



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Rahimi,









2017 BCCA 33




Date: 20170118

Docket: CA43407

Between:

Regina

Respondent

And

Amir Rahimi

Appellant

Restriction
on publication
:
A publication ban has been mandatorily
imposed under s. 486.4(1) of the
Criminal Code
restricting the
publication, broadcast or transmission in any way of evidence that could
identify the complainant. This publication ban applies indefinitely unless
otherwise ordered.




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson




On appeal from: An
order of the Provincial Court of British Columbia, dated July 30, 2015 (
R.
v. Rahimi
, Vancouver Docket 230968-2-KC).

Oral Reasons for Judgment




Counsel for the Appellant:



L. Rudovica





Counsel for the Respondent:



J.R.W. Caldwell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 18, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2017








Summary:

Appeal by R. from his
convictions for attempting to procure a person to become a prostitute,
extortion, and threatening to cause death or bodily harm. The offences were
committed by means of text messages and calls to the victims cellular
telephone. The principal issue at the trial was whether the texts and calls
originated from R. In convicting, the trial judge rejected R.s evidence and
accepted that of the victim and a person who had overheard one of the calls.
Held: Appeal dismissed. There was no basis on which to interfere with the
judges credibility and reliability assessments. The judge did not misapprehend
the evidence or render an unreasonable verdict. This was not a circumstantial
evidence case.

[1]

FRANKEL J.A.
: Amir Rahimi was convicted by Judge Galati of the
Provincial Court of British Columbia of attempting to procure a person to
become a prostitute, extortion, and threatening to cause death or bodily harm. In
each case, the victim was a teenage girl who I will refer to as T.R. All of the
offences were committed on April 24, 2014, by means of text messages and calls T.R.
received on her cellular telephone. That T.R. received those texts and calls
was not seriously in dispute at the trial. What was in dispute was whether those
texts and calls came from Mr. Rahimi. He was not the listed subscriber of
the cellular telephone from which those texts and calls originated.

[2]

T.R., who had a history of substance abuse issues, testified to having
been in an intimate relationship with Mr. Rahimi and to having lived with
him at his mothers apartment for three months in 2013. She stated the texts
and calls came from the cellular telephone number she had for Mr. Rahimi;
that number was stored in the directory of T.R.s cellular telephone under a
nickname she used for him. T.R. identified Mr. Rahimis voice as being
that of the person with whom she spoke.

[3]

One of the telephone calls was overheard by T.R.s youth worker when T.R.
put her own cellular telephone on speakerphone. The youth worker testified that
during the speakerphone call T.R. referred to the man with whom she was
speaking as Amir, to which the man replied [d]ont use my real name, or
words to that effect.

[4]

Mr. Rahimi testified. He denied having an intimate relationship with T.R.
and denied sending the texts or making the calls. He also denied that he and
T.R. had lived together at his mothers apartment. Rather, he stated that, with
a view to helping T.R. get off drugs, he paid her rent for three months so she could
live at a townhouse belonging to one of his friends. During that time he
purchased groceries and cigarettes for her, gave her money, and provided her
with a cellular telephone. I note, as did the trial judge, that it was never
suggested to T.R. in cross-examination that Mr. Rahimi had arranged for
her to live at the townhouse.

[5]

In convicting, the trial judge: (a) rejected Mr. Rahimis evidence; (b)
accepted the youth workers evidence with respect to the overheard call; and
(c) accepted T.R.s evidence that the texts and calls came from Mr. Rahimi.
After reviewing the evidence of these witnesses and discussing it various
frailties and inconsistencies, the judge said this:

[27]      On a consideration of all the
evidence, I do not believe Mr. Rahimi with respect to the nature of his
relationship with [T.R.] or with respect to his denial of having made the
threatening calls and sent the threatening texts. It is very unlikely that a
person who worked temporary jobs and was not willing to commit to paying a second
rent for himself would pay that rent for a troubled young girl that, by his own
admission, he did not know very well at all. It is unclear on the evidence how
he could have afforded the arrangement that he described. It is also unlikely
that a person who did not have a cellphone himself would provide one to someone
else.

[28]      I agree with the submission made
by Crown that
Mr. Rahimi
tried in his evidence to
convey the impression that he had no reason to threaten [T.R.] and that he
never became close enough to her for the court to accept her evidence in
relation to the threats that she,
number
one, knew who she was talking to and
who had provided her with a cellphone from which the text messages originated.

[29]      Although lacking in detail,
[T.R.s] evidence has an air of reality to it missing from Mr. Rahimi's very
detailed evidence. I accept that [T.R.] had been involved in an intimate
relationship with Mr. Rahimi, that she received the calls and texts from the
phone number he had given her, and that she was able to recognize his voice as
well as put context to the threats made on the phone and in the texts to
determine who she was speaking to and I note in this regard that she did call
him by what appears to be his real first name during the last phone call.

