Court File and Parties
COURT FILE NO.: 17-13211-AP
DATE: 2019/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent Crown
– and –
Sherif Saleh
Applicant
Moiz Karimjee, for the Respondent Crown
Self-represented, for the Applicant
HEARD: October 10, 2019 (at Ottawa)
WARNING
These Reasons for Judgment contain information that identifies alleged victims in a criminal proceeding. In that proceeding, publication bans were ordered pursuant to ss. 486.4(2)(b) and 486.4(2.2)(b) of the Criminal Code of Canada. Pursuant to ss. 486.4(1)(a)(i) and 486.4(2.1) of the Criminal Code, any information that could identify the alleged victims shall not be published in any document or broadcast or transmitted in any way.
REASONS FOR JUDGMENT
Parfett j.
[1] This matter is an Application brought by the Applicant for payment of legal fees pursuant to s 684 of the Criminal Code.[^1] For the reasons outlined below, the application is denied.
Background
[2] The Applicant, Sherif Saleh, was found guilty after trial of one count of sexual assault.
[3] The trial judge found the facts to be as follows. The complainant worked in a kiosk at the Bayshore Mall in Ottawa. It was her job to invite passersby to come into the showroom and examine two Mercedes Benz cars that were on display with a view to generating interest in the vehicles. The complainant invited the accused into the kiosk where they engaged in a conversation about the products and their personal lives. The conversation contained sexual overtones. Ultimately, the encounter escalated to sexual touching. The complainant indicated that Mr. Saleh proposed a one-night stand, kissed the complainant and touched her on her breasts and buttocks, over and under her clothing and ultimately, tried forcefully to get her to leave the mall with him. The complainant alleged that all this activity was non-consensual. It was the Applicant’s position at trial that some of the sexual touching occurred, but was consensual or alternatively, there was an honest belief in consent. The trial judge rejected this position.
[4] The Applicant appealed the trial decision on the basis that the trial judge misapprehended the evidence, curtailed cross-examination of the complainant, demonstrated bias towards the Applicant and that the sentence imposed was excessive.
[5] At this hearing, the Applicant focused on the issues of misapprehension of the evidence and bias.
Legal Principles
[6] Section 684 of the Code reads:
A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
[7] Before the court can consider an application under this section, the Applicant must demonstrate that he has applied to, and been refused, legal aid or alternatively, demonstrate that that would be futile.[^2] In the present case, the Applicant has demonstrated he is not in a position to obtain legal aid.
[8] The section requires the court to address two issues: first, is it in the interests of justice to appoint counsel and second, does the accused have insufficient means to obtain legal counsel on his own?
[9] The first branch of the test requires the court to inquire into the merits of the appeal. However, in most cases, the available record will be incomplete, consequently, this inquiry need not do more than assess whether the appeal is arguable.[^3] Despite the low threshold, the Applicant must do more than make bald statements; there must be evidence or law to support any allegation of error by the trial judge.[^4]
Analysis
[10] The Crown conceded and I agree that based on the documentary evidence filed in this matter, the Applicant lacks the financial means to retain counsel in this matter. The Applicant applied for but was denied legal aid and has exhausted all avenues of appeal in relation to legal aid. Thus, the Applicant meets the prerequisite for bringing this application and has met his burden in relation to the second branch of the test on this application.
[11] This matter turns on whether the Applicant can demonstrate that he has an arguable appeal. In my view, and for reasons that I will elaborate on, I do not believe that he has an arguable appeal. Even if the Applicant succeeded in demonstrating there was an arguable case on appeal, he would also have to satisfy the court that he could not effectively represent himself on the appeal without the help of a lawyer.[^5]
[12] As noted earlier, the Applicant relied in his argument on two grounds of appeal: misapprehension of the evidence and bias.
[13] At the outset, it is important to note that in assessing the grounds of appeal raised by the Applicant, the court is not permitted to substitute its view for that of the trial judge. This court may disagree with the trial judge’s findings, but nonetheless conclude that those findings were properly grounded in the evidence.
