



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Ibrahim, 2014 ONCA 355

DATE:  20140502

DOCKET: C54017

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maher Ibrahim

Appellant

Diane Condo, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally:  April 28, 2014

On appeal from the decision entered by Justice McNamara
    of the Summary Conviction Appeal Court, dated July 14, 2011.

By the Court:

[1]

The appellant seeks leave to appeal from the July 14, 2011 order of the
    Summary Conviction Appeal Judge dismissing his appeal against the convictions
    imposed by the trial judge and reducing the global sentence imposed by the
    trial judge to nine months in jail.  The appellant also brings an application
    to introduce fresh evidence pursuant to s. 683 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[2]

Section 839 of the
Criminal Code
provides that an
    appeal against a decision of a Summary Conviction Appeal Judge may, with leave
    of this court, be taken on any ground that involves a question of law alone. 
    Leave is, however, granted sparingly.  The court may grant leave: 1) where the
    merits of the proposed question of law are arguable and it has significance to
    the administration of justice beyond the specifics of the case; or 2) where
    there appears to be a clear error of law and the interests of justice require
    that this court review the decision:
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641
.

[3]

The appellant argues that
    this appeal falls within the second category of cases where leave may be
    granted.  The appellant submits that the Summary Conviction Appeal Judge made
    two clear errors of law.  First, he erred in concluding that the trial judge
    had not properly applied
R. v. W.(D.)
, [1991] 1 S.C.R. 742.  Second, he applied the wrong
    test in considering whether the trial judge erred in finding that there was
    evidence adduced with respect to each of the essential elements of the offences
    of criminal harassment.

[4]

We are not persuaded that
    the Summary Conviction Appeal Judge erred in either respect.  We agree with the
    Summary Conviction Appeal Judge that there was no merit to the appellants
    argument that the trial judge failed to apply the principles in
W.(D.).
Further, the Summary Conviction Appeal Court Judge
    properly undertook an unreasonable verdict analysis in response to the
    appellants argument that the trial judge erred in finding that there was
    insufficient evidence to prove beyond a reasonable doubt that the complainants
    were criminally harassed.

[5]

Leave to appeal
    conviction is accordingly denied.

[6]

In our view, the reduced
    sentence imposed by the Summary Conviction Appeal Court Judge was fit and
    disclosed no error of law and therefore leave to appeal sentence must also be
    refused.

[7]

Nor are we satisfied that the proposed fresh evidence could reasonably
    be expected to change the verdict, and is admissible under the test set out in
R.
    v. Palmer
,
[1980] 1 S.C.R.
    759.

[8]

The appellant was convicted of criminal harassment of Elie Abourgeili
    and his wife Antoinette Abourgeili; uttering a threat to cause death to Elie
    Abourgeili; causing Antoinette Abourgeili to receive a threat to cause death to
    Elie Abourgeili; and failure to comply with a recognizance. The harassment
    occurred from the fall of 2007 to the end of March 2008. The appellant
    suspected that Elie Abourgeili was conducting an affair with the appellants
    estranged wife. The trial judge wrote, Whether or not [Elie Abourgeili and the
    appellants estranged spouse] were engaged in an extra marital affair is in my
    view irrelevant to the issues before the court.

[9]

The proposed fresh evidence consists of affidavits of the appellants
    daughter and the appellant. The appellants daughter recounts that Antoinette
    Abourgeili subsequently told her she had discovered that Elie Abourgeili and
    the appellants estranged wife were in fact engaged in an extra marital affair.
    The appellant attaches a copy of Telus Account Information showing that the
    cell phone number 613-875-9099 registered to Elie Abourgeili was cancelled
    February 17, 2008, and cell phone number 613-889-0889 registered to Elie
    Abourgeili was cancelled only on June 11, 2009.

[10]

The
    evidence of the appellants daughter only goes to why the appellant was
    harassing the complainants.  It is, as the trial judge wrote, irrelevant to the
    issue of whether the appellant harassed the complainants. It does not bear upon
    a decisive issue at trial, namely whether the appellant engaged in the
    harassment alleged.  Antoinette Abourgeili did not tell the appellants
    daughter that she had lied at the trial when testifying to persistent and
    unwanted communications from the appellant.

[11]

The
    appellant adduces the Telus records to discredit Antoinette Abourgeili. At
    trial, Ms. Abourgeili testified that she changed her cellular phone number
    three times to discourage the appellant from calling her, but that the calls
    continued. The appellant argues that the account information that he now seeks
    to adduce establishes that she changed her cell phone number once.

[12]

We
    are not persuaded that this evidence calls Ms. Abourgeilis credibility into
    question such that it could reasonably be expected to change the verdict. It in
    fact confirms Ms. Abourgeilis evidence that she changed her phone number
    because of the appellants continued calls.  And the timing of the cancellation
    follows what Ms. Abourgeili testified was a particularly upsetting call on
    Valentines Day, during which the appellant threatened the life of her husband.
    Further, the evidence also contradicts the appellants own evidence at trial
    that the only number that he had ever used to reach Ms. Abourgeili had never
    been changed.

[13]

The
    appellants application for the admission of fresh evidence is accordingly also
    dismissed.

RELEASED:  AH  MAY 2 2014

Alexandra Hoy
    A.C.J.O.

J.C. MacPherson J.A.

R.A. Blair J.A.


