



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Enzi, 2020 ONCA 117

DATE: 20200213

DOCKET: C67122

Sharpe, MacPherson and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdulaziz Al-Enzi

Appellant

Matthew Gourlay and Peter Grbac, for the appellant

Roger A. Pinnock, for the respondent

Heard: February 7, 2020

On appeal from the
conviction entered on October 1, 2018 and the sentence imposed on January 15,
2019 by Justice Peter K. Doody of the Ontario Court of Justice, with reasons
reported at 2018 ONCJ 679.

By the Court:

[1]

At the conclusion of a trial before Doody J. of the Ontario Court of
Justice, the appellant, Abdulaziz Al-Enzi, was convicted of assault with a
weapon (particularized as a jailhouse shank), assault causing bodily harm, and
aggravated assault. In accordance with
R. v. Kienapple
, [1975] 1
S.C.R. 729, the convictions for assault with a weapon and assault causing bodily
harm were conditionally stayed. The trial judge imposed a term of incarceration
of 30 months, with 153 days deducted for pre-sentence custody. Mr. Al-Enzi
appeals the conviction and sentence.

[2]

On April 19, 2018, there was an altercation involving several inmates in
the dayroom at the maximum security unit of the Ottawa-Carleton Detention
Centre. The complainant was assaulted and suffered significant injuries.

[3]

Two inmates, Houssine Ali and Eli Elenezi, testified that they had
assaulted the complainant with short pencils grasped in their fists, which they
had hidden under their clothes before the fight. No pencil or other weapon was
recovered from the dayroom.

[4]

The complainant, who suffered two cuts to his face, testified that he
did not know who had cut him.

[5]

Mr. Al-Enzi did not testify.

[6]

Two security videos recorded the altercation. The footage shows Mr.
Al-Enzi holding a white object in his right hand. He removed the white covering
as he ran toward the complainant. He punched the complainant and drew his right
hand across the complainants left cheek from his mouth toward his ear. He then
grabbed the complainants head in an arm hold. His right hand then moved across
the left side of the complainants face.

[7]

The fight stopped. Mr. Al-Enzi went to the nearby partially visible (on
the security videos) washroom and bent down over the toilet and then
straightened up.

[8]

At the conclusion of the trial, the trial judge reserved his decision.
Counsel agreed that he could review the video evidence as he prepared his
judgment.

[9]

When the trial judge looked again at the videos, he noticed that Mr. Ali
had his fingers splayed just before punching the complainant. There did not
appear to be a pencil in his hand.

[10]

The trial judge also noticed that after Mr. Elenezi punched the complainant,
he stood in front of the washroom door for about 50 seconds before the guards
entered, despite testifying that if he had a pencil, he would have disposed of
it as soon as possible after a fight.

[11]

Counsel had not questioned these witnesses on these potential
discrepancies.

[12]

The trial judge wrote to counsel, requesting submissions on these points
and inquiring whether the defence wanted to bring a motion to reopen the
defence case.

[13]

Court was reconvened and, ultimately, defence counsel brought a motion to
reopen its case and recall Mr. Elenezi (Mr. Ali could not be found). The trial
judge granted the motion.

[14]

After being recalled, Mr. Elenezi testified that he did not have time to
flush his pencil down the toilet. When pressed in cross-examination, he said
that he did not flush it because he would have been seen on the videos. He had
not said this in his original testimony or in his examination in chief when
recalled.

[15]

Mr. Elenezi testified that he took the pencil out of his prison jumpsuit
and then put it back about nine seconds later, after he had punched the
complainant. However, in cross-examination, the trial Crown suggested that the
video evidence showed that he put his hand on the back of another inmate
immediately after punching the complainant and his fingers were splayed. There
was no pencil. In addition, the video showed that he punched the complainant
but did not swing his hand across his chest in a horizontal motion, contrary to
his testimony when recalled.

[16]

The videos also showed that Mr. Elenezi and Mr. Al-Enzi punched the
complainant almost 28 seconds after Mr. Ali punched him. Before Mr. Elenezi and
Mr. Al-Enzi punched him, the complainant did not have blood on his face and
chest. Nine seconds later, the complainant had blood on his face and chest.

[17]

The trial judge found Mr. Al-Enzi guilty of the three charges set out
above. He said that there was a live issue as to whether Mr. Ali and Mr.
Elenezi had pencils in their fists when they struck the complainant.

[18]

The trial judge said that Mr. Alis evidence was not credible. The video
evidence shows that his fingers were fully extended after he took his hand out
of the waistband of his pants. He did not have a pencil. The trial judge
accepted Mr. Elenezis evidence that inmates dispose of weapons in the toilet
as soon as possible after a fight so the guards cannot find them. The video
evidence showed that Mr. Ali did not go into the washroom to dispose of the
pencil despite having time to do so. Accordingly, Mr. Ali did not cause the injuries
to the complainants face.

