COURT FILE NO.: 21-RA19884 DATE: 2023/08/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Hany Komy Appellant

Counsel: Cecilia Bouzane, for the Crown Forest Poff-Smith, for the Appellant

HEARD: August 2, 2023

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

CARTER J.

Introduction

[1] The Appellant was charged with a number of counts of sexual assault and one count of assault with respect to three complainants. His trial proceeded before Alder J. in the Ontario Court of Justice. The evidence at trial is thoroughly canvassed in the Reasons for Decision and need not be repeated in detail here. A summary will suffice.

[2] The Appellant is a pharmacist and is owner of two pharmacies in Ottawa—the Baseline Pharmacy and the Kilborn Pharmacy. Two of the complainants, G.K. and M.L., were employees at the pharmacies. The third complainant, K.C., was a client of the pharmacies.

[3] All three complainants testified at trial.

[4] According to G.K., the offences all occurred while she was working. The simple assault related to the Appellant shoving her and the two counts of sexual assault related to slapping and touching her buttocks as well as touching her breast.

[5] M.L. also testified that the sexual assault occurred while she was working. It involved him kissing her on the cheek and placing his hand on her lower back or buttocks area.

[6] With regard to K.C., it was alleged that he touched her hair, then continued moving his hands and touched her breasts, then placed his hand on her buttocks.

[7] The Appellant testified and denied all of the allegations.

[8] At the conclusion of the trial, he was not found not guilty of the sexual assault count relating to K.C. but convicted of all counts with respect to G.K. and M.L. He appeals against those convictions on a single ground – that the trail judge’s assessment of his credibility was based on material misapprehensions of the evidence.

Misapprehension of Evidence: Legal Principles

[9] When a trial judge is mistaken as to the substance of the material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, an accused’s conviction is not base exclusively on the evidence and is not a true verdict. In such cases, it follows that a miscarriage of justice has occurred, and the accused is not bound to show that the verdict cannot be supported by the evidence. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction" (R. v. Lohrer, 2004 SCC 80 at paras. 1 – 4).

[10] Where the alleged misapprehension relates to evidence used to assess credibility, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment. If the trial judge mischaracterized parts of the accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice (R. v. Choudhary, 2023 ONCA 467 at para. 57).

Misapprehension of Evidence Regarding Dr. Langlois

[11] At trial, the Appellant testified about arrangements he had with Dr. Langlois in response to testimony given by the complainant K.C. As previously noted, the Appellant was ultimately acquitted of sexually assaulting K.C. Nevertheless, the trial judge noted in her reasons for judgment that the Appellant’s evidence on this issue was inconsistent and, as a result, adversely affected his credibility generally. She stated:

[the Appellant] said he had an arrangement with Dr. Langlois, whose office was in the same building, that he would carry some items for Dr. Langlois' patients for epidurals and urine collection but stated there was no arrangement that his patients had to get their prescriptions at his pharmacy. He said a doctor had no authority to do that and he would never agree to it. He said the only exception was in regard to Fentanyl patches, Dr. Langlois asked his patients to choose a pharmacy and stay with it to avoid possible abuse. He said other pharmacies carried items for Dr. Langlois but then later in his evidence, said he did not know if that was true. He also said that what he did know, was from patients, that these items were available elsewhere. That answer also changed in his evidence when he said no one had ever told him that, no patient had ever told him that, he made the assumption because patients simply attended with a urine sample cup. On one very simple issue, his answer changed numerous times, and this happened more than once.

[12] The Appellant submits that the trial judge misapprehended his evidence with respect to Dr. Langlois in two respects. First, on the issue of whether the Appellant had an exclusive arrangement with Dr. Langlois’s patients. Second, with respect to carrying items for Dr. Langlois.

[13] On the first issue, it is important to note that at no point in her decision does the trial judge state that the Appellant gave inconsistent evidence on whether he had an exclusive arrangement with Dr. Langlois. As can be seen from the passage above, the inconsistencies at issue were with respect to whether he knew other pharmacies carried items for Dr. Langlois and how he learned of that information. The Appellant is correct to note that he was consistent throughout his testimony that he and Dr. Langlois did not have an exclusive agreement serving the doctor’s patients and carrying items for him. The trial judge, however, did not say otherwise. In fact, the evidence of the Appellant is correctly set out in the passage above. She did not misapprehend the evidence on this point.

[14] With respect to the inconsistencies the trial judge did highlight, they are apparent on the record. The Appellant did initially testify that other pharmacies carried items for Dr. Langlois but then later in his evidence said he did not know if that was true. He also initially testified that what he did know about the availability of items came from patients but then later gave evidence that no patient had ever told him that, that he simply made the assumption.

