COURT FILE NO.: 27/19 AP DATE: 2020 06 19 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN: HER MAJESTY THE QUEEN – and – MEHDI RANJBARAN

Counsel: Michael Godinho, for the Crown Mark Halfyard, for the Appellant

Heard: June 17, 2020

REASONS FOR DECISION CONLAN J.

I. Introduction

[1] This is a Summary Conviction Appeal brought by Mr. Mehdi Ranjbaran (“Ranjbaran”).

The Proceeding in the Ontario Court of Justice

[2] In the Ontario Court of Justice sitting in Burlington, over five days from September 24 through to September 28, 2018, Ranjbaran was tried on a charge of assault cause bodily harm [section 267(b) of the Criminal Code] and six counts of simple or common assault (section 266 of the Criminal Code). Seven charges in total. The complainant in every instance was Ranjbaran’s wife, Azadeh Amri (“Amri”). The charges stemmed from various dates between September 2013 and July 2017.

[3] On September 28, 2018, the last day of the trial, after submissions were made by both sides, in oral reasons for judgment delivered by the trial Judge, Ranjbaran was found guilty of the assault cause bodily harm offence. Judgment was reserved on two counts of simple assault; in written reasons dated December 17, 2018, Ranjbaran was found guilty of those two offences as well. The remaining counts were either withdrawn by the prosecution or stayed under the Kienapple principle.

[4] The Crown called several witnesses at trial, including Amri. Ranjbaran testified in his own defence. The vast majority of the trial time was comprised of the testimony of Amri and Ranjbaran.

The Appeal

[5] This is not a sentence appeal; only the three convictions registered are being appealed by Ranjbaran. The major ground of appeal is that both the oral reasons for judgment delivered on September 28, 2018 and the written reasons for judgment dated December 17, 2018 are insufficient. Other arguments, some related to the alleged insufficiency of reasons, are that (i) the trial Judge erred in ignoring an essential element of the assault cause bodily harm offence – the objective foreseeability of the risk of bodily harm, and that (ii) the trial Judge erred in her treatment of after-the-fact conduct evidence, and that (iii) the trial Judge misapprehended certain evidence related to after-the-fact conduct, and that (iv) the trial Judge erred in her ruling about the admissibility of Amri’s evidence as to what she allegedly discussed with a doctor named Hutchinson.

[6] The remedy sought by Ranjbaran is a new trial on all three counts that he was convicted of or, alternatively, that at a minimum there be a new trial on the assault cause bodily harm offence. Mr. Halfyard, quite responsibly, for Ranjbaran, focused the hearing of the appeal on the key issue – the conviction on the assault cause bodily harm offence.

The Crown’s Response

[7] The Crown asks that the appeal be dismissed. In his usual fair and respectful manner, Mr. Godinho, for the Crown, on the major issue of whether the reasons for judgment are insufficient, concedes that they are brief and certainly not ideal but just enough to satisfy the test.

The Standard of Review and the Basic Legal Principles

[8] Ranjbaran has the burden of proof. He must persuade this Court that there is a reason to interfere with what occurred in the Court below.

[9] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.

[10] Factual findings made by the trial Judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, at paragraph 6.

II. Analysis

[11] For the reasons that follow, I have determined that the appeal must be allowed on the assault cause bodily harm matter. The conviction on that count is therefore quashed and a new trial ordered to take place before a different judge. Otherwise, the appeal is dismissed, and the convictions on the other two counts will stand.

Alleged Insufficiency of Reasons

The Legal Principles

[12] As this Court stated very recently, in its decision in another appeal from this same trial Judge that also focused on the sufficiency of the reasons or lack thereof, (i) adequate or sufficient reasons for judgment are an essential pillar of the principle of the rule of law in that every accused who is found guilty is entitled to know why the trial Judge was left with no reasonable doubt; (ii) in a credibility case, it is not open to the trial Judge to find the accused guilty without explaining how the court reconciled defects in the complainant’s evidence, including inconsistent testimony for example, especially where the accused has testified and denied the allegations; and (iii) insufficient reasons amount to reversible error. R. v. Sheppard, 2002 SCC 26, at paragraph 24; R. v. Gagnon, 2006 SCC 17, at paragraph 21; R. v. Dinardo, 2008 SCC 24, at paragraphs 25-26 and 31; and R. v. AM, 2014 ONCA 769, at paragraph 18.

The Law as Applied to our Facts

[13] I would give effect to this ground of appeal. In my view, I say respectfully, the reasons of the trial Judge delivered on September 28, 2018, related to the cause bodily harm offence, are insufficient. They frustrate proper appellate review. They do not allow this Court or Ranjbaran to know how or why he was found guilty of the offence.

[14] Examining the said reasons for judgment, delivered orally on the same day that the trial concluded and right after counsel made their submissions, the reasons spanning just 2.5 pages of transcript in total, and the reasons commencing with the phrase “I agree with and adopt the submissions on that count [the assault cause bodily harm] as made by Mr. Chiera [the Crown at trial] today”, there are two possible interpretations as to why Ranjbaran was found guilty.

