) ) Her Majesty the Queen – v. –, 2017 ONSC 227

CITATION : R. v. Saghier, 2017 ONSC 227 COURT FILE NO.: 12-10084 DATE: 20170111 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen – and – Ahmed Saghier Defendant ) ) ) ) ) ) ) ) J. Carnegie, for the Crown R. Sheppard, for the defendant ) ) HEARD: January 4, 2017 garson j. On appeal from the Conviction on Sentence of the Honourable Madam Justice J. LeRoy on May 4, 2015 and January 25, 2016. Introduction and Background [ 1 ] The appellant appeals both his convictions and sentence on four counts of assault contrary to s. 266 of the Criminal Code of Canada , R.S.C., 1985, c.

C-46. [ 2 ] The appellant was convicted on four counts of assault (and acquitted on three counts of assault) after a lengthy and bifurcated trial that commenced on May 7, 2015 and concluded with sentence on January 25, 2016. [ 3 ] The appellant was sentenced to 30 days jail to be served intermittently and 12 months’ probation (along with some ancillary orders). [ 4 ] The appellant was arrested on July 31, 2012 for assaults between December 2006 and January 2010. During the material times, the appellant and the complainant were either dating or engaged to be married.

The parties met at a TD Canada Trust call centre where they worked together in 2007 and the relationship ended when the parties separated in 2009. [ 5 ] For the purposes of this appeal, I need only briefly outline the details of the four assaults the complainant gave evidence about during the proceeding. [ 6 ] At trial, the complainant testified about four specific incidents of assault: (

i) Hospital – sometime in January or February 2008 the appellant was arguing with the complainant and suddenly started hitting and kicking her in the head and ribs and grabbing her by the hair. After the complainant said she was in pain, the appellant brought her to hospital where she told the nurse attending to her that “she got into a fight at the bar with a girl”.

In cross-examination the complainant denied telling the nurse that her boyfriend assaulted her. [1] This incident resulted in pain in her neck and head, missing clumps of hair, bruises to her ribs and a black eye. (ii) Ring – sometime during 2008-2009, the appellant became angry and grabbed the complainant’s hair and pulled out chunks of her hair. She saved the tufts of loose hair. In response, she took her engagement ring off and pretended to throw it out the window.

Like the previous assault, she did not report the assault to police or tell any family or friends. (iii) Birthday Party – on or near July 20, 2009, the parties attended a birthday party. The appellant became angry at the way the complainant was driving and punched her in the ribs and later shoved her to the ground and pushed her causing scrapes and bleeding to her wrists and knees.

This incident was not reported to police or friends. (iv) New Year’s Eve – on or about December 31, 2009 after attending a party, the appellant started arguing with the complainant and started bashing her head and body with his arms as she covered her head and “rolled up like a ball” to try and protect herself. The complainant suffered a swollen face and lips which were observed by her mother.

Police were not contacted and no explanation was provided to her mother as to the cause of her injuries. [ 7 ] The catalyst for her reporting these incidents was a fight that occurred between the appellant and the complainant’s brother at a bar. This was the “last straw”. She had earlier reported to police at UWO (where she attended university in 2010) that she had safety concerns relating to the appellant following her. She also reported the abuse to her family doctor in September 2010. She participated in

a student exchange program in the Fall of 2010 and gave evidence that one of her reasons for going to France was to break free from theappellant. She went to the police within 30 minutes of her brother’s fight taking place. She admitted that her brother told her that hepunched the appellant but didn’t tell the police this information when asked repeatedly. [8] At the conclusion of the complainant’s testimony, the Crown sought to have her emergency medical records admitted pursuantto s. 30(1) of the Evidence Act (Canada), R.S.C., 1985, c.

