COURT OF APPEAL FOR ONTARIO
Sharpe, Hourigan, Benotto JJ.A
BETWEEN
Her Majesty the Queen
Respondent
and
Jamal Sharif
Appellant
Counsel:
Jamal Sharif, in person
Jill Presser, duty counsel
Michael Bernstein, for the respondent
Heard and released orally: October 8, 2015
ENDORSEMENT
1The appellant raises the argument that he was given ineffective assistance by his trial counsel. His complaint is that by virtue of his counsel’s conduct, he was effectively prevented from testifying on his own behalf to give an alternate version of the events that transpired.
2From his evidence filed in support of the ineffective assistance ground and in his submissions before us today, we conclude that he did discuss the question of whether or not he should testify with his counsel and that he chose not to do so because he did not want to be cross-examined on the identify the person he said was the actual shooter. In these circumstances, we see no merit to the ground that the appellant had ineffective assistance of trial counsel.
3The appellant’s second ground for appeal from conviction is that the verdict was unreasonable. Assuming that this was a purely circumstantial case, as we read the reasons of the trial judge, he properly instructed himself on the law with respect to a case based on circumstantial evidence.
4In our view, on the evidence that was before the trial judge, there really was no reasonable alternative to concluding that the appellant had possession of the firearm and that he discharged it as alleged by the crown. There was evidence that the appellant approached the car with a firearm. There was no evidence before the trial judge as to where he got the firearm, why he was approaching the car with it, or who was in the car. The suggestion that the initial shots came from the car was advanced before us as part of the ineffective assistance ground. There was no evidence to that effect before the trial judge. On the basis of the evidence led a trial, the possibility that the first shots were fired by the driver after the appellant had handed him the firearm would have been entirely speculative.
5Accordingly, the appeal from conviction is dismissed.
6We now turn to the sentence appeal.
7The trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 and, as the crown quite properly concedes, the trial judge erred in failing to give 1.5 credit for the pretrial custody that the appellant had served.
8By our calculation, instead of 11 months credit for pretrial custody, the trial judge ought to have given 14.25 months credit and, accordingly, we reduce the sentence on count 1 by 3.25 months.
9The second ground with respect to sentence relates to the appellant’s status as a relatively youthful first offender.
10The trial judge noted that the appellant was a relatively youthful first time offender. The trial judge also found the appellant had good prospects for rehabilitation. Indeed, in his reasons, he described those prospects as “excellent”. The case law from this court from R. v. Priest (1996), 30 O.R. (3d) 538 forward emphasizes the need for restraint when sentencing a young first offender with good prospects for rehabilitation. The appellant faced a minimum 5 year sentence for the offence of discharging a firearm at an unknown person with intent to endanger life. In the specific circumstances of this case, it is our view that it was an error in principle for the trial judge to have gone beyond that mandatory minimum. Accordingly, we will reduce the sentence by an additional 1 year.
11Leave to appeal sentence granted, the sentence appeal is allowed and the sentence with respect to count 1 is reduced in accordance with these reasons. In all other respects, the sentence is maintained.
Robert J. Sharpe J.A.
C.W. Hourigan J.A.
Mary Lou Benotto J.A.