) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2035

CITATION : R. v. Majel, 2013 ONSC 2035 COURT FILE NO.: 47/12 DATE: 2013-04-10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – MOHAMED MAJEL Appellant ) ) ) ) ) ) ) ) Mr. A. Khoorshed, for the Respondent Crown Mr. L. Hochberg, for the Appellant ) ) HEARD: January 16, 2013 REASONS FOR JUDGMENT MURRAY J. [ 1 ] The appellant, Mohamed Majel, together with Mohammed Deeb and Hamza Deeb, was charged with three counts of assault stemming from incidents that occurred on September 13, 2009. He pled not guilty on each count.

After a trial before Madam Justice Baldwin of the Ontario Court of Justice, he was convicted on each count. He appeals from these convictions. Overview of the Facts [ 2 ] The complainant, Bilal Moucho, is a contractor in the renovation business. The complainant was previously married to Ms. Hoda Harb and together they had a son, Ali. Since they shared parenting and custodial obligations, the complainant and Ms. Harb continued to see each other. A common place for the parents to drop off and pick up their son, Ali, was the place of business of Ms. Harb's father, Mohammed Harb. Mr.

Harb is a businessman who owns a food distribution company known as Green World Food Express and which operates a 30,000 square foot warehouse at 225 Wyecroft Road, Oakville, Ontario. [ 3 ] The appellant, Mohamed Majel, had been a friend of the complainant Moucho but prior to September 13, 2011 he had a falling out with the complainant over a renovation project that the complainant was hired to complete. As a result, on the date of the alleged assaults, Majel and Moucho were no longer on friendly terms. [ 4 ] Hamza Deeb, a co-accused, previously worked at the warehouse for Mr. Harb.

On September 13, 2009, he contacted Mr. Harb to ask if he could purchase some product for his mother from the facility. Mr. Harb agreed and told him to come by. [ 5 ] On September 13, 2011, the three accused, Mohammed Majel, Hamza Deeb and Mohammed Deeb, attended at the warehouse operated by Mr. Harb. Hamza Deeb rang the buzzer at the rear of the warehouse and Mr. Harb opened the door. At that time, the appellant and Hamza’s brother, Mohammed, were present in Mr. Majel's motor vehicle. Mr.

Harb instructed Hamza to accompany him inside the warehouse and told the appellant Majel and Mohammed Deeb to drive around to the front of the warehouse. [ 6 ] At approximately the same time, Mr. Moucho and Ms. Harb also arrived at the front of the warehouse. Mr. Moucho had attended at the warehouse to meet his former wife Hoda Harb and to pick up their son Ali. Ali, was transferred into Mr. Moucho's vehicle and Mr. Moucho waited to access the warehouse in order to see Mr. Harb and drop off or retrieve some tools that he had stored there. [ 7 ] Mr. Majel and Mohammed Deeb exited their vehicle and approached Mr.

Moucho. They said hello and were met with insults. A confrontation began. [ 8 ] At about the same time, Hamza Deeb and Mr. Harb were returning to the front of the warehouse with Hamza's purchase. Mr. Harb observed the appellant and Mr. Moucho engaged in an altercation that became physical. Hamza exited the warehouse, put his purchase down and entered into the fray. [ 9 ] Mr. Harb attempted to gain some measure of control and managed to get Mr. Moucho inside the warehouse and

instructed him to stay there. Mr. Harb went out and told the three accused not to make trouble and to leave. [ 10 ] Mr. Moucho exited the warehouse and a second altercation began. During the course of the second altercation Mr. Moucho pulled a knife and stabbed Hamza Deeb. [ 11 ] Mr.

Mohammed Harb endeavoured to stop the fighting and in the course of his efforts was slightly injured (a scratch on his arm and an injured finger). [ 12 ] The police were contacted and ultimately the appellant Majel, Hamza Deeb and Mohammed Deeb were charged with three counts of assault: two counts of assaulting Bilal Moucho (counts #1 and 2) and one count of assaulting Mohammed Harb (count #3).