C-5, as business records to rebut the allegation of recent fabrication put to thecomplainant in her cross-examination. The trial judge admitted the records into evidence. Grounds of Appeal - Conviction [9] The appellant raises three main grounds of appeal against conviction: (

i) The trial judge erred in her assessment of the complainant’s credibility; (ii) The trial judge failed to consider the timing and suspicious circumstances surrounding the reporting of the incidents to police;and (iii) The trial judge erred in relying on the conversations by the complainant with nurses at the hospital (recorded in the hospitalrecords) as prior consistent statements when they were in fact inconsistent with the evidence given by the complainant at trial. [10] Although not specifically pled, the appellant also suggested that the reasons of the trial judge were insufficient.

Grounds of Appeal - Sentence [11] The appellant raises the following ground of appeal against sentence: (

i) The trial judge failed to properly consider in her Reasons for Sentence the request for a conditional sentence in accordance with s.742.1(

a) of the Criminal Code. Standard of Review – Conviction [12] A trial judge’s finding of fact and assessment of credibility are entitled to a significant degree of deference from a reviewingcourt. Absent palpable and overriding error or otherwise being clearly wrong, unreasonable or unsupported by the evidence, suchfindings and assessments should not be disturbed: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v.

Horton, 2014ONCA 616, 116 W.C.B. (2d) 228. [13] A legal error made in the assessment of credibility may displace the deference and require appellate intervention: see R. v.Luceno, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 34. [14] A trial judge’s reasons are to be read as a whole and the trial judge need not detail her finding on each piece of evidence so longas there is a logical link between the findings on the evidence and the verdict.

The trial judge occupies a unique position in being able tosee and hear witnesses and a lifeless transcript and selective review of the trial record cannot replicate the unfolding of the narrative attrial: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; and R. v. Howe (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont.C.A.). Discussion [15] It is not the role of an appellate court to essentially retry the case and substitute its own opinion of the credibility of witnesses. Nor is it proper to embark on a fresh analysis of the factual arguments made at trial and considered by the trial judge: see R. v.

Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190; and R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at paras. 39 – 40. Credibility Assessment [16] The appellant argues that potential corroboration exists with respect to only one of the four incidents (with the remaining threeincidents having no corroborating evidence).

The complainant’s mother, sister, and friend all testified seeing the complainant with ablack eye. [17] There is no requirement at law that the evidence of a complainant in an allegation of domestic assault be corroborated. [18] The trial judge was alive to the contradictions between what the complainant told the hospital staff took place and what shetestified to at trial. At p. 18 of her Reasons for Judgment, she states: The medical records contradict the complainant’s evidence at trial, that she told the nurses at the hospital that she was in a fight with agirl at a bar.

Why the complainant maintained that position at trial in the face of this contradictory evidence, is difficult to understandand was not satisfactorily explained by her, but it does not detract sufficiently from her credibility on the elements of assault number oneor the other offences, in my view.

She is simply mistaken about that and was not, in my view, trying to deliberately mislead the court.[2][Emphasis added.] [19] There is no evidence before me that the trial judge engaged in speculation. [20] Her findings of fact are based on reasonable and permissible inferences drawn from the evidence. [21] The trial judge accepts the complainant’s explanation for her delay in reporting these incidents to the police and found this

evidence to be “compelling and sufficient to rebut an allegation of recent fabrication”.[3] [22] The trial judge described the complainants internal inconsistencies as “few in number and minor in nature” and concluded thatthey did not “detract from her credibility as a witness to the events themselves”.[4] [23] The trial judge is alive to the extensive arguments raised at trial regarding the reliability of the complainant’s evidence. Sheoutlines a non-exhaustive list of these concerns at p. 20 of her Reasons.

She is also aware of the many arguments advanced by theappellant at trial (and reargued on appeal) as listed at pp. 13 – 15 of her Reasons. [24] She properly identifies a number of other witnesses who confirm some of the injuries sustained by the complainant on onecount of assault. [25] In the end, she accepts the complainants “explanations for her lies to family and friends, her delay in disclosure and the timingof her disclosure”.[5] There are many legitimate and compelling reasons why a victim of domestic violence may delay the reporting ofsuch incidents.

