



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Issa, 2022 ONCA 167

DATE: 20220225

DOCKET: C65394

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Issa

Appellant

David M. Humphrey and Jared L. Greenspan, for the
    appellant

Samuel G. Walker, for the respondent

Heard: January 31, 2022 by video conference

On appeal from the conviction entered on February 9, 2018,
    and the sentence imposed on April 20, 2018, by Justice James W. Sloan of the Superior
    Court of Justice, sitting without a jury.

George J.A.:

OVERVIEW

[1]

The appellant was convicted of one count of assault in relation to his
    wife, A.B. This one count encompassed four separate incidents of assaultive
    conduct. He was found not guilty on several other counts including allegations
    that he threatened A.B., assaulted their daughter, possessed a prohibited
    weapon, and possessed a firearm while prohibited from doing so. The appellant
    was sentenced to eight months in jail, reduced by the time spent in pre-trial
    custody, followed by a period of probation. Three ancillary orders were made
    (i.e., DNA, further weapons prohibition, and forfeiture of property).

[2]

The appellant appealed against both conviction and sentence, but he did
    not pursue his sentence appeal. On the conviction appeal, he advances these two
    grounds:


i.)

The verdict is unreasonable; and

ii.)

The trial judge provided insufficient reasons.


[3]

In brief, the appellants argument is that the trial judge arrived at an
    illogical result by making and relying upon incompatible findings. In other
    words, having concluded that the complainant was not credible in relation to
    her allegation that the appellant possessed firearms, it then made no sense to
    rely upon her evidence to ground a conviction for assault. The appellant
    submits that the trial judges reasons on the assault charge were insufficient
    because they do not explain how he resolved his concerns about the complainants
    testimony.

[4]

These reasons explain why I would reject that argument and dismiss the
    appeal.

facts

Evidence of A.B.

[5]

The appellant and A.B. met shortly after A.B.s arrival in Canada in
    2010 on a student visa. They promptly moved in with each other; had a daughter;
    and remained together until separating in 2016. A.B. testified that during
    their relationship the appellant assaulted her four times and that, on one
    occasion, he assaulted their child. She further alleged that he routinely
    threatened to kill her. Before this complaint, she had not reported his
    assaultive behaviour to police.

[6]

A.B. testified that on January 8, 2016, while cleaning the main floor
    washroom of their residence, she located under the sink a duffle bag with three
    firearms, some ammunition, and foreign currency. She acknowledged knowing the
    appellant had guns, and that guns had been in the home before, but had not previously
    brought it to the attention of the authorities. On her account, this time was
    different because she found them in a location that was easily accessible to
    their young child.

[7]

On the same day she found these items, she spoke on the phone with the
    clerk of a family lawyer. She was interested in exploring her options and,
    possibly, pursuing a divorce. She met with the lawyer on January 11, 2016. On
    January 13, 2016, she attended at the police station to file her
    complaint. While there, she was joined by the lawyer who had her review and
    swear an affidavit in support of her claims for divorce, custody, support, and
    exclusive possession of the matrimonial home.

[8]

At trial, several date-stamped photographs were tendered which showed
    injuries to A.B. that she said were inflicted by the appellant, as well as photographs
    depicting damage to a lamp, TV, and drywall. One screenshot of a text message
    was filed, which the complainant testified was sent by the appellant in which
    he apologized for threatening her with deportation and taking their child.
    However, this message was not a threat itself. Apart from the screenshot of the
    text apology, there was no independent evidence confirming A.B.s allegation
    that the appellant threatened her. There was no independent evidence confirming
    her allegation that the appellant assaulted the child. Her evidence was that
    while the appellant had left a red mark on the childs face, she did not think
    to take a photograph as she was more concerned with comforting her.

[9]

Cross-examination focused on whether she was aware of allegations
    levelled against the appellant by his ex-wife, and of the nature of the
    financial settlement his ex-wife had received upon the breakdown of their
    relationship. It was suggested that A.B. was following that template to secure
    something similar for herself. She acknowledged being aware of the settlement,
    the appellants assaultive behaviour towards his ex-wife and their child, and
    of his prior convictions for assault and possessing a firearm. She denied any
    suggestion that this informed her decision to come forward. She denied planting
    the firearms.