All three accused pleaded not guilty and the matter proceeded to trial. [ 13 ] The trial before Madam Justice Baldwin took place over six days: October 18, 2010 October 27, 2010, April 11, 2011, June 3, 2011, September 15, 2011 and January 20, 2012. At the close of trial, after hearing oral submissions, Justice Baldwin found the appellant and Hamza Deeb guilty on count #3 with respect to the assault against Mohammed Harb and reserved her judgment on counts #1 and #2. The written decision of Justice Baldwin on counts #1 and #2 relating to two assaults against Bilal Moucho was released on March 28, 2012.

The learned Justice found the appellant Mohammed Majel and Hamza Deeb guilty on both counts #1 and #2. The Judgment of Justice Baldwin [ 14 ] As noted above, the judgment with respect to the appellant was given in two parts: 1. A decision delivered orally from the bench immediately following the conclusion of the trial on January 20, 2012, in which the appellant Majel and Hamza Deeb were found guilty on count #3 of assaulting Mr. Mohammed Harb; and 2. A written judgment dated March 28, 2012 the appellant Majel and Hamza Deeb were found guilty on counts #1 and #2 relating to two assaults against Bilal Moucho.

The Decision of January 20, 2012 [ 15 ] At the conclusion of trial, the trial judge found the appellant Mohammed Majel and Hamza Deeb guilty on count #3 of assaulting Mr. Mohammed Harb . The trial judge stated as follows: Clearly, I cannot give you full reasons for judgment at this time but I can tell you that I have determined at this time that the Crown has met its onus of proof on count number three, which is the assault of Mohammed Harb. I have listened carefully to the submissions. I have read the transcripts of Mohammed Harb today and Hoda Harb today.

On their evidence alone, I do not even have to look at Bilal’s (Moucho) evidence, you are guilty beyond a reasonable doubt of assaulting this man. Shameful! Shameful! A man senior to you, like assaulting a father. I will explain to you the next day why I have made this finding of guilt beyond a reasonable doubt and it is based on the W. (D.) analysis. I want to get this matter moving along since it occurred in 2009 we started the trial in 2010. So count three, as I say, is a finding of guilt for both of you today. I will reserve on counts one and two.

There are some competing, complicated bits of evidence that I will have to sift through and I will do that. I will also explain to you in full reasons why I found you guilty of count three.… The Written Decision of March 28, 2012 [ 16 ] The trial judge stated at the outset of her decision that at the end of the trial she accepted as “accurate reliable and true, the unbiased evidence of 47-year-old Mohammed Harb who had testified with the assistance of an Arabic interpreter at this trial.” [ 17 ] Much of the judgment is a

summary - without analysis - of the evidence of two Crown witnesses. Paragraphs 11-33 of the trial judge's decision is her

summary of Mr. Harb’s evidence. The trial judge then continues in paragraphs 34-59 with an outline of the evidence of Bilal Moucho. [ 18 ] The trial judge then recites the positions of the Crown and the defence as follows: The Crown's position was that Mr. Harb did not consent to fight with anyone and everything that he said and did was to prevent the fighting on his property, that the three accused were aiding and abetting each other in their attack on Moucho and that once Mr. Harb ordered the accused off his property, they became trespassers and that

section 41 of the Criminal Code of Canada applied. The defence position was that there was no intention to harm Mr. Harb who made a decision to break up the fight and that it was unfortunate he got hurt in the process. The accused argued that it was Moucho who initiated the fight by verbally insulting Majel’s mother and by calling Majel a “faggot” and that Moucho consented to the fight. In addition, with respect to the second altercation, the defence argued that it was Moucho who brought a knife into the fight and slashed Hamza Deeb.

The defence position was that Moucho wanted a fight and he got it. [ 19 ] In her brief conclusion (found at paragraphs 67-74 of the decision), the trial judge found that the Crown had established

beyond a reasonable doubt that this was a planned attack on Moucho by Majel and that the Deeb brothers were brought along to assist inthe attack. She concluded that the Sunday stop at the warehouse business of Mr. Harb to get vegetable butter was simply a ruse toengage Moucho at a location where Majel knew him to be. She concluded that Moucho was at the warehouse for no other purpose thanto get his son for an access visit. She found the three accused started the altercation and that Mr. Harb told them to stop and leave, thatthe three accused ignored Mr.

