Court of Appeal for Ontario
Date: 2024-07-05 Docket: C67661
Judges: Roberts, Monahan and Dawe JJ.A.
Between: His Majesty the King, Respondent And: Mohamed Bzezi, Appellant
Counsel: Stephen Whitzman, for the appellant Emily Marrocco, for the respondent
Heard: June 12, 2024
On appeal from the conviction entered on January 10, 2018 and the sentence imposed on November 6, 2018 by Justice Jane A. Milanetti of the Superior Court of Justice, sitting with a jury.
1The appellant was convicted on a charge of robbery with a firearm and received the mandatory minimum sentence of 7 years’ imprisonment for a second or subsequent offence. He appeals against both his conviction and sentence.
A. Factual Background
2The case against the appellant at trial turned largely on the evidence of the alleged victim, Nicholas Perkins. He testified that on the morning of the robbery a friend came to his apartment with a man he did not know, who was introduced as “Mecca”. Mr. Perkins’s friend and Mecca both left after about an hour. Later that afternoon, Mecca came back with two other people, claiming that he had left his keys in Mr. Perkins’s apartment. Once inside, Mecca pulled a handgun, and his companions proceeded to take a quantity of cash and electronic items, which they put into a cooler bag they found in the apartment. Mecca demonstrated for Mr. Perkins that the gun was real by showing him that it had bullets in the clip, and by racking the slide and ejecting an unfired bullet. Mr. Perkins later found this bullet and gave it to the police.
3Mr. Perkins was shown a photo lineup on the day of the robbery but did not identify anyone. This lineup did not include the appellant’s photo. Ten days later, he was shown a second photo lineup that included the appellant’s photo, and identified the appellant as Mecca. At trial, Crown counsel also had Mr. Perkins make an in-dock identification of the appellant.
4The Crown also adduced video surveillance camera footage from the hallway outside Mr. Perkins’s apartment. It showed three people – a white man, a Black man, and a woman – entering the hallway. The white man and the woman can then be seen walking down the hallway towards Mr. Perkins’s apartment, while the Black man hides out of sight before also going down the hallway in the direction of Mr. Perkins’s apartment. After about ten minutes, the video shows these same three people going back down the hall. The white man and woman go into the stairwell, while the Black man takes the elevator. He is carrying the cooler bag that Mr. Perkins described the robbers as having taken and loaded up with his cash and electronics.
5The Hamilton police investigators circulated still photos from the surveillance video to all officers on the force. Two officers testified at trial that they recognized the white man in the video images as the appellant, based on their prior dealings with him. As I will discuss, Crown and defence counsel at trial appear to have reached an agreement under which the defence did not contest the admission of the officers’ recognition evidence or challenge its accuracy, in exchange for the officers not being asked to explain in detail how they knew the appellant, in order to prevent the jury from hearing about the appellant’s prior criminal history.
6When the police executed a search warrant at the appellant’s residence, they found a striped sweater that appears very similar to the garment worn by the white male seen on the hallway surveillance video, whom the two officers identified as the appellant.
7It was an agreed fact at trial that when the appellant learned that he was going to be arrested on the robbery charge, he left Ontario and went to Calgary, where he was arrested a few months later.
B. The Conviction Appeal
8The appellant advances three grounds on his conviction appeal. First, he argues that the trial judge gave the jury inadequate instructions on the issue of eyewitness identification. Second, he argues that the trial judge gave the jury an insufficient caution about the use that could be made of the appellant’s after-the-fact conduct. Third, he contends that the trial judge should have intervened to correct inflammatory comments made by Crown counsel at trial (not Ms. Marrocco) during his closing address to the jury.
9For the following reasons, I would not give effect to any of these grounds.
(i) Eyewitness Identification Instructions
10The appellant submits that the trial judge’s identification instructions were inadequate, arguing that she failed to adequately point out the frailties with Mr. Perkins’s identification evidence; that she erred by including the two officers’ recognition evidence in her charge on identification, while failing to instruct the jury adequately about the dangers of recognition evidence; and that she failed to provide any caution about the in-dock identifications made of the appellant in the courtroom by Mr. Perkins and the two officers.
(1) The Trial Proceedings
11The appellant’s complaints about the adequacy of the jury instructions on identification must be assessed in the unusual context that arose because of the tactical decisions made by his counsel at trial (not Mr. Whitzman). The parties disagree about the extent to which these tactical decisions took the question of identification off the table as a live issue for the jury to consider.