Evidentiary issues
[14] The Applicant alleged that the trial judge was aware of, but failed to adequately reconcile, implausibilities and inconsistencies in the complainant’s evidence. Specifically, the Applicant pointed to the following evidence:
- His evidence that he did not touch the complainant’s breasts under her clothing, and he could not have done so given she was wearing a fitted, button-down blouse;
- The testimony that he was determined to take the complainant home with him that night for a one-night stand and which the Applicant denied he ever stated;
- The complainant was inconsistent in her testimony in relation to whether she had ever communicated to the accused that she did not consent to the sexual touching;
- The complainant was inconsistent in her evidence about how frequently she was touched by the accused;
- The complainant admitted she was the one who initiated the sexual overtones to the discussion;
- The complainant willingly engaged in the two “contests” that the accused initiated;
- The complainant testified that she was in a good mood until the sexual touching started, but had said in her police interview that she was in a good mood throughout the encounter; and
- The video introduced into evidence by the Crown supported his contention that the complainant was willingly walking with him in the mall.
[15] In my view, the trial judge gave cogent reasons why he made the findings he did. Moreover, it is important to note that the trial judge is not required to address every implausibility or inconsistency in the evidence, so long as any significant concerns raised by the evidence or any major inconsistency is dealt with in the reasons.
[16] The trial judge addressed the allegation of the implausibility of the accused touching the complainant both over and under her clothing and indicated he did not find the testimony implausible. He noted that, “given Mr. Saleh’s admission of this mentality [of using trick questions and guessing games to further sexual contact] and this approach to achieving his objective of bringing [the complainant] home at night, I find it difficult to accept his assertion that he was not prepared to go further in the showroom by touching [the complainant’s] breast or buttocks over or under her clothing on a total of three to five occasions throughout the interaction.”[^6] The trial judge did not specifically address the issue of the complainant’s clothing, but he articulated why he did not find the testimony of the complainant implausible.
[17] On the issue of the “one-night stand,” the trial judge indicated that Mr. Saleh insisted throughout his cross-examination that he believed the complainant was “leaving the door open” to the possibility of a one-night stand. He outlined in detail the evidence given by the accused that led to his conclusion that Mr. Saleh refused to accept that the complainant had turned down his request for a one-night stand. In the circumstances, I find that the trial judge’s finding was reasonable.[^7]
[18] The trial judge also addressed the issue of the complainant’s uncertainty with respect to whether she had communicated her lack of consent and the inconsistency with respect to the number of times she testified she was touched by the accused.[^8] On the issue of communication of lack of consent, the trial judge stated:
In cross-examination when it was suggested to her that she did not express disagreement with Mr. Saleh’s touching of her, she strongly disagreed. At this point in her evidence she maintained instead that once Mr. Saleh reached over and started touching her breasts and buttocks while they were seated in the chairs, that she told him to stop and was pushing his hand away. This was somewhat different from the evidence she’d given earlier in-chief where she was far less certain as to whether she had said anything at all in response to Mr. Saleh’s touching of her.
[19] The trial judge then addressed these issues as follows:
These two sole instances of apparent inconsistency in [the complainant’s] account do not cause me any significant concern when considered against the backdrop of her evidence as a whole. I disagree with the suggestion of defence counsel that [the complainant] was at other points in her evidence being deliberately difficult or obtuse….
With respect to her evidence that Mr. Saleh would return to touching her every time people passed in the hall, I took this evidence as an expression of how persistent she felt Mr. Saleh to be in his physical advances towards her, not as an articulation of the number of times that he touched her.[^9]
[20] Moreover, the trial judge also concluded that,
[The complainant’s] evidence that she was caught off guard by Mr. Saleh’s actions, and her difficulties in recalling exactly what she said or did in response to them, make sense when placed in the context in which the events occurred. Again, it must be recalled that [the complainant’s] testimony that she was kissed on the mouth by Mr. Saleh, that her buttocks were struck by him, and that he also caressed her breast and kissed her on the neck while they were seated in the showroom, were all corroborated by Mr. Saleh himself.[^10]
[21] The trial judge noted in his reasons that the complainant had admitted she was the person who introduced a sexual tenor to the conversation with Mr. Saleh. In his reasons, the trial judge found that this evidence increased the complainant’s credibility rather than detracting from it.[^11] Furthermore, the trial judge stated:
One can readily understand how this would be, though the conversation taking place between Mr. Saleh and [the complainant] at that point may have been flirtatious in tone and sexually suggestive, no one in [the complainant’s] shoes would reasonably anticipate that a person they had just met would take the step of kissing them in the middle of their workplace inside a public mall.[^12]
[22] The evidence indicated that the complainant did participate in the two guessing games initiated by the Applicant. However, the trial judge did not agree with the Applicant’s assertion that the complainant’s engagement in these “contests” indicated that she consented to the sexual “consequences” of losing the guessing games. The trial judge stated:
Mr. Saleh’s evidence was that he obtained [the complainant’s] consent for these actions as follows. He got her to agree to the first kiss by virtue of a ‘tricky question’ that he posed to her, telling her that he was going to ask her a question and if she answered yes, he got to kiss her. He asked her if she was ready, which of course was a trick part of the question, and she answered yes. Such an answer to what is clearly a trick question, could never in our criminal law be confused with real or actual consent…. Similarly, Mr. Saleh’s belief that when [the complainant] agreed to play a game wherein she would guess his age, is in no way, shape or form a legally viable means of obtaining real or actual consent.[^13]
[23] There is no legal error in the trial judge’s analysis of the effect of the complainant’s participation in the two “contests”.
