



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hamade, 2017 ONCA 387

DATE: 20170512

DOCKET: C61948

Doherty, MacFarland and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rabih Hamade

Appellant

Erica Tanny, for the appellant

Jennifer Epstein, for the respondent

Heard and released orally:  May 9, 2017

On appeal from the conviction entered by Justice Julie
    Bourgeois of the Ontario Court of Justice on January 15, 2016.

REASONS FOR DECISION

[1]

We appreciate counsel for the appellants careful and thorough
    submissions.  We do not, however, agree with those submissions.

[2]

The Crown witness, Bonney, presented various difficulties to all
    involved in the trial.  Eventually, the trial judge held, based primarily on
    Bonneys near recantation of his evidence in-chief during his re-examination,
    that the Crown would be allowed to cross-examine Bonney on a statement he had
    given to the police the night of the assault.  That statement was consistent
    with Bonnies evidence in-chief, but inconsistent, both with his
    cross-examination and his re-examination.

[3]

Counsel for the appellant argues that Crown counsels re-examination
    was inappropriate and that without the inappropriate re-examination, the possibility
    of cross-examining Bonney would never have arisen.

[4]

In our view, counsels re-examination was appropriate.  In
    cross-examination, Bonney had indicated that he really could not be sure about
    the accuracy of his memory in relation to anything that had happened on the
    night in question because of his ongoing drug abuse and other matters.  Crown
    counsel was entitled to re-examine Bonney on exactly what he could and could
    not remember.  Bonneys response, which identified for the first time someone
    other than the appellant as the perpetrator of the assault no doubt came as a
    surprise to Crown counsel.  The answer, however, did not affect the propriety
    of the question.  The re-examination was proper and led to the inconsistencies
    which triggered the Crowns application under s. 9 of the
Canada Evidence
    Act
.

[5]

The Crown sought to cross-examine
    Bonney on his statement pursuant to s. 9(1) of the Canada Evidence Act.  We are
    satisfied that it was open to the trial judge, based on the changes in Bonneys
    evidence, to find that Bonney was adverse to the Crown and could be
    cross-examined on his statement.  Indeed, it seems to us that the trial judge
    could well have gone further and made a finding of hostility, justifying
    cross-examination at large.  The trial judge was not asked, however, to make
    that finding.

[6]

It may be that part of the
    cross-examination went beyond the proper limits of cross-examination on the
    statement made to the police.  However, the main focus of the cross-examination
    was that statement.

[7]

Even if the cross-examination went
    beyond cross-examination on the statement, we see no prejudice to the
    appellant.  The cross-examination, apart from cross-examination on the
    statement, really did not advance the Crowns case, or impair Bonneys
    credibility.  He simply repeated on several occasions that he genuinely did not
    have a clear memory of what had happened.

[8]

The trial judges reasons at the end of
    the trial demonstrate a full appreciation of Bonneys evidence and the various
    inconsistencies in that evidence.  She fully described the evolution of his
    testimony over the course of the trial.  It was open to her as the trier of
    fact to accept Bonneys initial version of the events.  She was aware that
    there were serious credibility concerns associated with Bonneys evidence.  She
    properly looked for evidence capable of supporting his testimony.  In our view,
    she made no error in accepting Bonneys initial version of the relevant
    events.

[9]

The second ground of appeal relates to
    the trial judges fact-finding.  The trial judge was required to look at the
    totality of the circumstances in making the findings which eventually led to
    her verdict.  We think it was open to her on the entirety of the evidence to
    make the findings she did as they related to the nature of Bonneys injuries,
    the cause of those injuries, and the location in the apartment where the
    injuries were inflicted.  On the totality of the circumstantial evidence, it
    was open to the trial judge, particularly bearing in mind her acceptance of
    Bonneys evidence in-chief, to conclude, beyond a reasonable doubt, that the
    appellant was the assailant.  We note that the appellant did not testify.

[10]

The parties agree that the conviction
    on the charge of assault with a weapon should be stayed on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729
.  We so order, otherwise the appeal is dismissed.

Doherty J.A.

J. MacFarland J.A.

B.W. Miller J.A.


