



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Siddiqi, 2015 ONCA 548

DATE: 20150724

DOCKET: C59170

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shakib Siddiqi

Appellant

Lance Beechener, for the appellant

Gavin MacDonald, for the respondent

Heard: July 3, 2015

On appeal from the conviction entered on May 29, 2014 and
    the sentence imposed on July 17, 2014 by Justice Lorne E. Chester of the Ontario
    Court of Justice.

ENDORSEMENT

A.

Overview

[1]

The appellant, Shakib Siddiqi, was convicted of one count of assault and
    two counts of assault with a weapon, for pushing his 73-year old aunt to the
    floor and hitting his 17-year old daughter with a piece of wire and with a laptop
    computer. He appeals his convictions and his sentence of nine months
    incarceration.

[2]

At the hearing of the appeal on July 3, 2015, we dismissed the appeal,
    with reasons to follow. These are those reasons.

B.

Conviction appeal

[3]

In respect of his conviction, the appellant advances three grounds of
    appeal: (i) the trial judge demonstrated a reasonable apprehension of bias
    rendering the trial unfair; (ii) the trial judge misapprehended the aunts
    evidence; and (iii) the trial judge erred in his use of his daughters
KGB
statement to the police.

Reasonable apprehension of bias

[4]

To place the argument about reasonable apprehension of bias in context,
    the appellant was born in Afghanistan, then moved with his parents to India at
    the age of 16. Thirteen years later, he and his wife moved to Canada. The
    events for which charges were laid took place in the familys home in Richmond
    Hill.

[5]

The appellant submits the trial judge permitted inappropriate cultural
    stereotypes to enter into his reasoning process, thereby giving rise to a
    reasonable apprehension of bias. He contends that at trial Crown counsel
    pursued a line of questioning of the appellants daughter aimed at exposing a
    cultural basis for the Appellants actions and for the reluctance of [the
    daughter and aunt] to testify against him. The appellant argues that in his
    reasons for judgment and sentence the trial judge made comments that revealed
    he approved of the Crowns theory, pointing to the following language:


(i)

In his judgment, the trial judge noted that it was obvious the daughter
    did not want to be in court testifying against her father and that she
    perceived herself as to be between a rock and a hard place. In his sentencing
    reasons, the trial judge repeated that the daughter was between a rock and a
    hard place when she testified and, he continued: She was under restraints of
    being the daughter of the accused and cultural restraints and familial
    restraints  constraints I guess is a better word, when she testified;


(ii)

In his judgment, the trial judge also observed that when the daughter
    gave her
KGB
statement to the police she swore on the Quran, whereas
    she affirmed when she gave her evidence at trial;


(iii)

In the pre-sentence report, the appellants wife had described her
    husband as overall hes a good person. In commenting on that description in
    his reasons for sentence, the trial judge stated: But I find that she, based
    on her daughters testimony, that she too is constrained by marriage, culture
    and ethnicity;


(iv)

Finally, in his sentencing reasons, the trial judge stated that the
    offences need to be denounced and Mr. Siddiqi has to be specifically deterred
    from committing those kinds of violent offences in the future. He continued:
    Just as importantly, the community, whether it is the Afghan community or any
    other community regardless of their culture or religion, there has to be a
    message sent out that there has to be a respect for the law but also for the person.

[6]

We see no merit in this submission. To ascertain whether a reasonable apprehension
    of judicial bias exists, one must ask the question: What would an informed
    person, viewing the matter realistically and practically  and having thought
    the matter through  conclude? Would he think that it is more likely than not
    that [the decision-maker], whether consciously or unconsciously, would not
    decide fairly?
Committee for Justice and Liberty v. National Energy Board
,
    [1978] 1 S.C.R. 369, at pp. 394-395. When that question is asked of the
    reasoning of the trial judge disclosed in his judgment and reasons for
    sentence, the answer is that they disclose no reasonable apprehension of bias. 
    The trial judges judgment and sentencing reasons, when read fairly and in
    their entirety, disclose that he did not rely upon cultural factors in
    convicting and sentencing the appellant.

[7]

First, the premise of the appellants submission  i.e. that the Crown
    pursued a line of questioning aimed at exposing a cultural basis for the
    Appellants actions and for the reluctance of [the daughter and aunt] to
    testify against him  is not supported by the trial transcript. During the
    course of her evidence-in-chief, the daughter testified that her parents
    desire to have boys was a cultural thing, but they were content with what
    they had regardless of traditional beliefs. The Crown then asked how her
    parents would view calling the police to deal with a family matter, and the
    daughter responded that had nothing to do with the familys value system. The
    respondent submits that these questions were not improper, but were directly
    responsive to the witnesss own testimony. We agree.

[8]

Second, while acknowledging that the trial judge made no reference to
    cultural matters in his judgment, the appellant argues that his use of the
    phrase between a rock and a hard place in his sentencing reasons did contain
    a cultural dimension that indicated his trial reasons had been tainted. At one
    place in his sentencing reasons, the trial judge repeated that the daughter was
    between a rock and a hard place, and he continued: She was under restraints
    of being the daughter of the accused and cultural restraints and familial
    restraints  constraints I guess is a better word, when she testified. Later
    in his sentencing reasons he explained what he meant by the phrase between a
    rock and a hard place:

Just to give a flavor of what I mean by between a rock and a
    hard place; the officer testified as to his observations when he arrived at
    the front door. He met with the complainant She asked us  that being a
    couple of officers - to escort her upstairs. She did not want to be seen
    talking to the police because her father may hurt her if she does. She was
    extremely nervous and frightened. She wanted to be separated. She was
    panicking. She wanted to get the police isolated away from her father and she
    was shaking.