Police Evidence

[10]

On the strength of a warrant, two police officers searched the
    appellants home where they located, in the place A.B. said they would find
    them, a black duffle bag which contained a dark silver handgun with a black
    handle and unloaded magazine (located inside of a sock); rounds of ammunition (located
    inside of another sock); a red cardboard box containing a loaded handgun; and
    yet another handgun wrapped inside a white shirt (loaded with a fifteen round
    magazine). The bag also contained $2,344 USD and 50 Israeli new shekels. No DNA
    profile or fingerprints were developed on any of the seized items.

Evidence of Ed Said

[11]

Ed Said was a business tenant at a property owned by the appellant. He
    testified that the appellant had once told him that he would love to put  a fucking
    bullet in [A.B.s] head, and that he had a few guns in his home. He
    testified to seeing a gun taped under a toilet tank in one of the appellants
    bathrooms. He testified that, after the appellant was charged and taken into
    custody, the appellant called him from jail about a hundred times to see if
    he would convince A.B. to drop the charges.

[12]

Mr. Said testified about his deteriorating relationship with the
    appellant which, according to him, had to do with the state of his rental unit.
    Apparently, there were issues over a proposed rate hike and questions over who
    would bear the cost of renovations. He did not provide a statement to the
    police at the time of the events, nor even after the appellant was charged. In
    fact, he did not reach out to provide this information until well after the
    preliminary inquiry and after he had demanded from the appellant $47,000 as
    reimbursement for upgrades to the unit he had already undertaken.

POSITIONS AT TRIAL

Defence

[13]

The appellants position at trial was that A.B. had fabricated her
    allegations and planted the guns to match what his ex-wife said about him as
    their relationship came to an end, to secure a similar divorce settlement. He
    argued that she was not credible and should not be believed. Although he did
    not challenge the authenticity or approximate dates of the photographs, in his
    view, the photographs were not corroborative as they were not truly independent
    pieces of evidence, but rather were entirely reliant on [A.B.s] evidence that
    the marks in those photographs [were] the result of assaults as opposed to
    innocent falls or bumps.

Crown

[14]

The Crown argued that A.B. was both credible and reliable and ought to
    be believed. It argued that the photographs corroborated A.B.s assault
    allegations, as did the location of the guns and money on the firearm related
    counts. It argued that, were A.B. intent on framing the appellant by planting a
    firearm, it would have made no sense to plant three of them when one would have
    done the job.

decision below

[15]

The trial judge made these findings:


i.)

Both the complainant and Mr. Said had a motive to testify as they did.
      For her part, A.B. wanted to bolster her family law claims; Mr. Said to exact
      revenge for what he perceived to be the appellants unfair business practices.

ii.)

Given his concerns with A.B.s testimony on the firearm counts, and
      significant concerns with Mr. Saids testimony, he was unable to conclude
      beyond a reasonable doubt that the appellant was guilty of the firearm
      offences. He did not find as a fact that she had planted them. In his reasons
      for judgment, he said this:

Objectively, both the complainant and Ed had a motive to
      testify as they did: the complainant to further her Family Law claim, and for
      Ed to seek revenge for what he perceived were unfair business dealings at the
      hand of his former friend and landlord.

The Crown has raised interesting questions in her submissions,
      asking:



(a)

How
          would the complainant know where to purchase a gun?

(b)

Why
          would the complainant plant three guns, when one would have been sufficient? and,

(c)

Why
          would the complainant plant over $2,000.00 in American and Israeli funds in a
          duffle bag, along with the guns?



Unfortunately, from an evidentiary point of view, no DNA was
      found on the handguns, the magazines, or the ammunition. The Identification
      Officer testified that because of the level of the alleged offence  the Court
      assumes he meant possession as opposed to something more sinister  he was
      restricted to swabbing the objects and sending the swabs to the Centre of
      Forensic Sciences for testimony. His testimony was that when more serious
      crimes are alleged, the actual objects are sent to the Centre of Forensic
      Sciences, and that they have the ability, when the[y] have the actual object,
      to test for incredibly minute quantities of DNA.



