R v El-Sheik, 2023 ABKB 286

Court of King’s Bench of Alberta Citation: R v El-Sheik, 2023 ABKB 286 Date: 20230509 Docket: 200445930S1 Registry: Calgary Between: His Majesty the King Crown - and - Hassan El-Sheik Accused _______________________________________________________ Reasons for Judgment on

Summary Conviction Appeal of the Honourable Justice N.E. Devlin _______________________________________________________ [ 1 ] The appellant was tried and convicted in the Alberta Court of Justice on a single count of sexual assault. He appeals on the basis that the trial judge’s questioning of him, combined with the uneven scrutiny of his evidence versus that of the complainant, resulted in an unfair trial. [ 2 ] This case arose from an ill-fated Uber trip on April 3, 2020.

The complainant testified that she called an Uber from her residence in the Northeast for the first of a three-stage trip to work out in the far Northwest community of Tuscany. The Uber trip was intended to end at Marlboro station. The Northeast LRT was not running that day, however, and she planned to take a shuttle bus downtown to catch the northwest train to her final destination. [ 3 ] At the beginning of her testimony, the complainant stated that she entered the rear of the Appellant’s marked Uber at the

outset of the trip. She changed that evidence subsequently, testifying that she began in the front seat and then moved to the back seat during a brief stop she had requested somewhere near Marlboro station because she was feeling uncomfortable. She testified that the stop came about because, upon learning of her destination, the Appellant offered to take her downtown for free and she saw him mark the ride as terminated on the Uber App at that point in time. [ 4 ] The Complainant initially testified that the Appellant had slowed down when he marked the ride as done.

Subsequently, she told the Court that the Appellant had actually stopped briefly, and she changed seats at this time because something about the situation felt uncomfortable to her. The Appellant confirmed the stop and changing of seats, though he gave very different details and context. [ 5 ] The complaint testified that, as they were travelling downtown on Memorial Drive, the Appellant offered several times to pull over so she could be “alone with him in the car” and that he reached back towards where she was now sitting in the backseat and touched her leg up to her mid thigh in the course of doing so.

She stated that this non-consensual touching to her leg occurred twice. [ 6 ] The complainant testified that the Appellant ultimately dropped her off after said she was not comfortable with what was happening and wanted to get out. The parties agreed that the ride ended somewhere in downtown Calgary. [ 7 ] The complainant called the police and reported the alleged assaults. They subsequently took a statement from her and arrested the Appellant later that day. [ 8 ] The Appellant testified.

On his version of events the complainant began the ride in the back seat but ultimately moved to the front during the brief stop when the preplanned ride ended.

He testified that, once they had reached their initial destination at Marlborough, the complainant asked him to take her further to downtown but also told him that she didn’t have any money and complained about her financial problems. [ 9 ] He testified that he actually terminated the trip as soon as she started to talk about having no money, to ensure he at least got paid for that part of the trip. [ 10 ] On the Appellant’s version of the brief stop at Marlborough, he asked the complainant to leave his vehicle so he could continue working.

He said that she immediately opened the back door and came to the front passenger seat. The Appellant testified that he could smell alcohol from the complainant and became concerned because of the trouble that he often had with intoxicated passengers. As a result, he grudgingly continued with her towards downtown on Memorial Drive and across the fourth Avenue flyover. [ 11 ] The Appellant testified that the complainant then asked him to take her all the way to Tuscany for free and he refused, asking her to exit the vehicle because he had a paying fare he wished to take.

He testified that she insulted him and spat on him before leaving the vehicle and slamming the door. [ 12 ] The Appellant testified that he told the complainant he was going to report her to Uber as soon as he was done his next trip. However, he testified that as soon as that subsequent trip was over, the Uber App sent him a message that his account had been stopped.

He further testified that he did not report the complainant’s assault on him because drivers always face such problems and the police do not help. [ 13 ] A series of printouts from Uber software were entered as exhibits, showing the time and route of the paid trips taken by the Appellant on the day in question. They showed two trips taken after the contentious fair. The last entry on Exhibit “4” shows the Appellant’s status as being “open” at 2:28 PM. This was just over an hour after he went off-line with the complainant in his car.

