Evidentiary contradictions result in decision being overturned

By John L. Hill

Law360 Canada (November 30, 2023, 9:47 AM EST) --
John Hill
John L. Hill
Judges sometimes make mistakes. The Ontario Court of Appeal had no trouble pointing that out when it considered the appeal of Harris Haidary (R. v. Haidary 3023 ONCA 786).

Haidary was appealing his sexual assault conviction, claiming the trial judge erred in rejecting his evidence at trial on the basis that the accused tailored his evidence to make it conform with the statements put into evidence by the Crown witnesses. Was the judge alone responsible for the errors he made?

It is not unusual for appeal courts to defer to a trial judge’s assessment of witness credibility. However, when Haidary went to trial, the judge noted “the big evidentiary contradictions” between the version of facts Haidary gave to his employer and his testimony at trial. In recounting events to the employer, the accused omitted details that he later added to his narrative on learning that a Crown witness could contradict Haidary’s original version. In recounting events to his employer, the accused denied being in an alleyway where a sexual assault was said to have occurred. When he learned a Crown witness was identifying Haidary in this location, he admitted that he had been in the alley, albeit for an innocent purpose.

The trial judge rejected the accused’s testimony in its entirety and found that Haidary had changed his testimony upon becoming aware of further evidence against him. Rather than giving deference to the trial judge, the Court of Appeal, in the second paragraph of the judgment, scolds the trial judge by affirming that it is “legally wrong” for a trial judge to discount the credibility of an accused on the basis that the evidence is tailored to conform with testimony heard in the courtroom. The court cited R. v. Hudson 2021 ONCA 772, R. v. G.V. 2020 ONCA 291 and R. v. Thain 2009 ONCA 223 as precedents binding on lower courts. As stated in Hudson, the trial judge ought to have known that “no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise.”

The Appeal Court also found that the trial judge erred in accepting the proposition that the accused tailored his evidence without presenting that allegation at trial. At no time was the accused aware that changes he made to his version of events would be relied upon as proof of their fabrication. The mere allegation of fabrication is not sufficient. Haidary ought to have been asked about the contradiction when he gave evidence at trial. The Appeal Court accepted the appellant’s argument that the trial was unfair by failing to alert the accused about a possible inference of tailoring.

The trial’s unfairness, the Appeal Court held, created a miscarriage of justice. In such circumstances, despite the Crown’s request, it would not be proper to apply the curative provisions of Criminal Code s. 686(1)(b)(iii) and have the Appeal Court substitute a verdict it saw as appropriate. In this case, the judge’s rejection of evidence has not been a situation where it would be proper to apply the curative proviso (R. v. C. T., 2022 ONCA 163, R. v. B.L., 2021 ONCA 373). The sexual assault conviction must be set aside and a new trial ordered.

The Appeal Court held that Haidary had been wrongly convicted since being sentenced on Nov. 26, 2019, and it suitably chastised the trial judge for making an error in law. Still, the complete injustice is not fully apparent in the decision. Too often, injustices towards accused persons can take longer than necessary to correct because Crown counsel act as pit bulls by dragging out cases and failing to admit wrongdoing by their counterparts at trial or by a judge who has found in their favour. This mentality seems to have been carried on by lawyers acting for the Attorney General in this case.

The Court of Appeal had little difficulty identifying an error in law that should have been obvious to lawyers working with the Ontario Attorney General in researching the case. Why continue defending the indefensible? It may be another year before the matter is brought back for trial. Due to the failure of Crown counsel at trial and the legal errors of the trial judge, there has been an inordinate delay in Haidary receiving a fair trial. As the saying goes, justice delayed is justice denied.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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