Although submissions posed by the Crown with respect to the
      three-guns-versus-one and the cash caused the Court some concern, overall, for
      the reasons given above, I am unable to conclude beyond a reasonable doubt,
      that the accused is guilty of counts 4, 5, 6, 7, 8 or 9, and, therefore, a
      finding of not guilty shall be entered with respect to those counts.

iii.)

Although
      A.B.s testimony on the firearm charges could not be relied upon, in respect of
      the assault charge, the date-stamped photographs she took supported her
      evidence that the appellant assaulted her, and on the dates and in the manner
      she described. In his reasons for judgment, the trial judge said this:

Exhibit 2 shows numerous marks on the complainants body, and
      at the same time and date, pictures were taken of a broken TV, holes in the
      drywall and a broken lamp. The Court can come to no other conclusion, based on
      the evidence before it, that the complainant was assaulted just before the
      pictures were taken and that the accused, in what appears to have been an
      uncontrollable rage, threw a bedroom lamp at the wall, smashing the lamp and
      causing moderate damage to the drywall, after which he smashed a TV.

Although based on the evidence before the Court, it does not
      appear that the accused threw the lamp in an attempt to hit the complainant, it
      would have hit the wall within a few feet of her, certainly terrifying her.

Based on the evidence of the complainant, corroborated by the
      photographic evidence in Exhibits 2, 3, 4 and 5, the Court is satisfied beyond
      a reasonable doubt that the accused assaulted the complainant on the dates in
      question and conviction shall be registered with respect to count 1.

iv.)

As
      there was no similar date-stamped photographic corroborative evidence in
      respect of A.B.s allegation that the appellant threatened her and struck the
      child, he found the appellant not guilty on those counts.


issues

[16]

On this appeal, two issues arise:


i.)

Did the trial judge arrive at an unreasonable verdict?

ii.)

Were his reasons sufficient?


analysis

Introduction

[17]

The presenting issues are related and can, therefore, be addressed
    together.

[18]

Let me start by saying that the trial result is somewhat odd as, at
    least on a first read, it would seem that the trial judges comments about A.B.s
    motive to lie, and the issues he identified with her evidence on the firearm
    counts  and how that gave rise to a reasonable doubt  might well have applied
    equally to his analysis of the assault. Which is to say, the appellants
    position is at least arguable.

[19]

However, though arguable, I do not agree. While I understand the
    appellants submission about demonstrable logical incompatibility and his
    position that the trial judges reasons reveal fundamental flaws, these were
    distinct counts, with different evidence, and as such it was open to the trial
    judge to conclude as he did.

[20]

It remains the fact, however, that the reasons of the trial judge are
    unsatisfactory. He fails to articulate why his credibility findings regarding
    the guns, which he concluded raised a reasonable doubt, did not lead to a
    similar conclusion regarding the assault. While the trial judge may not have
    made a positive finding that the complainant planted, or otherwise orchestrated
    the presence of, the guns, that conclusion is really the only one that
    reasonably arises on the judges findings. Given that reality, the trial judge
    ought to have better explained why his conclusion on those counts did not
    suggest a similar conclusion on the assault count.

[21]

Nevertheless, it seems evident that the trial judge found that the
    photographs confirmed the complainants allegation that she was assaulted, in
    large part because they were date-stamped  aligning them with her unshaken
    trial testimony that she was assaulted. The defence did not object to their
    provenance.

[22]

It is, of course, open to a trial judge to believe none, some, or all of
    any witness evidence. The appellants argument that the result is logically
    incompatible ignores that principle. The trial judge had a reasonable doubt on
    one set of charges (i.e., firearms), for reasons he articulated, although not
    particularly well. He had concerns with the appellants testimony on these
    counts, and he had serious concerns with Mr. Saids testimony. Therefore, he
    was unable to conclude beyond a reasonable doubt that the appellant was guilty.
    He did not have a reasonable doubt on the assault count because, while he may
    have had concerns with A.B.s credibility, he found there to be evidence,
    namely the photographs, that confirmed her testimony. Considered in that light,
    the apparent inconsistency in the trial judges reasons is explained.

