R. v. Abourached (N.), (2007) 259 N.S.R.(2d) 379 (CA)

• Judge: MacDonald, C.J.N.S., Bateman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 21, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 259 N.S.R.(2d) 379 (CA);2007 NSCA 109

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379 (CA);

    828 A.P.R. 379

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. NO.037

Nader Abourached (appellant) v. Her Majesty The Queen (respondent)

(CAC 280889; 2007 NSCA 109)

Indexed As: R. v. Abourached (N.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Bateman and Fichaud, JJ.A.

November 21, 2007.

Summary:

The accused was convicted of obstructing justice, assault causing bodily harm and two counts of breach of a recognizance. He was acquitted of a second assault causing bodily harm. The accused was sentenced to six months' imprisonment for obstruction and a global two years' probation for the other three offences. The accused appealed the obstructing justice and assault causing bodily harm convictions, submitting that the trial judge misdirected himself on the burden of proof and reasonable doubt, provided insufficient reasons for judgment, and the verdict was unreasonable and unsupported by the evidence.

The Nova Scotia Court of Appeal allowed the appeal in part. The court affirmed the conviction for obstructing justice, but set aside the conviction for assault causing bodily harm on the ground that the judge's reasons were insufficient, thereby precluding the accused's ability to effectively appeal the decision. The court varied the total sentence imposed by reducing the two years' probation to one year.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - An accused appealed his convictions on the ground that the trial judge failed to satisfy the R. v. D.W. requirements in charging himself on the burden of proof and reasonable doubt - The accused stated that the trial judge did not expressly reject the accused's evidence - The Nova Scotia Court of Appeal rejected the submission - The trial judge clearly referred to the accused's testimony and discounted it in favour of the complainant's - The trial judge clearly considered all of the evidence - The trial judge did not find guilt by merely preferring the evidence of the complainant over that of the accused - The trial judge expressly stated that he was aware of the requirements of R. v. D.W. and, on the basis of all of the evidence, was satisfied of the accused's guilt beyond a reasonable doubt - See paragraphs 13 to 23.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - An accused was charged with two counts of assault causing bodily harm respecting the same complainant - The assaults were independent - He was acquitted on one count and convicted on the second - With respect to the acquittal, the judge was not satisfied of the accused's guilt beyond a reasonable doubt because of the complainant's propensity for retaliatory self-inflicted harm - In convicting the accused on the second count, the judge did not refer to the evidence respecting the acquittal and did not attempt to distinguish the two incidents - The accused appealed on the ground that the conviction was unreasonable because the acquittal and conviction were inconsistent verdicts - The Nova Scotia Court of Appeal held that, although the acquittal and conviction were not necessarily inconsistent verdicts, the trial judge's reasons for the assault conviction were not sufficient to permit the court to assess the reasonableness of this ground of appeal - Accordingly, the court allowed the appeal and ordered, at the Crown's initiative, a new trial for the second count of assault causing bodily harm - See paragraphs 35 to 63.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - An accused appealed his obstruction of justice conviction on the ground that the verdict was unreasonable and unsupported by the evidence - The Nova Scotia Court of Appeal dismissed this ground of appeal - The verdict was (1) one that a properly instructed jury, acting judicially, could reasonably have rendered and (2) the findings essential to the verdict were not demonstrably incompatible with evidence that was neither contradicted by the other evidence nor rejected by the trial judge - See paragraphs 24 to 34.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4684 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 12].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 12].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para. 16].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323, refd to. [para. 24].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 24].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 24].

R. v. Hines (R.D.) (2007), 254 N.S.R.(2d) 240; 810 A.P.R. 240; 2007 NSCA 56, refd to. [para. 27].

R. v. Alcius, [2007] J.Q. No. 1152; 2007 QCCA 216, refd to. [para. 27].

R. v. Y.M., [2007] J.Q. No. 10863; 2007 QCCA 1248, refd to. [para. 27].

R. v. Schoenthal (D.L.) (2007), 299 Sask.R. 1; 408 W.A.C. 1; 2007 SKCA 80, refd to. [para. 27].

R. v. Bell (J.) (2007), 223 O.A.C. 243; 2007 ONCA 320, refd to. [para. 27].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388, refd to. [para. 41].

R. v. Campbell (L.A.) et al. (2000), 184 N.S.R.(2d) 374; 573 A.P.R. 374 (C.A.), refd to. [para. 41].

R. v. McLaughlin (1974), 15 C.C.C.(2d) 562 (Ont. C.A.), refd to. [para. 41].

R. v. Kruper (M.), [2007] A.R. Uned. 315 (C.A.), refd to. [para. 41].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 48].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355, refd to. [para. 48].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 48].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6, refd to. [para. 48].

R. v. R.D., [2006] 2 S.C.R. 610; 358 N.R. 124, refd to. [para. 48].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 54].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81; 2004 NSCA 135, refd to. [para. 55].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48; 2005 NSCA 9, refd to. [para. 55].

R. v. Binnington (C.S.) (2005), 237 N.S.R.(2d) 334; 754 A.P.R. 334; 2005 NSCA 133, refd to. [para. 56].

Counsel:

Donald Pressé, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respondent.

This appeal was heard on October 15, 2007, at Halifax, N.S., before MacDonald, C.J.N.S., Bateman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On November 21, 2007, Fichaud, J.A., delivered the following judgment for the Court of Appeal.