COURT FILE NO.: SCA File 29/20
DATE: 2022-12-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ZAHEER AHMAD
COUNSEL:
Nicole Bailey, for the Crown
Theresa Donkor, for Zaheer Ahmad
HEARD: October 27, 2022
Reasons ON summary conviction appeal
P.J. Monahan J.
[1] Following a brief trial in the Ontario Court of Justice, Zaheer Ahmad was convicted of assault for spitting on a security guard and, further, of failing to comply with a probation order. The charges arose out of an altercation between Mr. Ahmad and two security guards at the Metro Hall Employment Centre in Toronto (“Metro Hall”) in March 2019.
[2] Mr. Ahmad appeals his conviction on two grounds. First, he argues that the trial judge erred in the application of the W (D) analysis, in that he failed to consider whether he believed Mr. Ahmed’s evidence, or whether it left him with any reasonable doubt as to his guilt. Second, the trial judge erred by impermissibly reasoning that because one of the security guards did not exaggerate his testimony, his version of events was more likely be true.
[3] For the reasons that follow I would dismiss the appeal.
Background
[4] On March 27, 2019, Mr. Ahmad attended Metro Hall to work on his resume and some employment applications. About 20 minutes prior to closing, the supervisor of the employment Centre and a security guard, Aron Xavier (“Xavier”), approached him. The supervisor served Mr. Ahmad with a 30-day trespass notice because someone had made a complaint against him. Xavier testified that when Mr. Ahmad was served with the notice, he began swearing and threw the notice on the ground.
[5] Xavier said he placed the trespass notice on Mr. Ahmad’s bag and asked him to leave the premises. Xavier also called for a second security guard, Samuel Chan (“Chan”) to assist him.
[6] Mr. Ahmad testified that after he was served with the trespass notice, he asked the supervisor if he could finish working on his resume until closing and that the supervisor agreed.
[7] A few moments later, Xavier approached Mr. Ahmad and told him that he had to leave. Mr. Ahmad became very upset because the supervisor had just told him that he could stay. He started arguing with Xavier, but Xavier told him to “just grab his stuff and go”. Xavier and Chan then began escorting Mr. Ahmad towards the John Street exit of Metro Hall.
[8] When they reached the John Street exit, Xavier told Mr. Ahmad to “have a better day”. Xavier’s evidence was that he then observed Mr. Ahmad to build up spit in his mouth and spit it onto his face, specifically his mouth and eyes. Chan also testified that he observed Mr. Ahmad create spit in his mouth and spit it in the face of Xavier.
[9] Mr. Ahmad’s evidence was that the two security officers were pushing him in the direction of the John Street exit. Mr. Ahmad acknowledged that he was yelling and swearing at the officers. However, he denied ever intentionally spitting on Xavier, although he agreed that it was possible that he unintentionally spat on him as he was yelling and swearing.
[10] After the alleged spit incident, Xavier told Mr. Ahmad he was under arrest for assault. Xavier attempted to gain control of Mr. Ahmad but said that Mr. Ahmad was resisting. Xavier and Chan pinned Mr. Ahmad down on the ground for about five minutes while waiting for Toronto police officers to arrive.
[11] The altercation was witnessed by David Bremner (“Bremner”), a civilian bystander who had attended Metro Hall that day to pick up his wife. As he was exiting his motor vehicle, Bremner heard yelling. He began walking toward the main doors and saw Mr. Ahmad make a “spitting gesture” or “headbutt” motion at Xavier. He did not actually see Mr. Ahmad spit on Xavier but he heard Xavier yell that Mr. Ahmad had spit on him and that this was an assault. He was about 10 feet away from Mr. Ahmad and the security officers when he made these observations.
[12] Four different camera angles of video surveillance from Metro Hall were played during the trial. Xavier testified that on one video, Mr. Ahmed’s head could be observed moving back and forward which was when he thought the spitting had occurred, but that it was too far to see the actual spit.
Trial Judge’s Reasons for Judgment
[13] In his oral reasons delivered at the end of trial, the trial judge noted that the alleged spitting itself was not captured on the video, although the video was consistent with that having occurred. He also noted that Xavier described something that could not possibly have been an accidental spitting. He then set out the question before him as whether the evidence “establishes for me beyond a reasonable doubt a reason why I should exclude the possibility that your evidence may be reliable and find beyond a reasonable doubt that the evidence led by the prosecution is reliable and convinces, again, to the required standard of proof beyond a reasonable doubt.”
[14] The trial judge continued that “this is really what it is”. He observed that he found the evidence of Xavier to be moderate and restrained, with Xavier conceding that there was absolutely no significant injury caused by the altercation. In addition, Xavier was not able to state when the spit was wiped away and did not attempt to “invent or concoct some moment when that would have happened.” There was “no obvious exaggeration” in Xavier’s evidence.
[15] The trial judge went on to observe that Chan impressed him as a “likely truthful witness”, since Chan’s evidence differed with Xavier’s, albeit on “insignificant detail”. The trial judge noted that Chan had observed Mr. Ahmad making “an organized effort to accumulate spit and then spit.” In particular, Chan had made particular mention of the “headbutting gesture which is common to the act of deliberately spitting”.
