J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 56 Date: 20080424 Between: Docket: 1375 Kareem Almajidi and Her Majesty the Queen Coram: Lane, Jackson Hunter JJ.A. Counsel: David W. Andrews, Q.C. for the appellant Lane W. Wiegers for the Crown Appeal: From: Q.B.C. No. 31 of 2006, J.C. of Regina Heard: April 24, 2008 Disposition: Conviction Appeal Dismissed (orally) Sentence Appeal Allowed (orally) Written Reasons: April 25, 2008 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Hunter Jackson J.A. I. Introduction [1] Kareem Almajidi was charged with sexually assaulting D.K. contrary to s. 271 of the Criminal Code and also assaulting her, using a weapon, to wit a baseball bat, contrary to s. 267(a) of the Code. He was tried by a jury, which convicted him. He was sentenced to two years in a federal penitentiary plus two years probation. He appeals both conviction and sentence. [2] The evidence of the Crown consisted of D.K., her friend A.Q., and two police officers, Cst. Crumley, the main investigator, and Cst. Tunison. Mr. Almajidi testified on his own behalf. [3] In brief compass, D.K. and A.Q. testified they had been drinking during the day and continued on into the evening at local bar on October 20, 2005. At some point in the evening, D.K. met Mr. Almajidi for the first time and then left shortly thereafter to go to Mr. Almajidi's home. [4] D.K. is 35 years old. She is sex trade worker. She testified that while nothing was said about the matter, she left the bar with Mr. Almajidi thinking he wanted to pay to have sexual relations with her. [5] Mr. Almajidi is 45 years old. He was born in Iraq and has been living in Regina for approximately 13 years. He does not read or write English. He works at casual labour. He testified that it was D.K. who started talking to him, asking where he lived and, in effect, invited herself over to his home. He said he did not know that she was prostitute and, if he had known, he never would have permitted her to enter his home. [6] Upon arriving at his home, D.K. testified that Mr. Almajidi refused to pay for sexual relations and she refused to have consensual sex, at which point, according to her, he tried to force himself upon her including forcibly restraining her, removing her clothing and generally touching her body in sexual manner. She said that he began to choke her, when she then punched him in the face and choked him, and he then struck her face. When this part of the episode came to an end, she tried to make her escape, at which point she stated he struck her on the back three times with baseball bat. D.K. returned home in considerable distress and called 911. She was taken to the hospital where she was treated and also interviewed by the police. Police photos reveal fresh injuries to her face and red welt or welts on her back. When Mr. Almajidi was arrested in his home, baseball bat was seized from beside his bed. [7] According to Mr. Almajidi, D.K. forcefully demanded money for sexual relations. When he refused to pay, she struck him, at which point he threw her out of his house. Police photos reveal injuries to his face, which appear to be of less significant nature than the ones showing in the pictures of D.K. III. Conviction Appeal [8] D.K.’s testimony at trial differed from what she said at the preliminary inquiry on number of matters. She also testified as to some matters that were contradicted by her friend, A.Q., and by the police. On the specific question of these inconsistencies, the trial judge instructed the jury: Did the witness' testimony seem reasonable and consistent as she or he gave it? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion? Do any inconsistencies in the witness' evidence make the main points more or less believable and reliable? Is the inconsistency about something important or minor detail? And that's quite relevant in this case. Does it seem like an honest mistake? Is it deliberate lie? Is the inconsistency because the witness said something different, or because she or he failed to mention something? Is there any explanation for it? Does the explanation make sense?[1] [Emphasis added.] He continued: There were discrepancies in [D.K.’s] testimony. And these are matters that you will have to consider between her Testimony-In-Chief, and in Cross- Examination and her evidence at the preliminary inquiry. And bear in mind my initial instructions on the credibility of witnesses and how you deal with the discrepancies. Some of these, and I'm not going to review them all, but some of the discrepancies include: 1. the time they went to the Jolly Roger. 2. whether they consumed liquor prior to their attendance at the Jolly Roger. 3. the amount of liquor that they consumed at the Jolly Roger. 4. the amount of money she demanded for sex. 5. Whether she grabbed Kareem by the throat. Those were some of them.