R. v. Hadi Hatabi

COURT FILE NO.: CR-19-4536-AP

DATE: 2020/02/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Hadi Hatabi

BEFORE: Justice I.F. Leach

COUNSEL: Julie Santarossa, for the appellant Mr Hatabi Jane Magri, for the respondent Crown

HEARD: October 24, 2019

ENDORSEMENT

Introduction

[1] Hadi Hatabi appeals from his convictions in the Ontario Court of Justice (“OCJ”) on September 11, 2018, on two charges of assault contrary to s.266 of the Criminal Code of Canada, (“the Code”), and two charges of assault with a weapon contrary to s.267(a) of the Code.

[2] There is no appeal in relation to the sentence imposed by the trial judge in relation to those four convictions; i.e. a suspended sentence, two years of probation subject to indicated terms and conditions, a DNA sample provision order pursuant to ss.487.04 and 487.051 of the Code, a three year weapons prohibition order pursuant to s.110(3) of the Code, and victim fine surcharges pursuant to s.737 of the Code.

Background

[3] In addition to the conviction reasons of the trial judge, I have reviewed and considered all of the evidence and submissions presented at trial in detail, and the necessarily incomplete summary that follows, (along with my reference to particular factual matters noted later in these reasons), should not suggest otherwise.

[4] However, by way of overview, and simply to provide some general context and background to the underlying convictions and arguments raised on appeal, circumstances giving rise to this appeal include the following:

• At the time of the events in question, in or around September of 2016 and January of 2017, the appellant Mr Hatabi and his family, (including his wife Rima Jammal, teenaged son Kareem Hatabi and two other younger children), were living together in Windsor, Ontario.

• The family apparently had emigrated from Saudi Arabia to Canada, where other Saudi relatives and friends already were living. However, it seems the appellant also periodically returned to Saudi Arabia for work-related reasons.

• By May 7, 2014, (the date of the information giving rise to the formal charges against Mr Hatabi, in turn leading to the convictions now under appeal), the appellant and Ms Jammal had formally separated. The information, and related charges, alleged the following:

  • that on or about September 9, 2016, Mr Hatabi assaulted his wife Ms Jammal with a weapon – i.e., a wooden box – contrary to s.267(a) of the Criminal Code, (“the Code”);

  • that, on or about the same day, (September 9, 2016), Mr Hatabi committed a further assault on his wife Ms Jammal, contrary to s.266 of the Code;

  • that, on or about the same day, (September 9, 2016), Mr Hatabi also assaulted his oldest son, (Kareem Hatabi), contrary to s.266 of the Code; and

  • that, on a later date between January 1and 16, 2017, inclusive, Mr Hatabi again assaulted his wife with a weapon – i.e., a shoe – contrary to s.267(a) of the Code.

• The matter proceeded to trial in the Ontario Court of Justice, before Justice G. Pockele, on September 10 and 11, 2018. At trial:

  • The Crown led evidence from two witnesses: the complainant Rima Jammal, and the complainant Kareem Hatabi.

  • The defence presented evidence through one witness; i.e., Mr Hatabi, who chose to testify on his own behalf.

  • The testimony of Ms Jammal and Mr Hatabi was presented through an interpreter. Kareem Hatabi testified in English.

  • All witnesses were subjected to extended cross-examination.

  • There was only one exhibit filed at trial; i.e., a hotel receipt, tendered by Mr Hatabi, confirming the dates on which he had left the family home to stay at a Windsor hotel, (i.e., arriving on September 6, 2016, and departing on September 8, 2016), following the domestic incidents giving rise to three of the charges described above; i.e., the offences that were alleged to have taken place on or about September 9, 2016.

• At trial, testimony from the complainant Rima Jammal included the following indications:

  • that she, the appellant and their son Kareem were in the family home together on the afternoon of September 9, 2016;

  • that there had been a prior domestic disagreement between the appellant and Ms Jammal, wherein the appellant had expressed disapproval of the way Ms Jammal had been interacting with her cousin’s husband, Mr Mansour;

  • that another domestic argument between the appellant and Ms Jammal began at approximately 2:30pm that afternoon, in the living room of the family home, when Ms Jammal answered a telephone call from Mr Mansour, after which the appellant expressed disapproval of Ms Jammal’s voice and manner of speaking during the call, and accused Ms Jammal of flirting with Mr Mansour – accusations which Ms Jammal strongly denied;

  • that Ms Jammal attempted to remove herself from the argument by leaving the appellant in the living room and proceeding to the kitchen, which was separated from the living room by a wall that nevertheless had a large interior opening, (approximately three and a half feet wide, with a counter, and described as a “window” but apparently without any glass), between the two rooms;

  • that the back and forth argument nevertheless continued, with the appellant in the living room and Ms Jammal in the kitchen, and the two yelling at each other through the window opening;

  • that, as Ms Jammal was standing near an exterior glass “patio door” leading from the kitchen to the backyard of the property, a small square wooden box, (about the size of a small book, measuring approximately 15cm by 15cm, weighing approximately 200 grams, and one of two boxes that had been hanging to either side of the window opening to hold speakers – although easily removable from their hanging screws, and empty at the time), was projected towards her through the window opening from the living room area where the appellant was standing, with Ms Jammal inferring, (but admittedly not seeing), that the appellant had removed the box from its hanging position, (where she had seen it before it came towards her), before deliberately throwing the box at her;

  • that she believed the wooden box struck the door or window near her before it then fell, hitting and injuring Ms Jammal’s head, causing her to bleed from a small cut that was two or three tenths of a centimeter long, with the blood running down and sticking to her ear and her neck;

  • that Ms Jammal then opened and ran through the patio door into the backyard, where – approximately 10 to 16 minutes later - she was joined by her son Kareem, who had witnessed the argument and its results;

  • that the appellant, who remained in the house, (locking the doors for a time and taunting Ms Jammal through the window, as she occasionally knocked and tried to come back inside), apparently telephoned another female relative, Ms Zaidan, asking her to come to the house to pick him up while he packed various items, (including the family passports and Ms Jammal’s phone), to leave the home;

  • that when Ms Zaidan arrived, approximately 15 minutes later, Ms Zaidan, the appellant, Ms Jammal and Kareem then were at the front door of the residence, (after Ms Jammal and Kareem had proceeded around the house, through a gate, to the front door of the home), where the appellant insulted Ms Jammal and grabbed her by the hair, pulling her in towards the house before leaving with Ms Zaidan;

  • that the appellant then stayed away from the family home for a time, following which there was a reconciliation;

  • that a further disagreement and argument nevertheless occurred in early January of 2017, after the appellant and Ms Jammal attended at New Year’s celebration at her cousin’s home, following which the appellant once again accused Ms Jammal of flirting and/or “cheating” with Mr Mansour, and directed Ms Jammal to stop speaking and visiting with her cousin and Mr Mansour;

  • that, during the course of that further argument, which took place at approximately 5pm or 6pm, Ms Jammal proceeded to the upstairs hall landing of the family home, (outside a nearby bathroom), while the appellant initially remained downstairs, and the spouses continued to yell back and forth at each other;

  • that the appellant, pausing to grab his “brown Costco” shoes, (which had been purchased shortly before around Christmas time, and which were at the base of the stairs where the family generally left their shoes), then ran up the stairs to Ms Jammal, where he grabbed her neck with his hand to stop her from talking, pushed her backwards into a nearby wall, and then hit her over the head repeatedly with a shoe – albeit without inflicting any lasting physical injuries apart from some temporary redness from where his fingers had been applied to her throat;

  • that the confrontation then ended when the couple’s son Kareem came up the stairs as well and intervened, after which Ms Jammal went into her room and locked her door such that she did not see what happened thereafter between the appellant and Kareem – although she had seen the appellant push Kareem and “flip his hand” behind his back on earlier occasions; and

  • that Ms Jammal initially refrained from reporting the assaults to the police, (for reasons that included family pressures and cultural reasons), but that the matter came to light when she spoke with a social worker from the Children’s Aid Society to defend herself against allegations thought to have been made by the appellant that she was an abusive mother – with the Society then contacting and involving the police.