The trial judge was clearly mindful of the appellant’s position regarding the timing of the disclosure and the potentialmotive to fabricate. [26] Substantial deference must be afforded to findings of credibility made by the trial judge. Although such findings were stated atthe outset of her Reasons, the trial judge provided ample justification and explanation for the basis for such findings. [27] This was a classic case about credibility.

I can find no palpable or overriding error in the trial judge’s assessment and findingsregarding credibility. [28] There was sufficient evidence to support the complainant’s version of events. The trial judge properly assesses both thecredibility and reliability of the evidence of the complainant in accordance with the Court of Appeal’s guidance in R. v. Morrissey(1995), (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at paras. 33–34. [29] The appellant did not testify. The trial judge determined that the Crown had established proof beyond a reasonable doubt onfour assaults.

In light of her credibility findings and findings of fact, she was entitled to do so.

Use of Hospital Records [30] The trial judge at p. 40 of the Appeal Book, provided Reasons for allowing the Crown to admit the evidence of hospital recordsas business records in accordance with s. 30 of the Evidence Act (Canada), for purposes of rebutting the allegation of recent fabrication. [31] In her Reasons, the trial judge is aware of the inconsistency between what the complainant testified to at trial, ie. she told thenurse that she got into a fight with a girl at the bar, and what the nurse recorded in her notes; namely that she was assaulted by herboyfriend.

The complainant specifically denied ever having reported to the nurse that she had been assaulted by a male who was herboyfriend. [32] However, the evidence is consistent with her testimony at trial that the appellant assaulted her on the occasion that brought herto the hospital. [33] The decision of the trial judge to admit this evidence for the limited purpose of rebutting the allegation of recent fabrication wasnot an error: See R. v. C.L. (1999), (ON CA), 124 O.A.C. 45 (Ont. C.A.), at paras. 14–16; R. v. Stirling, 2008 SCC 10,[2008] 1 S.C.R. 272, at para. 5; and R. v.

Jackson, 2013 ONCA 632, 311 O.A.C. 121, at paras. 85–90. And she was careful not to rely onthis evidence for any other impermissible reason – ie. to bolster the credibility of the complainant.[6] Sufficiency of Reasons [34] It is well established that a trial judge on a criminal trial has a duty to give reasons.

This duty informs the parties why thedecision was made, provides public accountability, and permits effective and meaningful appellate review: see R.E.M., at paras. 11 and14. [35] Although not specifically pled in the formal grounds for appeal, the appellant now argues that the reasons given by the trialjudge were inadequate. Adequacy must be assessed in the context of the evidence and arguments at trial. [36] In R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46, Binnie J. set out the following test: Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides nosignificant impediment to the exercise of the right of appeal, the appeal court will not on that count intervene. [37] Therefore, the trial judge must give reasons that provide a logical pathway or connection between the decision and the basis forthat decision. [38] I am mindful that by some estimates, more than 95% of all criminal cases are dealt with in the Ontario Court of Justice.

This isa high volume court and trial judges deliver both oral and written judgments on a daily basis. It would be wrong to require them toexplain in detail every essential point upon which they based their decision or verdict: see R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R.499, at para. 29. [39] The appellant is entitled to know why the judge decided what she did. The requirement is not one of perfection or exactitudebut rather one of fairness. The appellant must know that his arguments were heard, properly understood, and fairly dealt with.

A trialjudge sitting alone need not expressly state the findings on each piece of evidence or controverted fact, provided the findings as a wholelogically connect the evidence to the outcome.

[40] An examination of the Reasons for Judgment reveals that the trial judge articulates her conclusions and the basis for reachingsuch results. [41] Her Reasons demonstrate that she understood and considered the litany of arguments and positions raised by the appellant inreaching her decision. Conclusion – Conviction Appeal [42] In the result, the appeal against conviction is dismissed.