12The Crown had brought a pre-trial Leaney application seeking to have the recognition evidence from the two officers admitted into evidence: see R. v. Leaney, [1989] 2 S.C.R. 393. However, this application was never litigated, and the application judge made an endorsement on the indictment that it had been “resolved”.
13At trial, the first officer, DC Kay, testified in chief that when she received an email with “a number of pictures of … potential suspects”, which had been sent to all officers on the force, she recognized one of the men in the photos as the appellant. DC Kay pointed out several of what she said were this man’s distinguishing facial features, and later added when she was shown the surveillance video that there was “no doubt in [her] mind” that he was the appellant. She agreed with Crown counsel’s suggestion that her prior dealings with the appellant had included “a couple traffic stops” but was not asked anything more about the extent of her prior familiarity with him. DC Kay also made an in-dock identification of the appellant.
14The second officer, PC Starrs, testified in chief that he recognized the appellant as the man in the emailed photographs, and pointed him out in court. He explained that he particularly recognized “his nose, his lips, and his general facial features”. In response to the Crown’s suggestion that he had previously “dealt with [the appellant] in person”, PC Starrs replied that they had “spoken face-to-face”. He was not asked anything further about his previous interactions with the appellant.
15Defence counsel briefly cross-examined both officers about whether they had observed the appellant to have tattoos on his forearms, and also had the appellant show his bare arms to PC Starrs to confirm that he had no tattoos. (Mr. Perkins had testified that Mecca had a mark on his arm that could have been a birthmark or a tattoo). However, defence counsel did not ask either officer any questions about their basis for recognizing the man in the photos as the appellant, nor did he suggest to them that they might have been mistaken.
16During the pre-charge conference, defence counsel advised the trial judge that he and Crown counsel had “worked out something” to resolve the Crown’s Leaney application. He explained that even though the Crown had not elicited evidence from the officers about exactly how they knew the appellant, he wanted the jury to be instructed that they should not draw any adverse inferences from the appellant being known to the police. The trial judge ultimately instructed the jurors that they must:
… not use the fact that [the appellant] had dealings with the police in deciding that he is the type of person who is likely to commit this offence. You can only use the evidence of past dealings with the police in evaluating the identification evidence that was provided by each of those two officers, Kay and Starrs.
17In his closing address to the jury, defence counsel made no mention of the two officers’ recognition evidence, other than mentioning that PC Starrs had ultimately agreed that the appellant had no tattoos on his forearms. Defence counsel prefaced his response to the Crown’s argument that the hallway video showed the appellant tucking his firearm into the back of his pants by stating that this was “an I.D. case”, but then focused his ensuing submissions entirely on the Crown’s failure to call opinion evidence from any officers about whether the man in the hallway video could be seen holding a firearm. Defence counsel took no direct issue with Crown counsel’s position in his closing address that this man was the appellant.
18Defence counsel finished his closing address by emphasizing the frailties in Mr. Perkins’s evidence, and the fact that his account of the appellant robbing him with a firearm was unconfirmed by any other evidence. Defence counsel concluded his address by stating:
Can you really be sure and believe beyond a reasonable doubt that [the appellant] was armed with an offensive weapon and robbed Mr. Perkins 27 months ago at his apartment? Mr. Perkins is the only witness, live witness, to an offensive weapon being brandished by the alleged robber. I'm asking that you find [the appellant] not guilty of the robbery count of this indictment.
(2) Analysis
19Although the trial record does not explain in detail the exact nature of the agreement between counsel that led to the resolution of the Crown’s Leaney application, I agree with Crown counsel on appeal, Ms. Marrocco, that the only sensible inference that can be drawn from the record as a whole is that defence counsel at trial had agreed not to challenge the officers’ recognition evidence, in exchange for the Crown deliberately obscuring the nature of the officers’ prior dealings with the appellant.
20As Ms. Marrocco aptly notes in her factum, this resulted in “[t]he recognition evidence [being] tendered in a truncated and unorthodox fashion”, in which the two officers gave very little detail about how they knew the appellant well enough to recognize him, while the defence made no attempt to challenge the reliability or accuracy of the officers’ evidence that the appellant was the man in the hallway video.
21Although defence counsel at trial never formally conceded the issue of identification, this was the practical effect of his tactical decision not to challenge the officers’ recognition evidence regarding the man in the hallway video. This video showed three people approaching Mr. Perkins’s apartment door, and the same three people then leaving down the hallway some ten minutes later, one carrying the bag Mr. Perkins says came from his apartment. Since the hallway video bookended the time period when Mr. Perkins claimed that he was robbed, it would have been entirely fanciful to imagine that he had been robbed by persons other than the people seen in the hallway video.