• During cross-examination, Ms Jammal denied numerous suggestions put to her by defence counsel; e.g., that the wooden box had been projected towards her accidentally, (as she had seen it hanging on the wall and not sitting on the counter), that she had armed herself with a metal or wooden rod to threaten and attempt to hit the appellant during the first incident, and that the alleged assault at the top of the stairs involving a shoe, said to have taken place during the second incident, had never happened.

• At trial, testimony from the complainant Kareem Hatabi included the following indications:

  • that he was at home and present during the argument between his parents on an afternoon in September of 2016, (he thought September 21 or 22), when his father “didn’t seem very happy” when his mother was talking on the phone with a male relative, and thereafter accused his mother, (after she hung up the phone), of flirting and being in a relationship with the relative;

  • that, after his parents had exchanged a lot of “cursing”, his mother walked off in anger and approached the sliding door leading to the backyard;

  • that, as he saw his mother standing near and opening that sliding door, he also saw his father stand up, (apparently in response to hearing the door slide open), grab and pick up an easily removable speaker box, (with an estimated weight of “around ten pounds”), from its steady resting place, where it had been hanging on the wall, and throw it “right over his shoulder” and across the kitchen, whereupon the box hit Ms Jammal “right on the head” and directly; i.e., without hitting the glass door first;

  • that he thought the box had “landed” near the “back” of his mother’s skull near the top of her head – although his memory admittedly was not clear about the point of impact, given the passage of time;

  • that his mother then “ran away to the backyard where she started crying”;

  • that Kareem went out to his mother “right away” to calm her down, and saw blood “all over her neck”, coming from a scratch that appeared to be approximately two inches long;

  • that, as the rear door initially was open and not locked, Kareem then went back into the house for approximately five minutes, where he proceeded upstairs to calm his father but saw his father packing;

  • that, during that time, and as his father was rolling his luggage across the corridor near the top of the stairs, Kareem told his father not to make such a “big deal” by doing that, at which point his father then held Kareem’s hand behind his back for approximately 10 seconds while cursing, such that Kareem, while uninjured, also was unable to move;

  • that Kareem, once released by his father, helped his father take the luggage downstairs before proceeding outside again to the backyard, to once again be with his mother and calm her down;

  • that as Kareem left the house to rejoin his mother in the backyard, he heard the door shut behind him, and turned to see his father angrily standing there, taunting Ms Jammal through the window;

  • that Kareem then discovered, (by trying to open all exterior doors), that his father had locked all of the entrance doors to the house;

  • that Kareem and his mother then waited together on the backyard patio, before proceeding around to the front of the house, (through a gate from the backyard), when they heard the arrival of a car belonging to Safa, (i.e., Ms Zaidan), one of Ms Jammal’s female cousins;

  • that after speaking with Kareem and his mother, Safa had gone to the front door, which the appellant unlocked and opened, before proceeding to take his luggage to the car;

  • that there nevertheless then was a further altercation between his parents at the front door, during which:

    • Ms Jammal had stepped inside the entrance with Safa, with the two women remaining close to the door;

    • the appellant had returned to the entrance, apparently to retrieve something he had forgotten, such that all three adults were at the entrance; and

    • the appellant and Ms Jammal then did a lot of cursing, before the appellant pulled Ms Jammal by her hair, causing Ms Jammal’s head to break the glass and metal sheeting of the opening’s screen door, after which Kareem attempted to separate his parents;

  • that after his father had left with Safa, Kareem and his mother discovered that his father had taken the family passports and his mother’s phone with him;

  • that there was a later altercation between his parents on or about January 5 or 6, 2017, which began in the living room, when his mother informed his father that she was planning to have her cousins over for a visit, his father “started screaming” that he did not want them over, and his parents then began “yelling and screaming” at each other before his mother left the living room and went upstairs to “figure out a way” to inform the cousins they were no longer invited to come over; e.g., by calling the cousins again;

  • that the yelling between his parents continued as his mother was upstairs and his father was still downstairs;

  • that his father then stood up and suddenly went upstairs to Ms Jammal, taking the white Costco slippers or “flip flops” he had been wearing with him, and screaming at Ms Jammal for “disobeying” him;

  • that his father then started threatening his mother, before hitting her on the head with one of his slippers or “flip flops”, and choking Ms Jammal by placing his right hand around her neck; and

  • that Kareem then went upstairs himself to intervene; e.g., by placing himself in the middle of his parents to divide them.

• During cross-examination, Kareem Hatabi denied numerous suggestions put to him by defence counsel; e.g., that the speaker box had been sitting on the counter of the window between the living room and kitchen; that his father had accidentally hit the box into the kitchen with his left hand while yelling; and that his mother had something in her hand – such as a rod or stick - during the first incident.

• At trial, testimony from the appellant Mr Hatabi included the following indications:

  • that the incidents giving rise to the proceeding were preceded by his becoming increasingly familiar and reluctant to have any association with Mr Mansour, the husband of his wife’s cousin Yasmine;

  • that Mr Hatabi did not like the way Mr Mansour talked, behaved or lived, and was told by “most of the family” that Mr Mansour was “not a good man”;

  • that Mr Hatabi believed Mr Mansour was engaged in drug dealing and smuggling people into the United States, was thought to be under police or other surveillance, and had “a lot of conflict with the law”;

  • that Mr Hatabi had never met Mr Mansour and his wife Yasmine before Mr Hatabi and his family came to Canada, but the couple started getting closer to Mr Hatabi and his family when they found out Mr Hatabi had “some money”;

  • that Mr Mansour also was “trying to get closer” to Mr Hatabi’s wife, Ms Jammal;

  • that on September 6, 2016, Mr Hatabi overheard his wife speaking on the phone with a low voice, but in a “laughing and joyful tone”, prior to her hanging up with a flushed face when she saw Mr Hatabi coming towards her;

  • that Mr Hatabi believed his wife had been speaking with another man, did not like the way his wife had been talking, asked Ms Jammal who she was speaking to, and was told that it had been Mr Mansour;

  • that Mr Hatabi expressed surprise at that, (as it usually was Mr Mansour’s wife who called her cousin Ms Jammal if anything was needed, in accordance with tradition), prompting Mr Hatabi to ask Ms Jammal what Mr Mansour wanted, and if she needed anything from Mr Mansour;

  • that an argument ensued, with Ms Jammal saying that Mr Hatabi was accusing her of something before yelling very loudly, jumping on the floor, and going into the kitchen while repeatedly saying “Divorce me”;

  • that the couple’s son Kareem became involved, with Mr Hatabi telling Kareem that there was a misunderstanding, and asking his son to calm Ms Jammal down because the neighbours would hear her, while Ms Jammal was continuing to yell and tell Kareem that his father was accusing her of something;

  • that Mr Hatabi himself was feeling “depressed”, “very upset” and worried that the neighbours would hear Ms Jammal screaming, at which point he swung his hands low and then upward in frustration, accidentally hitting - with the back of his left hand - a square box, (approximately four inches by four inches in size, which he had removed from the wall because he thought the children might break it), which then “flew” and “hit the windows” before it “fell on the floor”;

  • that he had no intention of hitting his wife with anything - emphasizing there were a lot of other things on the counter to use for that purpose, if that had been his intention;

  • that it was a “very small box”, probably made of “some kind of paper or carton”, which he did not even feel on his hand as he hit it, as it was a “very light box”;

  • that Ms Jammal then opened the sliding door and went outside to the backyard;

  • that Mr Hatabi was then trying to comfort and calm his younger son Alex, (who had been in the kitchen), when he saw Ms Jammal trying to come back into the house with a “big stick” that was “about her height or maybe more”, and a thickness of about 20 centimetres;

  • that Mr Hatabi went to the kitchen to prevent his wife from coming back inside, as he “saw the evil coming out of her eyes”;

  • that his son Kareem intervened to stop him, at which point he instructed Kareem to go outside to “go after” his mother, “calm her down”, and “try to get the stick out of her hand so that the problem [would] not be bigger”;