The same exhibit shows him having taken two subsequent fares during this period. [ 14 ] Two police witnesses testified. The only import of their evidence was that one of them did not note any problems with the complainant’s sobriety. The other officer was not asked about this. [ 15 ] At the end of the Appellant’s case, in which he was the only witness, the trial judge questioned him. He asked a series of questions that spanned two-and-a-half pages. These questions concerned whether the Appellant in fact made a complaint to Uber and his reasons for not doing so.

In the course of these questions, which were mostly open and inquisitive, the Appellant himself averted to the tension between his evidence and what was shown on Exhibit 4 in terms of his trips. This issue is highlighted in the exchange found on page 76 of the transcript. [ 16 ] The Appellant’s answers to these questions were neither clear nor enlightening. They functionally begged more questions than they answered.

This led the trial judge to ask a further series of increasingly closed-ended questions in search of clarity. [ 17 ] Having listened to the full exchange that is complained of, I am satisfied that there was nothing discourteous or accusatory about the manner in which the trial judge asked the questions.

Rather, the complaint, to the extent it has merit, relates to the fact that the trial judge was effectively cross-examining at this point, and it didn’t go well for the Appellant. [ 18 ] It is clear that, by the end of his exchange with the Appellant, the trial judge was frustrated with the lack of logical cohesion of the answers he was receiving.

Ultimately, this questioning culminated in the Appellant confirming that the reason he did not make a complaint to Uber was that there was no time before his account was closed. [ 19 ] I pause to note that none of the exhibits in the Record before me appear to show that his account was actually closed that day. There is no question that the Appellant testified that this was the case and was not challenged on this point by the Crown. [ 20 ] The trial judge reserved his decision and later gave oral reasons convicting the Appellant.

After reciting the facts and conducting a lengthy review the applicable law governing evaluations of credibility, he made a number of findings.

[ 21 ] First, the trial judge accepted the complainant’s evidence in its entirety. Importantly he said the following: I found her evidence to be detailed and straightforward. There were no inconsistencies. She had an excellent memory and recall of the events. Her evidence is chronological and complete. [ 22 ] The trial judge then went on to consider the Appellant’s evidence. It received a much different review. The trial judge completely disbelieved the Appellant for two reasons.

The first was the absence of any confirmation of the smell of alcohol by the police officers who met the complainant two hours after her time in the Appellant’s Uber.

His reasoning on this point is not impugned. [ 23 ] Second, and more importantly. the trial judge found that the Appellant’s failure to follow through on his stated intention to report complainant’s conduct, together with his overstated explanation of that failure, undercut his credibility and rendered him unbelievable. [ 24 ] Based on these two problems with the Appellant’s evidence, the trial judge found him untruthful and rejected his evidence in its entirety.

He went on to find that the touching of the complainant’s thigh, twice in conjunction with comments regarding finding a place to be alone, made the assault sexual in nature. He found the appellant guilty and ultimately sentenced him to probation as well as registry with SOIRA. Grounds of appeal [ 25 ] The Appellant advances a single ground of appeal alleging trial unfairness. Counsel skilfully advanced this argument through several interlaced components. The first facet of the complaint is that the trial judge exceeded the limited scope for judicial questioning of witnesses and “entered the fray”.

To this she added that the trial judge performed an uneven scrutiny of the parties’ evidence and, in particular, entirely failed to address difficulties with the complainant’s testimony, whereas he excoriated the Appellant for not dissimilar tensions in his evidence. Standard of review [ 26 ] Whether a trial was fair is a question of law and the standard of review is correctness, as highlighted by the authorities cited in R v Mavros , 2020 ABCA 436 at para 12 . Governing principles [ 27 ] A trial must be fair and appear to be fair.

The operative test is whether a well-informed, reasonable person would perceive the trial as appearing unfair as a whole: R v Spiers , 2012 ONCA 798 at para 32 . A failure of trial fairness equates to a miscarriage of justice.

