Tutuman’s evidence and the evidence of eye witnesses (e.g. with respect to chasing the appellants as opposed to merely walking after them); internal conflicts in Mr. Tutuman’s own evidence (e.g. his statement to the police about the knife as compared to his evidence at trial, and other things he failed to tell the police); and conflicts between Mr. Tutuman’s evidence and other objective evidence (e.g. the puncture wounds on the leg of one of the appellants, consistent with his being hit with the board with nails protruding versus the absence of such wounds on Mr. Tutuman). It was because of these discrepancies that the trial judge acquitted all of the accused on the weapons charges, convicting them only of assault causing bodily harm based on the initial attack. The trial judge’s reasons on this point are more than adequate to explain his reasoning process.

[19] It is trite law that a trier of fact may accept some, none, or all of a witness’ evidence. Just because the trial judge found Mr. Tutuman’s evidence to be unreliable with respect to how the whole of the incident unfolded, that does not mean he is required to reject every aspect of his evidence. In this case, the trial judge accepted Mr. Tutuman’s evidence with respect to how the altercation started and who instigated it. However, he found that after the initial attack in which Mr. Tutuman was injured, for a variety of reasons, it was not safe to convict on his evidence. Given the serious conflicts in Mr. Tutuman’s evidence about the final portion of his interaction with the appellants and the use of weapons, I agree with the appellants that it was incumbent upon the trial judge to explain why he nevertheless found other aspects of his evidence to be sufficiently reliable to convince him of the appellants’ guilt beyond a reasonable doubt. However, I find the trial judge’s reasons to be sufficient to support his findings in that regard.

[20] It is important to note that the trial judge found Mr. Tutuman to be an honest witness. That is a relevant factor to reasonably take into account in considering whether his evidence could be relied upon prior to the time when he sustained any injuries. Further, the trial judge looked for corroboration of aspects of Mr. Tutuman’s evidence about this and took that into account. He noted that Mr. Tutuman’s account of multiple persons attacking him was consistent with what was observed from the alleyway by Mr. Cicek (the owner of the café), and inconsistent with Mr. Adiman’s version of the altercation. The trial judge considered Mr. Adiman’s admission that all four of the accused were involved in the fray, but found that common sense required rejecting his insistence that their appearance at this critical time was mere coincidence. In coming to that conclusion, he also noted that Mr. Adiman had been the aggressor on the previous occasion, which supported Mr. Tutuman’s evidence that it was Mr. Adiman who was the aggressor again the next day. The trial judge pointed to the fact that it was Mr. Adiman, by his own admission, who led the way out of the café, with Mr. Tutuman following.

[21] It is clear from the reasons of the trial judge that he gave a great deal of thought to what he could accept from Mr. Tutuman’s evidence, and what he could not. He explained his reasons for doing both. His reasons show a rational basis for his conclusions. It is not the task of this court on appeal to dissect those reasons microscopically or to re-weigh the evidence. I am satisfied that the trial judge did not ignore salient evidence. Looking at the whole of the evidence, and applying the correct legal test, the trial judge was satisfied beyond a reasonable doubt that the initial attack happened as described by Mr. Tutuman, i.e. that Mr. Adiman lured him out of the café, where he was immediately set upon and physically assaulted by all four accused. The trial judge’s decision in that regard is entitled to deference.

[22] The appellants argued that the trial judge failed to address aspects of Mr. Tutuman’s evidence with respect to the beginning of the altercation, which they submit conflict with other evidence and therefore raise issues of reliability that needed to be resolved. In particular, they pointed out that: (1) Mr. Tutuman testified at trial that the incident started when Mr. Adiman approached his table at the café and kicked his chair, but had not told the police that; and (2) Mr. Tutuman testified that Mr. Cicek told him and Mr. Adiman to take their dispute outside, but again had not told this to the police, nor was it corroborated by Mr. Cicek. First of all, these are not actual conflicts, but rather details that Mr. Tutuman provided in his testimony at trial but did not mention in his initial interview with the police. An omission is less critical to credibility and reliability than an actual discrepancy in the evidence. Secondly, Mr. Cicek was never asked at trial if he had told Mr. Tutuman and Mr. Adiman to leave. Therefore, while Mr. Tutuman had not mentioned this to the police earlier, there is no actual evidence to contradict his evidence at trial on this point. Finally, the failure of the trial judge to deal specifically with these points is not fatal to his reasoning. As I have already noted, it is not necessary for the reasons to address each and every piece of evidence heard at trial. I am satisfied on the whole of the reasons that the trial judge made rational and supportable findings of credibility and reliability.

