



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Said, 2019 ONCA 378

DATE: 20190507

DOCKET: C66279

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdirisaq Hussein Said

Appellant

Abdirisaq Hussein Said, acting in person

Andrew Hotke, for the respondent

Matthew Gourlay, duty counsel

Heard: May 6, 2019

On appeal from the convictions entered on September 11,
    2018 by Justice Micheline A. Rawlins of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions on two counts of assault
    using a weapon and one count of assault causing bodily harm. The persons
    assaulted were the owner and an employee of a pizza store. After the appellant
    entered the store to purchase a slice of pizza an argument took place that led
    to an altercation outside the store. Videos of the incident showed the
    appellant left the store and began walking away and the owner followed him
    outside the door of the store. The appellant turned around and walked back
    towards the owner and a fight ensued. The employee then ran out of the store
    and got involved in the altercation. The owner and the employee chased the
    accused across the street and meted out rough justice.

[2]

The trial judge found that the appellant pulled out a screwdriver from
    his pocket at the very beginning of the altercation and used it to punch the
    owner in the abdomen and stab the employee on the left side of his face. The
    owner suffered no injury and the employee required ten stitches to close the
    gash on his face.

[3]

The trial judge rejected the appellants claim of self-defence, finding
    his use of the screwdriver against the unarmed owner and employee was not
    justifiable, proportionate or reasonable in the circumstances.

[4]

Duty counsel, Matthew Gourlay, submitted on behalf of the appellant that
    the trial judges continual interventions undermined the appearance the trial
    was fair, and also resulted in actual unfairness. He noted this courts statement
    in
R. v. Stucky
, 2009 ONCA 151, at para. 69 that [t]he appearance of
    fairness and the trial judges corresponding duty to exercise restraint and
    remain neutral is especially critical in the criminal context where the accused
    takes the stand.

[5]

The court in
Stucky
, at para. 71, listed the types of
    intervention by trial judges that have resulted in the quashing of criminal
    convictions:

1. Questioning an accused or a defence witness to such an
    extent or in a manner which conveys the impression that the trial judge has
    placed the authority of his or her office on the side of the prosecution and
    conveys the impression that the trial judge disbelieves the accused or the
    witness;

2. Interventions which have effectively made it impossible for
    defence counsel to perform his or her duty in advancing the defence; and

3. Interventions which effectively preclude the accused from
    telling his or her story in his or her own way.

[6]

Duty counsel submitted that all three types of interventions were
    present in this case.

[7]

Crown counsel, citing para. 92 of this courts decision in
R. v.
    Murray
, 2017 ONCA 393, submitted that the trial judge intervened mainly
    for the permissible purposes of focusing the evidence on issues material to the
    determination of the case, to clarify evidence as it is being given, to ensure
    that the way a witness responds to questions does not unduly hamper the
    progress of the trial, and to prevent the undo protraction of the trial
    proceeding. He also cited para. 17 of
R. v. McCullough
, [1998] O.J. No.
    2914, for the proposition that [a] trial judge is entitled to make reasonable
    criticism respecting the conduct of counsel and witnesses who appear in court.

[8]

Crown counsel submits the appellants responses to questions were
    lengthy, imprecise, often strayed into irrelevance, and in some cases were
    contradicted by the videos in evidence. Moreover, defence counsel was prone to
    asking lengthy and compound questions and persisted in doing so even after
    being corrected by the trial judge. While acknowledging one could be critical
    of the manner and style of the trial judges interventions, Crown counsel
    submits the substance of the bulk of her interventions served one of the above
    permissible purposes. Crown counsel was right to concede that some of the
    interventions fell outside these permissible categories.

[9]

Nothing would be served by a lengthy itemization of the trial judges
    many interventions. We are satisfied the trial judges admonitions of counsel
    exceeded what was reasonably necessary and strayed into derision. For example,
    the trial judge said to counsel English is not your forte. It is your first
    language, right? She also rhetorically asked counsel [You] did do criminal
    law at law school, right? Now, if you need time to study up on these aspects I
    will give it to you, but Im tired. The trial judges belittling of the
    appellants counsel would reasonably undermine his sense the trial was fair.

[10]

Further,
    we are satisfied that the trial judges comments to and queries of the
    appellant exceeded the bounds of what is permissible. The trial judge embarked
    on a pointed cross-examination of the appellant during his testimony in-chief
    very soon after he took the stand and continued it throughout his
    cross-examination. Before the appellant left the stand, the trial judge made it
    clear to him she had reached the view he was not to be believed, a view reached
    on a cross-examination in which she was heavily involved. The trial judge usurped
    the role of Crown counsel and created an overall impression that was fatal to
    the appearance of justice.

[11]

Moreover,
    duty counsel has persuaded us that the trial judges interventions resulted in
    actual unfairness. The trial judges persistent challenging of the appellant
    with what the trial judge considered apparent inconsistencies with the videos prevented
    the appellant from getting his story out during his testimony in-chief by testifying
    about what his perceptions were as the event was unfolding. The reasonability
    of his perceptions at the time were relevant to self-defence. For example, that
    the employee had no weapon as he dashed out of the store may have been apparent
    on the video from the camera inside the store viewed repeatedly. There was no
    video from the perspective of the appellant who was outside on the sidewalk by
    the door as the employee ran out of the store at him. The trial judges
    interventions impeded the appellants attempt to testify that he stabbed the
    employee with the screwdriver when the owner and employee chased him and beat
    him across the street off camera. The trial judge found the appellant stabbed
    the employee in the initial encounter without allowing the appellant to testify
    otherwise.

[12]

The
    trial judges interventions undermined the appearance of fairness and rendered
    the trial unfair. The appeal is allowed, the convictions are set aside and a
    new trial ordered. We expect that the Crown will take into account that the
    appellant has served his sentence in deciding whether to proceed with the
    retrial.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

Paul Rouleau J.A.