[2] [9] The appellant makes two main arguments in relation to the jury charge. First, he argues that the trial judge should have addressed the jury further with respect to the various types of inconsistencies and contradictions, explained their significance and related them to the position of the defence. On this point, appellant's counsel cites McWilliams' Canadian Criminal Evidence,[3] and the need not simply to point out an inconsistency with no further direction. [10] Secondly, appellant\'s counsel argues that the trial judge should have mentioned these additional inconsistencies or discrepancies: 1. While the complainant indicated that she bruised easily, there were no bruises on her neck to corroborate her statement that she was choked while on the bed; 2. At the preliminary inquiry, the complainant said that she choked the accused, but at trial denied that she had done so until the preliminary hearing transcript was read her at which point she conceded that "it could be possible;" 3. The complainant testified that she punched the accused in the nose and that he bled on her right hand and arm and possibly on her shirt or jacket, and that she told the police that this had occurred. Cst. Crumley, however, testified they were not told that and if they had been so advised, they would have asked the identification unit to collect evidence and take pictures; 4. The complainant testified she told the police she left sock at the appellant's home but, again, Cst. Crumley has no notes indicating this was told to her as it would have been something that she would have attended to; 5. While the complainant testified the accused used force to pry her legs apart, there were no bruises on her legs; 6. At the preliminary inquiry, the complainant testified that he used both hand and his legs to spread her legs apart, but at trial made reference only to legs; 7. D.K. said she was able to identify the accused by means of photo line-up, but in fact she was unable to do so and the accused was arrested solely by virtue of the fact she remembered the address of his home. [11] With respect to the five discrepancies that the trial judge did identify for the jury, the appellant's counsel asserts that these were not adequately addressed by the trial judge in his charge. For example, the appellant's counsel argues that the trial judge's reference to "the time they went to the Jolly Roger" should have been related to the issue of how long the complainant had been consuming alcohol before the encounter with his client, which goes to the question of her ability to recall. similar comment is made in relation to the quantity of alcohol consumed during the day and at the bar with the point being that if D.K. had consumed the seven drinks that she mentioned in two hour timeframe her degree of intoxication would have been considerably greater and her ability to assess facts and recall them would have been affected. [12] In my respectful view, however, these arguments do not give rise to grounds for intervention. While there is general obligation on the trial judge to instruct the jury by reviewing the evidence and addressing inconsistencies, how the obligation is fulfilled will vary from case to case. There can be no absolute rule or formula giving rise automatically to new trial. Much depends on the context of the whole of the trial and such matters as the nature of the inconsistency, whether the witness can be said to have sufficiently addressed it and whether it goes to the essence of an element of the offence charged. This is precisely what take the trial judge to have said to the jury when instructing them as to how they should consider the inconsistencies in this case. [13] Once Mr. Almajidi testified, identity, place and time were admitted. That an altercation of some sort took place was also admitted. The inconsistencies identified by counsel have to be weighed by this Court in light of this and according to their impact on the fundamental questions that the jury had to decide, i.e., whether the touching was of sexual nature without consent and whether the appellant struck D.K. with baseball bat. [14] This was short trial lasting parts of two days with the Court ending early on both days. On the third day, counsel addressed the jury in the morning and the trial judge charged them in the afternoon. Trial counsel's address was exceptionally thorough as had been his cross-examination of the complainant. He advised the jury that the complainant's testimony would not stand up under scrutiny and had not stood up under scrutiny, and that his purpose was to draw inconsistencies to their attention, of which he said there were many.[4] He canvassed what he advised the jury to be some 14 inconsistencies, either between the complainant's testimony at trial and her testimony at the preliminary inquiry, or inconsistencies between her testimony and that of her friend, A.Q., with whom she lives, and other lapses of memory such as the blood on her body and the missing sock. [15] Crown counsel, in his turn, also addressed the fact of the inconsistencies in the complainant's testimony, reminding the jury as to the length of time the complainant had been cross-examined at the preliminary inquiry and at trial, and that there had been lapse of time of almost 18 months between the alleged incident and the trial, urging the jury to move past the inconsistencies and decide the two questions in the case which were whether she had been sexually assaulted and assaulted with bat. [16] The danger the trial judge faced in drawing the jury's attention to the inconsistencies would have been the necessity of drawing their attention to that which significantly corroborated D.K.’s testimony: (i) she arrived home with fresh injuries on her face and back and her immediate response was to call 911; (ii) A.Q. corroborated that she was in pain and she was distraught; (iii) the police officer testified to fresh injuries and the extent that she was distraught; (iv) the police received call to attend at the General