As such, it is fatal and the proviso is unavailable, even if the trial judge’s evaluation of evidence and ultimate verdict are reasonable: R v Khan , 2001 SCC 86 at para 69 . [ 28 ] The jurisprudence is clear that, while the trial judge can and should interject to maintain the smooth, functional, and courteous flow of the proceedings, and also to clarify evidence where necessary, he or she must remain “above the fray” and should generally refrain from the active or extensive questioning of witnesses: R v Colling , 2017 ABCA 286 at paras 35-39 ; R v Schmalz , 2015 ABCA 4 at paras 19-20 . [ 29 ] Most of the jurisprudence in this area considers interventions by the trial judge which interfere with the conduct of questioning by counsel.

Those concerns are not applicable to this case. The trial proceeded, and was conducted, in a neutral, efficient, and judicial manner. The only issue is the questioning by the judge at the very end. [ 30 ] Appellant’s counsel concedes that, at this stage, a trial judge may reasonably have formed perceptions of the evidence that makes some degree of questioning for clarification appropriate and necessary.

Our Court of Appeal has suggested that, in situations where the trial judge has critical unanswered concerns and questions, it is often preferable for the judge to excuse the witness and discuss with counsel whether further evidence on a particular point ought to be led.

This is more respectful of counsels’ role and strategic approach to their case: R v Crawford , 2015 ABCA 175 at paras 7-15 . [ 31 ] I agree with the Crown, however, that there is no absolute proscription on trial judges themselves asking questions, though the scope and nature of such questioning must be restrained. [ 32 ] As regards the complaint of uneven scrutiny, this is a notoriously difficult ground of appeal to make out: R v Mehari , 2020 SKCA 37 at para. 31 ; R v Radcliffe , 2017 ONCA 176 at paras. 23–26 , leave to appeal to SCC ref’d, 37671 (7 December 2017). [ 33 ] Our Court of Appeal has made it very clear that this ground of appeal must not serve as “a vehicle for appellate courts to essentially retry the case”: R v Strathdee , 2020 ABCA 306 at para 5 .

The Court went on to articulate a limited scope within which this type of complaint will find success, quoting its recent decision in R v Wanihadie , 2019 ABCA 402 at para 36 for the principle that an uneven scrutiny argument will only succeed where the appellant is: … able to “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”…. this is a question of whether the trial

judge applied a “double standard”. More specifically, it requires demonstrating that “something sufficiently significant” in the reasons orrecord establishes the trial judge employed a “faulty methodology” in deciding credibility…. In short, the trial judge must be said to have“used two different measuring sticks”. [34] In this case, the Appellant does not advance uneven scrutiny as a freestanding ground of appeal, but rather to demonstrate whythe trial judge’s questioning of the Appellant gave rise to a perception of unfairness.

However, the same basic cautions about appellatere-examination of credibility findings applies with equal force to this proposed use of the uneven scrutiny argument. Analysis [35] The trial judge’s questioning of the Appellant in this case reached close to the edge of what comfortably comports with thejudicial officer’s role as a neutral arbiter.

It did, however, come at the end of the trial, rather than as an interruption to, or usurpation of,counsels’ presentation of the case. [36] By the close of the evidence, it is quite natural, and virtually unavoidable, for an alert trial judge to have formed impressionsabout the evidence and, in particular, about problems that may have appeared in the witnesses’ testimony.

While injunctions againstactive judicial examination of witnesses have much wisdom behind them, it is unclear to me that the administration of justice is anybetter served by a judge staying silent and making an adverse finding in his or her subsequent ruling, than by engaging with the witnessin a limited fashion to elicit any available explanation for the things troubling that judge. [37] This is especially true when that witness is an accused person who has chosen to testify and should ideally have a fulsomeopportunity to answer the case against him, including any tensions or contradictions the trier may perceive.

However, this case highlightsthe problems that can arise when the parties have not been examined thoroughly and incisively and the trial judge is left frustrated by alack of clarity. The questions he or she understandably asks can, quite inadvertently, make the accused look worse. This, in turn, invitesthe criticism that the judge has entered the fray as an advocate. [38] While Ms. Shiskin argued that the line of questioning pursued by the trial judge was of his own making, I am not satisfiedthat the record entirely supports that contention.

