



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ibrahim, 2014 ONCA 229

DATE: 20140325

DOCKET: M43363 (C54017)

Doherty, Laskin and Feldman JJ.A.

Her Majesty the Queen

Respondent

and

Maher Ibrahim

Appellant

Diane Condo, for the appellant

Gavin MacDonald, for the respondent

Heard:  March 20, 2014

ENDORSEMENT

[1]

This motion, brought pursuant to s. 683(1)(b), seeks an order compelling
    the complainant to attend for cross-examination in support of the appellants
    fresh evidence application.  The proposed fresh evidence consists of the
    affidavit of the appellants daughter, cross-examination of the daughter on
    that affidavit and certain phone records referable to the complainant.  In her
    affidavit, the daughter summarized conversations she allegedly had with the
    complainant in 2012, long after the trial.  The daughters cross-examination
    related to those conversations. The daughters affidavit and her
    cross-examination allege that the complainant lied at trial.

[2]

Crown counsel takes the position that the purported cross-examination
    does not relate to facts material to the conviction and further advised the
    court that that he had chosen not to ask the complainant for a responding affidavit. 
    Consequently, the appellant brings this motion for an order permitting
    cross-examination of the complainant.

[3]

Counsel for the appellant submits that the affidavit and
    cross-examination, taken together, provide an evidentiary basis for the
    allegation that the complainant lied at trial on matters that were germane to
    her credibility.  Counsel further argues that it is in the interests of justice
    that she be allowed to pursue that allegation through cross-examination of the
    complainant.

[4]

As pointed out in
R. v. Sihota
, 2009 ONCA 770, the interests of
    justice require a consideration of the obvious interests of the appellant, but
    also the interests of the witness who is sought to be cross-examined.  The interests
    of the witness are particularly significant when the witness is a complainant
    who has already testified at some length at a trial that occurred many years
    ago.

[5]

We are satisfied that on a reading of the affidavit and the
    cross-examination, the proposed fresh evidence goes no further than statements by
    the complainant to the daughter that the complainant had learned that her
    husband had lied to her about the alleged extramarital affair and that she no
    longer believed, as she had at trial, that there had been no affair.  Further, the
    complainant advised the daughter that she would not lie about the affair in
    the future.  The fresh evidence suggests not that the complainant lied in her
    evidence at trial, but rather that she had been deceived by her husband about
    the affair and, having learned the truth, would no longer say that there had not
    been an affair.

[6]

The statements allegedly made by the complainant to the daughter as clarified
    in the cross-examination do not provide a basis upon which the complainants
    credibility could be successfully challenged on a fresh evidence application on
    appeal.  As the fresh evidence stands, there is no reasonable possibility that it
    could undermine the complainants credibility on the portions of her trial
    testimony that are material to the harassment allegations.  Cross-examination
    of the complainant is not in the interests of justice.

[7]

If the appellant pursues a fresh evidence application, it will be for
    the panel hearing the appeal to decide the ultimate admissibility of the
    evidence.  That panel is, of course, not bound by the assessment made on this
    motion.  The appellant is also entitled to rely on the absence of any response
    by the complainant to the allegations in support of its motion.  The significance
    of the absence of that response is, of course, also for the panel.

[8]

Insofar as the proposed cross-examination would relate to the
    information in the phone records, we see nothing in those records that would
    call the complainants credibility into question in a manner that could
    reasonably be expected to have affected the verdict.  Furthermore, this line of
    inquiry could have been pursued at trial.

[9]

In the result, we are satisfied that the motion should be dismissed. 
    This appeal should be listed immediately.  Counsel have advised that they have
    agreed on April 28, 2014 for the hearing of the appeal.

Doherty J.A.

John Laskin J.A.

K. Feldman J.A.