[23] I find the trial judge’s decision to be rational and supported by a reasonable view of the evidence. There is a clear basis for accepting Mr. Tutuman’s version of the initial aspect of the incident and, if accepted, the charge of assault causing bodily harm is made out. Further, the guilty verdict is not contradicted by evidence relied upon by the trial judge in other respects. The only other version of what happened at the outset was from the testimony of Ferhat Adiman, which the trial judge rejected. [7] The test required to set aside a verdict as unreasonable has not been met.

Reliance on Demeanour Evidence

[24] The appellants argue that the trial judge placed undue emphasis on the demeanour of the complainant in reaching his decision. There is no question that it is dangerous to give undue weight to the demeanour of a witness or to base a decision on demeanour alone. [8] The oral reasons of the trial judge in this case cover 14 pages of transcript. The appellants cite the following excerpt from the reasons of the trial judge, being the only reference to demeanour in the decision, at p. 6, lines 19-26:

Having watched and listened to Mr. Tutuman testify for the better part of three days, I do not accept that Mr. Tutuman attacked Ferhat Adiman at Mr. Adiman’s store. Mr. Tutuman is an exceedingly polite, humble and respectful 45 year old man. I do not accept that he attacked Ferhat Adiman, a 27 year old, in the doorway of his Shawarma shop.

[25] First of all, the first and third of these three sentences are not references to demeanour alone. The paragraph in which they are included goes on for another full page to consider other aspects of the evidence supporting the trial judge’s conclusion. The actual reference to demeanour is but one sentence in a long decision setting out the myriad of reasons for why the trial judge believed Mr. Tutuman, did not believe Mr. Adiman, and was satisfied on the whole of the evidence that the initial assault occurred as described by Mr. Tutuman. The case law relied upon by the appellants is readily distinguishable because of the undue reliance on demeanour, with very little analysis of anything else. In this case, the trial judge took demeanour into account, as he was entitled to do. However, it was by no means the most important, or even a significant, factor in his reasoning. He made no error in this regard.

Individualized Rulings and Self-Defence

[26] The trial judge found that the four appellants, acting in concert, planned ahead of time to ambush Mr. Tutuman. To this end, Mr. Adiman entered the café and lured Mr. Tutuman outside, whereupon Mr. Adiman and the other three appellants immediately attacked and assaulted Mr. Tutuman. I have already found that this was a factual finding that was open to the trial judge on the evidence before him. He made no further or other findings of wrongdoing against any of the appellants. On this factual scenario, it is not necessary to differentiate the roles of the individual accused in order to make a finding of guilt. They acted deliberately and in concert and each would be party to the assault of any of the others. Further, self-defence simply does not arise on these facts. As stated by the trial judge (at p. 11, line 24 to p. 12, line 3):

Ferhat Adiman, Kamber Adiman, Mazlum Adiman, Sefkan Adiman, came to the café in order to have a fight with Mr. Tutuman. They began that fight when he followed Ferhat Adiman outside the café. There was a plan in place. It was executed together. The injuries caused as a result of their collective assaults caused Mr. Tutuman bodily harm. There was no force being used against the Adimans at the time they began their assault, hence there is simply no foundation for a claim of self-defence and they will be found guilty of assault causing bodily harm.

[27] That ruling, though succinct, is supported by the reasons that precede it and correctly applies the law. I find no merit to this ground of appeal.

Conclusions

[28] For the reasons stated above, the conviction of Ferhat Adiman on the charge of threatening death cannot stand. It is set aside and I substitute a finding of Not Guilty on Count 6.

[29] In all other respects, these appeals are dismissed. In my view, the reasons of the trial judge are more than adequate to explain the basis for the conclusions he reached. He did not draw impermissible inferences, nor did he err in making findings of credibility and reliability. His finding of guilty on Count 1 as against all accused is fully supported by the evidence at trial and was a reasonable verdict in all of the circumstances.

MOLLOY J. Date: December 11, 2018