[15] First, it could be that the trial Judge (i) completely rejected the evidence of Ranjbaran, who testified essentially that the ankle injury to Amri was accidental, and that the trial Judge (ii) accepted the evidence of Amri, including her assertion that Ranjbaran grabbed and forcefully twisted with his bare hands her foot and leg like a martial arts expert, causing her ankle to fracture, and thus (iii) Ranjbaran is guilty of assault cause bodily harm.

[16] That pathway to conviction was certainly open to the trial Judge.

[17] Second, it could be that the trial Judge misapplied the law and found Ranjbaran guilty of assault cause bodily harm on the basis that he assaulted Amri and the injured ankle resulted, regardless of whether there was any objective foresight of risk of bodily harm.

[18] That latter pathway to conviction, the Crown on appeal rightly concedes, was not open to the trial Judge, as objective foresight of risk of bodily harm is a necessary component of the mens rea of the offence. R. v. Palombi, 2007 ONCA 486, at paragraph 39.

[19] Because the reasons for judgment are so sparse, despite the able submissions of Mr. Godinho for the Crown on appeal, this Court is simply unable to resolve the confusion surrounding which route the trial Judge followed to convict Ranjbaran of the offence.

[20] Frankly, given the language of the trial Judge at lines 13 through 17 on page 33 of the transcript from September 28, 2018, it appears that the second pathway described above, the improper one, may very well have been employed. The trial Judge explicitly stated “[b]ut on his [Ranjbaran’s] own evidence, he is guilty under 265 of the Criminal Code of touching her [Amri] without her consent and threatening to touch her without her consent, as the phone was in her hand, as he claims he told her, ‘I will smash that phone’”. A mere fifteen lines of transcript later, a finding of guilt is registered against Ranjbaran. There is no mention anywhere in the reasons of the requirement for objective foresight of risk of bodily harm.

[21] As for the written reasons for judgment delivered later, dated December 17, 2018, regarding the two counts of simple assault that Ranjbaran was found guilty of, I agree with the Crown that they are sufficient. They are very brief in terms of analysis and findings of fact, and they are rather conclusory, but they explain to Ranjbaran why he was found guilty. His evidence was completely rejected by the trial Judge (paragraph 62), in part because he exaggerated his medical ailments (paragraph 59) and because he gave a version of events that makes no basic common sense (paragraph 61). Amri’s evidence was accepted by the trial Judge, partly because it was corroborated by the family doctor, and it was not the subject of any material inconsistencies (paragraph 62), and her evidence made out the two common assaults in question, and hence Ranjbaran is guilty of those offences.

[22] Not the “gold standard”, as the Crown on appeal put it, but enough. I agree.

Alleged Error Regarding After-the-Fact Conduct

[23] As this ground of appeal relates solely to the assault cause bodily harm offence, and this Court is ordering a new trial on that charge, it is unnecessary to decide this issue.

Alleged Misapprehension of the Evidence

[24] Likewise, as this ground of appeal relates solely to the assault cause bodily harm offence, and this Court is ordering a new trial on that charge, it is unnecessary to decide this issue.

Alleged Erroneous Ruling on the Admissibility of Evidence Concerning Discussions Between Amri and Dr. Hutchinson

[25] Assuming without deciding that the trial Judge erred in making too wide of a ruling when she struck all of Amri’s answers to defence counsel at trial (not Mr. Halfyard) about what she had said to the doctor, including why she ended marriage counselling sessions, on the rationale that a proper third party records application was required in order to elicit that evidence but had not been brought by the defence at or before the trial, I am not satisfied that the said ruling was material to the findings of guilt on the two simple assault charges. Thus, on this relatively minor ground of appeal, which was not the subject of much emphasis by either side in their written or oral submissions in this Court, I would not give effect to it.

[26] Whether the issue is material to what happened or did not happen on the date that Amri’s ankle was injured, to illuminate for example which party was more controlling and abusive and which party was more interested in saving the relationship (to borrow the themes raised at paragraph 32 of the factum filed on behalf of Ranjbaran), is a moot point because a new trial is required on that count in any event.

III. Conclusion

[27] For all of the foregoing reasons, the appeal is allowed in part. The conviction on the assault cause bodily harm count is quashed, and a new trial is ordered on that charge to take place before a different judge. Otherwise, the appeal is dismissed.

[28] Finally, this Court has not forgotten the able submission made by Mr. Halfyard that a conclusion that the oral reasons for judgment delivered on September 28, 2018 are insufficient, which conclusion this Court has reached, should result in a new trial being ordered on all three counts that Ranjbaran was found guilty of. With respect, I disagree. Having read both sets of reasons many times now, I am not of the view that the written reasons for judgment dated December 17, 2018, sufficient on their own to explain why Ranjbaran was found guilty of the two simple assault charges, were tainted by the earlier oral reasons on the assault cause bodily harm offence.

[29] I wish to thank both counsel for their helpful assistance in this matter.

(“ Original signed by” Conlan J. Released: June 19, 2020

COURT FILE NO.: 27/19 AP DATE: 2020 06 19 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MEHDI RANJBARAN REASONS FOR decision Conlan J. Released: June 19, 2019