Court of Appeal for Ontario
Date: 2019-10-03 Docket: C66029
Judges: Juriansz, Benotto and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Anwar Yehya Appellant
Counsel
Najma Jamaldin, for the appellant Lorna Bolton, for the respondent
Heard and released orally: September 27, 2019
On appeal from: the conviction entered on March 8, 2018 by Justice P.J. Flynn of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
1The appellant was convicted of offences related to a home invasion robbery. He appeals and alleges multiple errors in the trial judge's instructions and charge to the jury.
2The chief submission is that the Crown, in its closing submission, invited the jury to speculate that a firearm had been discharged from the vehicle that was used to leave the scene of the robbery and that this was not corrected by the trial judge.
3We do not accept counsel's characterization of the Crown's remarks. On our reading, the Crown listed a number of possibilities and then clearly told the jury that it did not have to decide an explanation for the shell casings in the car. In any event, this was not key evidence.
4The second submission is that the Crown invited the jury to draw an impermissible inference: that the appellant came from Toronto to commit the offence in Waterloo. We do not accept this submission. The Crown could properly draw the jury's attention to the fact that the appellant and the four other people in the getaway car were from Toronto. This was just one piece of circumstantial evidence.
5The jury charge was adequate on the issue of circumstantial evidence because the trial judge instructed the jury that a reasonable doubt can arise from a lack of evidence. In any event, this language was suggested by the defence counsel at trial and the instruction was reinforced by the closing submissions of the defence and the Crown.
6We are satisfied that the jury was properly instructed and that the verdict was available on the evidence.
7For these reasons, the appeal is dismissed.
"R.G. Juriansz J.A." "M.L. Benotto J.A." "B.W. Miller J.A."