Had the trial judge of his own motion opened an entirely novel line of inquiry, thatwould be of greater concern. In this case, however, the Appellant had put his intention to report the alleged assault against him, and hisexplanation for not doing so, squarely into evidence during his own testimony.

Moreover, his evidence was in somewhat obvious tensionwith the objective Exhibits he himself entered. [39] Taken alone, I find that a reasonable, informed observer, having watched this proceeding unfold, would not have perceivedthe judge’s questioning as rendering the trial unfair or a manifestation of bias. [40] The analysis does not, however, end there. The Appellant’s argument hinged strongly on the trial judge having subsequentlyrelied on the answers elicited by his own questioning as a basis for rejecting the Appellant’s evidence.

The trial judge described thesecond pillar of his disbelief as follows: …the accused stated he was going to make a report to Uber about being spit upon by the complainant. He did not. His explanation wasthat he would be making a complaint about everyone. Is he suggesting every rider in his taxi spits on him? If that is the case, whyconsider making a report in the first place. [41] This passage interacts complexly with the evidence. The trial judge begins by framing the issue as the failure to complain toUber, which implicates his own questioning.

However, the allegedly unbelievable evidence he then averts to – namely the Appellant notcomplaining this time because then he “would be complaining about everybody, because there’s always a problem, especially on Fridaysand Saturdays” – came in the Appellant’s evidence in chief, in response to a question about making a report to the police, not Uber. [42] While the trial judge could reasonably have used the Appellant’s ostensible exaggeration on this point as a basis for anadverse credibility finding, the reasons as viewed against the record show that the credibility analysis of the Appellant suffered someconflation and incompleteness. [43] It is at this point that the treatment of the complainant’s credibility becomes material.

The trial judge effectively rated her as afive-star witness. She was not. Her recall of where she sat in the vehicle, and whether it came to a stop near its initial destination, bothchanged during her testimony. Her initial answer as to where she sat was demonstrably wrong on her own evidence, and the brief stopand change of seats was absent from her initial recitation of events.

These were material points in the case as her location in the car, andthe events leading to her switching seats, are inextricably linked to determining whose description of the events was true. [44] It would have been well within the trial judge’s purview to reconcile the frailties of the complainant’s evidence and accept hertestimony.

However, describing her memory as “excellent” and her evidence as “chronological and complete” was a materialmisapprehension of the evidence: see R v Harper, (SCC), [1982] 1 SCR 2 at 14. [45] Consequently, the reasons demonstrate some conflation of the record in the adverse credibility findings made against theAppellant, including a reference to an issue upon which the trial judge’s own questioning highlighted tensions in the Appellant’sevidence.

By contrast, the glowing assessment of the complainant’s credibility involved either a material misapprehension of herevidence or a failure to grapple with the problems inherent in it. [46] I am satisfied that the misapprehension of the complainant’s evidence, taken in the totality of the other concerns raised on thisappeal, go to a central element of the reasoning supporting the Appellant’s conviction.

This makes the conviction unsustainable: R v.Sinclair, 2011 SCC 40 at para 56. [47] Therefore, I am satisfied that the Appellant has established grounds for appellate intervention on the basis of trial fairness: R vLohrer, 2004 SCC 80 at para 1, adopting R v Morrisey, (ON CA), [1995] OJ 639 (CA).

[ 48 ] The appropriate remedy is to set the conviction aside and order a new trial. Defence counsel proposed an alternate outcome, but I find no statutory authority to impose a conviction for a lesser offence as a remedy for the trial fairness problems identified above. It is for the Crown to assess the public interest in re-prosecution, and for the parties to consider resolutions if a retrial is pursued. [ 49 ] The appeal is allowed, the conviction set aside, and a new trial ordered. [ 50 ] I would like to thank Counsel for their excellent materials and argument, which greatly assisted the Court.

Heard on the 5 th day of May, 2023. Dated at the City of Calgary, Alberta this 9 th day of May, 2023. N.E. Devlin J.C.K.B.A. Appearances: Renato G. Di Lorenzo for the Crown Gillian Shiskin for the Accused