COURT FILE NO.: CR-22-125-00AP
DATE: 2023 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
- and -
NAEEM KHAN
Appellant
R. Raeesi, for the Crown
D.M. Reeve, for the Appellant
HEARD: November 14, 2022
JUDGMENT ON APPEAL
André J.
[1] Mr. Khan appeals his conviction and sentence of the offence of sexual interference and criminal harassment. His counsel submits that the trial judge made three reversible errors namely:
a) The trial judge drew an adverse interference against the Appellant’s credibility due to his receipt and review of the video surveillance evidence disclosure;
b) The trial judge failed to properly apply the W(D) test in analyzing the evidence, and
c) The trial judge relied on a previous consistent statement of the complainant.
[2] His counsel also submits that the sentence imposed by the learned trial judge was manifestly unfit given that;
a) The trial judge erred in considering a common law peace bond an aggravating factor,
b) The trial judge erred in imposing consecutive sentences, and
c) The trial judge erred by given inadequate credit to a) the harsh conditions which the Appellant experienced in pretrial custody and the strict conditions of his bail.
[3] The Crown submits that the trial judge did not commit any of the errors noted by the Appellant.
SUMMARY OF THE TRIAL EVIDENCE
[4] On August 27, 2019, Peel Regional Police Force Officer Scott Morse received information regarding an allegation that the Appellant had sexually assaulted eight-year-old A.S. at a grocery store.
[5] The officer obtained video surveillance footage of the grocery store at the relevant time of the impugned act.
[6] On September 5, 2019, the Appellant was arrested and charged with a number of offences relating to A.S.’s allegations. A warrant was obtained and executed at the Appellant’s address which revealed clothing matching that of the Appellant identified on the security camera and a cell phone.
[7] At trial A.S. reaffirmed that he was certain that a man touched his butt by the cash registers and that the touch lasted for approximately 5 seconds. A.S. was clear that he understood the difference between his bum and his front private parts, or penis. He testified that the elderly man stared at him after the touch causing him to feel scared, sad, and angry.
[8] A.S. testified that he did not know whether the elderly man touched him earlier near the deli counter.
[9] The Appellant testified that on August 27, 2019, he had gone to the bank to meet with his business manager.
[10] He testified that the bank was approximately seven minutes drive from his house and that the grocery store was approximately a six to eight minute drive from his home.
[11] Upon leaving the bank, the Appellant needed to use the washroom. He was aware of a public washroom at the Adonis grocery store approximately a two-and-a-half-minute walk away and he went there to use the washroom.
[12] Upon entering the store, he recalled that he had been told the store had a marinated meat section. He was aware of the meat section at the store but was unaware of the marinated meat section. Before going to the washroom, he took a detour to check the meat section for marinated meat and then continued to the washroom.
[13] After using the washroom, he wandered around the store as he felt he might need to revisit the washroom and walking would help ease the pressure in his stomach.
[14] He spent some time waiting for the first cashier to be clear so he could walk through the attached cafeteria while making a phone call to Mr. Donald Coley relating to a business project. While waiting, he continued to browse and approached a Coca-Cola machine to see if they had ginger ale. He acknowledged that A.S. was near the machine and testified that this was the first time he noticed him.
[15] He eventually entered the cafeteria and made his phone call. The phone call was 808 seconds in duration. He testified that during the phone call he was totally involved with the conversation and was not paying attention to his surroundings.
[16] While still on the phone, he approached the half wall where A.S. was standing. He testified that he did not touch A.S.
Mr. Coley’s Evidence
[17] Mr. Coley testified that he was a contractor who worked on building exteriors. He knew the Appellant from a job they were both involved with in Kitchener.
[18] He testified that he was having a difficult time getting paid for his work and spoke to the Appellant about it several times.
[19] He confirmed that he spoke to the Appellant on the phone about these issues on August 27, 2019. The phone call lasted approximately fifteen minutes. Mr. Coley testified that he was owed approximately two hundred and sixty thousand dollars and that during the phone call he was upset and cursing.
TRIAL JUDGE’S DECISION
[20] The trial judge accepted the evidence of the complainant and the surveillance evidence and rejected the evidence of the Appellant and Mr. Coley. in assessing the Appellant’s evidence, the trial judge noted the following:
He said he was browsing and not there to buy anything. However, he specifically recalled looking at the soup isle [sic] and the grains to explain that he was not looking at the boy. Yet when he met with the officer on September 6, a week after the incident, he could not recall where he was or if he had ever been to Adonis. I do believe he was making up stories to explain his movement on the video surveillance. To be clear I am not saying that Mr. Khan tailored his evidence with the evidence heard in court. He has a right to be present during his trial and to review disclosure. Simply, I do not accept his version that he remembers now after almost 2 years that he was specifically looking for soup on the day of the incident when he told the police otherwise a week or so after the incident.
