Ontario Superior Court of Justice

Court File No.: SCA(P)112/23
Date: 2025-02-10
Summary Conviction Appeal Court

Between:
His Majesty the King
– and –
Richard Khan

Sarah Burton, for the respondent
Tariq Wasey Khan, for the appellant

Heard: January 8, 2025

Reasons for Judgment
[On appeal from the conviction entered December 9, 2022, by The Honourable Justice Bruce Duncan of the Ontario Court of Justice]

Rahman, J.

1. Introduction

[1] The appellant was tried on two counts of assault. Four years separated the offence dates for the two counts. The first count related to an allegation from February 2015, the second to an allegation from February 2019. Both assault allegations were quite similar to each other. In both instances, the complainant alleged that the appellant pinned her down and choked her. The complainant alleged that in February 2015, during an argument, the appellant lunged at her, punched her, threw her on the bed and choked her. The February 2019 incident also occurred during an argument. The argument happened because the complainant found some inappropriate material on their son’s tablet. The complainant testified that she threw a picture frame at the appellant as he came at her. She said that the appellant pinned her down on a bed and choked her. The trial judge found the appellant not guilty of the 2015 charge, but guilty of the 2019 charge. He sentenced the appellant to an eight-month conditional sentence.

[2] The appellant appeals his conviction. He alleges that the trial judge committed several errors in convicting him. The appellant alleges that the trial judge misapprehended the evidence in several respects by failing to consider certain evidence. He also contends that the trial judge did not give sufficient reasons for convicting him. Finally, the appellant argues that the trial judge misapplied the well-known W.(D.) test in convicting him.

[3] For the reasons that follow, the appeal is dismissed. The trial judge did not misapprehend any evidence. The trial judge also did not commit any errors in his treatment of the evidence or in making any of his factual findings. The reasons for judgment were sufficient. Much of the appellant’s argument is really a request to have this court re-try the case. The trial judge also did not misapply the well-known test in W.(D.).

2. Grounds of Appeal

[4] The appellant alleges five separate errors in his amended notice of appeal. I set out the grounds of appeal listed in the amended notice of appeal below:

1. The trial judge erred by failing to consider the inconsistencies and/or contradictions in the evidence and/or statements of the complainant and/or witnesses at trial, and the trial judge misapprehended the evidence.
2. The trial judge erred by failing to consider the complainant’s and/or witnesses’ motive to fabricate the evidence and/or charges against the appellant.
3. The trial judge erred by failing to deal with and/or address and/or consider and/or resolve the inconsistencies and/or contradictions in the evidence and/or the evidence regarding the motive to fabricate the evidence and/or charges, and whether or not this evidence and/or the evidence regarding the motive to fabricate as a whole gave rise to a reasonable doubt as to the appellant’s guilt.
4. The trial judge erred by failing to assess the evidence referred to in ground #3 (above) under the three-pronged test in R. v. W.(D.).
5. The trial judge erred by failing to provide adequate reasons for his decision.

[5] Before addressing the grounds of appeal, I must make clear what this court’s role is on appeal. It is important to set out this role because most of the appellant’s grounds of appeal fault the trial judge for not giving reasons about arguments that were never made, or seek to re-argue the trial based on appeal counsel’s review of the transcript. Indeed, during the appeal hearing, appellant’s counsel, Mr. Khan, said that he had gone through the trial transcript with a view to finding deficiencies in the Crown’s case that he says the trial judge left unaddressed.

[6] An appeal is not a re-trial. Appeal courts defer to a trial judge’s factual findings unless the trial judge commits an obvious mistake that would have affected the result. The standard is called “palpable and overriding error.” The two parts of that standard were described this way by the Court of Appeal in Waxman v. Waxman, 186 OAC 201, paras. 296-297:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.

[Citations omitted]

[7] An appeal court cannot re-visit a trial judge’s factual findings based on the appeal court’s own view about how those findings should have been made. Trial judges see and hear witnesses. Appeal courts do not. That is why appeal courts defer to trial judges’ factual findings, including findings about the credibility of witnesses. Absent cases in which a trial judge commits an obvious error – which did not happen here – it is generally not open to an appellant to claim that a trial judge made a mistake by not dealing with an issue when the judge was never asked to deal with it.