  • that he went upstairs to retrieve his luggage, (already packed for an imminent trip in any event), without locking the door;

  • that Kareem followed him upstairs, during which there was a conversation wherein Mr Hatabi told his son he was leaving and Kareem would need to be the man looking after his mother, siblings and the house;

  • that he admittedly pushed Kareem “a little bit” from his way, to move his suitcase, but never twisted his son’s hand;

  • that he and Kareem then went back downstairs with the luggage, at which point “the problem started again” with Ms Jammal “yelling and screaming” in the backyard, so Kareem went out to her, after which Mr Hatabi admittedly locked the door and telephoned Ms Jammal’s cousin Safa, telling her that Ms Jammal was “hysterical”, and asking to be picked up as he wanted to leave the house;

  • that while Mr Hatabi was waiting for the cousin to arrive, Ms Jammal was trying to force her way back into the house by knocking on the doors with her large stick – which was how the front door window had come to be broken;

  • that after Safa’s arrival, Mr Hatabi tried to explain the situation and was pleading to leave, but Safa was trying to let Ms Jammal into the house;

  • that after the front door was opened, Ms Jammal was using the stick to hit them, so he and Safa were trying to push Ms Jammal outside so she would not be able to hit them again;

  • that he and Safa then managed to take his suitcases to the car at a time when Ms Jammal was not present, but he once again saw his wife standing with the stick in her hand, beside Kareem, as he and Safa were driving away;

  • that he initially proceeded to the home of Safa’s mother, while Safa made a trip back to his house;

  • that he was then asked about the family passports, which he found he had taken inadvertently;

  • that he also was then asked about Ms Jammal’s phone, (which he admittedly had taken, but felt it was his because he had paid for it), and admittedly threw the phone to the floor when he “became very angry” that Ms Jammal was telling others it was her phone;

  • that he then went to stay at a hotel for a few days - i.e., from September 6th to 8th, 2016, as indicated in the hotel receipt filed as an exhibit;

  • that following a period of work-related travel, there was a reconciliation, after which “everything was good” again, with the family enjoying a “very happy time” together, until there was further conflict and disagreement relating to Mr Mansour;

  • that his wife insisted on their attending a New Year’s celebration at the home of Mr Mansour, during which Mr Hatabi felt that Mr Mansour was drinking heavily, talking very loudly and inappropriately to Ms Jammal, (“as if he was talking to his wife, or his girlfriend, or to a woman from the street”), while trying to hug and kiss Ms Jammal while dancing;

  • that the next morning, (January 1, 2017), there was a conversation during which Mr Hatabi told Ms Jammal he had made a “final decision” that there would be no further dealings with Mr Mansour or his wife, that he would not mind the cousin coming to visit, but that Ms Jammal was to have no further dealings with Mr Mansour because he was a “dangerous man” and “disrespectful”;

  • that, on a later date in January of 2017, there was a further argument when Ms Jammal wanted to invite her cousin and Mr Mansour to the house, and Mr Hatabi was “not liking the idea”, whereupon Ms Jammal started “yelling and screaming” again, which she knew Mr Hatabi hated;

  • that Ms Jammal went upstairs, but was still yelling and insulting Mr Hatabi, his family and his friends;

  • that Mr Hatabi therefore also went upstairs, where he “tried to talk” to his wife, but she was insulting him and his parents, at which point he told her not to raise her voice because the children were sleeping and he also did not want the neighbours to hear their loud voices – as similar behaviour in Saudi Arabia had caused neighbours to disrespect him; and

  • that Mr Hatabi then admittedly put his hand on Ms Jammal’s mouth, repeatedly telling her to “get silent” and “go downstairs”, but without hitting her on the head with anything.

• Amongst other indications provided by Mr Hatabi during cross examination:

  • Mr Hatabi denied that he had been jealous, or that he thought his wife was flirting with Mr Mansour, and said that he simply wanted his wife to “be more official, and more strict” in the way she was speaking with Mr Mansour, who was “getting more close, talking to her, and trying to put himself more as one of the family members”. He was not happy with the way his wife was talking to Mr Mansour and laughing with him about a lot of things “as if he was an old friend”, or “as if they were together in school”, as doing so was “opening the door” to Mr Mansour thinking that she was flirting with him, in turn leading Mr Mansour to put more “advances” towards Mr Hatabi’s wife. Mr Hatabi did not like the way Mr Mansour was talking to Ms Jammal; i.e., in a manner suggesting that he was very close to her and/or that she was a woman he did not respect, and that she was “very friendly with him”.

  • Mr Hatabi indicated that, at the New Year’s Eve, he had reacted to what was happening, during the dancing, by going to his wife, grabbing her, and putting her in the seat beside him.

  • Mr Hatabi acknowledged that he was angry at the time the box was propelled towards his wife, but emphasized that he was “angry because of the yelling and the screaming and the reaction she had”, and “not because of what was happening”. However, he denied grabbing the box off the wall, emphasized that he had put the boxes on the counter so that his children would not break them, and claimed that he simply had “reached a point of despair” when he accidentally hit the box.

  • Mr Hatabi denied that his wife was injured at the time the box was directed towards her, emphasizing that he had not seen any blood, and if there was any blood, he suggested it was not caused by his wife being hit by the box, but by his wife scratching herself.

  • Mr Hatabi revised his earlier testimony, saying that he had not really pushed Kareem out of the way, but had only made contact with a hand motion, made while telling Kareem to “get aside a little bit”.

  • Mr Hatabi also revised his earlier testimony by saying that he had not locked the door while Kareem and his wife were outside.

  • Mr Hatabi denied having ever grabbed and pulled on his wife’s hair, acknowledging that he was upset at the time, but denying that he was angry, and indicating that he was only “trying to push her” because Ms Jammal was attacking with a stick, which he tried unsuccessfully to take from her, as she was “very strong” despite his admittedly larger size.

  • Mr Hatabi again denied having ever hit his wife over the head with a shoe, or putting his hand on her neck while pushing her against a wall, emphasizing that he had only put his hand on her mouth while telling her to lower her voice.

  • Mr Hatabi acknowledged that his son Kareem had tried to intervene in the upstairs argument between Mr Hatabi and his wife, but Mr Hatabi again denied having ever grabbed his son’s arm to put it behind his back.

• On the second day of trial in the OCJ, (i.e., September 11, 2018), the presentation of evidence was completed, counsel made their closing submissions, and the trial judge rendered his decision, finding the appellant guilty in relation to each of the four charges. A presentence report was directed, and the matter was adjourned to November 13, 2018, for a sentencing hearing.

• For some reason, sentencing nevertheless was delayed until November 16, 2018, at which time the trial judge received sentencing submissions, and then proceeded with delivery of his sentencing decision, the results of which are noted above.

Grounds of appeal

[5] In his original notice of appeal, Mr Hatabi specified the following three broad grounds of appeal:

a. that the trial judge erred in applying principles emphasized by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742;

b. that the trial judge erred by holding the appellant’s evidence to a higher standard than that of the complainant, thereby reversing the burden of proof; and/or

c. that the verdicts were unreasonable and incapable of being supported by the evidence.

[6] In his amended notice of appeal, Mr Hatabi repeated those three original grounds of appeal, and added the following ones:

a. that the trial judge did not properly assess the burden and standard of proof in accordance with the principles in R. v. W.(D.), supra;

b. that the trial judge erred by shifting the standard of proof; and

c. that the trial judge erred by failing to assess contradictions in evidence presented by the Crown, thereby failing to assess the burden of proof according to what is colloquially described as the “third prong” of R. v. W.(D.), supra.