22In these circumstances, by choosing not to contest the accuracy of the officers’ evidence that they recognized the appellant as one of the men in the hallway video, the defence was effectively taking the issue of identification off the table. Indeed, at the end of the trial defence counsel urged the jurors not to accept Mr. Perkins’s evidence that the appellant had robbed him with a firearm, but did not suggest that the officers’ identification of the appellant as one of the men in the hallway video was incorrect, or that that they should consider the possibility that Mr. Perkins had been robbed, but that the robbery had been carried out by someone other than the people in the video.
23The adequacy of the trial judge’s instructions on the issue of identification must be assessed in this context. In a case where identification was genuinely at issue, the details and extent of the officers’ prior familiarity with the appellant would have been a very important factor for the jury to consider when assessing the reliability of their recognition evidence: see R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. I agree that the trial judge’s instructions did not explain this to the jury, and indeed could not have done so, because these details had been kept from the jury. However, this did not matter here, since defence counsel had chosen not to challenge the reliability of the officers’ recognition evidence. (I would note that trial counsel’s tactical choice is understandable, since the officers’ recognition evidence was strongly corroborated by the police having found a sweater in the appellant’s apartment that closely resembled the distinctive garment worn by the man in the hallway video.)
24I do not agree with the appellant that it was an error for the trial judge to include the officers’ recognition evidence in her instructions on the frailties of identification evidence. As noted in Olliffe, at paras. 39-40:
The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.
In the context of jury trials, courts in this province have consistently ruled that the jury must be warned of the frailties of eyewitness identification even in cases of recognition evidence. [Citations omitted; emphasis added].
25I also do not agree that the trial judge’s instructions on the frailties of Mr. Perkins’s identification evidence were inadequate, in the unusual circumstances here. The trial judge did set out some of particular frailties with his evidence and gave the jury a standard caution about the general dangers of accepting identification evidence. However, once the defence made the tactical decision not to challenge the reliability of the officers’ evidence that they recognized the appellant as one of the men in the hallway video who approached Mr. Perkins’s apartment door, there was simply no realistic prospect that the jury would not also accept Mr. Perkins’s evidence that the appellant was one of the people who then entered his apartment.
26The real issue for the jury, based on how defence counsel at trial chose to litigate the case, was whether Mr. Perkins was being truthful when he said that the appellant had then pulled a gun on him, and that the appellant and his companions had proceeded to rob him.
27Significantly, defence counsel at trial did not object to the adequacy of the trial judge’s instructions on identification, nor did he seek any instruction about the quality of the photo lineup from which Mr. Perkins identified the appellant as Mecca.
28I agree with Mr. Whitzman that in different circumstances, where identification was truly at issue, the trial judge’s failure to instruct the jury about the well-known frailties of in-dock identification, and about the limited value of Det. Cst. Kay’s confidence that she had correctly recognized the appellant, would have been concerning. However, I am not persuaded that these omissions were of any consequence here, given how the appellant’s counsel chose to defend the case at trial.
(ii) The After-the-Fact Conduct Instruction
29I also see no error in the trial judge’s instruction regarding the after-the-fact conduct evidence. It was an agreed fact that the appellant went to Calgary because he knew the police were looking to arrest him on the robbery charge. The trial judge instructed the jury “not to immediately conclude that what [the appellant] did was related to the commission of the offence charged rather than to something else”. Since it was an agreed fact that the appellant had left Hamilton after he learned that the police were looking to arrest him, the jurors would have understood from this instruction that they had to consider whether he might have left because he feared being wrongly arrested for the robbery, rather than because he was guilty of committing the offence.
30The jurors would also have understood from the trial judge’s instructions that it was the Crown’s burden to prove the appellant’s guilt beyond a reasonable doubt, and that the appellant did not have to testify or prove anything. In these circumstances, I am not persuaded that it was necessary for the trial judge to specifically direct the jury to “exercise caution” before drawing an inference of guilt from the after-the-fact conduct evidence, particularly since she did expressly instruct the jurors “not to immediately conclude” that the appellant’s departure from Hamilton “was related to the commission of the offence charged rather than to something else”. I am satisfied that the jury would have properly understood from the charge as a whole that they could not find the appellant guilty of robbery unless they were convinced of his guilt on the high criminal standard of proof beyond a reasonable doubt.