[21] Regarding the W(D) test, the trial judge noted the following at page 30 of her Reasons for Judgment:
First, if I believe the evidence of Naeem Khan, I must acquit;
Second, if I do not believe the testimony of Naeem Kahn but I am left in a state of reasonable doubt by it, I must acquit;
Third, even if I am not left in doubt by the evidence of Naeem Kahn I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt.
[22] In rejecting the Appellant’s evidence, the trial judge noted the following at page 37 of her Reasons for Judgment:
His evidence about having to make that very important call to Mr. Coley also makes no sense and is internally inconsistent. First, he could have waited to be in a more private setting to make such a call, second, according to his evidence, he was hanging around Adonis because he did not know if his bladder was completely empty, so why make a call which would possibly be interrupted if the urge to go to the washroom hit him suddenly? Third, Mr. Coley testified that they had talked about the same issue about 2 or 3 times in the past and the call was not a scheduled call or appointment. Fourth, when the other 2 boys walked in the cafeteria Mr. Khan could have walked out of the store to be in a quieter place instead of walking in and staying at the washer section which according even to him, was a crowded and busy place.
[23] The trial judge further noted that:
While I believe that Mr. Khan was on a phone call on August 27, 2019 for 808 seconds (some 13 minutes and 46 seconds) with Mr. Coley, the video surveillance of the store … is perhaps the strongest piece of evidence in the matter.
[24] Regarding A.S.’s testimony, the trial judge noted the following at page 39 of her Reasons for Judgment:
… I believe Ms. [A] and the video shows that once she has her receipt in hand her son tells her something and she immediately looks up and in MR. KHAN’s direction …
And:
[A.S.]’s demeanor and actions are consistent with what he said happened to him. He steps away after being touched. He testified in court and I believe him when he said I jumped out of the way because he touched me. He immediately tells his mother. On the video one can observe [A.S.] looking back because Mr. Khan is looking at him. When Ms. [A] looks up she can see Mr. Khan fixated on her son.
ANALYSIS
[25] This appeal raises the following issues:
a) What is the standard of appellate review?
b) Did the trial judge err in law by drawing an adverse inference against the Appellant due to his receipt and review of the disclosure?
c) Did the trial judge err by failing to properly apply the W(D) test?
d) Did the trial judge err in law by replying on a prior consistent statement of the complainant?
e) Did the trial judge err by sentencing the Appellant to ten months imprisonment in addition to pretrial custody?
A. Standard of Appellate Review
[26] The standard of appellate review of the factual findings of a trial judge is deference absent palpable and overriding error. The standard of appellate review for findings of law is correctness: see Bayford v. Boese, 2021 ONCA 442, at para 28; Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235.
B. Did the trial judge err in law by drawing an adverse inference against the Appellant due to his receipt and review of the video surveillance?
THE LAW
[27] It is an error of law for the Crown or the trial judge to impugn the credibility of the accused on the basis that he tailored his evidence to the disclosure or the testimony he heard in court: R v. G.V., 2020 ONCA 291, at para. 25; R v. C.T., 2022 ONCA 163 at para. 1. Such an error goes to the heart of trial fairness and the right to make full answer and defence: See R v. M.D., 2020 ONCA 290, at para. 39.
APPLICATION OF THE LAW TO THE FACTS
[28] In assessing the Appellant’s evidence, the trial judge noted that; “I do believe he was making up stories to explain his movement on the video surveillance.” The Appellant’s counsel submits that with this statement, the trial judge went further than simply not accepting the Appellant’s evidence but rather, her statement was equivalent to a finding that the Appellant tailored or fabricated his evidence in response to the disclosure of the surveillance video evidence.
[29] I disagree. The trial judge explicitly noted that she was not saying that the Appellant tailored his evidence based on the evidence heard in court. She noted further that he had a right to be present during the trial and to review his disclosure. More significantly, the trial judge provided a reason why she concluded that the Appellant was making up stories to explain his behavior captured on the surveillance video. She noted that:
I do not accept his version that he remembers now after almost two years that he was specifically looking for soup on the day of the incident when he told the police otherwise a week or so after the incident.