[7] By the time the appeal was argued before me, appellate counsel had refined, clarified and narrowed the issues being raised and pursued on appeal to the following:

i. First, it was argued that the trial judge had erred in his application of what are colloquially described as the “first and second prongs” of R. v. W.(D.), supra. In particular, it was argued that the trial judge failed to properly review and address Mr Hatabi’s evidence, and/or failed to make clear, through adequate reasons, what it was that caused the trial judge to disbelieve Mr Hatabi’s evidence and/or conclude that such evidence failed to raise a reasonable doubt sufficient to preclude convictions. It was also said that, to the extent the trial judge may have provided reasons why he did not believe the testimony of Mr Hatabi, and why Mr Hatabi’s evidence failed to raise a reasonable doubt, the trial judge effectively relied exclusively on evidence presented by the Crown without actually having regard to Mr Hatabi’s evidence.

ii. Second, it was argued that the trial judge erred by effectively and improperly shifting the burden of proof onto Mr Hatabi, insofar as the reasons for judgment include an extended explanation of why the trial judge was unable to find that the complainant had any reason to lie or fabricate testimony. In that regard, it was emphasized by appellant counsel that an accused has no obligation to establish why a complainant may not be telling the truth. It was also said that fabrication of evidence by the complainant was not raised by the defence, and was a “non-issue at trial”. In short, it essentially was argued that the reasons of the trial judge reflected an improper understanding or belief on the part of the trial judge that Mr Hatabi had an obligation to demonstrate why the complainant might be lying, and failed to satisfy his supposed onus in that regard.

iii. Third, it was argued that the trial judge had erred in his approach to what is colloquially known as the “third prong” of R. v. W.(D.), supra, insofar as he insufficiently and therefore improperly failed to address what were said to be significant inconsistencies in the evidence presented by the Crown, and in particular, various suggested inconsistencies between the testimony of the complainant wife and testimony of the complainant son in relation to various matters set forth in a table included in appellant counsel’s factum.

[8] In her submissions, appellant counsel candidly acknowledged that the aforesaid three grounds of appeal being relied upon by Mr Hatabi were inter-related.

[9] In particular, it was emphasized, that, while a reasoned acceptance of the Crown’s evidence might be a recognized inherent reason for simultaneously disbelieving the testimony of Mr Hatabi and finding that it failed to raise a reasonable doubt, such an acceptance was arrived at improperly if the trial judge improperly based that acceptance on:

a. a supposed failure of Mr Hatabi to establish the complainant wife was lying; and/or

b. without having satisfactorily addressed significant inconsistencies in the Crown’s evidence.

[10] In considering the narrowed grounds of appeal raised by Mr Hatabi, I have examined and reflected on the conviction reasons of the trial judge in considerable detail, and my failure to replicate those reasons here, or refer to any portion thereof during my analysis below, also should not suggest otherwise. To the extent necessary, they should be deemed incorporated into these reasons.

[11] However, I do intend to make reference to certain aspects of those reasons in my assessment below.

General principles

[12] Before proceeding to an assessment of whether the appeal against conviction should be allowed on the basis of any of the issues raised by the appellant, I pause to note a number of general principles which govern such appeals.

[13] Pursuant to s.686(1)(a) of the Code, on the hearing of an appeal against a conviction, the appellate court has a broad jurisdiction to allow the appeal where it is of the opinion that:

i. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

ii. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or

iii. on any ground there was a miscarriage of justice.

[14] Those powers are qualified to some extent by s.686(1)(b)(iii) and (iv) of the Code. Subsection 686(1)(b)(iii), in particular, provides that, notwithstanding an appellate court’s opinion that an appeal might be decided in favour of the appellate on any ground mentioned in s.686(1)(a)(ii), the appellate court may dismiss the appeal where it also is of the opinion that no substantial wrong or miscarriage of justice has occurred.

[15] As explained by our Court of Appeal in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), while s.686(1)(a) provides three distinct bases upon which the appellate court may quash a conviction, each shares the same underlying rationale: a conviction which is the product of a miscarriage of justice cannot stand. In that regard:

a. subsection 686(1)(a)(i) is concerned with the most obvious example of a miscarriage of justice; i.e., a conviction which no reasonable trier of fact, properly instructed, could have returned on the evidence adduced at trial;

b. subsection 686(1)(a)(ii), read along with s.686(1)(b)(iii), presumes that an error in law produces a miscarriage of justice unless the Crown can demonstrate the contrary with the requisite degree of certainty;

c. subsection 686(1)(a)(iii) addresses all other miscarriages of justice not caught by the preceding two subsections; and

d. while the Crown bears the burden of demonstrating that the error did not result in a miscarriage of justice where the error is one of law alone, the appellant bears the burden of demonstrating a miscarriage of justice in all other cases.

[16] Where the issue is whether the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence:

a. The test is whether the verdict is one that a properly instructed jury, acting judicially, reasonably could have rendered.[^1]

b. Although expressed in terms of a verdict reached by jury, the test is equally applicable to the judgment of a judge sitting at trial without a jury.[^2]

c. The test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, judicially could have arrived at, and in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.[^3]

d. However, appellate courts also are to exercise appropriate caution and restraint. In particular:

i. While appellate review is not limited to a determination of whether there was any evidence to support the conviction, it also does not permit a de novo assessment of the evidence. The appellate review countenanced by the Code is a protection against perverse or unsafe convictions, not a means of bringing trial verdicts in line with appellate courts’ estimations of the merits of individual cases.[^4] The question of whether a verdict is unreasonable is not the same as the question whether a different verdict would have been reasonable had the evidence presented at trial been interpreted differently.[^5]

ii. This applies equally to a review of a decision by a trial judge, sitting without a jury. The appeal judge must not try the case de novo, or simply substitute his or her views for those of the trial judge. He or she must instead only determine whether the verdict was unreasonable; i.e., whether the trial judge reasonably could have reached the conclusion that the accused was guilty beyond a reasonable doubt.[^6] In that regard, it must also be remembered that a judge’s failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s.686(1)(a) of the Code.[^7]

iii. In deciding whether a trier has exceeded the bounds of reasonableness, the court must give due deference to the advantageous position of the trier, who actually saw and heard the witnesses.[^8] While it is open to an appeal judge to conclude that a verdict based on credibility findings is unreasonable, if the appeal judge takes into account the fact that a trial judge had the advantage of seeing and hearing the witnesses give evidence, the reviewing court should show “great deference” to the trial judge’s findings of credibility. Where the verdict essentially turns on credibility findings, the appeal judge’s power to interfere should be exercised sparingly.[^9] Indeed, instances where a trial judge’s assessment of credibility cannot be supported on any reasonable view are “rare”.[^10]

iv. A “vague unease, or a lingering or lurking doubt based on its own review of the evidence”, does not by itself provide a proper basis for appellate court interference with the verdict below.[^11]

v. More generally, it should be kept in mind that our system of justice and appellate review is not premised on any suggestion that appellate court judges are somehow smarter than trial judges, and thus capable of reaching a better result. In reviewing the decision of a trial judge, the role of appellate courts is not to write better judgments, but to review the reasons provided, in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.[^12]

e. Where the issue is whether the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, pursuant to s.686(1)(a)(ii) of the Code, the standard of review is correctness.[^13]

[17] In relation to explicit or implicit suggestions that an appeal should be granted because the trial judge erred in applying different levels or standards of scrutiny, in considering evidence against and for a convicted appellant:

a. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he or she could have said in assessing the respective credibility of the complainant and the accused, or that he or she failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.[^14]

b. Such arguments are difficult to make successfully on an appeal, for two related reasons. First, credibility findings are the province of the trial judge, and attract a very high degree of deference on appeal. Second, appellate courts invariably view such arguments with skepticism, seeing them as a veiled invitation to reassess the credibility determinations made by the trial judge.[^15]

c. For an appellant to succeed with such an argument, he or she accordingly must be able to identify “something clear” in the trial judge’s reasons or in the record indicating that a different standard of scrutiny applied; something “sufficiently significant” such that the “heavy door of deference” is opened to the domain of the trial judge, where credibility is assessed.[^16] Examples include cases where:

i. a trial judge repeatedly drew adverse inferences about the appellant’s credibility without doing so in relation to the complainant, despite repeated indications that the complainant was an unreliable witness;

ii. a trial judge was overly critical of the appellant’s version of events, without making any meaningful attempt to reconcile or explain difficulties in a complainant’s evidence; and/or

iii. a trial judge assigned inordinate value to considerations which actually lent little or no corroborative value or strength to a complainant’s testimony.[^17]

d. However, where an appellate court is satisfied that the trial judge did indeed subject defence evidence to a higher or stricter level of scrutiny than Crown evidence, the conduct of the trial judge constitutes an error of law. Where such an error is established, the deference normally owed to the trial judge’s credibility assessment is generally displaced.[^18]