31The trial judge appears to have meant to use the standard model jury instruction language that evidence of any other reasons for the appellant’s actions was “[o]f particular importance”. However, she phrased this instruction somewhat awkwardly, telling the jurors:
To decide the reason for what [the appellant] did afterwards, you should consider all of the evidence. Of particular importance, his evidence that offered his explanations for what [the appellant] did by going to Calgary. I do not recall hearing or seeing any such evidence. Again, that is my recollection of the evidence. If yours is different and I will say that so many times you will be sick of it but if your recollection is ever different from mine, it is yours that matter each and every time.
32The appellant objects that this instruction may have drawn unnecessary attention to his decision not to testify, and in so doing violated the rule in s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), that “[t]he failure of the person charged … to testify shall not be made the subject of comment by the judge.”
33I agree that it would have been better for the trial judge not to have framed this instruction as she did. However, even if her phrasing violated s. 4(6) of the CEA, I am satisfied that this error caused no substantial wrong or miscarriage of justice and that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, would apply. The trial judge had previously instructed the jurors that the appellant “does not have to present evidence” and “does not have to prove anything”. Unlike the situation in R. v. Miller (1998), 131 C.C.C. (3d) 141 (Ont. C.A.), the trial judge did not expressly suggest that these instructions did not apply to the issue of the appellant’s after-the-fact conduct, or that the jury could or should draw any adverse inference against the appellant for not testifying. Importantly, defence counsel at trial also took no issue with this aspect of the jury charge, and Mr. Whitzman did not seriously contend that this error, standing alone, could not properly be the subject of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.
(iii) Crown’s Closing Address
34Finally, I agree with the appellant that Crown counsel should not have ended his jury address by urging the jury to “remember [the appellant’s] cowardice” in committing the robbery with “two accomplices and a loaded firearm”, and to “remember the courage of Mr. Perkins” in testifying against the appellant. These comments were unnecessary and inflammatory, and it would have been better if they had not been made.
35However, “there is no ‘unyielding rule’ mandating that improper Crown closing submissions require a new trial”: R. v. Clyke, 2021 ONCA 810, 408 C.C.C. (3d) 86, at para. 36. Rather, “[t]he test is whether the closing address ‘was unfair in such a way that it might have affected the decision of the jury’”: Clyke, at para. 36, quoting from R. v. Grover (1990), 56 C.C.C. (3d) 532 (Ont. C.A.), at p. 537, rev’d on other grounds, [1991] 3 S.C.R. 387. Crown counsel’s isolated rhetorical excess, while unfortunate, was not so prejudicial that it gave rise to a substantial wrong or miscarriage of justice. Indeed, Mr. Whitzman very fairly acknowledged that he was advancing this ground in support of his other grounds, rather than as a stand-alone ground that would be sufficient on its own to require a new trial.
36I would accordingly dismiss the conviction appeal.
C. The Sentence Appeal
37The appellant raises two grounds of appeal on his sentence appeal. First, he argues that the trial judge erred by finding that the handgun that Mr. Perkins described the appellant using during the robbery, which was never recovered by the police, was a “firearm” within the definition in s. 2 of the Criminal Code. This definition, among other things, requires proof that the gun was capable of being fired. Since the trial judge’s finding that the gun was a firearm triggered the 7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii) of the Code, [1] the appellant argues that if the trial judge erred on this issue, his sentence should be reduced.
38It is well-settled that the question of whether a gun is a “firearm”, rather than merely an imitation gun or a real but non-functioning weapon, can be determined circumstantially: see R. v. Richards (2001), 50 W.C.B. (2d) 244 (Ont. C.A.), at para. 4; R. v. Charbonneau (2004), 61 W.C.B. (2d) 301 (Ont. C.A.), at para. 3; R. v. Dillon, 2018 ONCA 1085, at para. 18. In R. v. O.A., 2022 ONCA 565, at para. 10, this court explained:
As held in R. v. Villaroman, where a verdict is based on circumstantial evidence, the question on appeal is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. There are other cases in which this court has upheld a finding that an accused used or was in possession of a firearm, even where the firearm was never recovered. In such cases, the court looked at whether the trial judge assessed the totality of the evidence, and whether the trial judge could have been reasonably satisfied that the accused’s guilt was the only reasonable conclusion available on that evidence. [Citations omitted].
39In the case at bar, Mr. Perkins’s evidence was that the gun the appellant brandished was loaded with real bullets, which the appellant demonstrated to Mr. Perkins by pulling out the clip, and by racking the slide to eject an unfired bullet and cartridge, which Mr. Perkins later found and gave to the police. The trial judge also noted that the appellant “had clearly had access to firearms prior to this occasion”, because at the time of sentencing he was already serving a sentence for having possessed a loaded firearm in April 2014, which was a little more than a year before he robbed Mr. Perkins in June 2015.
