



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Khan, 2014 ONCA 795

DATE: 20141112

DOCKET: C55510

Cronk, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nasrullah Khan

Appellant

Mark Halfyard, for the appellant

Avene Derwa, for the respondent

Heard: September 8, 2014

On appeal from the convictions entered on February 28,
    2012 by Justice Barbara A. Conway of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The
    appellant, Nasrullah Khan, was charged with seven counts which arose out of two
    separate incidents.  Both incidents involved the same complainant, Mr. Shahid
    Sidhu.  The first incident involved an assault with a weapon (a knife) that
    occurred on October 10, 2008.  This incident resulted in charges of possession
    of a weapon, assault with a weapon and aggravated assault.

[2]

The
    second incident involved a threatening phone call to Mr. Sidhu on November 16,
    2008.  The second incident resulted in charges of failure to comply with a
    recognizance, intimidating a justice participant, attempting to obstruct
    justice and uttering a threat.

[3]

Following
    a four-day trial before a Superior Court judge, sitting without a jury, the
    appellant was convicted of all counts and received a global sentence of 17
    months in custody.  He now appeals his convictions on two main grounds.  First,
    the appellant submits that the trial judge erred in her treatment of alibi
    evidence adduced by the defence by discounting a time-stamped, dated receipt
    from a variety store which was disclosed by the appellant to the police upon
    his arrest, about 7 and a half hours after the first incident.  Second, the
    appellant contends that the trial judge misapprehended the evidence when she
    concluded that the appellants evidence contradicted his wifes evidence in a
    way that suited the defence.

Factual Overview

[4]

The
    appellant and the complainant, Mr. Sidhu, were friends who purchased a house
    together in 2008 with a view to sharing the profits.  The house was in the
    appellants name only.  The appellant and his family moved into the house right
    away and Mr. Sidhu subsequently moved into the basement.  On September 21,

2008, the appellant told Mr. Sidhu to move out.  Mr.
    Sidhu filed an application against the appellant at the Landlord and Tenant
    Board.  He later sued the appellant for the return of mortgage funds he claimed
    to have advanced in respect of the house.

[5]

On
    October 10, 2008, at around 4:30 p.m., Mr. Sidhu was attacked in the parking
    lot at his work.  His left arm was cut with a knife.  Mr. Sidhus friend
    witnessed at least part of the attack and identified the attacker as the
    appellant.  On November 16, 2008, around 8:30 p.m., Mr. Sidhu received a
    telephone call from a pay phone near the appellants home.  Mr. Sidhu
    recognized the callers voice as that of the appellant.  The caller told Mr.
    Sidhu to take his cases back and threatened to kill Mr. Sidhu.  A witness to
    the telephone call corroborated the content of the call, which was audible on
    speaker phone, but not the identity of the caller.

[6]

At
    trial, the appellant testified in his own defence and provided an alibi for
    both incidents.  He testified that he was at a convenience store buying milk at
    the time of the first incident.  On October 10, 2008, the appellant had told
    police that he was purchasing two bags of milk at the time of the incident, and
    subsequently produced a receipt time-stamped 4:29 p.m. that day.  He testified
    that he was at home with his wife and father during the evening of November 16,
    2008.  Both the wife and father testified that the appellant was always in their
    sight that evening.

[7]

The
    trial judge found that Mr. Khan was not a credible witness, and rejected his
    testimony with respect to the alibis.

Analysis

[8]

In
    our view, the appeal should be dismissed.

[9]

The
    trial judge properly considered the alibi evidence in its entirety, and
    correctly applied the burden of proof.  This was a case in which both the
    appellant and the complainant knew each other, as did the main Crown witness to
    the assault incident.  This case turned largely on credibility.  The trial
    judge had to consider the alibi evidence within the context of her credibility
    assessment of the various witnesses.  She gave detailed reasons for her
    credibility findings.  Determinations of credibility by a trial judge attract a
    high degree of deference:
R. v. Horton
, 2014 ONCA 616,

at para. 8;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788, at para. 26.

[10]

The trial judge
    was in the unique position to see and hear the witnesses.  The alibi evidence
    was dependent on the believability of the appellants evidence.  She did not
    believe the appellants alibis, nor did she find that they raised a reasonable
    doubt.

[11]

It cannot be
    said that the trial judges reasons for rejecting the alibi evidence were
    inadequate.  Reasons for judgment must clearly tell the losing party why he or
    she lost and must provide for meaningful review:
R v. Newton
, 2006
    CanLII 7733 (Ont. C.A.), at para. 3.  The reasons met this standard.  For
    example, the trial judge gave a specific reason for rejecting the alibi
    evidence regarding the October 10, 2008 incident: the receipt relied on by the
    appellant did not link the accused to the store.  She was not required to provide
    a theory about who purchased the milk and gave the receipt to the accused.  She
    simply stated, It could have been anybody.

[12]

After
    considering the totality of the evidence, the trial judge found the Crown
    witnesses credible and accepted their evidence.  She was satisfied that the
    Crown evidence proved the appellants guilt beyond a reasonable doubt.  We see
    no fault in the trial judges reasoning or in her ultimate findings.

[13]

We also do not
    agree that the trial judge misapprehended the evidence.  Misapprehension of
    evidence involves a stringent standard:
R. v. Lohrer
, 2004 SCC 80,
    [2004] 3 S.C.R. 732, at paras. 1-2.  This standard is met only [w]here a trial
    judge is mistaken as to the substance of
material
parts of the evidence and those errors play
an essential
    part in the reasoning process
resulting in a conviction (emphasis
    added):
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541,
    cited with approval in
Lohrer
. The trial judge was certainly entitled
    to find that the appellants evidence contradicted his wifes evidence in a way
    that was self-serving.  As pointed out by the respondent in submissions, the
    appellant portrayed his ex-wife as an independent woman who could come and go
    as she pleased, whereas, his wifes evidence was that she was completely
    dependent on her husband.  In any event, this finding was not central to the
    trial judges reasoning process, nor was the credibility of the defence
    witnesses dependent solely on this finding.  In our view, the contradiction was
    just one of many reasons the trial judge offered for disbelieving the appellant.

[14]

In all the
    circumstances, the appeal is hereby dismissed.

E.A. Cronk J.A.

E.E. Gillese J.A.

M. Tulloch J.A.