[30] It was open to the trial judge to disbelieve the Appellant’s evidence based on what she perceived to have been an inconsistency between his trial testimony and his police statement. For this reason, this ground of appeal fails.
C. Did the trial judge err in law by failing to properly apply the W(D) test?
THE LAW
[31] In R v. Van, 2008 ONCA 383, paras. 19-20, the Ontario Court of Appeal noted the following:
[19 [T]he trial judge should have instructed the jury that at the second and third stages of the W. (D.) analysis, the jury was to consider, in addition to the evidence of the accused, all of the evidence called by the defence to determine whether it was left with a reasonable doubt: see R v. Haroun, 1997 CanLII 382 (SCC), [1997] 1 S.C.R. 693, [1997] S.C.J. No. 35, 115 C.C.C. 3(d) 261, at para. 15. This deficiency in the charge must, however, be considered in the light of the effect of the charge as a whole. The trial judge gave the standard instruction that the Crown bore the burden of proof, that the jurors were to decide the case on the evidence as a whole, and that if, on the evidence as a whole, they were left with a reasonable doubt, they were required to acquit the appellant.
[20] Accordingly, I am not persuaded that, in the context of this case, standing on its own, the deficiency in the W. (D.) instruction was fatal.
APPLICATION OF THE LAW TO THE FACTS
[32] As indicated in Van, the trial judge’s W(D) analysis must be considered in light of the whole of her instructions. At para. 13 of her Reasons for Judgment, the trial judge noted that with respect to the first two steps of the W(D) analysis, she was required to consider all the evidence, not just the Appellant’s version of events in isolation. The trial judge followed her own instructions and properly applied the W(D) test. Accordingly, this ground of appeal fails.
D. Did the trial judge err in law by replying on a prior consistent statement of the complainant?
THE LAW
[33] Prior consistent statements are presumptively inadmissible. The overriding danger is that a trier of fact may improperly use the mere repetition of a statement as a badge of testimonial trustworthiness. Such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the making of a prior consistent statement corroborates in-court testimony: see R v. D.K., 2020 ONCA 79 at paras. 34-45.
APPLICATION OF THE LAW TO THE FACTS
[34] The Appellant’s counsel submits that in the trial judge’s Reasons for Judgment, she noted that after the Appellant allegedly touched the complainant, he jumped out of the way and “immediately tells his mother.” He submits that in making these comments, the trial judge expressly replied on A.S.’s disclosure to his mother to support A.S.’s testimony. The Appellant’s counsel contends that the trial judge clearly found that this disclosure is consistent with the allegation being true. Such a finding, the Appellant’s counsel submits, constitutes reversible error.
[35] I do not agree with this submission for the following reasons. First, the Crown made it clear in her submissions, that any statement made by A.S.to his mother is not being adduced for the truth of its contents; rather, it was being adduced for narrative purposes only. Second, the trial judge never stated that A.S.’s utterance to his mother constitutes evidence confirming his statement regarding what the Appellant did to him. Third, reading the trial judges’ evidence as a whole, it is clear that whatever A.S. said to his mother played a minimal nole at best in the trial judge’s assessment of the evidence. For example, she noted at paras. 70-71 of her Reasons for Judgment:
[70] While I believe that MR. KHAN was on a phone call on August 27, 2019 for 808 seconds (some 13 minutes and 467seconds) with Mr. Coley, the video surveillance of the store (exhibit 2) is perhaps the strongest piece of evidence in this matter. I have watched it several times and very carefully, I conclude that Mr. Khan was at Adonis market looking at [A.S.]. He purposely walked up to [A.S.] while he was standing by the half wall and touched him for a sexual purpose.
[71] I further believe the testimony of [A.S.] that MR. KHAN touched him for a sexual purpose while he was standing by the half wall. The video clearly depicts MR. KHAN approaching him and very slightly leaning down on one side, which is consistent with touching [A.S.] The video shows [A.S.] jumping abruptly. I believe [Ms. A.] and the video shows that once she has her receipt in hand her son tells her something and she immediately looks up and in MR. KHAN’s direction. I believe both [A.S.] and [Ms. A] that MR. KHAN was looking at [A.S.] and was focused on him however when he saw [Ms. A.] looking at him he tried to avoid her eye contact.
CONCLUSION
[36] For the above reasons, the appeal of conviction is dismissed.