[16] The trial judge described the civilian witness, Bremner, as “about as independent a witness as you will ever get.” The trial judge noted that Bremner had observed the same headbutting gesture that had been identified by Chan, in which a person’s head “rocks back towards the rear of the person doing the action and then is propelled forcefully forward to eject spit in the direction of the target.”
[17] The trial judge further found that Mr. Ahmad was upset and “pretty exercised” by the perceived unfairness of the interaction with the security guards. He observed that Xavier’s statement to Mr. Ahmad to “have a better day” may well have been perceived by him as sarcastic and provocative.
[18] The trial judge concluded his reasons as follows:
My belief, based on the power of the evidence that the Crown has presented and my rejection of your evidence, is that you did in fact become enraged at Xavier as the front man for what you perceived as your unfair ejection from the Metro Hall, and that you spat at him. And that constitutes an assault. And it goes without saying that that is a failure to keep the peace and be of good behaviour on the probation order that we all know that you were subject to. And you will be convicted of that charge as well.
Standard of Review
[19] It is well established that appellate review of a trial judge’s reasons requires a functional and contextual approach with a consideration of the live issues at trial and a full review of the record. It does not involve a microscopic parsing out of the trial judge’s reasons in search of error. Where a case turns largely upon determinations of credibility, the sufficiency of a trial judge’s reasons should be considered with the exigencies of the case in mind and the deference owed to trial judges on credibility findings.[^1]
First Ground of Appeal: Alleged error in application of W. (D)
a. General Principles
[20] The W. (D) framework for assessing credibility in a criminal trial is well known and not in dispute. Pursuant to this framework, if the evidence of an accused is believed, they must be acquitted. Second, even if an accused is not believed but their evidence nevertheless gives rise to a reasonable doubt, they must be acquitted. Third, even if an accused is not believed and their evidence does not give rise to a reasonable doubt, they can only be convicted if, on the whole of the evidence which is accepted, the trier of fact is satisfied of guilt beyond a reasonable doubt. The framework in W. (D) applies not only to the accused’s evidence, but to any evidence tending to raise a reasonable doubt, whether led by the defence of the Crown.[^2]
[21] A trial judge is not required to recount the principles of W. (D) as if they are some form of “magical incantation”. Provided the principle of reasonable doubt remains central to the judge’s consideration, the trial judge is not required to present their credibility findings in a particular order. It is the substance, not the form, that is required. As the Supreme Court of Canada stated in Dinardo, the key issue is whether the trial judge has directed his or her mind “to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.”[^3]
[22] Moreover, a trial judge is entitled to reject an accused’s evidence based on a reasoned and considered acceptance of the truth of conflicting evidence. Such a finding is as much of an explanation as when a trial judges identifies credibility concerns in an accused’s testimony itself. Provided that the principle of reasonable doubt remains central, there is no error in a trial judge articulating that they reject the evidence of the accused based on credible and reliable evidence to the contrary.[^4]
b. Application of Principles
[23] Mr. Ahmad argues that the trial judge failed to properly apply W. (D) because he rejected his evidence without explanation. In so doing, the trial judge failed to consider step one or step two of the W. (D) analysis, which required him to explain why he rejected Mr. Ahmad’s evidence, and moved immediately to the third step. Mr. Ahmad relies in particular on the sentence quoted earlier in which the trial judge stated that his belief that the appellant spat on Xavier was “based on the power of the evidence that the Crown has presented and my rejection of your evidence…” Mr. Ahmad argues that the trial judge was not permitted to reject his evidence outright simply because his evidence differed from the Crown’s witnesses on the core issue. In doing so, the trial judge improperly shifted the burden of proof onto him to explain away the Crown’s evidence.
[24] On the other hand, the Crown submits that when a functional and contextual approach is taken to the review of the trial judge’s reasons, in circumstances where the only live issue at trial was whether Mr. Ahmad spit on Xavier, the “what” and the “why” in support of the conviction is clear and the trial judge committed no errors.
[25] The Crown argues that the evidentiary record in support of the trial judge’s finding that Mr. Ahmad had indeed spit on Xavier was overwhelming. Xavier had both observed and experienced the spitting while the second security officer, Chan, had also observed it. Bremner, the independent witness, observed the appellant’s ‘headbut’ action, a head action which was also visible in the video surveillance. The Crown argues that the trial judge was entitled to find that the head action observed by the independent witness and visible to him in the video surveillance corroborated the evidence of both Xavier and Chan. In accepting their evidence, the trial judge necessarily found that Mr. Ahmad had deliberated spit on Xavier. While a court is not permitted to simply choose between two credible but contradictory accounts in finding an accused guilty, it is permissible for a court “to reject the denials of an accused where the evidence in support of the finding of guilt is of such a compelling nature as to represent a basis upon which a mere denial can be dismissed as untruthful.”[^5]
[26] I accept the Crown’s submissions on this issue and would reject this ground of appeal.