[18] In relation to suggestions that an appeal should be granted because the trial judge erred because of a failure to consider or properly apply the principles emphasized in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.):

a. The Supreme Court of Canada emphasized, in that decision, that criminal trials are not to be decided by “credibility contests”; e.g., by determining whether a complainant or accused is more believable, and deciding the case on that basis. At all times, the trier must remain focused on whether the Crown has proven the case against the accused beyond a reasonable doubt, and reasonable doubt is something capable of being established in various ways. For example, the accused’s exculpatory testimony may be believed and accepted. Alternatively, the trier may stop short of definitely believing and accepting the account of an accused, but feel that the accused’s account nevertheless gives rise to a reasonable doubt. Moreover, even if the accused’s testimony is not believed and accepted, or does not cause the trier to have any reasonable doubt, the accused may still be convicted only if the remaining evidence, accepted by the trier, is considered sufficient to establish the accused’s guilty beyond a reasonable doubt.

b. However, as the Supreme Court of Canada also has emphasized, trial judges are presumed to know the law, and are not required to expound in detail on well-settled legal principles to demonstrate to the parties, much less to an appellate court, that he or she was aware of and applied those principles.[^19] It accordingly is not incumbent on a trial judge to make express reference to such a well-known authority as R. v. W.(D.), supra, the reminders therein of the alternative ways in which reasonable doubt may be established, or the ever-present need for the Crown to prove its case against the accused beyond a reasonable doubt.

[19] In relation to suggestions that an appeal should be granted because the trial judge erred because of a failure to give adequate reasons:

a. In accordance with fundamental principles of justice, the delivery of reasoned decisions is inherent in the role of a judge. It is part of his or her accountability for the discharge of the responsibilities of his office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.[^20]

b. However, not every failure or deficiency in reasons provides a ground of appeal, and regard will be had to the time constraints and general press of business facing the courts below, as well as the nature and importance of the decision being rendered at first instance. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of a jury instruction.[^21]

c. The judge at first instance need only provide reasons which are sufficient to serve the purpose for which the duty is imposed; i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties, and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.[^22]

d. More specifically, in the criminal context, failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal. This accords with the general rule that trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict. If judges state their conclusions in brief compass, and those conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.[^23]

[20] In relation to suggestions that an appeal should be granted because the trial judge erred by placing undue reliance on the demeanour of a complainant, accused or other witness in assessing credibility:

a. Our courts now recognize that the demeanour of witnesses is of limited value to the assessment of credibility; e.g., because demeanour and its interpretation can be affected by many factors, (such as cultural backgrounds, stereotypes and different reactions to the artificial pressures of a courtroom), and sincerity may easily be misinterpreted as truthfulness.[^24]

b. For such reasons, our courts have indicated the need for a cautious approach to demeanour in the assessment of credibility, and that findings of credibility based solely on demeanour are purely arbitrary. In particular, although it is settled law that a trial judge is entitled to consider the demeanour of a witness, the demeanour of a witness cannot become the exclusive determinant of his or her credibility, or the reliability of his or her evidence.[^25]

[21] With the above principles in mind, I turn next to an assessment of the issues raised by the conviction appeal in this case.

Assessment

[22] In that regard, I now have had considerable time to review and reflect upon the proceedings and evidence in the court below, the judgment of the trial judge, and the submissions of the parties.

[23] Having done so, I find no fault with the findings, reasons or conclusions of the trial judge that would warrant appellate intervention in relation to Mr Hatabi’s convictions.

[24] In relation to the first narrowed ground of appeal raised by Mr Hatabi:

a. In this case, the reasons of the trial judge contain no express citation of R. v. W.(D.), supra, but he was not required to do so for the reasons outlined above. Again, the trial judge is presumed to know the law, and was not required to expound, in detail, on the well-settled principles of that case.

b. Nor was the trial judge required to employ, in his reasoning, the precise wording of the principles outlined in R. v. W.(D.), supra. Appellate courts have made it clear that the well-known passages from that case are not a form of “magic incantation” that must be mouthed by trial judges to avoid appellate intervention, or when mentioned suffice to shield a decision from appellate scrutiny. The proper application of the principles emphasized by R. v. W.(D.), supra, is really what matters.[^26]

c. Moreover, in situations where the phrasing in the decision of a trial judge is open to more than one interpretation, the one consistent with the trial judge’s presumed knowledge of the applicable law and its proper application must be preferred over one which suggests an erroneous application of the law.[^27]

d. Bearing in mind such considerations, I think there are ample indications that the trial judge was mindful of the principles in R. v. W.(D.), supra, his obligation to require proof beyond a reasonable doubt for any findings of guilt, and the need to consider the various ways in which reasonable doubt might be established. Without limiting the generality of the foregoing:

i. At the outset of his reasons, the trial judge emphasized the presumption of innocence, and that any finding of guilt would require proof beyond a reasonable doubt.

ii. In the course of his reasons, the trial judge expressly made reference to the fact that, if Mr Hatabi’s testimony contradicting that of the Crown’s witnesses “is believed, then he is entitled to be acquitted.” Without the case being cited, that seems to be a reference to the “first prong” of R. v. W.(D.), supra.

iii. In the course of his reasons, the trial judge also expressly acknowledged the possibility that reasonable doubt could be established by Mr Hatabi’s testimony even if it was not accepted as true. In particular, he expressly noted that Mr Hatabi’s testimony did “not have to offer a version of the events that might reasonably be true”, but “only [had] to raise a reasonable doubt”. Without the case being cited, that seems to be a reference to the “second prong” of R. v. W.(D.), supra.

iv. In the course of his reasons, the trial judge also noted his obligation to “look at the evidence in its entirety and not on a piecemeal basis”, and made express reference to the Crown having proved its case beyond a reasonable doubt despite Mr Hatabi’s testimony being disbelieved and not raising a reasonable doubt. In doing so, the trial judge effectively addressed what is colloquially known as the “third prong” of R. v. W.(D.), supra.

e. This accordingly is not a case where the trial judge was unmindful of the principles emphasized in R. v. W.(D.), supra.

f. The appellant argues that, even if that is so, the judge failed to properly address the first and second prongs of R. v. W.(D.), supra; i.e., the prongs requiring proper consideration of whether the appellant’s evidence should be believed, or was capable of giving rise to reasonable doubt. In that regard, the appellant emphasizes, in particular, that the trial judge engaged in detailed reasons explaining why he believed and accepted the testimony of the complainant and her son, but failed to set forth any similar detailed review and consideration of the appellant’s evidence.

g. In my view, there is truth in the appellant’s assertion that the reasons of the trial judge contain a detailed consideration of Crown witness testimony, and explanation of why the judge thought it believable, without expressly engaging in a similar exercise in relation to the appellant’s testimony. In that regard, the trial judge spent a good deal of time commenting on why he found Ms Jammal and her son to be impressive witnesses. He spent far less time explaining why he did not believe the appellant, why he did not think the appellant’s evidence gave rise to a reasonable doubt, and why he was rejecting the appellant’s version of events.

h. However, in my view, it cannot be said that the trial judge failed to address the first and second prongs of R. v. W.(D.), supra, in explaining his decision. In that regard:

i. In the course of explaining his decision, the trial judge expressly said the following to the appellant: “Before I begin to assess your evidence, Mr Hatabi, I want to be clear. I absolutely do not believe you.” A short time later, the trial judge returned to the same indication, saying: “But I will now tell you why I do not believe your evidence.” The trial judge therefore expressly addressed the first prong of R. v. W.(D.), supra.