40In these circumstances, I am satisfied that the trial judge did not commit any reversible error by drawing the inference that the gun was a real firearm. In this regard, I do not agree that the conclusion the trial judge reached is at odds with the approach taken in the Alberta cases cited by the appellant, R. v. Osiowy, 1997 ABCA 50, 113 C.C.C. (3d) 117, and R. v. Fielder, 2019 ABQB 211. In Osiowy, where the Court of Appeal of Alberta found that the circumstantial evidence fell short of proving that the gun used in a robbery had been operable, the court noted at para. 21 that:
The accused did not load the weapon in front of the victim, cock the weapon, or otherwise use the weapon in such a way that its operability could be inferred.
In contrast, Mr. Perkins testified that the appellant did some of these very things, in order to demonstrate for him that the gun was real and operational.
41I am also not persuaded that the trial judge improperly reversed the burden of proof by stating that she was satisfied that the gun was a firearm “[b]ased on the totality of evidence presented at trial, and the complete absence of any evidence to contrary”. In the context of her reasons as a whole, I am satisfied that all the trial judge meant by this was that there was no evidence undermining her conclusion that the only reasonable conclusion available on the existing evidence was that the gun was operable.
42It follows that the trial judge did not err in imposing the 7-year mandatory minimum sentence for a second or subsequent conviction for robbery with a firearm.
43In any event, the trial judge made no error in imposing a 7-year sentence. It was within the established 4 to 13-year range for home invasion robberies. Indeed, the trial judge noted that she would have imposed a higher sentence of 8 years imprisonment, had it not been for the appellant’s youth and the fact that he was already serving another penitentiary sentence.
44Second, the appellant argues that even if the trial judge properly imposed the 7-year mandatory minimum sentence, she should have made this sentence run concurrently to the sentence that the appellant was already serving, rather than consecutively. Mr. Whitzman argued that because the appellant received an effective 6-year sentence on a firearms possession charge on April 6, 2018, which was 7 months before he was sentenced on the robbery charge on November 6, 2018, the effect of making his sentence on the robbery charge consecutive to the previous sentence was that the appellant received a total combined effective sentence of more than 12 years of imprisonment. Mr. Whitzman argues that a sentence of this length is crushing for a relatively youthful offender like the appellant, who was 28 years old at the time of sentencing.
45This argument overlooks the fact that appellant’s previous sentence was reduced from 6 years to approximately 2 years and 7 months going forward after he was credited for his time in pre-sentence custody: see R. v. Bzezi, 2018 ONSC 2058, at para. 68. Accordingly, at the time of his sentencing on the robbery charge the appellant had only 2 years left to serve on the previous sentence.
46As I have already noted, the trial judge explained that she would have otherwise given the appellant an 8-year sentence but was reducing it to 7 years to account for his youth and the fact that she was making the sentence run consecutively to the sentence he was already serving. In summary, the practical difference in this case between making the appellant’s sentences run consecutively or concurrently was only 1 year.
47Section 718.3(4)(a) of the Criminal Code requires sentencing judges to “consider directing” that sentences imposed be made consecutive to sentences the offender is already serving. The trial judge in this case considered this issue and decided that principles of denunciation and deterrence weighed in favour of making the sentences consecutive. I am not persuaded that her reasons disclose any errors in principle that would permit us to interfere with this discretionary decision.
48To reiterate, the practical effect of making the appellant’s 7-year sentence run consecutive to the 2 years he had left to serve on his previous sentence was that, as of the date of his sentencing on the robbery charge, he had a total of 9 years left to serve, or 1 year more than the time he would have had to serve if the trial judge had made his robbery sentence run concurrently to the previous sentence, but had increased its length to 8 years. As I have already mentioned, either an 8 or 9-year sentence would have been squarely within the range for the appellant’s offence. The sentence the appellant received was, in my view, entirely fit.
49Accordingly, while I would grant leave to appeal sentence, I would dismiss the sentence appeal.
Released: July 5, 2024 “L.B.R.” “J. Dawe J.A.” “I agree. L.B. Roberts J.A.” “I agree. P.J. Monahan J.A.”
Footnotes
1The appellant agrees that in the circumstances here, if the handgun was proved to be a firearm, it would necessarily be either a prohibited or a restricted firearm, and thus be captured by s. 344(1)(a) of the Code.