[27] I note that the appellant’s primary position at trial was that he simply didn’t spit on Xavier. To the very limited extent he was prepared to acknowledge that some of his spit might have gotten onto the victim, it was only by accident, given that he was yelling at the security officers.
[28] In his analysis of whether or not an assault had occurred, the trial judge placed particular emphasis on the distinctive head action observed by the security officers as well as by the independent witness and visible on the video surveillance. Given his acceptance of this evidence, the trial judge necessarily found not only that a spitting had occurred but also that the spitting could not have been accidental. In other words, he rejected the appellant’s claim that any spitting that might have occurred was accidental, in the face of the strength of the evidence he accepted.
[29] The use of the word “and” in the key sentence in his conclusion quoted above does not demonstrate that the trial judge failed to grapple with the principles of W. (D). Any such microscopic parsing out of the trial judge’s reasons would be contrary to the vast body of appellate authority cautioning against such a technical and formalistic approach by a reviewing court. Notably, the trial judge had earlier referred to the question before him as being whether “I should exclude the possibility that your evidence may be reliable and find beyond a reasonable doubt that the evidence led by the prosecution is reliable and convinces, again, to the required standard of proof beyond a reasonable doubt”. The trial judge was clearly alive to the necessity of the Crown establishing Mr. Ahmad’s guilt beyond a reasonable doubt, as required by W. (D).
[30] The trial judge’s path in this case was clear. He gave a reasoned and considered basis for accepting the strength of the Crown’s evidence. In doing so he necessarily rejected the appellant’s denial, and was not left in any reasonable doubt by it. Accordingly, I find that he committed no error in his application of the W. (D) framework and would dismiss this ground of appeal.
Second Ground of Appeal: Improper reliance on the lack of exaggeration in Xavier’s evidence
[31] It is agreed that it is an error for a trial judge to reason that because an allegation could have been worse, it is more likely to be true. This is because “both truthful and dishonest accounts can appear to be without exaggeration or embellishment.”[^6]
[32] On the other hand, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. Although these are not factors that show credibility, they are explanations for why a witness has not been found to be incredible.[^7]
[33] The appellant claims that the trial judge improperly relied on the fact that Xavier had not exaggerated his evidence as a basis for accepting that evidence. The appellant notes that the trial judge acknowledged that Xavier “took pains to make it clear that there was absolutely no significant injury” caused by the altercation even though “there was quite a bit of physical contact.” The trial judge also indicated that Xavier “did not make any effort to invent or concoct” evidence about wiping away the spit on his face, and that there was no “obvious exaggeration” in his testimony.
[34] The Crown notes that, at trial, counsel for the appellant did not argue that Xavier was fabricating but, rather, that any spit that got on him occurred by accident only. By necessity, underlying the defence theory was that Xavier exaggerated what occurred, by incorrectly interpreting an accidental spitting as a purposeful one. Counsel also argued that Xavier used excessive force with the appellant, that he instigated the confrontation, and that Xavier pushed Mr. Ahmad multiple times.
[35] The trial judge specifically rejected that excessive force was employed by Xavier. He found that Xavier was moderate and restrained, both in his dealings with the appellant on the day in question and throughout his evidence at trial. In the Crown’s view, this was an observation that the trial judge was entitled to make since it went to the heart of the defence theory, namely, that Xavier had exaggerated, improperly characterizing an accidental spitting as a purposeful one.
[36] In my view, when a functional and contextual approach is brought to a reading of the reasons of the trial judge, his comments about the lack of exaggeration in Xavier’s testimony were an attempt on his part to be responsive to the concerns raised by defence counsel. He was entitled to note that Xavier was objective, measured and careful, readily acknowledging the limits of his memory, with a view to rejecting a defence theory that Xavier mistook an accidental spitting for a deliberate one.
[37] I therefore find that in the relevant passages the trial judge was merely making references to the absence of matters that would diminish Xavier’s credibility, in responding to issues raised by the defence at trial. No error occurred and this ground of appeal is dismissed.
Disposition
[38] Mr. Ahmad’s conviction appeal is hereby dismissed.
P. J. Monahan J.
Released: December 5, 2022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – ZAHEER AHMAD
REASONS ON SUMMARY CONVICTION APPEAL
P.J. Monahan J.
Released: December 5, 2022
[^1]: See generally: R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869, at paras 24 - 26, 46, 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at paras 25, 30 - 32; R. v. G. F., 2021 SCC 20, [2021] SCJ 20, at paras 5, 68-69, 76, 81.
[^2]: R. v. W. (D), 1991 CanLII 93 (SCC), 1991] 1 SCR 742; R. v. Smith, 2020 ONCA 782, at paras 11 – 13.
[^3]: Dinardo, at para 23.
[^4]: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O. J. No. 4749 (Ont. C.A.) at paragraph 53, leave to appeal dismissed, [2007] SCCA 69; R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3, at paras 51, 56, 66.
[^5]: R. v. Cubilete-Pereyra, 2022 ONSC 1823, at paras 20 – 23.
[^6]: R. v. Kiss, 2018 ONCA 184 at para 52.
[^7]: Kiss, at paragraph 53.