



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhami, 2016 ONCA 51

DATE: 20160118

DOCKET: M45880 (C58707)

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Opneet Dhami

Applicant

V. Rondinelli, for the applicant

John Neander, for the respondent

Heard: January 13, 2016

ENDORSEMENT

[1]

The applicant Opneet Dhami applies for an order pursuant to s. 683(1)(b)
    of the
Criminal Code
requiring that a witness (the complainant and the
    applicants ex-wife) be made available for cross-examination in the context of
    his appeal of his convictions for assault, sexual assault and uttering a death
    threat.

[2]

The principal ground of appeal is that the trial judge erred in his
    assessment of the complainants credibility by concluding that she was not
    motivated to complain to the police by her desire to see her ex-husband
    deported to India. After the trial, the applicant obtained two documents from
    Citizenship and Immigration Canada (CIC)  a letter from the complainant with
    an affidavit and attachments and a summary on file with CIC based on the
    letter. The applicant wants to cross-examine the complainant about these
    documents to assist in his canvass of a potential fresh evidence application on
    the appeal.

[3]

We would not grant the application. In
R. v. Sihota
, 2009 ONCA
    770, 249 C.C.C. (3d) 22, at para. 14, Sharpe J.A. said that [i]t will only be
    in exceptional cases that an appellant who has been convicted of sexual assault
    should be afforded the opportunity to cross-examine the complainant in aid of a
    fresh evidence application on appeal. In
R. v. Ibrahim
, 2014 ONCA 229,
    at para. 4, this court said:

[T]he 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 the complainant who has already testified at
    some length at a trial that occurred many years ago.

[4]

Applying these authorities, in our view this is not an exceptional case
    that justifies subjecting the sexual assault complainant to renewed
    questioning, and it is not in the interests of justice to do so.

[5]

The fact that the complainant complained about the applicant to CIC was
    acknowledged in crystal clear language in her cross-examination at the trial:

Q.      Right. Did you call immigration as well, to let them  know?

A.      Yes.

Q.      Right. Because you want to do everything you        could
    to get him deported, isnt that true?

A.      Yeah. He used me

[6]

In light of this testimony, further questioning of the complainant about
    the details of what she said to CIC would not advance the applicants argument
    that the trial judge misapprehended the complainants evidence about her
    complaint to CIC. This argument can be fully made on the basis of the
    complainants trial testimony and the CIC documents obtained after the trial,
    the latter on the basis of a fresh evidence application made to the panel
    hearing the appeal.

[7]

The application is dismissed.

J.C.
    MacPherson J.A.

David
    Watt J.A.

B.W.
    Miller J.A.