SENTENCE APPEAL
[37] The Appellant’s counsel submits that the trial judge committed the following four errors in principle:
a) The trial judge treated a peace bound imposed on the Appellant in 2005 as an aggravating factor,
b) The trial judge gave consecutive rather than concurrent sentences for the offences of sexual interference and criminal harassment,
c) The trial judge gave inadequate credit for the Appellant’s pretrial custody and the restrictiveness of his bail conditions, and
d) The trial judge misapplied the case of R v. Friesen and “inflated” the appropriate sentence rendering it demonstrably unfit.
A) TREATING THE PEACE BOND AS AN AGGRAVATING FACTOR
[38] At pages 78-79 of her Reasons for Judgment, the trial judge advised the Appellant’s trial counsel:
But isn’t it [the peace bond] an aggravating element knowing that its’ related and it – so you are saying I should pay no heed to that at all. So I – don’t I have to consider it at least one of the elements, one of the aggravating factors?
[39] In her Reasons for Sentence, the trial judge noted that:
The aggravating circumstances include that Mr. Khan has a related record … in 2005, he was ordered to enter into a common law peace bond after trial for sexually assaulting in a community centre a 13 year old boy who was developmentally delayed.
[40] In my view, the trial judge erred in principle in treating the peace bond imposed after the Appellant was acquitted as an aggravating factor. The trial judge may have been entitled to do so had the Appellant, before entering into the peace bond, accepted the facts underlying the charge as being correct. On the contrary, he pleaded not guilty to the charge and was acquitted following a trial. In those circumstances, entering into a peace bond following an acquittal cannot be treated as an aggravating factor in a subsequent proceeding.
B) CONSECUTIVE RATHER THAN CONCURRENT SENTENCES
THE LAW
[41] Section 718.3(4)(i) provides that:
The court that sentences an accused shall consider directing
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when
(i) the offences do not arise out of the same event or series of events.
[42] In R v. McFarlane, [2012] O.J. No. 6566 (ONSC) at para. 769, the court noted that;
Higher courts have imposed or upheld concurrent sentence where the offences “were closely linked together, part of the same transaction or endeavour, or “part of the course of conduct.”
[43] Concurrent sentences are warranted where “different offences constitute one continuous criminal act”: See R v. Keough, 2012 ABCA 14 at para. 61.
[44] Do the offences of sexual interference and criminal harassment in this case constitute “one continuing criminal act”, such that a concurrent, rather than a consecutive sentence should be imposed?
[45] In my view, they do. The Appellant, the trial judge found, was fixated on A.S. and followed him with a clear intention to touch him inappropriately. The video evidence shows the Appellant going out of his way to come close to A.S. The facts underlying each charge, in my view, are inextricably linked. To that extent, a concurrent sentence was warranted. While a decision to order concurrent or consecutive sentence should ordinarily be treated with deference, such deference should not be accorded if the decision reflects an error in principle.
C) CREDIT FOR PRETRIAL CUSTODY
THE LAW
[46] In R v. Marshall, 2021 ONCA 344, the Court of Appeal noted at para. 50 that a “Duncan” credit is granted on account of particularly difficult and punitive presentence custody conditions. The court noted further that the very restrictive conditions in the jails and the health risks brought on by COVID-19 “are a good example of the kind of circumstances that may give rise to a “Duncan” credit”: R v. Morgan, 2020 ONCA 279.
[47] The “Summers” credit, which is statutorily capped at 1.5:1, is a deduction from what a trial judge determines to be an appropriate sentence: Morgan, at para. 51. It is calculated to identify and deduct from the appropriate sentence the amount of sentence the accused has effectively served on account of the pretrial incarceration. This credit cannot be limited because of some aggravating factor such as the seriousness of the office: Morgan, at para. 51, R v. Colt, 2015 BCCA 190.
[48] Time spent under stringent bail conditions must be taken into account by a sentencing judge as a relevant mitigating factor on sentencing: R v. Schlaepfer, 2022 ONCA 566 at para. 13 and R v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (ONCA) at paras. 33-37. The focus of the Downes credit is the impact of the conditions on the Appellant: R v. Joseph, 2020 ONCA 733, 153 O.R. (3d0 145, at paras. 107-108; Schlaepfer at para. 22. Such credit does not depend upon whether the accused sought to review onerous bail conditions imposed by a court at the Crown’s request. The “relevant focus is whether the bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation”: Joseph, para. 114.