Hospital at 9:32 p.m., which corroborated the general timeframe of the incidents as stated by the complainant; and (v) the police seized baseball bat from the appellant's home. Other matters must have been plain to the jury such as the fact that D.K., in spite of all the inconsistencies, never wavered from her central testimony, which was Mr. Almajidi touched her sexually without her consent and he struck her with baseball bat. [17] As to the potential role of counsel’s submissions on the trial judge’s obligation to charge the jury, note that in R. v. MacKinnon[5] Doherty J.A. wrote: ... Counsel's closing cannot relieve the trial judge of his obligation to ensure that the jury understands the significance of the evidence to the issues in the case. Certainly, the trial judge can consider counsel's closing arguments in deciding how to discharge his or her obligation. Reference to, or incorporation by reference to, counsel's submissions are techniques which may be used by trial judge to assist in relating the evidence to the positions of the parties on the contested issues. [18] In MacKinnon, the trial judge could not simply rely on closing arguments, but that case is factually distinct from the case at bar in that the trial judge in this case did address the issue of inconsistencies on the fundamental point albeit not as fully as counsel would have liked and the matters in issue cannot be considered to be complex. The trial judge here as well generally related the evidence of the complainant and the accused to the elements. [19] The trial judge made it clear that the jury was free to accept the submissions made by either counsel. He told them: Both counsel for Kareem and learned Crown counsel have reviewed the facts at some length and that is their responsibility and duty as trial counsel. But what they have said about the facts, based on the evidence, can either be accepted by you or rejected by you. It is for you alone to make that determination.[6] [20] While the extensive addresses are not determinative of the result of appellate review, they support the trial judge’s choice not to delve deeply into what should have been made of each of the inconsistencies. In that respect, agree with Crown counsel that R. v. Ambrose[7] is apposite. In that case, the accused were charged with murder. The allegations were based solely on circumstantial evidence. At trial, the appellants argued there were discrepancies in the circumstantial evidence capable of fostering reasonable doubt. As in the present case, appellants' counsel made complete submissions to the jury that clearly outlined his theory. In that circumstance, the trial judge referred the jury to those submissions rather than repeating them. On appeal, Spence J., for the Court, dealt with the appellants' claim that the evidence had not been related to the defence theory with these words: ... If counsel for the defence based the theory of the defence upon discrepancies in 1371 printed pages of evidence given by Crown witnesses then it was his duty in his address to outline those discrepancies. The learned trial judge was of the opinion that counsel for the defence had done so most adequately and was, therefore, think, properly of the opinion that it was neither necessary nor desirable that he should repeat the outline of those discrepancies in his charge.... To have burdened the jury with recital of discrepancies which had already been outlined in the very long and most complete address of counsel for the accused would not have served any useful purpose and might well have so confused the jury as to detract from their efficient discharge of their sworn duty.[8] [Emphasis added.] [21] mention as well that, at the outset of the trial, the trial judge provided guidance to the jurors on the issue of credibility. He forewarned them that it would be an important issue in the case before them. He further advised them that the purpose of counsel's cross-examination would be to test the reliability of the witnesses' testimony. He reminded them that he would offer them some further direction in that regard once the evidence was complete, but that fact-finding and determining issues of credibility were solely their tasks. [22] In my respectful view, the charge that followed two days later was entirely correct to the circumstances of this case. note as well that the trial judge stressed the reasonable doubt standard and he concluded his charge with the direction consistent with R. v. W.(D.).[9] [23] After the charge, counsel pointed out three factual errors that the trial judge had made during his charge, which he proceeded to correct. Indeed, one of those errors would have reinforced in the jurors' minds that no discussion took place with respect to payment before D.K. and Mr. Almajidi got to his home. D.K. thought it was pick up, but no words were spoken to that effect by either D.K. or Mr. Almajidi before D.K. arrived at his home. No other complaints were made about the charge. [24] The purpose of appellate review is to ensure that juries are properly instructed. (See: R. v. Jacquard[10].) In my view, the charge in this case meets that standard. [25] When one assesses the case through the lens of the Yebes test[11] of reasonableness, conclude that the verdict is not unreasonable. [26] For these reasons, the appeal against conviction is dismissed. IV. Appeal from Sentence [27] Mr. Almajidi was sentenced to two years in penitentiary plus