Court File and Parties
Court File No.: CR-19-40000062-00AP Date: 2020-06-24 Ontario Superior Court of Justice
Between: Her Majesty The Queen, Respondent And: Mohanned Muawia Khalil Mohammed, Appellant
Counsel: Scott Clarke, for the Crown Ines Gavran, for the Appellant
Heard: May 26 and June 9, 2020
Judgement on Appeal
B.P. O’Marra J.
Overview
[1] On May 6, 2019 the appellant was convicted in the Ontario Court of Justice of Sexual Assault contrary to s. 271 of the Criminal Code. The Crown called four witnesses including the complainant and her boyfriend. The appellant testified in his defence and denied that any sexual activity took place. The appellant was sentenced to 18 months in prison. He now claims that errors by the trial judge require that the conviction be vacated and an acquittal be entered. In the alternative he seeks a new trial.
Grounds of Appeal
[2] In this case, where the credibility of three key witnesses including the accused was crucial, the appellant claims that the trial judge made the following errors:
- Failed to properly appreciate material evidence;
- Applied uneven scrutiny to defence evidence;
- Failed to address issues of credibility and reliability related to the two key Crown witnesses;
- Failed to properly apply the principles of reasonable doubt to the evidence of the appellant and reversed the onus of proof on a critical issue;
- Relied on inadmissible material not properly before the court; and,
- Failed to provide adequate reasons for judgement.
Evidence at Trial
[3] The date of the alleged offence was May 22, 2017. Evidence and submissions were heard over the course of two days on April 3 and 4, 2019. The complainant R.A. was 18 years old at the time of the alleged offence. The appellant was 32 years old.
[4] The appellant met R.A. for the first time at a community fundraiser on the evening of May 21, 2017. They spoke to each other briefly. The appellant testified that he asked her if she had any plans for the rest of the evening and that she said she did not. He then asked a friend of his to drop himself and R.A. off at a subway station. He said that he and R.A. took a train and streetcar from there until they reached a bar.
[5] R.A. testified that she left the fundraiser on foot at about 11 p.m. and headed for a subway station. As she walked she was approached by a car with the appellant and another man inside. They asked her if she wanted a ride to the subway station. She declined and kept walking. She said the two men followed her and said it would not be an inconvenience for them to drive her. She then accepted their offer of a ride. The appellant told the driver that he wanted to go downtown. When the car arrived at the subway station the appellant got out with R.A. She did not expect that. He went with her into the subway. He tried to convince her to go downtown with him. She told him she had to sleep at a friend's house in order to convince him that she did not want to go with him. She said that he stopped her from getting off the subway by urging her to stay seated. She found his tone a bit intimidating. He motioned for her to sit and she felt pressured to go with him. She stayed on the subway and went with him to a bar.
[6] The appellant testified that while they were in the bar R.A. had one mixed drink that was ordered from and delivered by the waiter. Throughout their time there she did not appear to be intoxicated. They danced and played pool with another couple they met there. When the bar closed they took a cab to the appellant's apartment so R.A. could stay there until the subway opened up in the morning.
[7] R.A. testified that after they arrived at the bar the appellant bought a drink for each of them. The appellant wanted to dance with her and she did so briefly. He kissed her on the lips but she did not want him to. She was not comfortable dancing with him so she danced with another woman. She later used the washroom and wanted to leave. As she exited the washroom the appellant was waiting just outside. She tried to avoid him and started playing pool with other people she did not know. The appellant stood by. She did not recall having any more drinks but felt intoxicated. It was unusual for her to feel that way after just one drink. She did not have a clear memory of the rest of the evening, but remembered parts of it. She did not recall leaving the bar or later events until some aspects of the non-consensual sex later in the appellant's home.
[8] The next thing R.A. remembered was being in the appellant's bedroom and the sexual intercourse. She did not want to do it and did not agree to do it. She did not recall how her clothes came off. She was on her back on the bed. The appellant was on top of her with his elbows on her shoulders and his body weight on her. At some point she felt as if the appellant was wearing a condom. At another point she felt one was not being worn. She was in pain and unable to move. The appellant said it was okay. In cross-examination R.A. said that she did not recall seeing a prominent scar on the appellant's arm at any time. A photo of that prominent scar was filed as an exhibit and was identified by the appellant. R.A. did not recall how the intercourse ended but recalled that the appellant's roommate entered the room and had a lengthy conversation with the appellant in Arabic. She went to the washroom and waited for the appellant to fall asleep so she could leave. However, when she went to leave the appellant followed her and asked for her phone number. She did not want to give it to him but did so because the appellant said he was going to call the number before she left to make sure it rang. She then left and went to her mother's home. She did not tell anyone there what had happened. She went to Planned Parenthood later that month and obtained a "morning after pill" and also underwent a test for sexually transmitted diseases.