Harb’s directions and by continuing to fight they applied physical force to Mr. Harb without his consentand injured him. She concluded that the three accused acted in concert and that they became trespassers and

section 41 of the CriminalCode applies. She concluded she did not need to analyze the matter of the use of a knife by Moucho because he was not charged and thatshe had no need to analyze or make any comment about it. [20] The trial judge also concluded that it was not necessary or reasonable for her to review all of the evidence in any moredetail than she has in what she described as “focused reasons” for judgment. She found the appellant Majel and the co-accused HamzaDeeb guilty of counts #1, 2 and 3.

The Case on Appeal [21] The appellant submits the Honourable Justice committed numerous errors, including that the verdicts reached wereunreasonable, that the trial judge misapprehended the evidence, that the Justice applied a W.(D.) analysis where no defence evidence wascalled; and, that the Justice erred in law by failing to apply the proper burden of proof and that the trial judge did not give sufficientreasons.

Analysis [22] The appellant takes issue with a number of findings of fact made by the trial judge, including the following: 1. that this was a planned attack by Majel; 2. that the Deeb brothers were intentionally brought along to assist with the attack; 3. that the stop at the warehouse to get vegetable butter was simply a ruse; and 4. that the three accused started this physical altercation. [23] Both counsel for the Crown and counsel for the appellant Majel are in agreement that there was no evidence at trial tosupport a conclusion by the trial judge that the appellant engaged in a planned attack on the complainant and that Hamza andMohammed Deeb were brought along to assist in the attack. [24] The evidence at trial was that Hamza Deeb had already contacted Mr.

Harb earlier in the day to see if he could stop by topick up some produce for his mother and that for this purpose he attended at the warehouse accompanied by his brother in an automobiledriven by Majel.

Both counsel for the Crown and counsel for the appellant are in agreement that the meeting of the appellant Majel,Hamza and Mohammed Deeb and the complainant Bilal Moucho at the Green World Warehouse arose by happenstance and that therewas no evidence to support the conclusion by the trial judge that the trip to the warehouse by the appellant and the Deeb brothers wassimply a ruse to cover up their real intention of assaulting Moucho. [25] The test to be applied where there are allegations that the trial judge misapprehended the evidence is set out in R v.Lohrer, 2004 SCC 80 , [2004] 3 SCR 732 at para. 2 as follows: The misapprehension of the evidence must go to the substance rather than to the detail.

It must be material rather than peripheral to thereasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive ratherthan disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoningprocess resulting in a conviction. [26] The findings by the trial judge that the “attack” on Moucho was planned and that Hamza and Mohammed Deeb werebrought along by Majel as backup to assist in the attack are significant and material.

The trial judge she stated: After applying the considerations set out in the beginning of these reasons, I have concluded that the Crown has established beyond areasonable doubt that this was a planned attack on Bilal (Moucho, the complainant) due to the animus held toward him by Majel (theaccused). Hamza Deeb and his brother were brought along to assist in the attack.

The Sunday stop at the warehouse business of Mr.Harb to get vegetable butter was simply a ruse to engage Bilal at a location where Majel knew him to be. [27] It is abundantly clear from a review of the cryptic reasons of the trial judge that the erroneous findings of fact played anessential

part in the narrative of the judgment and in the reasoning process. These erroneous findings of fact provided a distorting lensthrough which the trial judge assessed the evidence of what subsequently happened at the warehouse.

Once the trial judge concludedthat this was a planned attack on Moucho by Majel, with the Deeb brothers as backup, the trial judge’s ability to fairly and objectivelyassess the evidence was compromised. [28] It is apparent on the face of it that the trial judge’s conclusion that the three accused initiated the altercation is inextricablyintertwined with and informed by her unfounded conclusion that this was a planned attack and that the stop at the warehouse by the threeaccused was a ruse to engage Moucho at a location where the appellant Majel knew the complainant to be. [29] Her conclusion is not only demonstrably incompatible with the evidence but also is essential to the verdict.

