



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mughal, 2014 ONCA 349

DATE: 20140502

DOCKET: C56565

Goudge, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Mughal

Appellant

R. Craig Bottomley, for the appellant

Jason Balgopal, for the respondent

Heard: April 15, 2014

On appeal from the convictions entered on November 4,
    2013 by Justice
S. Gail
Dobney of the Ontario Court of
    Justice.

ENDORSEMENT

[1]

The appellant was convicted of 11 offences against his wife and his
    three children.

[2]

He was convicted of assaulting his wife (count 1), and sentenced to 15
    days in jail, concurrent to his other sentences, for this offence.  He was
    acquitted of one count of assault with a weapon on his wife (count 2).

[3]

In relation to each of his three children, Rafay, Maheen and Ali, he was
    convicted of three offences: simple assault (counts 3, 6 and 9), assault by
    threatening to use a knife (counts 4, 7, and 11), and threatening to cause
    serious bodily harm using a knife (counts 5, 8 and 12).  For each of these nine
    offences the trial judge imposed a 30-day sentence.  The sentences relating to
    each child were made concurrent to the sentences for the other two offences
    relating to the same child.  The total sentences relating to each child were
    made consecutive to the sentences relating to the other two children.

[4]

The appellant was also convicted of a separate assault with a knife of
    Ali (count 10) for which he received 30 days, concurrent to the other sentences
    relating to Ali.

[5]

The end result was a 90-day sentence that the trial judge ordered to be
    served intermittently, together with a two-year probation order.

[6]

The appellant takes no issue with his conviction for assaulting his
    wife.

[7]

He does, however, raise three issues on the appeal of his other
    convictions: propensity reasoning; misapprehension of evidence; and the
Kienapple
principle.

[8]

The first of these is enough to dispose of the conviction appeal.  In
    giving his evidence, the appellant made admissions that support his conviction
    for simple assault of Rafay (count 3), his conviction for assaulting Ali by
    threatening to use a knife (count 11), and his conviction for the separate
    assault with a knife of Ali (count 10).  In registering convictions on these
    counts, the trial judge considered the appellants admissions together with the
    evidence of his children to be sufficient.  She did not use propensity
    reasoning to convict and we see no basis to interfere with her conclusion on
    these counts.

[9]

However, the appellant made no such admissions in denying the other
    offences.  With respect to these convictions, we conclude that the trial judge
    rejected the appellants evidence solely on the basis that if the appellant was
    prepared to assault Ali by threatening him with a knife, it is not beyond
    belief that he was the kind of person who would act similarly towards his other
    two children.  Since the Crown made no similar fact application and we cannot
    say that such an application would inevitably have been successful, this error
    requires that the convictions on counts 4, 5, 6, 7, 8, 9 and 12 be set aside
    and new trials on those counts be ordered.

[10]

There
    is no need for us to deal with the misapprehension issue since it deals with
    counts 6 and 9, on which we have ordered new trials, and count 3, on which we
    are satisfied that the appellants admissions at trial support his conviction.

[11]

Nor
    need we deal with the
Kienapple
issue
[1]
. 
    It was argued by the appellant to apply where the appellant was convicted of
    assaulting a child by threatening to use a knife and of threatening to cause
    serious bodily harm using a knife in relation to the same child.  No pair of
    the convictions that we have upheld fits this description.

[12]

The
    sentences imposed by the trial judge for the convictions that we have left
    undisturbed are 30 days for count 3, (the simple assault of Rafay); 30 days for
    count 10, (the separate assault on Ali); and 30 days for count 11, (the assault
    of Ali by threatening to use a knife).  The two sentences in relation to Ali
    are concurrent to each other.  The resulting 30-day sentence in respect of the
    offences against Ali is consecutive to the 30 days imposed for the conviction
    on count 3, relating to Rafay.  The 15-day sentence for count 1 is concurrent to
    both these sentences.  The overall result is a 60-day sentence ordered to be
    served intermittently, together with two years probation.

[13]

In
    all the circumstances, we see no basis to interfere with the global sentence
    the trial judge imposed for the convictions we have left undisturbed.  In our
    view, it is not unfit.

[14]

In
    the end, the conviction appeal is allowed to the extent that the convictions on
    the counts specified in these reasons are set aside and a new trial is ordered
    on those counts, should the Crown choose to proceed.  We would not interfere
    with the sentences for the convictions that remain.  Accordingly, while leave
    to appeal sentence is granted, the sentence appeal concerning the remaining
    conviction is dismissed.

S.T.
    Goudge J.A.

E.A. Cronk J.A.

Gloria Epstein J.A.





[1]

R. v. Kienapple
,
[1975] 1 S.C.R. 729.