[9] The appellant testified to a very different series of events. He said he had a brief discussion with his roommate after R.A. entered his bedroom. The appellant and R.A. then talked and listened to music for 30-40 minutes. He asked her if she was going out with anyone. She said she was going out with a guy she had met. The appellant said he found that comment to be a "turn off" but was still interested in her. He fell asleep. He denied that there was any sexual activity with R.A. while she was in his residence. He was awoken by R.A. at about 4 or 5 a.m. that morning. Before she left the residence, he asked for her phone number and asked her to let him know that she had arrived home safely. She gave him her number. He did not receive any calls from her thereafter.
[10] R.A. testified that she had varying degrees of contact or observations of the appellant three times over the ensuing several months. In October 2017 she was out with friends in the Ossington and Bloor area. She saw the appellant nearby. The appellant followed her and tried to talk to her. She did not want to talk with him. She said “hi” and then walked away. She and her friends crossed the street and the appellant followed. She got into a cab and went to her boyfriend's home. Traffic was slow and congested. She feared that the appellant may have followed her to her boyfriend's home.
[11] The second contact was when R.A. was on a bus with her boyfriend on the way to the Gladstone Hotel. She saw the appellant on the bus. The appellant got off the bus at the same stop as R.A. and her boyfriend. She told her boyfriend to walk quickly. She saw the appellant walking at the same speed and very close to them. She did not see the appellant follow them to the Gladstone Hotel. However, when they left the Gladstone a few hours later she saw the appellant again on the street.
[12] The third contact was in early January 2018. R.A. and her boyfriend were walking towards his home at about 4 a.m. She saw the appellant standing near her boyfriend's home. She felt anxious and threatened and did not want any further contact with the appellant. Later that day she went to a police station and provided a statement about what had happened to her and the aftermath.
[13] R.A.'s boyfriend testified that R.A. told him in October 2017 about the sexual assault. Later that fall, she and R.A. were together on their way to the Gladstone Hotel. R.A. suddenly became anxious and fearful. R.A. hurried her boyfriend into the Gladstone Hotel. She told him that the man who had sexually assaulted her was following her. Her boyfriend saw a man pass by the door but did not see his face.
[14] Her boyfriend referred to a further incident that occurred in early December 2017. He was with R.A. at about 4 a.m. as they walked towards his home. R.A. again became fearful as she said she saw the man who had sexually assaulted her close to her boyfriend's home. She told her boyfriend that she was sure it was him. Her boyfriend approached the man who casually walked away. Her boyfriend tried to engage the man in conversation and asked his name. The man said he was “Mohammed Akeel” but may have said “Mohammed Khalil.”
[15] The next day the boyfriend and R.A. contacted the police about all of these events. There was no dispute at trial that the police were first contacted by R.A. and her boyfriend on January 28, 2018.
[16] The appellant testified that the only incidental contact he had with R.A. after May 22, 2017 was in November 2017. He saw her with some of her friends near a subway station. He said “hi” to her. She acted as if she did not want to engage with him in any way and walked on with her friends. In examination-in-chief the appellant testified that he felt that R.A. had been sexually interested in him when they had been in his bedroom and that she may have been disappointed that he did not reciprocate. The appellant denied any further contacts of any sort between him and R.A. He specifically denied the alleged incident near the home of R.A.'s boyfriend. The defence at trial filed a logbook as evidence that the appellant was working at two other locations between 6 p.m. on January 21 and 6 a.m. on January 22, 2018. The appellant could not recall his whereabouts on January 28, 2018 but denied any encounter with R.A.'s boyfriend.