In R v. Beaudry, 2007 SCC 5 , 216 C.C.C. (3rd) 353, at para. 79, Justice Binnie stated as follows:

In the eyes of the litigants and the public, where the findings of facts essential to the verdict are "demonstrably incompatible" with evidence that is neither contradicted by other evidence nor rejected by the trial judge, such a verdict would lack legitimacy and would properly, I think, be treated as "unreasonable" . [ 30 ] All convictions of the appellant are unsafe in light of these erroneous factual findings and there is a substantial risk that a miscarriage of justice has occurred.

As Justice Binnie said in Beaudry , the verdicts on all three charges lack legitimacy. [ 31 ] For this reason alone, a new trial must be ordered with respect to all three convictions. [ 32 ] However, there are also other grounds on which this appeal must succeed. [ 33 ] At the conclusion of her oral reasons given at the end of trial, the trial judge stated: “There are some competing, complicated bits of evidence that I will have to sift through and I will do that.

I will also explain to you in full reasons why I found you guilty of count three.…” Regrettably, the trial judge did not deal with any of the complicated and competing evidence and neither did she explain in full reasons why she found the appellant guilty of count three. [ 34 ] In R. v. Burnie , [2013] O.J. No. 747 the Ontario Court of Appeal, in applying the Supreme Court of Canada case of R. v.

Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 stated at paragraphs 28 - 32 the following: It is a well-established legal principle that the reasons a judge gives in a criminal trial without a jury fulfill an important function in the trial process and where that function goes unperformed, the judgment may be vulnerable to reversal on appeal: R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 .

Speaking on behalf of the Supreme Court in Sheppard , Justice Binnie noted, at para. 21, that it is a reviewing court's task, "not so much to extol the virtues of giving full reasons, which no one doubts, but to isolate those situations where deficiencies in the trial reasons will justify appellate intervention and either an acquittal or a new trial". [ 35 ] As the Court laid out in Sheppard , at para. 28 : The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose.

The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (

i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

However, the Court also emphasized, at para. 33, that the absence or inadequacy of reasons is not a freestanding ground of appeal: A more contextual approach is required.

The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case. [ 36 ] There is agreement between the appellant and the Crown on this appeal that there is a deficiency in the reasons provided by the trial judge within the meaning of Sheppard . [ 37 ] However, the Crown asserts that this deficiency does not prejudice the appeal, at least with respect to the second altercation and the related conviction of the appellant for assaulting Mr. Moucho.

The Crown asserts that a review of the evidence will lead to a conclusion that evidence was available on which the accused could be convicted of assaulting Mr. Moucho and therefore the lack of reasons by the trial judge does not prejudice the appellant’s appeal. I disagree. [ 38 ] I have already held that the trial judge’s erroneous conclusion that this was a planned attack has prejudiced the outcome of the trial with respect to all charges and for this reason there must be a new trial.

However, in light of the Crown’s submission, I intend to review the evidence with respect to each charge, including the second altercation involving the appellant and Mr. Moucho. [ 39 ] Before beginning this analysis, I observe that - apart from the erroneous findings of fact referred to above - after a trial which lasted six days, the only findings of fact made by the trial judge are as follows: 1. The three accused started this physical altercation; Mr. Harb told them to stop and leave. 2. The three accused ignored Mr. Harb's directions and by continuing the fight, they applied physical force to Mr.

Harb without his consent and injured him. [ 40 ] The trial judge concluded as follows: All of the witnesses’ evidence, the exhibits filed, and submissions heard, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court judges must deliver reasons in hundreds of trial matters every year and we are required to do so in a timely fashion.

This court is aware of appellant authority governing the sufficiency of reasons by trial courts and has been guided accordingly. [ 41 ] A

summary of the testimony of two of the three prosecution witnesses - some of which is contradictory and conflicting - does not amount to an assessment of evidence. The trial judge’s reasons are perfunctory and devoid of analysis so as to prevent any meaningful appeal of the convictions.

The First Altercation the initial assault on Moucho (Count#1) [ 42 ] Mr. Moucho’s evidence was that Majel and Mohammed Deeb initially approached him at the front of the warehouse and said hello and that Moucho responded by calling Majel a “faggot” and angry words were exchanged. Moucho testified that the first blow was struck by Hamza Deeb who exited from the warehouse and punched him in the back and then the other two, Mohammed Deeb and Majel started kicking him. He testified that then he and Hamza went inside the warehouse and continued the altercation until Mr.