ii. When a trial judge categorically rejects an accused’s testimony, (e.g., “I absolutely do not believe you”), it is implicit that the evidence does not raise a reasonable doubt.[^28] The trial judge in this case accordingly was not required to go further, and expressly confirm that the appellant’s disbelieved testimony also failed to raise a reasonable doubt. The trial judge nevertheless did so, saying the following to Mr Hatabi: “Your evidence has no value in contradicting the evidence of your wife and your son. It has no value, whatsoever, in raising a reasonable doubt.”

i. Moreover, it is well-established that, where a judge gives reasons for accepting Crown evidence, the failure of the judge to then articulate separate reasons for rejecting the evidence of the accused is not fatal, nor a sufficient reason to order a new trial. In particular, where a trial judge has considered all of the evidence, including testimony and denials of the accused, and then indicates that the evidence of the complainant combined with other supporting evidence satisfies the trial judge beyond a reasonable doubt that a charged offence was committed, a separate exposition of reasons for rejecting the contrary evidence of the accused, inherently inconsistent with such conclusions, is preferable but unnecessary. A failure to provide such a separate exposition of reasons for rejecting the contrary evidence of the accused does not demonstrate a failure on the part of the trial judge to give full and fair consideration to the accused’s evidence. An outright rejection of the accused’s evidence, based on a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting credible evidence, is as much an explanation for the rejection of the accused’s evidence as a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. In particular, where there is an inherent conflict between a complainant’s evidence and that of the accused, and a trial judge accepts the complainant’s evidence with an explanation as to why it has been accepted, no further explanation for rejecting the accused’s evidence is required. In short, it is sufficient if acceptance of the complainant’s evidence reasonably and logically implies rejection of the accused’s evidence, in relation to the essential elements of the charged offence.[^29]

j. Nor does an indication that the judge believes a complainant, and disbelieves the accused, by itself indicate that the judge has engaged in a simple credibility contest - thereby failing to properly apply the principles in R. v. W.(D.), supra - or a resort to prohibited reasoning that an accused’s testimony is disbelieved simply because it differs from that of the complainant.[^30]

k. In this case, by providing detailed reasons as to why he accepted and believed the Crown’s witnesses, (reasons which in my view can not be revisited without effectively retrying the case, and improperly substituting my own assessment of the credibility and reliability of those witnesses), the judge logically and implicitly rejected the inherently irreconcilable testimony of the appellant. A further detailed exposition of the appellant’s evidence, and why it was rejected, accordingly was not required.

l. Notwithstanding that reality, the trial judge in this case did in fact go on to provide the appellant with additional reasons as to why he absolutely disbelieved and rejected the testimony of the appellant. In that regard:

i. I do not accept the submission made by counsel for the appellant that the reasons offered by the trial judge for disbelieving the appellant’s testimony were grounded solely in the Crown’s evidence, without any regard to the evidence of Mr Hatabi himself.

ii. The trial judge, in addition to citing matters addressed by the Crown’s witnesses, expressly made reference to Mr Hatabi’s apparent obsession with Mr Mansour and Mr Mansour’s actual or suspected interactions with Ms Jammal, which in the view of the trial judge made Mr Hatabi “sick”, “sour”, “depressed” and “upset”, in turn causing Mr Hatabi to be angry and engage in the assaultive behaviour he had denied.

iii. That reasoning was based on matters addressed in Mr Hatabi’s own testimony and, as the trial judge noted, the manner in which Mr Hatabi raised them; e.g., insofar as Mr Hatabi began his testimony by placing more emphasis on trying to convince the court that Mr Mansour was a bad man, and justifying efforts to keep Mr Mansour away from Mr Hatabi’s wife, than on convincing the court that the assaults had not taken place.

iv. That reasoning in turn reflects the trial judge’s prerogative, as the trier of fact, weighing the substantive evidence before him, and the manner of witness presentation and demeanour, to make determinations of credibility and reliability. Again, it is not for this court to retry the case, reassess the evidence, or say that the trial judge placed inordinate weight on the considerations he cited when indicating why he not only believed and accepted the testimony of the two Crown witnesses, but also disbelieved and rejected Mr Hatabi’s testimony.

[25] In relation to the second narrowed ground of appeal raised by Mr Hatabi:

a. Appellate counsel placed particular emphasis on comments made by the trial judge, in his reasons, rhetorically asking what hostility, negative animus, self-interest or reason for gain the Crown witnesses might have had to fabricate testimony against the appellant, and answering those rhetorical questions by emphasizing that there was nothing in the evidence presented at trial to suggest any such reasons for the Crown witnesses to make up testimony against the appellant.

b. However, when addressing arguments that particular comments of a trial judge indicate an improper reversal of the burden of proof, (e.g., by referring to an exonerating consideration not having been established), the caselaw emphasizes the importance of reading remarks in their proper context. In particular, a trial judge is entitled to address an argument raised by the defence, (e.g., that a complainant was lying and fabricating evidence), and explain the reasons why that argument has been rejected. Doing so is no indication that the trial judge has reversed the burden of proof, and does not constitute any error warranting appellate intervention.[^31]

c. In this case, with all due respect to counsel for the appellant, (who did not represent Mr Hatabi at trial), it is quite inaccurate to suggest that fabrication of evidence by the complainant was not raised by the defence, or a “non-issue at trial”. In that regard, I note in particular the following:

i. While being cross-examined at trial, the appellant himself proactively claimed, (without offering anything further in support of the claim), that Ms Jammal had expressly delivered a message to him, (while in court the day before), indicating that everything said in her testimony was caused by Mr Hatabi having revealed that she “had a lot of money”.

ii. During the course of oral submissions, there was also the following significant exchange between counsel for Mr Hatabi and the trial judge:

MR ANMAR: Different versions doesn’t necessarily mean memory. It could simply mean that the persons themselves are making something up. So this isn’t – this isn’t memory, it just goes to credibility itself.

THE COURT: So part of what you’re saying is that fabrication is an issue?

MR ANMAR: Of course.

THE COURT: Not that people are misstating; they’re out and out lying?

MR ANMAR: Of course.

THE COURT: Okay.

d. In the circumstances, it is hardly surprising that, during the comments relied upon by appellate counsel as a basis for suggesting the trial judge improperly reversed the burden of proof, the trial judge expressly made reference to the fact that “one of the allegations is that some of the evidence is absolutely fabricated”.

e. Read in their proper context, the relevant comments of the trial judge, explaining at some length why he felt there was no evidence to suggest any of numerous possible reasons for fabrication of testimony by the Crown’s two witnesses, were nothing more than the trial judge fairly explaining to Mr Hatabi why an argument raised by the defence was being rejected.

f. In presenting that explanation for rejecting a particular argument raised by the defence, the trial judge did not reverse the burden of proof, and the relevant comments accordingly do not warrant appellate intervention.

[26] In relation to the third and final narrowed ground of appeal raised by Mr Hatabi:

a. As noted above, counsel for the appellant used a table, filed with her factum, to compare and contrast testimony provided my Ms Jammal and Kareem Hatabi on a number of specific points, (thirteen to be exact), in support of her argument that the appellant’s conviction should be set aside because the trial judge failed to address, in an adequate manner, inconsistencies in the testimony from the two Crown witnesses; inconsistencies that arguably should have given rise to a reasonable doubt about the credibility and reliability of those witnesses. In particular, the table highlighted what were said to be discrepancies between testimony of the Crown witnesses in relation to the following matters:

i. whether or not the speaker box projected at Ms Jammal made contact with the door frame before striking her;

ii. the extent to which Ms Jammal may or may not have been facing the patio door when the box struck her;

iii. the precise dimensions of the bleeding cut Ms Jammal sustained, as a result of being hit on the head with the speaker box;

iv. estimates as to the precise weight of the relevant speaker box;

v. the position of the speaker before it was projected towards Ms Jammal, (with Ms Jammal saying it was hanging on the living room wall, and therefore must have required its deliberate removal from that position by the appellant before it was projected towards Ms Jammal), and Kareem saying the box may have been on the “window” counter between the living room and the kitchen before he saw his father deliberately throw the box at Ms Jammal;

vi. the amount of time that passed between the throwing of the box and Kareem going outside to comfort his mother;

vii. the amount of time that passed between the box striking Ms Jammal and the appellant’s locking of doors, preventing entrance into the home;

viii. whether or not Kareem spoke further with the appellant upstairs, in the absence of Ms Jammal, on the occasion involving the speaker box, or after the later altercation that took place at the top of the stairs in the home;

ix. whether the appellant was pulling Ms Jammal’s hair towards the interior or exterior of the house at the time of the altercation at the front door of the house;

x. the failure of Ms Jammal to mention the breaking of any door glass during that front door altercation, whereas Kareem’s testimony included an indication that had happened;

xi. whether the appellant had hit Ms Jammal in the head with a brown Costco shoe or a white flip-flop; and

xii. whether the appellant had twisted his son Kareem’s arm at the time of the first or second altercation.