Judgement at Trial
[17] The final submissions of counsel at trial were completed on April 4, 2019. The trial judge reserved until May 6, 2019 when judgement was delivered. The appellant does not dispute that the trial judge correctly referred to the onus of proof on the Crown and the test to be applied where an accused testifies and denies the offence. The trial judge correctly stated that this was not a credibility contest in the sense of whose testimony he preferred. The appellant asserts that the trial judge erred in his application of those principles, including uneven scrutiny of the evidence of R.A., her boyfriend, and the appellant as well as reliance on inadmissible opinion evidence.
[18] It is also asserted that the trial judge appeared to impose a burden of proof on the defence related to whether the appellant had an encounter with R.A.'s boyfriend near his home that precipitated R.A. and her boyfriend to contact the police and provide statements.
[19] The appellant also asserts that the reasons for judgement were insufficient to explain how discrepancies in the evidence were dealt with and how proof beyond reasonable doubt had been satisfied.
Legal Principles
[20] The appellant’s arguments on appeal break down into two categories, that the trial judge erred in the proper application of the W.D. test and that the trial judge failed to provide adequate reasons. The W.D. doctrine is a well established three stage process when the accused testifies in their own defence. If the accused is believed he must be acquitted. Second, if the trier does not believe the evidence of the accused but is left in reasonable doubt by it, he must acquit. Third, even if the trier is not left in doubt by the evidence of the accused, the trier must consider whether, on the basis of the evidence which he does accept, he is convinced beyond a reasonable doubt of the guilt of the accused: R. v. W. (D.), [1991] 1 S.C.R. 742, at para. 11.
[21] As summarized by Justice Hill in R. v. Macedo, 2012 ONSC 2595, at para. 97, the functional objectives of giving reasons in a judge alone trial will generally be fulfilled if the court's decision reveals what the court decided and why: R. v. M. (R.E.), [2008] 3 S.C.R. 3, at para. 17. Where credibility determinations are essential to resolution of the case, a court's reasons must sufficiently articulate how credibility concerns were resolved: R. v. Dinardo, [2008] 1 S.C.R. 788, at paras. 2 and 26. More detail may be required in reasons where the trier is required to resolve contradictory evidence on a key issue: Dinardo, at para. 27.
[22] For the reasons below, I find that the trial judge properly applied the W.D. test. He made findings of fact contrary to the evidence of the appellant which led him to not believe the accused. Second, he explained why the evidence of the accused did not leave him with a reasonable doubt. Finally, he held that on the evidence of the complainant which he did accept, the accused was guilty beyond a reasonable doubt. The trial judge’s reasons sufficiently articulate how credibility concerns were resolved, how contradictory evidence on a key issue was resolved, and what the court decided and why. I explain my reasons below.
[23] The assertion of uneven scrutiny of the evidence is a difficult argument to make successfully on appeal. R. v. Howe, 2005 ONCA 253, at para. 59. It is not an opportunity to retry the case and revisit credibility findings made at trial. R. v. Radcliffe, 2017 ONCA 176, at para. 23. An appellate court will only interfere with factual findings at trial that reflect palpable and overriding error. R. v. George, 2016 ONCA 404, at para. 35, R. v. Gagnon, 2006 SCC 17, at para. 20.
Analysis
[24] The trial judge made two findings of fact contrary to the evidence of the appellant that were very significant to his ultimate findings. The first relates to whether R.A. was sexually interested in the appellant when they were in his bedroom. The second relates to whether the appellant was present near the home of R.A.'s boyfriend months later as described by R.A. and her boyfriend. I will deal with them separately.
[25] The appellant submits that the trial judge improperly relied on the opinion of the appellant that the victim was disappointed that he did not return her sexual interest in him. It was the appellant himself who raised in examination-in-chief his perception that R.A. was sexually interested in him when they were in his bedroom. He claimed that this may explain why R.A. reacted to him in the way she did when he saw her in November 2017. He testified that when he saw R.A. briefly for the one and only time after May 22, 2017, she did not appear to want any interaction with him. He chose to attribute this to her disappointment that he had not reciprocated her sexual interest in him when they were alone in his bedroom months before. This assertion by the appellant in chief was directly related to his denial of any sexual activity in his bedroom. There was no objection at trial when the Crown cross-examined the appellant on this issue. R.A.'s assertion that there was non-consensual sex in the appellant's apartment would be entirely inconsistent with her having a sexual interest in the appellant on the night of the alleged assault. A contrary finding or a reasonable doubt on that issue would likely have resulted in an acquittal.