Harb pushed Hamza Deeb outside and told all three accused persons to leave. [ 43 ] The trial judge summarized Mr. Moucho's evidence at paragraphs 34-35 of her written judgment as follows: Moucho saw Majel and Mohammed Deeb outside at the front of the store. Insulting words were exchanged. When the front door to the warehouse opened, Hamza appeared and punched him. “I got pushed to the front and I got punched from the back on my neck and those guys started kicking me from the front.” (Transcript, June 3, 2011 pages 27, 28, 29) [ 44 ] In her cross-examination, Ms. Hoda Harb testified that she heard Mr.

Moucho call Mr. Majel “a fucking faggot” and made some insulting joke about Mr. Majel's mother before any altercation began. (October 27, 2010 Transcript p. 15.) [ 45 ] Ms. Hoda Harb testified that after being greeted by Mr. Majel, Mr. Moucho insulted Mr. Majel and made insulting remarks about Mr. Majel’s mother and then Majel, Mohammed Deeb and Moucho jumped at each other pushing each other at which point Hamza Deeb exited from the warehouse and they just “all jumped each other” and they were “all in it.” (October 27, 2010 Transcript p. 15.) [ 46 ] Ms.

Harb further testified that Majel’s involvement was insignificant after Hamza jumped in. In cross-examination, she stated: “... It could have just stayed at Mr. Majel and Bilal (Moucho). It could have. But Mohammed (Deeb) jumped in and Hamza jumped in and really, to tell you the truth, Mr. Majel wasn’t even fighting that much. If you saw the video, he was mostly in the back to and his - and Mohammed. It really - it ended up being Hamza and Bilal for whatever reason.” (October 27 Transcript p. 49.) [ 47 ] In his testimony, Mr.

Harb said he did not know who started the first altercation initially involving Moucho, Majel and Mohammed Deeb. When Hamza Deeb joined in this altercation, Mr. Harb testified that he pushed one of the accused away and pushed Moucho towards the inside of the building, that he told Moucho to stay inside and then told the three accused to leave. (October18, 2010 Transcript at p. 31-34.) [ 48 ] The trial judge summarized Mr. Harb's evidence as follows, at para 17 of her written judgment: When Mr.

Harb and Hamza Deeb who had both been in the warehouse arrived at the front door of the warehouse with Hamza's purchase, Mr. Harb observed the Majel, and Mohammed Deeb pushing and swearing at each other. Hamza Deeb exited the warehouse and joined the fight.

It was a three on one fight with the three accused hitting and punching Moucho. [ 49 ] As noted above, in her very brief reasons, at para, 69, the trial judge concludes: “the three accused started this physical altercation.” [ 50 ] The appellant’s position was that the altercation was consensual. [ 51 ] There are significant inconsistencies in the evidence with respect to how the altercation began. Ms. Harb’s evidence was that Majel, Mohammed Deeb and Moucho jumped at each other and the pushing had started before Hamza joined in the fracas. Ms. Harb’s evidence was that the appellant, Mr.

Majel, had little to do with the altercation after Hamza Deeb joined in. [ 52 ] Mr. Harb’s evidence was consistent with that of his daughter. Mr. Harb testified that the altercation initially involved Moucho, Majel and Mohammed Deeb and that Hamza joined in. Mr. Harb said he did not know who started the pushing and shoving involving Moucho, Majel and Mohammed Deeb. (Transcript of October 18, 2010 at p. 77-81) [ 53 ] The evidence of Mr. Moucho - in contrast to that of Mr.

Harb and Hoda Harb - was that the first blow was struck by Hamza Deeb and that then the other two then joined in. [ 54 ] In her conclusion, the trial judge did not deal with the aggressive response given by Moucho to what appears to be an innocuous greeting by Majel when they first met outside the warehouse on the day in question. The provocative and insulting comments made by Mr. Moucho which were directed at Mr. Majel - if not indicative of a willingness to engage in an altercation with Mr. Majel - were consistent with such an intention. Ms.