two years probation. The sentencing transcript shows that there was essentially consensus between Crown and defence as to the sentence that should be imposed. Both Crown and defence were of the opinion that period of probation would be an important addition to the period of incarceration and that, all things being equal, the federal system was considered more appropriate for the service of lengthy sentence so as to permit Mr. Almajidi access to sex offender treatment. [28] Subsequent to his sentencing, Mr. Almajidi was informed by Canada Border Services Agency, Inland Immigration Enforcement, that with sentence of two years or more, he would have no appeal against an order declaring him inadmissible to Canada. Apparently, if a sentence of two years less a day is imposed, Mr. Almajidi will be guaranteed the opportunity of appearing personally or having legal counsel represent him on his appeal of such an order. [29] The issue of whether an appellate court can take into account the effect of sentence on deportation appeal rights has arisen before in Canada. The most recent case of R. v. Leila[12] contains useful summary of other appellate cases on this issue. The jurisprudence supports the proposition that a sentence\'s unintended effect on immigration status can be a relevant factor on a sentence appeal. In Leila, the Court concluded that "the loss of the appellant's immigration appeal rights is disproportionately severe collateral sanction, which was unforeseen by the appellant and his counsel at the sentencing hearing and apparently unintended by the sentencing judge."[13] In the result, the Court reduced the appellant's sentence to one that would allow him to preserve his immigration appeal rights. The same response is appropriate in this case. [30] Thus, we would dismiss the appeal from conviction and allow the appeal from sentence. The sentence of two years is set aside, and a sentence of two years less a day imposed in its place. The probation and all other orders made by the trial judge remain in effect. [1] Charge to the Jury, p. 7, line 14 to p. 8, line 1. [2] Ibid., p. 18, lines 7-21. [3] The Hon. Mr. Justice S. Casey Hill, David M. Tanovich, Louis P. Strezos, McWilliams' Canadian Criminal Evidence, looseleaf, 4th ed., vol (Aurora, Ont.: Canada Law Book, 2007) at p. 18-69. [4] Transcript of Proceedings, vol. 2, p. 386. [5] (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.). [6] Charge to the Jury, p. 3, lines 13-19. [7] 1976 CanLII 201 (SCC), [1977] S.C.R. 717. [8] Ibid., pp. 725-26. [9] 1991 CanLII 93 (SCC), [1991] S.C.R. 742. [10] 1997 CanLII 374 (SCC), [1997] S.C.R. 314 at para. 32. [11] R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168 at pp. 185-186. [12]2008 BCCA (CanLII). [13] Ibid., para.
The accused was convicted by a jury of sexual assault and assault with a weapon. He was sentenced to 2 years in a federal penitentiary plus 2 years probation. He appeals both conviction and sentence. The accused and complainant met in a bar for the first time and then went to the accused's apartment. The complainant is a sex trade worker and was of the view that the accused was prepared to pay for sex. The accused stated that he did not know the complainant was a prostitute and thought she had 'picked him up'. Upon arriving at the appellant's home, he refused to pay for sex and the complainant refused consensual sex, at which point the appellant forced himself upon her, forcibly restrained her, removed her clothing and touched her body in a sexual manner, choked her and struck her in the face. As she tried to escape, the appellant struck her three times in the back with a baseball bat. The appellant argues there were two problems with the jury charge: 1) that the trial judge should have addressed the jury further with respect to the various types of inconsistencies and contradictions in the complainant's testimony and explained their significance, and 2) the trial judge should have mentioned a number of additional inconsistencies. HELD: Appeal against conviction dismissed. The issues with the jury charge do not give rise to intervention by this Court. While there is a general obligation on the trial judge to instruct the jury by reviewing the evidence and addressing inconsistencies, how the obligation is fulfilled will vary from case to case. There is no absolute formula automatically giving rise to a new trial. Much depends on the context of the whole trial and such things as the nature of the inconsistency and whether it goes to the essence of an element of the offence. The trial judge's charge was entirely correct in the circumstances of this case. Appeal against sentence is allowed and a sentence of 2 years less 1 day is substituted. The sentence imposed by the trial judge was based on a consensus between the crown and defence counsels. Both were of the view that a sentence in the federal system was more appropriate since it would permit the appellant to access sex offender treatment. After sentencing, the appellant, who is an immigrant, was informed that with a sentence of 2 years, he would have no appeal against an order declaring him inadmissible to Canada. If a sentence of less than 2 years is imposed, he will be guaranteed the opportunity to appear personally or by counsel on his appeal of such an order. The jurisprudence supports the proposition that a sentence's unintended effect on immigration status can be a relevant factor on sentence appeal.