THE TRIAL JUDGE’S DECISION ON SENTENCE
[49] The trial judge concluded that a term of imprisonment of 13 months for the sexual interference charge and two months incarceration for the criminal harassment charge less pre-trial custody, was an appropriate sentence. After deducting the “Summers”, “Duncan”, and “Downes” credit, the trial judge concluded that the Appellant had to serve an additional ten months in custody.
[50] Of the 44 days spent in pre-trial custody, the trial judge gave the Appellant credit of 1.5:1 for a total of 66 days. Defence counsel sought a further “Duncan” credit of 132 days based on the 30 days of lockdown and 0.5 day’s credit for the 42 days when the Appellant was triple bunked. Defence counsel also sought “Downes” credit of an additional 149 days for the 747 days the Appellant spent on bail, credited at 1.5:1.
[51] The trial judge declined to give the “Duncan” and “Downes” credit sought by the Appellant’s trial counsel because she concluded, such credit would render the sentence inappropriate when considering the mitigating and aggravating factors.
[52] The trial judge’s decision regarding the amount of “Duncan” credit to be given is entitled to deference given that she gave reasons why she declined to limit this credit. These included a report from the detention centre that there were five partials and 13 full lockdowns, that the Appellant would have had access to his counsel and some essential programs, that he could pray while in his cell had he wished to do so, that he had a medical assessment and that he received his medications every evening. Additionally, the trial judge declined to grant the amount of “Duncan” credit recommended by the Appellant’s trial counsel because he was offered “things he asked for but he chose not to accept them…” The trial judge, in my view, committed no error in limiting the Downes and Duncan credit she gave to the Appellant.
[53] Neither did the trial judge err in principle by limiting the Downes credit. She concluded that his inability to work, participate in religious functions and to attend funerals, were attributable to the COVID-19 induced limitations rather than to onerous bail conditions. It was open to her to do so.
D) DID THE TRIAL JUDGE MISAPPLY FRIESEN BY INFLATING THE APPROPRIATE SENTENCE, THEREBY RENDERING IT UNFIT?
[54] The trial judge correctly referred to the decision in Friesen as making it clear, at para. 77, that any act of sexual violence towards a child constituted a wrongful act of physical and psychological violence in the absence of injuries. She also identified at page 139 the following four mistakes that sentencing courts should avoid:
Friesen further stated that courts should avoid the following four mistakes: First, defining a sentence range based on a specific type of sexual activity. Second, courts should not assume that there’s any clear correlation between the type of physical act and the harm to the victim. Third, courts must recognise the wrongfulness of sexual violence even in cases whether the degree of physical interference factor in terms of a type of hierarchy of physical acts.
[55] The trial judge correctly noted that the court in Friesen made it abundantly clear at paras 5 and 107, that there is to be an upward departure from prior precedents regarding sexual offences against children.
[56] At first glance, it may appear that the act of touching the buttocks of an eight year old boy over his clothing may be at the lower end of the spectrum and severity. However, the trial judge correctly identified the context that made the impugned act very serious. These include:
i) The age of the child;
ii) The time of day and the location of the offence;
iii) The aspects of stalking in the Appellant’s actions;
iv) The fact that the Appellant approached the young boy several times before the young boy moved away; and
v) The brazen nature of the Appellant’s conduct.
[57] The trial judge identified the mitigating factors including the Appellant’s age, various medical problems, and supportive family. Additionally, she noted that the incident was brief, isolated and a crime of opportunity which did not involve a breach of trust. But for the errors in principle of treating the peace bond as an aggravating factor and the imposition of a consecutive sentence for the offence of criminal harassment, the sentence imposed by the trial judge was not demonstrably unfit.
[58] In my view, an aggregate sentence of 12 months less credit for pre-trial custody and time spent on a restrictive bail would have been appropriate. In other words, the Appellant should have been ordered to serve an additional seven months in custody rather than ten months. I recommend that the Appellant should be allowed to serve his sentence at the Ontario Convictional Institute (OCI).
CONCLUSION
[59] The appeal of convict is dismissed. The appeal of sentence is allowed. The sentence is varied to 12 months custody less credit for pre-trial custody and restrictive bail conditions. The remaining amount of time to be served in custody by the Appellant is reduced by three months. The ancillary orders imposed by the trial judge are upheld.
André J.
Released: January 31, 2023
COURT FILE NO.: CR-22-125-00AP
DATE: 2023 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
NAEEM KHAN
JUDGMENT ON APPEAL
André J.
Released: January 31, 2023