[15] The Appellant submits he was not changing his evidence multiple times but rather was candidly clarifying a misspoken answer given previously. If I were the trial judge, I might have accepted that explanation and given the inconsistencies little weight, particularly as they related to an ancillary matter. However, it is not my role as an appellate judge to substitute my own decision on matters of credibility. The trial judge was entitled to consider the inconsistencies and there is no basis to interfere on review.

Misapprehension of Evidence

[16] The second area where a misapprehension is alleged is with respect to the Appellant’s evidence as to the location at which G.K. worked and how her training occurred. The trial judge stated as follows:

He testified that usually new employees were trained with him at the Kilborn Pharmacy, then clarified he meant that G.K. started with the Kilborn Pharmacy and sometimes she went to the Baseline Pharmacy. So he said, "Like two times a week at Kilborn, one time at Baseline" and that he remembers very well that after one week, and then two weeks, G.K. was not doing very well. That she was showing no initiative to work or to catch up on things, that the other pharmacy technician had to stay with her at the cash and for the simplest stuff, and that there were mistakes in counting so they could not rely on her at all. That he was very upset, and he went to speak to the training pharmacist technician which was Mary and said, "Okay, I decided to tell her no more hours because she is not catching on and it has been almost three weeks". He said, Mary said maybe she is just shy and it will take her a bit of time. He said he would send her to his wife's pharmacy because it was less busy there but for him, he could not stand that he had to jump from side to side and still she was not catching on to anything after three weeks. And that he told her that as of tomorrow, she would be going to Baseline and the next day, she did not show up at Baseline and she called and then eventually all these allegations.

None of this was, of course, put to G.K. in cross-examination and it is inconsistent with Mr. Komy's own evidence that she was initially hired to actually work at the Baseline Pharmacy and that he was not involved in training new staff. When asked about the apparent inconsistency between his original evidence, that she was hired to work at his wife's pharmacy at Baseline, he said, no, everyone worked here and there and even in the interview from the beginning, he had made it clear, you are working here and there and the distance was around 15 or 20 minutes by bus. This is, of course, a clear inconsistency with his prior testimony [emphasis added].

[17] I agree with the Appellant that he never testified the G.K. was initially hired to work at the Baseline Pharmacy. Nor was he inconsistent on his involvement in training new staff. He testified that although he did not personally train the staff, they were trained at his pharmacy. His evidence in that regard never wavered. On this point, the trial judge did misapprehend the evidence. The issue is whether the misapprehension was material.

[18] The Appellant relies on two decisions in which the misapprehension of the accused’s evidence resulted in a miscarriage of justice – R. v. C.L.Y., 2008 SCC 2 and R. v. S.R., 2022 ONCA 192. However, I conclude that both of these decisions are distinguishable.

[19] In C.L.Y., the trial judge relied primarily on two factors to conclude that the accused’s evidence failed to raise a reasonable doubt and misapprehended the evidence with respect to both of those factors. In S.R., the trial judge identified five areas of concern with respect to the accused’s evidence. He misapprehended the evidence on three of them. He further noted that it was the cumulative effect of these concerns that led him to reject the evidence of the accused. For that reason, the Court of Appeal concluded that the evidence he misapprehended played a key role in his reasoning process.

[20] Here, the trial judge made an adverse finding with respect to the credibility and reliability of the Appellant for a number of reasons:

a) There were a number of inconsistencies in his evidence (only one of which is tainted by a misapprehension of the evidence); b) The Appellant was combative, argumentative and flippant throughout his evidence; c) At times the Appellant’s answers were evasive; d) The Appellant gave self-serving answers to questions; e) There was a failure to comply with the rule in Browne v. Dunn (with respect to the issue of the hiring and training of G.K.); f) The Appellant attacked the complainants’ character, often not even in response to a question; g) Exaggerated answers were given; and h) The Appellant was unwilling to concede non-contentious facts.

[21] The trial judge misapprehended the evidence with respect to only one portion of one of those factors. Even if the evidence about the hiring and training of G.K. were removed from the trial judge’s assessment, there was other ample evidence that she actually relied on to support her negative credibility finding, such that this misapprehension did not play an essential part in her reasoning process leading to the conviction (Choudhary at paras. 56 to 59; R. v. Iamkhong, 2009 ONCA 478 at paras. 53 to 55).

[22] The appeal is dismissed.

Carter J.

COURT FILE NO.: 21-RA19884 DATE: 2023/08/03

ONTARIO SUPERIOR COURT OF JUSTICE

His Majesty The King -and- Hany Komy Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL Carter J. Released: August 3, 2023