b. It bears repeating that an accused is entitled to adequate reasons, not perfect reasons, and that it is not enough, when suggesting directly or indirectly that a trial judge made a differential and improper credibility assessment, to show that the trial judge failed to say something that he or she could have said in assessing the respective credibility of the complainant and the accused.

c. Moreover, while a conviction may be set aside on the basis a trial judge failed to appreciate evidence or misapprehended evidence, (which includes a failure to consider evidence relevant to a material issue that could affect the verdict), an appellant seeking to overturn a conviction on that basis must meet a stringent standard. The relevant evidence must relate to matters of substance rather than detail, must be material rather than peripheral to the judge’s reasoning, and must relate to essential parts of the reasoning process rather than narrative.[^32]

d. It should also be remembered that inconsistencies on minor matters or matters of detail are normal and are to be expected, and accordingly do not affect the credibility of witnesses. There may be a number of inconsistencies, but that does not necessarily mean they are significant. A trial judge need only address significant and material inconsistencies.[^33]

e. As noted above, the general rule is that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on all problematic points, and verdicts are not overturned merely because a judge fails to discuss what are really collateral aspects of a case.[^34] A failure by a trial judge to deal with all alleged inconsistencies is not a fatal flaw.[^35] In particular, while a trial judge is required to consider all of the evidence, in relation to the ultimate issue of guilty or innocence, trial judges are not obliged to discuss all evidence on any given point, or answer each and every argument of counsel.[^36]

f. In this case, the trial judge was alert to the existence of inconsistencies between the testimony of Ms Jammal and Kareem Hatabi, and addressed such matters at some length in his reasons. In that regard, his comments included the following:

i. He noted that memories are not comparable to immutable video recordings capable of recalling events in photographic detail, that certain significant details of events understandably may stand out in people’s memories while others do not, and that there had been passage of time between the incidents and the trial, allowing for natural erosion of memories in relation to certain details.

ii. He noted that the incidents being described were somewhat traumatic, affecting the ability to fix a short-term memory.

iii. He noted that matters of importance to someone on the receiving end of an assault understandably may not have been the same details to which importance was attributed later at trial, which similarly would affect what particulars may have been fixed in short-term memory.

iv. He noted that there were reasons for a witness such as Kareem to be understandably nervous while testifying; e.g., in having to give evidence relating to a dispute between his parents, and providing testimony against his father.

v. He emphasized that, despite admissions that certain details may not have been remembered with accuracy, the testimony remained consistent in relation to essential elements of matters before the court,

vi. Addressing the defence allegation that the Crown witnesses had fabricated their testimony against the appellant, the trial judge noted his view that there was no evidence to suggest hostility, self-interest, or desire for gain that would motivate Ms Jammal and/or Kareem to make up testimony against Mr Hatabi. In that regard, the trial judge noted that there were many understandable reasons for Ms Jammal’s delay in reporting the incidents, (including cultural reasons and her shy demeanor), and noted that Ms Jamal refrained from reporting the relevant incidents to the police until involvement of the Children’s Aid Society obliged her to do so.

vii. The trial judge expressly noted that, while inconsistencies or omissions in relation to material matters might be significant, they were not always indications that a witness was not being truthful, and that minor inconsistencies, or inconsistencies relating to immaterial matters, were not as important.

viii. The trial judge expressly noted that he was alive to the presence of various inconsistencies in the Crown’s evidence, highlighted by the defence, but also explained why such inconsistencies did not affect his view that the charged offences had been proved beyond a reasonable doubt. For example, in addition to the general observations noted above, as to why inconsistencies in the testimony of witnesses in the positions of Ms Jammal and Kareem were to be expected:

1. The trial judge characterized the challenges raised by the defence, in relation to the complainant’s credibility and reliability, as ones involving only “minor inconsistencies”.

2. The trial judge expressly found that there were “no significant inconsistencies” to detract from his view that Ms Jammal was a truthful and reliable witness, whose testimony was “incredibly detailed”, “animated” and “sequentially detailed”, delivered in a manner that convinced the judge she was “reliving” the relevant events while testifying, and made appropriate concessions in relation to matters in respect of which her memory admittedly was uncertain and/or she admittedly was drawing inferences.

3. The trial judge made express reference to the initial discrepancy between Ms Jammal’s belief that the speaker box had been hanging on the wall, and Kareem’s suggestion that it might have been on the counter, but addressed that apparent inconsistency by noting Ms Jammal admittedly had not see where the speaker box was before it came at her, and by accepting Kareem’s evidence that he actually saw his father get the box and throw it, thereby rejecting the defence theory that the appellant accidentally propelled the box towards Ms Jammal by sweeping it off the counter in the course of a backhand motion.

4. The trial judge mentioned, in passing, the fact that there were varying estimates as to the weight of the relevant speaker box. However, the trial judge also clearly was dismissive about that issue’s suggested importance; i.e., quickly passing on to an indication of the “bottom line” being that Ms Jammal “was struck in the head by her husband who had control of this box”.

5. The trial judge similarly indicated his view that the exact path of the box’s travel was of little importance; e.g., expressly saying that he placed “no weight on the two prosecution witnesses not being able to describe the bounce of the box off the door before it hit” Ms Jammal.

6. While noting that defence counsel had raised an issue about the testimony of mother and son not fitting “hand in hand”, (e.g., in terms of Kareem going into the backyard to calm his mother), the trial judge said he was mindful of the fact that the two were viewing events from different locations and perspectives, and with a different focus.

7. The trial judge expressly characterized matters relating to the locking of doors and efforts to re-enter the home after the speaker box incident as “post-event detail” that had “nothing to do with the assault”.

8. In relation to whether and when the appellant had angrily taken his son’s hand and arm, and held them behind his son’s back, the trial judge emphasized that Kareem was the “sole witness” to that, (i.e., given Ms Jammal’s acknowledgement in her testimony that she had not seen that happen), effectively highlighting the reality that there actually was no conflict in the testimony of Crown witness testimony on that point. The trial judge accepted Kareem’s testimony and rejected that of the appellant, in part by noting that the appellant himself had admitted pushing his son.

9. Regardless of the precise size of the scratch or cut sustained by Ms Jammal, as a result of being hit with the speaker box, the trial judge expressly focused what he considered to be the more important point in that regard; i.e., the fact that Kareem had confirmed the existence of a scratch on his mother’s head.

10. The trial judge expressly noted the inconsistency between the testimony of Ms Jammal and Kareem when it came to their description of the item used by the appellant to strike Ms Jammal over the head; e.g., noting that Ms Jammal thought it had been a brown Costco shoe, whereas Kareem thought it had been a white “flip flop”. However, the trial judge also expressed his view that “the difference in their testimony [was] a difference in detail, not the significant event”. In that regard, the trial judge also emphasized his view that there was an understandable explanation for the inconsistency. In particular, he noted that Ms Jammal was not expecting to be struck about the head, and her comment about the type and colour of the footwear used in the attack “was probably a conclusion and not a thoughtful observation”, and that Kareem, for his part, was “not expecting such an incident to unfold” and was similarly “making conclusions”, but was sure “that his mother was being struck about the head with a piece of footwear”. In the view of the trial judge, it was the mother and son’s testimony about “the significant event” of the appellant striking his wife in the head with footwear that proved that particular alleged assault beyond a reasonable doubt. Such comments echoed those already made by the judge, during the course of oral submissions, indicating his view that details about such matters as the colour and/or type of footwear involved were “collateral” to the “important” and “significant” matter of two witnesses agreeing that somebody was struck in the head with a piece of footwear.