Hoda Harb’s evidence was that after Moucho made insulting remarks then Majel, Mohammed Deeb and Moucho jumped at each other pushing each other. This conduct too is consistent with a consensual fight. [ 55 ] The trial judge did not explain in the context of his contradictory evidence how she came to her conclusion that the three accused started this physical altercation. Although not dealt with specifically, by necessary implication the trial judge rejected the defence argument that the assault was consensual.

The trial judge did not explain her conclusion that the Crown had proven lack of consent beyond a reasonable doubt. The Assault on Mr. Harb and the Second Altercation Involving the Appellant and Moucho (counts#2 and#3.)

[ 56 ] The trial judge indicated in her reasons that the case involved an R.v W.(D.) analysis. It is not clear from the judgment why the judge referred to W. (D. ) in circumstances where the appellant did not testify and no evidence was called on his behalf. The case, however, does underscore the necessity for the trier of fact to consider all the evidence in assessing whether the Crown has met its burden of proof. [ 57 ] In her judgment delivered orally on January 20, 2013, the trial judge found the appellant guilty of assaulting Mr. Harb.

The trial judge stated in her oral judgment: “On their evidence alone (referring to the evidence of Ms. Harb and Mr. Harb), I do not even have to look at Bilal’s (Moucho) evidence, you are guilty beyond a reasonable doubt of assaulting this man.” In my view, this was an error. Mr. Moucho was the complainant. The trial judge was required to consider all the evidence to determine if the Crown had proven Mr. Majel’s guilt beyond a reasonable doubt. The failure of the trial judge to consider all the evidence in making this determination is an error. For this reason the conviction on count #3 for assaulting Mr.

Harb cannot stand. [ 58 ] Her conclusion that she did not need to consider Moucho's evidence is also difficult to understand because Moucho was the only witness who testified that Majel and Hamza Deeb were assaulting Mr. Harb before he left the warehouse after having been told by Mr. Harb to stay inside. Mr. Harb testified that the fighting began after Moucho exited the warehouse. This evidence will be discussed in more detail below. [ 59 ] The alleged assault against Mr. Harb took place when Mr. Harb intervened and tried to break up the second altercation between the three accused and Mr. Moucho. A review of Mr.

Harb's evidence indicates that when he was trying to stop the second altercation between Moucho and the three accused that he got hit but he did not know who hit him. There were four individuals involved in the altercation: Moucho, Majel and Mohammed and Hamza Deeb. The transcript of the October 18, 2010 proceedings, at page 43, shows the following exchange took place between Crown counsel and Mr. Harb: QUESTION: Okay. Do you know who hit you? ANSWER: All of them, I guess, but I don't know who's, who's the one hit me, but I get from all of them. QUESTION: And what were you trying to do?

ANSWER: I trying to stop the fight. QUESTION: Okay. And what was happening to Bill Al Moucho at the time that you’re trying to stop the fight? ANSWER: What is happening to him? QUESTION: Yes, what's - at the time that you start getting hit, when you're trying to stop the fight, what is Moucho doing? ANSWER: He was fighting to with him. He was fighting. QUESTION: All right. Is everybody standing on their feet when they're fighting? Does everybody stay on their feet, or does anybody end up on the ground? ANSWER: No, on their feet. They stay on their feet. QUESTION: Okay. And do you know how many times you were hit?

ANSWER: I didn't remember how many times. QUESTION: All right. Do you know where you were hit, where, where on your body you were hit? Do you know?

ANSWER: I didn't remember how many times. [ 60 ] In cross-examination of Mr. Harb (page 95 of the transcript of October 18, 2010), the following exchange took place between Mr. Harb and defence counsel: QUESTION: Okay. Now, you, you've testified that at some point, you were struck or you were hit, but you don't know who hit you right? ANSWER: Yes, I got hit, yes. QUESTION: Okay. But you don't know who hit you? ANSWER: No. QUESTION: And you weren't in a fight with anybody, were you? ANSWER: Did I fight with anybody?

QUESTION: I mean you are not - you were maybe, were breaking this fight up, but you weren't involved in a fight with anybody were you? ANSWER: I trying to, two, two, to break the fight, to stop the fight, and I getting hit, and maybe I hit someone too. I'm not sure, you know. [ 61 ] The trial judge found that it was the appellants acting in concert who hit Mr. Harb. However, Mr. Harb’s evidence was that he did not know who struck him and that it could have been any one of the four individuals involved in the altercation, including the complainant, Mr. Moucho. [ 62 ] Mr.