2.1. The Alleged Misapprehension of Evidence

[8] Having set out that background, I will address the grounds of appeal. Because there is some overlap among the grounds of appeal, and to align these reasons with the way they were presented in oral submissions, I will deal with the grounds of appeal under the following three headings:

1.The trial judge’s alleged misapprehension of evidence, including the alleged failure to deal with certain aspects of the evidence.
2. The sufficiency of the trial judge’s reasons.
3. The alleged W.(D.) error.

[9] The appellant alleges that the trial judge “misapprehended the evidence” by failing to consider certain aspects of the evidence in his reasons. The appellant alleges that the trial judge did not consider the following:

1. The complainant’s daughter’s view of the assault was blocked by the appellant’s body.
2. The complainant’s daughter changed her testimony about the position of the appellant’s hands.
3. The complainant’s daughter testified that the complainant was able to talk while being choked, which is implausible and inconsistent with the complainant’s evidence that she was being choked so hard she could not speak.
4. The complainant did not initially recall being choked a second time in her daughter’s room and her daughter did not mention witnessing this choking.
5. The complainant coached her children.
6. The trial judge gave inadequate consideration to the message on the complainant’s WhatsApp profile picture.

[10] Appellant’s counsel does not allege that the trial judge misunderstood or misstated any of the evidence. Rather, in response to questions from the court, appellant’s counsel explained that the trial judge’s failure to consider the foregoing evidence amounts to a misapprehension of the evidence. In making this submission, counsel appears to rely on the following passage from R. v. Morrissey, 22 O.R.(3d) 514 (C.A.):

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence.

[11] The foregoing passage is not an invitation for an appeal court to comb the record for aspects of the evidence that the trial judge should have considered, even though he or she was not asked to. Nor is it an invitation to re-visit the trial judge’s weighing of the evidence. The above passage from Morrissey must be understood in the context of long-standing jurisprudence about the deference appeal courts owe to trial judges’ factual findings and credibility assessments. A misapprehension of evidence involves an error that is readily obvious from a trial judge’s reasons. As the Alberta Court of Appeal observed in R v. Matchatis, 2020 ABCA 435, para. 24:

A misapprehension of evidence – a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence – will be made out where the plain language or thrust of the reasons reveal a readily obvious error. The reviewing court does not “dissect, parse or microscopically examine” the trial judge’s reasons to infer or speculate that an error exists. [citations omitted, emphasis added]

[12] There are no such obvious errors in this case. The trial judge did not misapprehend any of the evidence. The trial judge’s reasons also do not show that he failed to consider any evidence in deciding any of the material issues. The appellant’s real complaint is that the trial judge did not give sufficient weight to certain aspects of the evidence. The trial judge’s decision to give more or less weight to certain aspects of the evidence was his call to make. It is not open to this court, sitting on appeal, to re-try the case by re-weighing the evidence.

[13] Finally, even if one examines the areas of evidence set out above, it is apparent why the trial judge did not address them in his reasons. They were either not worth addressing or trial counsel did not raise them in submissions. I will review each of the areas, below, and explain why the failure to address it is inconsequential:

1. The complainant’s daughter’s view of the assault was blocked by the appellant’s body: the complainant’s daughter made clear in cross-examination that her view was initially blocked but that she later moved next to the bed where it was not blocked.
2. The complainant’s daughter changed her testimony about the position of the appellant’s hands: there was no change in her testimony. The complainant’s daughter was asked directly in cross-examination about the position of the appellant’s hands. She made clear that his hands were initially on her mother’s shoulders and then moved to her neck.
3. The complainant’s daughter testified that the complainant was able to talk while being choked which is implausible and inconsistent with the complainant’s evidence that she was being choked so hard she could not speak: appellant’s trial counsel never mentioned this alleged discrepancy in his submissions. And as I explain in more detail below, there was no clear inconsistency.
4. The complainant did not initially recall being choked a second time in her daughter’s room and her daughter did not mention witnessing this choking: trial counsel did not raise this issue during submissions.
5. The complainant coached her children: appellant’s trial counsel did not suggest that the complainant coached her children. He did suggest that they were biased in her favour. In his reasons, the trial judge recognized the possibility of the children having been influenced by comments particularly from their mother. He squarely addressed the issue of influence and potential bias.
6. The trial judge gave inadequate consideration to the message on the complainant’s WhatsApp profile picture: the trial judge did refer to the complainant’s WhatsApp profile in his reasons and had difficulty believing the complainant’s answers about it, and said that it raised a “cautionary flag” about her testimony.

[14] This ground of appeal fails.

2.2. The Sufficiency of the Trial Judge’s Reasons

[15] The appellant alleges that the trial judge gave insufficient reasons. This ground of appeal overlaps somewhat with the first ground of appeal. In his factum, the appellant alleges that the trial judge’s failure to consider the evidence referred to in the first ground of appeal involved a failure to give reasons for his decision. In oral argument, appellant’s counsel focussed specifically on what he said was the trial judge’s failure to give reasons about the alleged motive to fabricate.

[16] In R. v. R.E.M., 2008 SCC 51, para. 35, the Supreme Court summarized the key principles involved in an appeal court’s review of the sufficiency of a trial judge’s reasons:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered.
(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.
(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

[Citations omitted]

[17] Trial judges are not required to reconcile all conflicts in the evidence: R. v. George, 49 OR (3d) 144 (C.A.), para. 26. A trial judge’s “reasons for credibility findings need not consider or answer each and every argument or each and every piece of evidence”: R. v. Cresswell, 2009 ONCA 95, para. 14. As the Supreme Court emphasized in R.E.M., at para. 32:

While the reasons must explain why the evidence raised no reasonable doubt, “there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel”

[18] In the case at bar, the trial judge addressed the four main arguments that appellant’s trial counsel made about why his client should be acquitted. In short, “he came to grips with the issues thus defined by the defence”: R. v. Braich, 2002 SCC 27, para. 25. The trial judge’s reasons explain why he made the credibility findings that he did and why he found the appellant guilty of one count and not guilty of the other. My reasons addressing the first ground of appeal explain how the trial judge addressed the arguments that were made and did not have to address the arguments that were not made. The trial judge cannot be faulted for not addressing inconsistencies and areas of evidence that were not brought to his attention by experienced trial counsel.

[19] Finally, regarding the specific area that counsel addressed in oral submissions – the motive to fabricate – it is unclear how the trial judge could have given more reasons about this issue. At trial, the appellant alleged that the complainant fabricated the allegations against him because he was going to report to the police that she had stolen some of his belongings. As trial counsel put it in his submissions, “that’s her trying to get ahead of the game, so to speak, trying to get ahead of Mr. Khan. If he’s going to call the police, well, I’m going to get there first.” The trial judge addressed this argument in the following passage of his reasons:

…the defence says that she called the police and falsely claimed assault as a, sort of, counter-offensive measure against his potential allegation that she had stolen his property. I think this contention is contradicted by two circumstances. First, the defence, by that submission, is specifically alleging recent fabrication; that is, that she concocted a false allegation in September 2019. But that contention is rebutted by the evidence of the neighbour who testified that the complainant told her of the assault the day after it occurred, or in any case, in February of 2019, long before the supposed motive to fabricate arose. Second, the complainant did not contact police to alleged [sic] assault, but rather to find out if she was doing anything wrong by changing the locks. This is supported by the evidence of Mr. Thompson, the York Regional Police officer, who testified he had told the complainant that she could not change the locks on the matrimonial home, and the defendant could report her to the police for doing so…The allegation of assault only came out when the police dug into the reasons that she had changed the locks in the first place. And it is that point, that the assaults were disclosed to the police.