[26] This was an important issue and the trial judge found that the appellant was untruthful about it. The trial judge did not accept the evidence of the appellant on the basis of the following evidence that he did accept:
- The appellant asked her to go to the bar with him and asked her for her phone number the following morning before she left his apartment. The appellant confirmed in testimony that he asked for her number and may have hugged her before she left.
- There were three subsequent contacts or interactions by the appellant with R.A. over the ensuing months, none of which were instigated by R.A. The appellant acknowledged one fleeting chance encounter and denied the other two. He denied there were any contacts or encounters with R.A.'s boyfriend. The boyfriend referred to two instances, including one specific encounter with the appellant near his home when the appellant provided his name in response to a question from the boyfriend. For reasons that I refer to below, the trial judge made a specific finding that the appellant was untruthful in his denial of the encounter with R.A.'s boyfriend.
[27] The other important falsehood that the trial judge found was the denial that the appellant was present for the encounter with the victims boyfriend near his home many months after the alleged offence. The trial judge accepted the evidence of the victim and her boyfriend on this issue. This was important as a falsehood on a material issue and reflected poorly on the overall credibility of the appellant. The trial judge arrived at this conclusion, in part, not by reversing the onus of proof related to the appellant’s employment records, but by simply holding that the records tendered did not support the appellant’s evidence. The trial judge was obliged to consider and address the employment records tendered by the appellant, and did so without putting any onus on the appellant.
[28] The defence at trial filed a logbook in support of his testimony that he was working elsewhere at the time and place of the alleged encounter with R.A.'s boyfriend. R.A. testified that it happened at 4 a.m. sometime in early January 2018. The boyfriend testified that it happened in early December 2017 and that they contacted the police later that day. It is not in dispute that R.A. and her boyfriend contacted the police on January 28, 2018. The logbook filed by the defence related to the time from 6 p.m. on January 21, 2018 to 6 a.m. on January 22, 2018. The appellant testified that he could not recall his whereabouts on January 28, 2018 but denied being present for any encounter with the boyfriend. The trial judge found that the logbook did not provide any support for the appellant's evidence that he was working elsewhere at the time and place of the alleged encounter with the boyfriend. Neither R.A. nor the boyfriend were cross-examined on the discrepancy in their evidence related to the date of the incident and that issue was not raised in closing submissions by counsel at trial. The trial judge found as a fact that the encounter occurred essentially as described by R.A. and her boyfriend.
[29] In short, the trial judge disbelieved the evidence of the appellant. As such, the evidence of the appellant did not result in either an acquittal or a reasonable doubt in accordance with the first two stages of the W.D. analysis. When the trial judge turned to the evidence that he did accept, he was convinced beyond a reasonable doubt that the appellant did sexually assault the complainant.
[30] The trial judge accepted the evidence of R.A. that she had significant gaps in her memory of events from when she was at the bar until she was aware that the appellant was on top of her and having sexual intercourse without her consent. For example, she did not recall how her clothes came off. The trial judge found as a fact that her state of mind and consciousness was such that she did not observe or recall the prominent scar on the appellant's arm. This was a finding of fact or inference that was available for the trial judge to make.
[31] The trial judge found that contrary to the appellant's evidence he was sexually interested in R.A. on the date of the alleged offence. He specifically stated that mere disbelief of the appellant's evidence does not amount to proof that he is guilty. He found that R.A. did not speculate or try to fill in gaps in her memory as to what had occurred. He did not accept the evidence of the appellant on the critical issues and that evidence did not leave him in a state of reasonable doubt. Based on the evidence that he did accept he was satisfied that the essential elements of the offence had been made out.
Result
[32] On June 9, 2020 I advised counsel that notwithstanding the very able submissions of counsel for the appellant the appeal would be dismissed. The appellant has been on bail pending appeal. It was agreed by all that if the appeal is to be dismissed the formal order of dismissal would be adjourned to November 3, 2020 at 10 a.m. at the courthouse. Counsel will make arrangements for the appellant to surrender himself back into custody at that time. In the meantime I have endorsed a continuance of his bail on consent until that time. I am available on short notice if counsel seek my direction on any aspect of this matter. I am grateful to both counsel for their helpful materials and submissions.
O’Marra J. B.P. O’Marra J. Released: June 24, 2020