[9]

A trial judges reasons must be read fairly and as a whole. Reading the
    trial judges reasons in that fashion, it is clear that his repeated use of the
    phrase between a rock and a hard place did not signify that any sort of
    impermissible cultural stereotyping had entered into his reasoning. He merely
    used the phrase to describe that the daughter felt she was in a very difficult
    situation making allegations against her father and testifying against him and,
    as well, to compare her demeanour at trial with that which she displayed when
    giving her
KGB
statement. There was no cultural dimension to his use
    of the phrase. People of all cultures likely will find it difficult to testify
    against their own family in a criminal trial.

[10]

Third,
    the trial judge did observe that the daughter gave her
KGB
statement
    under oath, whereas she affirmed at trial. However, there is nothing in his
    judgment to indicate he gave more weight to her KGB statement because it was
    under oath, rather than by affirmation, as was her trial testimony.

[11]

Next,
    the trial judges comments on the statements attributed to the appellants wife
    in the pre-sentence report must be read in the context of his overall analysis
    of the evidence and information relating to mitigating factors. The sentencing
    reasons disclose that the trial judge discounted the wifes description of her
    husband as a good person because of the daughters statement to the police
    that her mother had told her to excuse her fathers conduct and because of the
    statements of the appellants mother-in-law in the pre-sentence report that
    since his arrest, the appellant had improved and is okay now.

[12]

Finally,
    with the respect to the trial judges mention of the Afghan community or any
    other community in his sentencing discussion about denunciation and general
    deterrence, we do not see his references to the specific community of the
    appellant as well as to the more general community at large as giving rise to a
    reasonable apprehension of bias. When his sentencing reasons are read as a
    whole, there is nothing to suggest that the trial judge treated the appellants
    ethnic origins as a factor in his sentencing analysis:
R. v. Zheng
,
    2014 ONCA 345, at para. 12.

Misapprehension of evidence

[13]

The
    only witness called at trial by the appellant was his aunt who denied the
    appellant had assaulted her. The trial judge put very little weight on the
    aunts evidence, stating that she was an elderly lady, 75 years of age,
    suffering from depression and admitted issues with her memory and that her
    head is not right. The appellant submits that the trial judge misapprehended
    the aunts evidence because she did not testify that her head was not right.

[14]

We
    agree that the trial judge was mistaken about this part of the aunts evidence
     she did not testify that her head was not right. We do not agree, however,
    that the trial judge misapprehended the substance of material parts of the
    aunts evidence or that his error played an essential part in the reasoning
    process resulting in a conviction:
R. v. Morrissey
(1995), 97 C.C.C.
    (3d) 193 (Ont. C.A.), p. 221. Part of the material substance of the aunts
    evidence was that her memory was poor  she admitted in cross-examination that
    she had issues with her memory, as noted by the trial judge in his judgment. Accordingly,
    we conclude that the trial judge did not misapprehend the substance of the
    aunts evidence.

The daughters
KGB
statement

[15]

The
    trial judge admitted into evidence a statement the appellants daughter had
    given to the police on the day they were called to the family home. The trial
    judge preferred the evidence the daughter gave in her statement to the police
    to that she gave at trial. In reaching that conclusion, he relied on the
    daughters demeanour and the contrast between the manner in which she gave her
    statement to the police as compared to her reluctance to give evidence against
    her father at trial.

[16]

The
    appellant submits that the trial judge erred in relying so heavily on the
    contrast in the daughters demeanour between her evidence in the statement and
    her evidence at trial. We do not agree. The trial judge gave detailed reasons
    why he preferred the evidence given by the daughter in her statement to the
    police. In
R. v. K.G.B.
, [1993] 1 S.C.R. 740, at p. 804, the Supreme
    Court of Canada expressly stated that when determining the appropriate weight
    to be given to a
KGB
statement, a trier of fact could take into
    account the demeanour of the witness at all relevant times (which could
    include making the statement, when recanting at trial, and/or when presenting
    conflicting testimony at trial). When his reasons are read as a whole, we are
    not persuaded that the trial judge placed disproportionate weight on demeanour
    in relying on the
KGB
statement.  Accordingly, we see no error in the
    trial judges substantive use of the daughters
KGB
statement.

C.

Sentence appeal

[17]

The
    trial judge sentenced the appellant to six months for the assault of his
    daughter with the wire, two months consecutive for the assault of his daughter
    with her laptop computer, and one month consecutive for the assault of his
    aunt.

[18]

The
    appellant submits that the trial judge erred in principle in imposing that
    sentence for several reasons: (i) his reasoning was influenced by the use of
    cultural stereotypes; (ii) he did not treat the appellants first offender
    status as a mitigating factor; and (iii) he treated the appellants lack of
    insight into his conduct as an aggravating factor.

[19]

As
    discussed above, we do not accept the appellants submission that the trial
    judges reasoning was tainted by the use of cultural stereotypes.

[20]

Although
    the trial judge did not include in his list of mitigating factors the fact that
    the appellant was a first offender, it is clear from other parts of his sentencing
    reasons that the trial judge was quite alive to that fact.

[21]

It
    is true that the trial judge identified as an aggravating factor the
    appellants lack of insight here as to what he has done and that he has put
    himself above the law. To use lack of remorse as an aggravating factor in
    sentencing, absent unusual circumstances, is an error in law:
R. v. Ling
,
    2014 ONCA 808, at para. 12. That said, although the trial judges error in
    principle requires this court to consider the fit sentence to impose on the appellant
    in the circumstances, in accordance with the totality principle we agree with
    the trial judge that a global sentence of nine months is a fit sentence for
    these three assaults in the domestic context.

D.

Disposition

[22]

For
    these reasons, the appeal from conviction is dismissed.  Leave is granted to
    appeal the sentence, but the appeal from sentence is dismissed.

David
    Watt J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