Harb's evidence is sufficient to establish a reasonable doubt that any of the three accused acting in concert struck Mr. Harb intentionally when he intervened and tried to stop the altercation. The trial judge did not deal with this evidence and did not explain her conclusion that Mr. Harb was assaulted by the appellant acting in concert with the other two accused. [ 63 ] The trial judge’s decision with respect to count #3 is unsustainable for this reason as well. [ 64 ] Mr. Moucho testified that after the first altercation, the three accused got into Mr.

Majel’s car and he thought that they had left until he saw them coming back to the front of the warehouse, at which time Mr. Harb told him to go back into the building and to remain there. Mr. Moucho testified that he remained inside the building until he saw Mr. Majel and Hamza Deeb striking Mr. Harb and as a result he went outside to give assistance to Mr. Harb. Moucho testified that he was then punched by Hamza Deeb and Majel and went down on the ground with two of the accused on top of him, at which time he pulled a knife and stabbed Hamza Deeb, one of the men on top of him.

The altercation then ended and the three accused left in Mr. Majel's automobile. In cross-examination, Mr. Moucho testified that he had a small knife in his pocket which he specifically had with him in order to defend himself because he was concerned about the possibility of a confrontation between him, Majel and one other of the accused. (Transcript June 3, 2011 p. 35-7) [ 65 ] In her written decision of March 28, 2012, the trial judge summarized Moucho’s evidence, at paras. 56 - 57: 56. Mr. Harb told him (Moucho) to go back inside and he went inside of the doors. 57. Then the three accused started punching Mr.

Harb to get at him. Moucho went outside to protect Mr. Harb and the fighting continued . [ 66 ] According to the evidence of Ms. Hoda, at the time of the first incident her father asked the three accused to leave and told Moucho to get back into the warehouse which he did and the three accused appeared to leave. After a couple of minutes, all three accused came back to the front of the store on foot, having parked their car at the side of the building and returned to the front of the building on foot.

She testified that when this occurred, her father went outside and told them to go away when Moucho came outside and they were at each other again and, as with the first altercation, her father again tried to break up the fight. In her testimony in-chief, when describing the second incident, she testified: QUESTION: As best you can, can you tell us what you saw each of them doing?

ANSWER: I don't remember. QUESTION: But you told us that your dad was basically in the middle trying to break it up… ANSWER: He's in the middle and basically Bilal’s trying to get at them. Like if he's going to grab one of their shirts, and if they're going to grab him, like that. Like I don't know exactly, just guys fighting. QUESTION: Okay. ANSWER: Like they are just trying to get - my dad's in the middle. Bilal’s trying to get them and they're trying to get him. Like they're just trying to grab at each other. I don't remember exactly. (Transcript of October 27, 2010 p.19-20) [ 67 ] In short, Ms.

Hoda did not corroborate the evidence of Mr. Moucho that her father was being assaulted by two of the accused before Mr. Moucho came out of the building to join in the fray. [ 68 ] The evidence of Mr. Harb with respect to the alleged assault against him, which allegedly occurred during the course of the second altercation, is also inconsistent with the evidence of Mr. Moucho, the complainant. In cross-examination, Mr. Harb testified that he had told Mr. Moucho to remain in the warehouse, that Mr.

Moucho did not obey his instruction and that when the three accused returned to the front of the building, there was no reason for Mr. Moucho to exit the building. Mr. Hoda testified that he did not know why Moucho came outside and testified that it might have been to fight. (Transcript October 18, 2010 p.91-2) [ 69 ] The trial judge summarized Mr. Harb's evidence as follows, at paras. 18-20 of her written decision: Mr. Harb, who also exited the warehouse, tried to exert some measure of control over the three men and stop the fighting. Mr.

Harb managed to push Moucho back into the entranceway of the warehouse and told him to stay there. Mr. Harb told the three accused to stop the fighting and to go away. All three of the accused got into Majel’s vehicle. Instead of driving away, they drove the vehicle to the back of the warehouse where they parked the car and returned to the front of the warehouse near the scene of the initial altercation. Mr. Harb called out to his daughter Nadia to call the police. Mr. Moucho did not remain in the warehouse but came outside and began to fight with the three men again.