[19]

The trial judge said that he did not believe that Mr. Elenezi had a
pencil. The video evidence showed that he did not have a pencil immediately
after striking the complainant. He had ample time (about 50 seconds) to dispose
of a pencil in the toilet before the guards arrived, but did not do so. The
only reasonable conclusion is that Mr. Elenezi did not have a pencil.

[20]

Having disbelieved Mr. Alis and Mr. Elenezis testimony, the trial
judge determined, based on the video evidence relating to Mr. Al-Enzi set out
above, that he was the person who attacked the complainant with a weapon and
caused the facial injuries.

Conviction Appeal

[21]

Mr. Al-Enzi contends that the trial judge made two errors with respect
to permitting Mr. Elenezi to testify after the trial was over and while he was
preparing his judgment.

[22]

First, Mr. Al-Enzi submits that the trial judge erred by, on his own
motion, inviting the defence to reopen the trial and then using the evidence
tendered to convict him. In support of this position, Mr. Al-Enzi refers to the
trial judges letter to counsel and describes it as tantamount to the trial
judge recalling the witnesses himself.

[23]

We do not accept this characterization of what the trial judge did. Once
court reconvened after counsel had received the trial judges letter, the trial
judge made it clear (Im not proposing to call a witness; I do not, rather,
intend to call a witness) that he was seeking both counsels views on how to
proceed, now that they knew that he had seen things in the video evidence that
had not been addressed during the trial testimony and that were potentially
significant in his assessment of the evidence and ultimate verdict. This led
defence counsel to say:

I understand that. I - I wouldnt be seeking to recall Mr.
Elenezi but for the letter, I mean it wouldnt be something that I would have
done otherwise. But I think that it is a defence application at this point and its
not 
its not something that is emanating from the Court
.
[Emphasis added.]

[24]

Second, Mr. Al-Enzi asserts that, if the defence made a motion to reopen
the trial, the trial judge erred by granting the motion. Mr. Al-Enzi says that
the trial judges decision to reopen the trial was not made in an
ex
improviso
situation  i.e. circumstances arose that could not have been foreseen.
In support of this submission, Mr. Al-Enzi points to what the trial judge said
in his reasons for judgment:

The videos were played many times during the trial, in both
normal speed and in slow motion. All witnesses were given an opportunity to
comment on and describe what they saw happening on the videos. The inmate
witnesses were asked to explain what they were doing in the videos. Counsel
played them during submissions and made submissions on what they showed.

[25]

We are not persuaded by this submission. The leading case dealing with
reopening a trial is
R. v. Hayward
(1993), 88 C.C.C. (3d) 193 (Ont.
C.A.), wherein Doherty J.A. said, at para. 15:

A trial judge sitting without a jury may permit the reopening
of the evidence at any time before sentence is passed. The decision to permit
either party to reopen its case and call further evidence is within the
discretion of the trial judge, and where that discretion is exercised
judicially an appellate court will not interfere. [Citations omitted.]

[26]

In
Hayward
, the court enunciated several considerations that
comprise the test for assessing whether a trial should be reopened. In the
present case, the trial judge, explicitly and faithfully, applied the
Hayward
test and granted the defence application to recall a witness. He exercised his
discretion judicially and, in the interest of trial fairness, reopened the
trial. He made an entirely reasonable decision.

[27]

In oral submissions on appeal, counsel for Mr. Al-Enzi agreed that the
trial judge wrote his letter to counsel in fairness to the defence. While we
understand appellate counsels submission that it would have been less of a
problem if defence counsel had initiated the application to reopen the trial,
we do not agree that this well-intentioned decision was prejudicial to Mr.
Al-Enzi. The trial judges letter did not suggest he had decided to reopen the
trial and wanted counsel to prove him wrong. Quite the opposite. In his letter,
the trial judge asked to hear counsel whether I should grant [the defence] an
opportunity to re-open the defence case to recall Mr. Ali and Mr. Elenezi to
testify with respect to these points. It was open to defence counsel as a
tactical decision not to bring an application to reopen the trial. Instead, he
brought an application of his own accord. Asking for submissions is not the
same as asking the defence to recall a witness.

Sentence Appeal

[28]

Mr. Al-Enzi submits that the 30-month sentence imposed by the trial
judge is unfit. He says that the trial judge erred by minimizing relevant
contextual factors related to the incident, namely that this was an assault (i)
committed in the context of a multiparty jailhouse fight; (ii) in which the
complainant participated; and (iii) the complainants injuries were at the low
end of the scale for aggravated assault.

[29]

We disagree. The trial judge listed several serious aggravating factors
 the assault occurred in a correctional facility where inmates are entitled
to serve their sentences or prepare for trial in an environment devoid of
violence; Mr. Al-Enzi had a criminal record, including prior offences of
violence; Mr. Al-Enzi used a concealed weapon and attacked the complainant
after he had already been assaulted by two other inmates (piling-on); and the
assault left the complainant with two permanent facial scars. These factors,
cumulatively, justified the sentence he imposed.

Disposition

[30]

The appeal is dismissed.

Released: RJS FEB 13 2020

Robert J. Sharpe J.A.

J.C. MacPherson J.A.

M. Jamal J.A.