• Without perhaps exhaustively listing and addressing them, the trial judge therefore clearly recognized and considered the existence of discrepancies between the accounts offered by the Crown’s two witnesses, but explained - by way of reasons and examples - why he did not think such discrepancies were surprising or significant, why he did not think such inconsistencies undermined his view that the Crown witnesses generally were credible and reliable, and why he felt that the “significant events” underlying the charged offences had been proven beyond a reasonable doubt. These are areas where great deference is due to the trial judge, and I find no basis for finding that he committed an error in principle.

• Without limiting the generality of the foregoing, I find no fault with the apparent view of the trial judge that many of the discrepancies focused upon by the appellant, including those addressed and not addressed expressly by the trial judge in his reasons, concerned details that were peripheral to determinations of whether the essential elements of the charged offences were proven beyond a reasonable doubt. For example:

  • If Ms Jammal and her son were consistent and clear on the fact that the appellant deliberately threw a speaker box that made contact with his wife’s head, it would seem to matter little that mother and son had different memories or perceptions of exactly how much the box may have weighed, whether the box happened to make contact with the doorframe first, the precise length of the bleeding cut sustained by Ms Jammal as a result of being hit by the box, or how long it may have taken for Kareem to exit the home to support his mother.

  • If Ms Jammal and her son were consistent and clear about the appellant pulling his wife’s hair during an altercation at the front door, it seems reasonable to regard matters such as the precise grip the appellant had on his wife’s hair, or the exact direction in which he was pulling his wife by the hair, as having little significance.

  • As the trial judge emphasized, if Ms Jammal and her son were consistent and clear about the appellant using some type of footwear to hit his wife over the head in the heat of an argument, the precise type and colour of the footwear used mattered little to a determination of whether the essential elements of the relevant assault had been established beyond a reasonable doubt.

• In my view, while recognizing and addressing the existence of Crown witness discrepancies, (albeit in a non-exhaustive way), the judge focused on the important core issues, which were centred on whether the alleged assaults took place. In that regard, he supplied detailed reasons for why he believed the testimony of Ms Jammal and Kareem Hatabi, in relation to the appellant’s commission of the charged offences. I am not persuaded that the trial judge erred in his approach, or in the result, by failing to address, in an exhaustive fashion, all discrepancies and inconsistencies identified by the appellant.

Conclusion

[27] For the reasons outlined above, I find no miscarriage of justice, in relation to the conviction of Mr Hatabi, warranting appellate intervention pursuant to s.686(1) of the Code. The appeal against conviction is dismissed accordingly.

“Justice I.F. Leach”

Justice I.F. Leach

Date: February 6, 2020

[^1]: See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p.185.

[^2]: See R. v. Binaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paragraphs 36-37.

[^3]: See R. v. Binaris, supra, at paragraphs 36-37.

[^4]: See R. v. Quercia, 1990 CanLII 2595 (ON CA), [1990] O.J. No. 2063 (C.A.), at paragraph 6.

[^5]: See R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paragraph 62.

[^6]: See R. v. Grosse, 1996 CanLII 6643 (ON CA), [1996] O.J. No. 1840 (C.A.), at paragraph 14; and R. v. G.W., 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075 (C.A.), at paragraphs 18-19.

[^7]: See R. v. Burns (1994), 1994 CanLII 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.), at p. 199. This accords with the general rule, noted again in more detail below, that a trial judge does not err merely because he or she does not give exhaustive reasons for deciding one way or the other on problematic points.

[^8]: See R. v. Quercia, supra, at paragraph 6.

[^9]: See R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paragraphs 5-6; R. v. G.W., 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075 (C.A.), at paragraph 18; and R. v. Beaudry, supra, at paragraph 63.

[^10]: See R. v. Burke, supra, at paragraph 7; and R. v. Beaudry, supra, at paragraph 63.

[^11]: See R. v. Binaris, supra, at paragraphs 38 and 41.

[^12]: See Housen v. Nikolaisen, supra, at paragraph 4; and R. v. Beaudry, supra, at paragraph 62.

[^13]: See, for example, R. v. Hinds, [1999] O.J. No. 1716 (S.C.J.), at paragraph 12; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 8; and R. v. Bradbury, 2004 NLCA 82, [2004] N.J. No. 420 (C.A.), at paragraph 12.

[^14]: See R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont.C.A.), at paragraph 59; and R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (C.A.), at paragraph 95.

[^15]: See R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at paragraph 59; R. v. Aird (2013), 2013 ONCA 447, 307 O.A.C. 183, at paragraph 39; R. v. N.L.P., 2013 ONCA 773, [2013] O.J. No. 5878 (C.A.), at paragraph 15; and R. v. Rhayel, supra, at paragraph 97.

[^16]: See R. v. Rhayel, supra, at paragraph 98.

[^17]: See R. v. Rhayel, supra, at paragraphs 100-105.

[^18]: See R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45, at paragraph 62; and R. v. Rhayel, supra, at paragraph 96.

[^19]: See R. v. Morrissey, supra, at paragraphs 27-30.

[^20]: See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paragraph 55.1.

[^21]: See R. v. Sheppard, supra, at paragraph 55.7.

[^22]: See R. v. Sheppard, supra, at paragraph 55.8.

[^23]: See R. v. Burns, supra, at paragraphs 17-18.

[^24]: See R. v. Rhayel, supra, at paragraphs 85 and 89; and R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505 (C.A.), at paragraph 44.

[^25]: See R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313-314; R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at p.355; R. v. S.(N.), 2012 SCC 72, [2012] 3 SC.R. 726, at paragraphs 18 and 26; R. v. Rhayel, supra, at paragraph 86; R. v. A.(A.) (2015), 2015 ONCA 558, 327 C.C.C. (3d) 377 (Ont.C.A.), at paragraph 131; and R. v. Hemworth, supra, at paragraph 45.

[^26]: See, for example, R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. D.S.C. (2004), 2004 NSCA 135, 228 N.S.R. (2d) 81 (C.A.), at paragraph 21; R. v. Stamp, 2007 ABCA 140, [2007] A.J. No. 442 (C.A.), at paragraph 50; and R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paragraphs 32-33.

[^27]: R. v. Morrissey, supra, at paragraph 27.

[^28]: See R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paragraph 27; and R. v. B.G.G., [2018] M.J. No. 79 (C.A.), at paragraphs 3 and 4.

[^29]: See R. v. Morrissey, supra, at paragraph 38; R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), at paragraph 53; R. v. R.L., 2002 CanLII 49356 (ON CA), [2002] O.J. No. 3061 (C.A.), at paragraph 3; R. v. Stamp, supra, at paragraph 45; R. v. Gordon, [2015] A.J. (No. 1207, at paragraphs 5 and 15; and R. v. B.G.G., supra, at paragraph 4.

[^30]: See R. v. Tzarfin, 2005 CanLII 30045 (ON CA), [2005] O.J. No. 3531 (C.A.), at paragraphs 10-11.

[^31]: See R. v. C.J.G., 2018 ABCA 130, [2018] A.J. No. 418 (C.A.), at paragraph 7.

[^32]: See Harper v. The Queen, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2, at p.14; and R. v. Cloutier, [2011] O.J. No. 3005 (C.A.), at paragraph 60.

[^33]: R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (C.A.), at paragraphs 27-30.

[^34]: Again, see R. v. Burns, supra, at paragraphs 17 and 18.

[^35]: See R. v. R.L., supra, at paragraph 3.

[^36]: See R. v. Tippett, [2015] O.J. No. 5413 (C.A.), at paragraph 27.