2017 QCCA 691, 2017 QCCA 691

Chaaban c. R. 2017 QCCA 691 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006409-179 (450-01-092193-155) DATE: APRIL 26, 2017 PRESEN T: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. WAIL CHAABAN APPLICANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Plaintiff JUDGMENT [ 1 ] I am seized with a “Motion to Extend the Time to Bring an Appeal of the verdict” and a Motion for Leave to Appeal thereof on a ground that involves questions of fact (s. 675 (1) a (ii) Cr.C. ) [ 2 ] On October 27, 2016, Petitioner was found guilty of breaking and entering a place other than a dwelling house and committing a theft therein (s. 348 1)b) (

e) Cr.C. [ 3 ] On January 10, 2017, he was sentenced to 11 months and 15 days of imprisonment. [ 4 ] In order to justify the extension of the time limits, Petitioner states that he was unable to appeal the judgment from the conviction within the prescribed delay because his attorney only received his legal aid mandate on January 25, 2017.

He requested a copy of the trial transcript on February 3, 2017, but only received it on March 14, 2017. [ 5 ] The motions were then filed on April 6, 2017. [ 6 ] The motions are contested, principally as to the seriousness of the grounds for appeal which is a common criteria that must be met for both motions to be granted. [1] [ 7 ] Upon my reading of the judgment as well as of the grounds of appeal put forward by Petitioner, I see no possibility that the Court intervene, and as such, I am of the view that both motions must be dismissed. [ 8 ] The evidence offered by the Crown at trial was circumstantial. [ 9 ] The break and enter as well as the theft occurred in a hairdressing business from which an expensive hair removal machine was stolen. [ 10 ] Six witnesses were called and heard.

Petitioner did not testify. [ 11 ] Two sales clerk testified that they served a man a week before the theft. This man asked questions about the hair removal machines and mentioned it was for his spouse. Although an appointment was set for the following week, he did not return. [ 12 ] One of the clerks described the man as being 5’8’’, 180 pounds and speaking broken French. [ 13 ] She was unable to identify the Petitioner during a police lineup.

In fact, she hesitated between two individuals, one of whom was a man named Hamed Zaki Belkaloul, known to Petitioner and with whom he was regularly in contact. [ 14 ] This man’s DNA was found on a bag left at the business premises. [ 15 ] A blue crowbar with a damaged sticker was also found nearby. [ 16 ] The description given by the second clerk matches the Petitioner. She was shown eight photographs. From them, she identified the Petitioner as the man, being “90% sure”.

At trial, she had no hesitation and identified Petitioner as the one she had seen the week before the theft and who had asked questions. [ 17 ] The Petitioner’s former girlfriend also testified. She explained that at the time of the theft, she was the owner of a building in which a hairdressing business was operating. She was planning to start a tanning salon in an adjacent suite. The Petitioner suggested that

she should also offer hair removal services. He specifically referred to his friend Hamed Zaki Belkaloul’s sister as someone qualified who could be employed for such a position. [ 18 ] She explained that she and the Petitioner conducted some renovation work at her house prior to the fall of 2013, frequently using a Mastercraft blue crowbar with a damaged sticker identical to the one found near the premises. [ 19 ] She also testified that in January 2014, the Petitioner admitted to her having stolen a hair removal machine in Sherbrooke. He even exhibited the machine, which was still in a box.

It is right after that incident that she terminated her relationship with the Petitioner. [ 20 ] Text messages exchanged between the Petitioner and Hamed Zaki Belkaloul referring to a hair removal machine were also filed. [ 21 ] I note at the outset that the Petitioner has not filed a notice of appeal as of right in which he alleges errors of law. He is not therefore challenging the trial judge’s understanding of the law of circumstantial evidence.

It is only the trial judge’s appreciation of the evidence offered by the Crown that he challenges. [ 22 ] In that respect, he identifies four errors the judge would have made in concluding that the Crown succeeded in proving that he committed the break and enter as well as the theft. They are as follows: 1) She should have refused the testimony of the second clerk since

a) it contradicted the first clerk’s testimony and

b) the detective who showed her the eight pictures from the police lineup knew beforehand which picture was his. 2) She should have refrained from concluding that the crowbar found was his, since there are probably hundreds of blue Mastercraft crowbars in Canada with damaged sticker. 3) She should have had a reasonable doubt as to his former girlfriend’s testimony since it was tainted by the fact that she was informed by the police that he has been unfaithful to her and, furthermore, was herself initially under arrest for the theft. 4) She should have taken into account his former girlfriend’s testimony that he had told her he had contacted a man about buying a hair removal machine. [ 23 ] These alleged errors all deal with the appreciation of the evidence by the trial judge and involve her assessment of the witnesses’ credibility. [ 24 ] In her judgment, she specifically referred to these very same arguments the Petitioner raised and explained the reasons why she nevertheless accepted the testimony adduced at trial. [ 25 ] I fail to see how the Court can intervene to set aside her well explained findings. [ 26 ] It is a well-known principle that a Court of appeal will not substitute its own appreciation of the evidence to that of the trial judge. [2] This principle is applied even more rigorously in matters of credibility. [3] [ 27 ] Here the identification of the Petitioner by the second clerk is peripheral.

The evidence stemming from his former girlfriend’s testimony is critical and determinative. I am of the view that the reasons the judge gave for accepting her testimony are such that there is no chance that the Court will intervene. [ 28 ] I am therefore of the opinion that none of the grounds the Petitioner identified, viewed separately or collectively, could give rise to an order for a new trial. [ 29 ] FOR THESE REASONS , the Motion to Extend the Time for Appeal and the Motion for Leave to Appeal are both DISMISSED . MARIE-JOSÉE HOGUE, J.A. Mtre Jack Hendler JACK Y.

HENDLER For the Applicant Mtre Sylvie Villeneuve DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the Respondent Date of hearing: April 13, 2017