[24] The reasons for judgment do not address the issue of the inconsistency between the complainant’s testimony that she was in a good mood until the sexual touching and what she said in her police interview. The police interview was not entered into evidence at this application, making it difficult to assess the degree of the inconsistency alleged by the Applicant. However, in my view, this oversight would not be sufficient of itself to require a new trial.
[25] The final evidentiary issue is that of the video evidence. The Applicant insisted that the video evidence supported his testimony that the complainant was a willing participant throughout the events. However, the trial judge disagreed with the Applicant’s contention. Instead, he found the following:
Lastly, having reviewed the video evidence and what happened at centre court, I find it impossible to accept Mr. Saleh’s evidence that [the complainant] simply gave him her hand upon request. That evidence is not supported by a review of the videotape. Rather, Mr. Saleh takes her hand as she was turning away from him. This occurs shortly after Mr. Saleh admits to tricking [the complainant] into taking his hand while they were walking through the mall, having pretended to retrieve something from his pocket to give her, then taking hold of her hand when she reflectively went to accept the pretend item from his pocket.[^14]
[26] In conclusion, I find there is no arguable case to be made that the trial judge came to unreasonable findings in relation to the evidence or failed to address and reconcile inconsistencies in the complainant’s evidence.
Bias
[27] The Applicant alleged that the trial judge was predisposed to believe the complainant from the outset of the trial. He indicated that the judge’s tone in responding to arguments raised clearly demonstrated bias.
[28] The Applicant could not point to any specific statement in the reasons for judgment that in his view demonstrated bias and a careful review of the reasons for judgement filed in this application do not reveal any bias on the part of the trial judge.
Conclusion
[29] In my view, there is no arguable case on appeal. In any event, the Applicant – far from persuading me that he required counsel to assist him with his appeal – did an admirable job of representing himself. The issues raised by the Applicant on his appeal are not so complex that he could not handle the appeal himself.
[30] As a result, the application is denied.
Madam Justice Julianne Parfett
Released: November 4, 2019
COURT FILE NO.: 17-13211-AP
DATE: 2019/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent Crown
– and –
Sherif Saleh
Applicant
REASONS FOR JUDGMENT
Parfett J.
Released: November 4, 2019
[^1]: Criminal Code, R.S.C., 1985, c. C-46 [^2]: R. v. Fournier, 2006 20526 (ON CA), [2006] O.J. No. 2434 at para. 9 (C.A.) [^3]: R. v. Bernardo, 1997 2240 (ON CA), [1997] O.J. No. 5091 at para. 22 (C.A.) [^4]: See R. v. Abbey, 2013 ONCA 206, [2013] O.J. No. 1460 (C.A.) at para. 37. [^5]: Bernardo at para. 21. [^6]: Reasons for Judgment, Tab 3 of Application Record at p. 39. [^7]: Reasons for Judgment, Tab 3 of Application Record at p. 37-38, 39 & 40. [^8]: Reasons for Judgment, Tab 3 of Application Record at p. 33-35. [^9]: Reasons for Judgment, Tab 3 of Application Record at p. 34. [^10]: Reasons for Judgment, Tab 3 of Application Record at p. 35-36. [^11]: Reasons for Judgment, Tab 3 of Application Record at p. 29 & 30. [^12]: Reasons for Judgment, Tab 3 of Application Record at p. 35. [^13]: Reasons for Judgment, Tab 3 of Application Record at p. 43-44. [^14]: Reasons for Judgment, Tab 3 of Application Record at p. 41.