[20] The trial judge’s reasons for rejecting the motive to fabricate are clear and cogent. His reasons are more than sufficient. This ground of appeal fails.

2.3. The Alleged W.(D.) Error

[21] The appellant alleges that the trial judge erred in his application of the well-known W.(D.) test. He alleges that the trial judge failed to properly apply the third step of W.(D.) because he did not consider the discrepancies between the complainant’s evidence, and the complainant’s children’s evidence. The appellant also alleges that the trial judge failed to consider his evidence and that the trial judge rejected his evidence “just because he was an accused.” The appellant also alleges that the trial judge should have acquitted him after finding that his evidence was not flawed, implausible or unbelievable.

[22] At the outset, it is important to note that trial judges are not required to follow the three-step W.(D.) test as if it is an incantation. The W.(D.) test is merely one articulation of how to apply the criminal standard of proof beyond a reasonable doubt. The W.(D.) formulation is particularly concerned with ensuring that triers of fact (particularly juries) understand the second step – the requirement to acquit even if one does not accept defence evidence. The second step is meant to drive home a proposition that is not intuitive – that the jury can have a reasonable doubt even if they do not accept the defence evidence. It is especially concerned with credibility cases, like the case at bar. It is meant to highlight that a criminal trial is not just a credibility contest, and the accused may be acquitted even if the Crown’s witnesses are more credible. Judges do not have to recite the W.(D.) test in their reasons. It expresses a basic principle of criminal law – how reasonable doubt relates to credibility – and judges are presumed to know it.

[23] In this case, the trial judge did recite the essential steps of W.(D.) even if he did not use the precise language of that case. In setting out how W.(D.) applies, the trial judge cited his own decision in R. v. Jaura, 2006 ONCJ 385, para. 20. In that case, the trial judge had found that a complainant’s testimony, on its own, could be a basis for rejecting an accused’s evidence provided a court gives a fair assessment of the accused’s evidence and “allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence”: Jaura, at para. 20. The decision in Jaura is consistent with what the Court of Appeal would say a few weeks later in R. v. J.J.R.D., 218 O.A.C. 37, para. 53. In J.J.R.D, at para. 53, Doherty J.A. held that a trial court could reject an accused’s evidence outright “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence.”

[24] In the case at bar, the trial judge applied the reasoning in J.J.R.D. and Jaura. The trial judge did not initially reject the appellant’s testimony in his reasons, although he highlighted two problems with it. However, the trial judge ultimately concluded that the complainant’s daughter’s observation of the appellant choking her mother, combined with their neighbour noticing marks on the complainant, were consistent with the complainant’s testimony. The trial judge explained that the totality of the evidence respecting the 2019 count satisfied him beyond a reasonable doubt that he should reject the appellant’s evidence:

The 2019 incident, on the other hand, has [the complainant’s daughter’s] observation of choking, and it was well described in detail by her; where she was positioned, what she saw. She was at very close quarters. In addition, there is evidence of the neighbour describing the marks that she observed that are consistent with the complainant having been choked and not consistent with her having been held by the arms or shoulders.

The totality of the evidence on the 2019 count satisfies me beyond a reasonable doubt that the defendant’s evidence related to that alleged choking, on this occasion, should be rejected. I find that he choked her substantially as described by the complainant.

[25] The appellant’s contention that the trial judge was required to find him not guilty because he did not reject his testimony ignores the trial judge’s reference to, and correct application of, J.J.R.D. and Jaura. Simply because the trial judge had not rejected the appellant’s testimony early on in his reasons does not mean he was required to acquit the appellant. The trial judge was obliged to assess the appellant’s testimony in light of all the evidence. The trial judge’s initial assessment of the appellant’s evidence as not being flawed, implausible, or unbelievable was more an assessment of his testimony on its own and not stacked against the entirety of the Crown’s case.

[26] The trial judge’s reasons make his approach clear. After referring to two negative aspects of the appellant’s testimony, the trial judge explained that the appellant presented well and that the trial judge could not reject his evidence outright as not raising a reasonable doubt. The trial judge then suggested his analysis of the appellant’s testimony was not complete because that testimony had to be considered against all the evidence.