According the trial judge, at some point, Moucho ended up on the ground and one or more of the accused was kicking him. At this point, Mr. Harb again intervened to try to break up the fight, and in the process, all three of the accused hit him. He sustained a scratch on his arm and an injured finger as a result. [ 70 ] In sum, neither Ms. Harb nor Mr. Harb corroborated Mr. Moucho's evidence that Mr. Harb was being assaulted by the three accused and needed any assistance from Mr. Moucho. The trial judge does not explain her conclusion that the “three accused started punching Mr. Harb to get at him.

Moucho went outside to protect Mr. Harb and the fighting continued.” The failure of the trial judge to explain this finding in light of the contradictory evidence, and in light of her earlier observation that she accepted as “accurate reliable and true, the unbiased evidence of 47-year-old Mohammed Harb” is difficult to understand. Mr. Moucho's credibility was in issue and that trial judge’s failure to explain why she preferred Mr.

Moucho's version of how the second altercation began leaves the appeal court with no ability to assess the trial judge’s reasons for so doing. [ 71 ] There was some evidence that the second altercation was consensual. Mr. Moucho came out of the warehouse armed with a knife. Both the evidence of Mr. Harb and Ms. Harb appears to be consistent with the defence position that Mr. Harb was not being assaulted by Majel and Mohammed Deeb when Moucho came outside and that this was not the reason why Moucho disobeyed Mr. Harb's instruction to remain in the building.

The trial judge did not explain her findings of fact in circumstances where there were significant inconsistencies and conflict in the evidence and neither did she explain why the Crown had established beyond reasonable doubt that Mr. Moucho did not consent to the second fight. Conclusion [ 72 ] The erroneous findings of fact made by the trial judge that the “attack” on Moucho was planned and that Hamza and Mohammed Deeb were along brought by Majel as backup to assist in the attack are unsubstantiated by the evidence.

These findings are significant and material and compromised the trial judge's ability to fairly and objectively assess the evidence. As noted above, all three convictions are unsafe in light of these erroneous factual findings and the appeal is allowed for this reason.

[73] Following Sheppard, supra, I also conclude that there are significant inconsistencies or conflicts in the evidence which arenot addressed in the Reasons for Judgment, that such evidence relates to key issues on the appeal and that the record does not otherwiseexplain the judge’s decision in a satisfactory manner. There is a deficiency in the reasons of the trial judge and this deficiency hasoccasioned prejudice to the exercise of Mr.

Majel’s right to appeal with respect to all three convictions. [74] In coming to this conclusion, I am aware that it is not in every case that brief reasons will amount to reversible error. Seethe Ontario Court of Appeal decision in R v. Tzarfin, (ON CA), [2005] O.J. 3531. In this case, unlike the case ofTzarfin, it is not apparent that the trial judge recognized the central issues in the case, including the credibility of Mr. Moucho. It is notapparent from the record that the trial judge understood or applied the correct burden of proof, particularly with respect to the issue ofconsent.

It is not clear from the trial judge’s reasons that the judge took into account the entirety of the evidence. Neither is it clearfrom the record that the prosecution’s evidence was overwhelming and unchallenged. (See the Ontario Court of Appeal decision in R. v Maharaj (2004), (ON CA), 186 C.C.C. (3rd) 247.) Based on a review of the record, the basis for finding theappellant guilty on any of the three charges is not clear. Inadequate reasons have prevented meaningful appellate review and/or preventthe appellant from knowing why he was convicted.

The reasons of the trial judge do not meet the functionality test set out in Sheppardand the appeal is allowed for this reason as well. [75] The appeal is allowed. [76] The convictions on all three charges are quashed and a new trial ordered before a different judge of the Ontario Court ofJustice. MURRAY J. Released: April 10, 2013 CITATION: R. v. Majel, 2013 ONSC 2035 COURT FILE NO.: 47/12 DATE: 2013-04-10 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MOHAMED MAJEL Appellant REASONS FOR JUDGMENT MURRAY J. Released: April 10, 2013