[30]      I
reject Mr. Rahimi's evidence and, on a consideration of the entirety of the
evidence, I am satisfied beyond a reasonable doubt that he is the person who
made the threatening calls and texts. In the result, I find the Crown has
proven Mr. Rahimi's guilt beyond a reasonable doubt in respect of all three
counts.

[6]

In his factum Mr. Rahimi states his grounds of appeal are as follows:

54.    The appellant respectfully submits that when
considering all of the
evidence
the trial judge erred with respect to:

a.
Reasonable Doubt:

The appellant
respectfully submits that the trial judge erred in his consideration and
application of the doctrine of reasonable doubt, as it related to the
assessment of witness credibility and reliability.

b.
Circumstantial
Evidence
:

The trial judge erred
by misapprehending the law concerning circumstantial evidence and incorrectly
applied the law to the evidence.

c.
Unreasonable & Unsupported
Verdict:

The appellant respectfully submits
that
verdict
of
the
trial judge is unreasonable and
unsupported
by the evidence. The factual
inferences made by the trial judge such as it being unlikely that someone in
Mr. Rahimis position would help someone in [T.R.s] position are not logical
nor supported by the evidence.

55.       The appellant further submits the trial judge erred
by
misapprehending the
evidence
of [the youth worker] in relation to what words or phrases
she had contemporaneous notes of in contrast to what words she recalled from
her own memory almost a year after over-hearing the conversation,
that did not appear in her
notes
, and that she was not sure the man on the phone specifically
said. The appellant submits this significant error amounted to a
misapprehension of evidence and compromised the appellants right to a fair
trial.

[Emphasis in original.]

[7]

In my view, there is no merit to any of these grounds. For the most
part, Mr. Rahimi seeks to have this Court reweigh the evidence and make
findings that the trial judge was not prepared to make. He seeks to dissect and
isolate aspects of the judges reasons in an attempt to show the judge made
findings incompatible with the evidence.

[8]

For example, Mr. Rahimi submits the evidence as a whole should have left
the trial judge with a reasonable doubt as to whether he was the person who
communicated with T.R. In support of that argument Mr. Rahimi points to aspects
of the evidence touching on credibility and reliability assessments made by the
judge with which he disagrees, in particular in relation to T.R. However, the
judge was alive to and considered the inconsistencies and other matters that
bore on credibility and reliability. It was open to him to reach the
conclusions he did. As Mr. Justice Bastarache and Madam Justice Abella noted in
R. v. Gagnon
, 2006 SCC 17 at para. 20, [2016] 1 S.C.R. 621,
[a]ssessing credibility is not a science and [i]t is very difficult for a
trial judge to articulate with precision the complex intermingling of
impressions that emerge after watching and listening to witnesses and
attempting to reconcile the various versions of events. See also:
R. v.
R.E.M.
, 2008 SCC 51 at para. 48

49;
[2008] 3 S.C.R. 3.

[9]

Another example is Mr. Rahimis argument that the trial judge should not
have accepted the youth workers evidence that she overheard T.R. refer to the man
with whom T.R. was speaking as Amir. This argument focuses on the fact that
when the youth worker made notes of what she overheard shortly after the event,
she put some words in quotation marks but did not put quotation marks around
the word Amir. In addition, Mr. Rahimi points to the fact that the judge placed
no weight on the youth workers in-court identification of Mr. Rahimi as
someone she had met once briefly in 2013, and little weight to her testimony
that that mans voice was the same as the voice she overheard in 2014.

[10]

It is well-established, however, that triers of fact are entitled to
accept all, none, or some of a witnesss evidence and are in the best position
to make findings with respect to the credibility and reliability of witnesses:
R.
v. Fran
ç
ois
,
[1994] 2 S.C.R. 827 at 837;
R. v. R.W.B.
(2003), 174 O.A.C. 198 at
para. 9. Here, the trial judge had the benefit of hearing the youth worker
testify, observing her demeanor, and considering her evidence as a whole. Overall,
the judge found the youth worker to be an honest witness: para. 11. It was
open to him to accept her evidence that the name Amir was mentioned during the
conversation she overheard. Mr. Rahimi has failed to demonstrate any basis
on which this Court could interfere with that finding.

[11]

Also in regard to the youth worker, Mr. Rahimi contends the trial judge
misapprehended what was in her notes of the overheard conversation. Those notes
were canvassed in detail during the youth workers cross-examination. Indeed,
at the conclusion of that cross-examination the trial judge asked several
questions to clarify whether the word Amir appears in the notes. The witness
reiterated that it did, although not in quotation marks. It is clear from the judges
reasons that he appreciated the notes were not a verbatim account of the
conversation and that some of the witnesss evidence was based on her
recollection of the gist of what was said.

[12]

Although Mr. Rahimi contends the trial judge misapplied the law with
respect to the assessment of circumstantial evidence, this was not a
circumstantial evidence case. To the contrary, this was a case in which the
Crown relied on direct evidence to establish all of the essential elements of
the offences.

