





CITATION:
R. v. Ibrahim, 2011
          ONCA 611



DATE:  20110923



DOCKET: C51731



COURT OF APPEAL FOR ONTARIO



Weiler, Cronk and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Maher Ibrahim



Appellant



Diane Condo, for the appellant



Gavin MacDonald, for the respondent



Heard:  September 8,
          2011



On appeal from the convictions entered by Justice Diane M.
          Nicholas of the Ontario Court of Justice on October 30, 2009, and from the
          sentences imposed by Justice Nicholas on February 4, 2010.



ENDORSEMENT



[1]

Maher Ibrahim appeals his convictions of assault
    with a weapon and assault causing bodily harm and the sentences imposed in
    respect of those convictions.

A. Conviction Appeal

[2]

In support of his conviction appeal, the
    appellant says that the trial judge erred:

i.

in failing to grant his application under s.
    11(b) of the
Charter
for a  stay of proceedings for a breach of his
    right to be tried within a reasonable
    time;

ii.

in failing to apply the proper test on
    reasonable doubt to credibility  issues
    arising at the trial;

iii.

in improperly shifting the burden of proof from
    the prosecution to  the
    appellant; and

iv.

in failing to enter a stay of the assault with a
    weapon conviction on the basis of
    the principle in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729.

[3]

We would not give effect to any of these grounds
    of appeal, save and except that related to the application of the principle in
Kienapple
.

[4]

On the s. 11(b) application, the trial judge was
    faced with a period of twenty-two and one-half months between the date the
    information was sworn and the hearing of the s. 11(b) application. She
    attributed seven and one-half months of this period to the inherent time
    requirements of the case, two and one-half months to the defence and twelve and
    one-half months to Crown or institutional delay. We find no error in her
    characterization of these time periods.

[5]

In her analysis of the s. 11(b) application, the
    trial judge took into account the relevant factors and made findings fully
    supported by the evidence adduced on the application.  She committed no error.

[6]

The submissions that the trial judge failed to
    apply the proper test of reasonable doubt on issues of credibility and that she
    improperly shifted the onus of proof are related.

[7]

The trial judge reviewed the evidence of the
    principal witnesses, the complainant and the appellant, in detail.  She rejected the appellants version of
    events as illogical and incredible in light of the injuries suffered by the
    complainant as disclosed by the photographs filed as exhibits. She considered
    the appellants testimony to be self-aggrandizing and beyond belief.

[8]

Towards the conclusion of her reasons, the trial
    judge made specific mention of the first two steps of
R. v. W. (D.)
, [1991] 1 S.C.R. 742, and expressly found that she
    neither believed nor had a reasonable doubt about the appellants guilt as a
    result of his testimony. She then concluded, on the whole of the evidence, that
    the Crown had proven all the essential elements of the offences charged beyond
    a reasonable doubt.

[9]

We are satisfied, after reading the trial
    judges reasons as a whole, that she was fully cognizant of the principles of
W. (D.)
, applied them correctly, and did
    not shift the onus of proof from the prosecution to the appellant.

[10]

The final ground of appeal against conviction
    invokes the
Kienapple
principle. The
    appellant says that both convictions arise from the same delict, thus one
    finding of guilt should be stayed under
Kienapple
.

[11]

We are satisfied that the same delict underlies
    both charges. The bodily harm the complainant suffered was caused by the
    appellants use of a shovel. It is the same unlawful use of the shovel that
    underpins the charge of assault with a weapon. Crown counsel acknowledges on
    appeal that the
Kienapple
principle
    requires the entry of a stay in this case. We agree.

[12]

In the result, the appeal from conviction of
    assault causing bodily harm is dismissed, but the conviction of assault with a
    weapon is set aside and a stay is entered on that charge.

B. Sentence Appeal

[13]

As to sentence, the appellant contends that the
    trial judge erred in failing to impose a conditional sentence for a first
    offender in the circumstances of this case. The sentence imposed exceeded what
    the Crown at trial proposed as a fit sentence. According to the appellant, the
    sentence does not reflect a proper application of the principles of
    proportionality and deterrence.

[14]

At trial, each party made its own submissions on
    sentence. There was no joint submission. The trial judge alerted counsel to the
    possibility that she would impose a sentence beyond the range of a custodial
    term of four to six months that had been proposed by the Crown. Trial counsel
    for the appellant (not counsel on appeal), who had sought a conditional
    sentence of twelve months, did not register any objection.

[15]

The appellant is a mature first offender who
    committed a serious assault on his spouse, causing her disfiguring injuries by
    striking her with a shovel. The assault occurred in the context of a crumbling
    and acrimonious domestic relationship. The sentencing principles that exert the
    greatest influence in determining the length of the sentence and the manner in
    which it should be served are denunciation and deterrence.  The sentence imposed in cases such as this must
    also promote a sense of responsibility among spousal abusers and an acknowledgement
    of the harm done not only to their immediate victims, but equally to the
    community at large.

[16]

A trial judge always retains an overriding
    discretion to accept or reject the recommendations of counsel about the
    sentence that should be imposed. This court has held that a trial judge does
    not err by exceeding the prosecutors suggested sentence, provided that the
    sentence is reasonable, even in the absence of reasons for departing from the
    prosecutors suggestion. In our opinion, the sentence imposed in this case was
    reasonable.  The fresh evidence does not
    alter our opinion.

[17]

For these reasons, the appeal against conviction
    is dismissed, except to the extent of entering a stay on the charge of assault
    with a weapon. Leave to appeal sentence is granted, but the appeal against
    sentence is dismissed.

Karen
    M. Weiler J.A.

E.A.
    Cronk J.A.

David
    Watt J.A.