I have just referred to the two negative points that I see in the defendant's evidence, but apart from that, the defendant presented very well, and he was quite credible in most of his evidence. And in itself, that evidence would be difficult to reject as incapable of at least raising a reasonable doubt. His evidence, however, must be considered not in isolation by itself, but in light of the complainant's evidence and all of the evidence in the case.

[27] As is clear from the foregoing passage, the trial judge ultimately rejected the appellant’s testimony regarding the 2019 incident because it was inconsistent with the Crown’s evidence which he accepted beyond a reasonable doubt. This final assessment considered the appellant’s testimony in light ofall the evidence. This was an application of J.J.R.D, and as respondent’s counsel observed, it was also a correct application of W.(D.).

[28] There is also no merit to the appellant’s argument that the trial judge rejected his testimony just because he was an accused. The appellant’s submission in this regard seems to flow from his contention that the trial judge misapplied W.(D.). The appellant seems to be asking this court to infer that there could have been no other basis for the trial judge to have rejected his testimony, so he must have done so improperly for this reason. Again, the trial judge did not misapply the burden of proof and there is nothing in his reasons that suggest he disbelieved the appellant because of his status as an accused.

[29] Finally, the appellant’s argument that the trial judge erred in not considering whether the Crown’s case had been proven beyond a reasonable doubt because he did not consider the diverging testimony of the children and complainant is, again, an attempt to re-try the case and to advance an argument not advanced at trial. Trial counsel did not make this submission to the trial judge. The trial judge cannot be faulted for not referring to this argument in his reasons.

[30] In any event, the appellant overstates the so-called discrepancy between the complainant’s testimony and her daughter’s testimony. The complainant testified that she was not able to speak while the appellant was choking her. The appellant relies on the following testimony from the complainant’s daughter’s cross-examination as being inconsistent with the complainant’s testimony about not being able to speak:

Q. No, okay. And so your dad – your – you say your dad pushed your mom down onto the bed?
A. Yes.
Q. Okay. And your mom was still yelling at that point, wasn't she?
A. Yes.
Q. They were still arguing, correct?
A. Yeah.
Q. Yeah. And your dad was telling your mom to start [sic] arguing, wasn't he?
A. I don't remember.
Q. Okay. He might have, he might not have, you just don't know today?
A. Yeah.
Q. Okay. And so your, your dad pushed your mom down onto the bed, and then he, he crouches over at her and, and puts his hands down on her shoulders, doesn't he?
A. No.
Q. Well, she's laying on her back on the bed, right?
A. Yes.
Q. And when your dad hunches over your mom, he's now a little further away from you, right?
A. Yes.
Q. Okay. And at that point most of your mom's body is blocked by your dad's body, right?
A. Yes.
Q. 'Cause you can see his back and I guess his rear end and, and the backs of his legs, right?
A. Yes.
Q. And, and your mom's underneath your dad?
A. Yes.
Q. Okay. And, and she's – he and she are still arguing, right?
A. Yes. [Emphasis added]

[31] There is nothing obviously inconsistent between the complainant’s testimony and her daughter’s testimony. Appellant’s trial counsel never specifically put to the complainant’s daughter that the complainant was talking while being choked. Indeed, the complainant’s daughter also testified that the appellant’s hands were initially on the complainant’s shoulders, not on her neck. There is no obvious contradiction between the complainant’s testimony and her daughter’s. This is likely why appellant’s trial counsel did not rely on this alleged discrepancy in his submissions. And it is likely why the trial judge did not mention this testimony in his reasons. There was nothing that was so plainly contradictory that it had to be mentioned in his reasons.

3. Conclusion

[32] The appellant has not established any of the alleged errors. The trial judge did not misapprehend any evidence, he gave sufficient reasons for his finding the appellant guilty, and he did not misapply the burden of proof. The appeal is dismissed.

Rahman, J.

Released: February 10, 2025