[13]

Mr. Rahimi also contends the trial judge reversed the burden of proof by
placing an onus on him to show why T.R. would falsely accused him of being the
originator of the texts and calls. This argument focuses on the last sentence
of para. 23 of the judges reasons, wherein he stated:

In a nutshell, Mr. Rahimi
testified to having nothing but an altruistic motive to help [T.R.] partly
because his own father had been a heroin addict and he wanted to assist [T.R.]
because she was a heroin addict or at least was using heroin. Mr, Rahimi was
unable to suggest any reason given the help that he provided to [T.R.] why she
would make these allegations against him several months after their last
contact.

[14]

To put this paragraph into context regard must be had to the fact that
Mr. Rahimi testified he did not have any contact with T.R. after they
parted ways in October 2013. T.R., on the other hand, testified they got back
together approximately two weeks before she received the texts and calls that
are the subject matter of the charges.

[15]

The following exchange took place during Mr. Rahimis cross-examination:

Q         And there was no need for you to threaten her.

A          Why would I need to threaten her? I was sad.

Q         All right. So you didnt threaten her?

A          No, I did not.

Q
And equally, I'm going to suggest to you,
as far as you're aware theres absolutely no reason why Taylor would suggest
that you were threatening her?

A          Well, I don't understand why she would be
saying that.

[Emphasis added.]

No objection was taken to this cross-examination.

[16]

In her closing submissions, Crown counsel, after referring to the fact
that Mr. Rahimi denied being the originator of the texts and calls and
denied having any contact with T.R. since October 2013, said this:

He denies making the threats; the
text, however, on his evidence, he had ceased all contact with this young woman
who he had tried to help in October of 2013. So what could possibly be the
motive for her conjuring up or fingering Mr. Rahimi as the threatener, where
does this animus come from, where does this -- if it is a mistake, it is a
pretty significant one.

[17]

I begin by noting that although Mr. Rahimi does not raise the propriety
of the impugned question as a ground of appeal, it does come perilously close
to asking an accused why a Crown witness would lie. As discussed in
R. v.
Ellard
, 2003 BCCA 68 at para.21, 172 C.C.C. (3d) 28, such questions are
improper. However, unlike
Ellard
, this was a judge-alone trial, and
therefore, the trial judges reasons can be examined to determine what, if any,
impact that question had on the outcome.

[18]

In my view, in the impugned sentence, all the trial judge was doing was
observing that Mr. Rahimis version of events involved T.R. fabricating a very
serious allegation against someone who had been her benefactor and with whom
she had had no contact for a number of months. As a matter of logic and common
sense, this was something the judge was entitled to consider. As Mr. Justice
Doherty stated in
R. v. Batte
(2000), 145 C.C.C. (3d) 449 (Ont. C.A.) at
para. 120, the absence of any reason to make a false allegation is a factor
which juries, using their common sense, will and should consider in assessing a
witness credibility. See also
R. v. Brown
, 2006 BCCA 100 at para. 14,
223 B.C.A.C. 96;
R. v. Jackson
, [1995] O.J. No. 2471 at para. 5 (C.A.). It
is also of significance that the impugned sentence appears in the portion of
the reasons in which the judge is reviewing the evidence. The judges reasons
for rejecting Mr. Rahimis evidence come later, in paras. 27 and 28.

[19]

Mr. Rahimi also contends the trial judge erred by failing to recite and
follow the well-known formula set out in
R. v. W.(D.)
, [1991] 1 S.C.R.
742, in concluding that the Crown had proven its case beyond a reasonable doubt.
However, judges are not required to slavishly follow the steps set out in that
case. As Madam Justice Charron stated in
R. v. Dinardo
, 2008 SCC 24 at
para. 23, [2008] 1 S.C.R. 788:

What matters is that the substance of the
W.(D.)
instruction be respected. In a case that turns on credibility, such as this
one, the trial judge must direct his or her mind to the decisive question of
whether the accuseds evidence, considered in the context of the evidence as a
whole, raises a reasonable doubt as to his guilt.
Put differently, the trial
judge must consider whether the evidence as a whole establishes the accuseds guilt
beyond a reasonable doubt.

[Emphasis added.]

[20]

In this case, it is clear that Mr. Rahimis evidence did not raise a
reasonable doubt in the trial judges mind and that, having considered the
whole of the evidence, the judge was satisfied as to his guilt.

[21]

Finally, I would reject Mr. Rahimis submission that the verdict was
unreasonable. It is enough to say that the verdict is supported by the evidence
the trial judge accepted.

[22]

I would dismiss this appeal.

[23]

SAUNDERS J.A.
: I agree.

[24]

DICKSON J.A.
: I agree.

[25]

SAUNDERS J.A.
: The appeal is dismissed with thanks to counsel.

The
Honourable Mr. Justice Frankel