Sentence Appeal Standard of Review [43] A sentence should only be varied where there has been an error in principle, an overlooked relevant factor that impacts on thesentence imposed, or the sentence is manifestly unfit: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Shropshire, [1995] 4S.C.R. 277; R. v. M (C.A.), (SCC), [1996] 1 S.C.R. 500; and R. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163. [44] Any error in law or principle may permit appellate intervention and allow the reviewing judge to substitute his or her views oropinion for that of the trial judge. [45] Proportionality, both with respect to the gravity of the offence and the responsibility of the offender, is paramount in measuringthe fitness of a sentence: see Lacasse at paras. 51 – 54. [46] In cases involving domestic violence, courts have emphasized the principles of general and specific deterrence in order toprotect the public.

Where significant bodily harm has been inflicted a custodial term should normally be imposed: see R. v. Inwood,(1989), (ON CA), 32 O.A.C. 287 (Ont. C.A.), at para. 26.

Discussion [47] In her thoughtful Reasons for Sentence, the trial judge acknowledged the positive nature of the appellant’s pre-sentence reportwhich described the appellant as a devoted family man and hard-working employee, his lack of criminal antecedents, his three years onbail without incident, his gainful employment and the significant impact these changes have had on the appellant. [48] She carefully balanced the above mitigating factors with a victim impact statement that showed the complainant continued todeal with the significant and long-lasting impact of these events and remained fearful of the appellant. [49] After reviewing the principles of sentencing as set out in s.718 of the Criminal Code she considers the appropriateness of adischarge and determines that it is not appropriate in the circumstances.

She concluded this analysis by noting “that a period of custodyis required.”[7] [50] Having determined that the need for specific deterrence has been satisfied she properly addressed the principles of generaldeference and denunciation. [51] Although it would have been preferable for the trial judge to articulate reasons why she was not imposing a conditionalsentence, I am satisfied that her Reasons, read as a whole, make clear that she properly considered and rejected the availability of aconditional sentence.

Simply put, her failure to articulate such reasons does not equate itself to a finding that she failed to give full andfair consideration to the imposition of a conditional sentence. [52] Her Reasons demonstrated that she was aware of the defence request for a conditional sentence and ultimately determined thatthe mitigating factors in this case were sufficient to permit the appellant to serve his sentence intermittently. [53] The wide latitude afforded the sentencing judge includes the latitude of whether or not to impose a conditional sentence: see R.v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 127,

section 13. [54] Although I may have chosen to exercise my discretion differently, there is nothing in her Reasons for Sentence thatdemonstrates a failure to consider or overemphasize any relevant factors nor was the sentence imposed demonstrably unfit. [55] In Proulx, at para. 114, the Supreme Court of Canada made clear that where punitive objectives, such as denunciation anddeterrence, are pressing, incarceration will generally be the preferable sanction, notwithstanding that restorative goals may still beachieved by imposing a conditional sentence. [56] The trial judge was alive to the appropriate principles of sentencing.

She properly considered the circumstances of the appellantand the relevant aggravating and mitigating circumstances. She considered alternatives to incarceration and applied the appropriatesentencing principles. She imposed a sentence that was within the acceptable range in the circumstances. These were a series of assaultswith multiple injuries that were more than mere trifling and transient in nature. [57] Her discretion merits substantial deference on review.

Conclusion [58] In the result the appeal against sentence is dismissed. [59] The appellant shall surrender himself to the required correctional facility by 7:00 p.m. on Friday, January 20, 2017 to continueto serve the balance of his remaining intermittent sentence.

“Justice M. A. Garson” Justice M. A. Garson Released: January 11, 2017 CITATION : R. v. Saghier, 2017 ONSC 227 COURT FILE NO.: 12-10084 DATE: 20170111 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen – and – Ahmed Saghier REASONS FOR JUDGMENT Garson J. Released: January 11, 2017