Beaudry / Sinclair

[23]

That being the case, this is not an unreasonable verdict according to the
    principles set out in
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190,
    and
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3; see also
R. v. C.P.,
2021 SCC 19, for more recent guidance. According to that
    line of authority, a court can intervene under s. 686(1)(a)(i) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, where a verdict is unreasonable because it is
    reached illogically or irrationally:
C.P.
, at para. 29,
per
Abella J., citing
Beaudry
, at paras. 96-97,
per
Fish J.
    (dissenting in the result). This may occur where the trial judge makes a
    finding, or draws an inference, essential to the verdict that is unsupported by
    or plainly contradicted by the evidence, or is shown to be demonstrably incompatible
    with evidence that has neither been contradicted by other evidence nor rejected
    by the trial judge:
C.P.
, at para. 29,
per
Abella J.;
Sinclair
,
    at paras. 4, 16, 19-21,
per
Fish J. Under the second type of unreasonable
    verdict, an essential inference that appears compatible with the evidence from
    which it is drawn implodes on contextual scrutiny:
Sinclair
, at para.
    22,
per
Fish J. Both types of unreasonable verdict are exceedingly
    rare:
Sinclair
, at para. 22,
per
Fish J. When determining
    whether the verdict was reasonable, an appellate court cannot interfere with
    the trial judges assessments of credibility unless those assessments cannot be
    supported on any reasonable view of the evidence:
C.P.
, at para. 30,
per
Abella J. It is not this courts role on appeal to substitute our preferred
    findings and credibility assessments for those made and undertaken by the trial
    judge.

[24]

In
Sinclair
, Charron J., in a concurring opinion, writes that:

The
Beaudry
test may apply in exceptional cases where
    the reasoning process of the trial judge is so irrational, or so at odds with
    the evidence, that it vitiates the verdict  even though that verdict is
    available on the evidence as a whole. In these rare cases, an appellate court
    will be justified in concluding that the verdict itself is unreasonable.

[25]

This is not one of those exceptional cases. While the trial judges
    reasoning could have been much better explained, it is not so irrational, or
    so at odds with the evidence as to satisfy the
Beaudry
test. When read
    in the context of the reasons as a whole, one is able to discern what the trial
    judge did and why he did it. He found that the concerns he had with A.B.s
    credibility were overcome by the photographs, which then led to different
    results across the counts. He was entitled to reach that result.

[26]

While there are issues surrounding the taking of the photographs that
    the trial judge perhaps should have addressed, and while his reasons for
    finding a reasonable doubt on the firearm counts could have been more fully
    explained, to give effect to the appellants argument would be to measure these
    reasons against a standard of perfection, which of course we cannot do.

Additional Comments

[27]

I would make these two additional points. First, while an accused person
    is never required to testify, and while no negative inference can be drawn from
    the decision not to, the fact remains that the appellant did not, so there was no
    other evidence advanced for how A.B.s injuries were incurred, other than the
    invitation to speculate that they could have been the result of, as trial
    counsel put it, innocent falls or bumps. On a fair and complete reading of
    the reasons, the trial judge rejected that as a reasonable alternative
    explanation.

[28]

Second, this case illustrates the potential risks associated with
    conflating independent corroboration with confirmatory evidence, which is yet
    another instance where the trial judge might have been a bit clearer. What I
    mean is, while he used the term corroborated when describing the photographs,
    it would have been better, and far more accurate, to refer to them as
    confirmatory or evidence in support. For evidence to be corroborative, it
    must be independent. Here, of course, the photographs were not independent in
    that A.B. herself took them. However, when placed in their proper context, the
    photographs were capable of removing any doubt one might have and of tipping
    the balance in favour of conviction. Again, no issues were raised as to their
    provenance. This was undisputed evidence of injuries, incurred at or near the
    time A.B. said she was assaulted by the appellant, and evidence of property
    damage which was consistent with the events she described.

DISPOSITION

[29]

The verdict was not unreasonable, and the reasons are sufficient. I
    would, therefore, dismiss the conviction appeal.

[30]

As the appellant did not pursue his sentence appeal, I would treat it as
    abandoned.

Released: February 25, 2022 K.M.v.R.

J. George J.A.

I agree. K. van
    Rensburg J.A.

I agree. I.V.B.
    Nordheimer J.A.


