Court of Appeal for Ontario

Date: June 8, 2018 Docket: C63971

Judges: Pepall, Hourigan and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Mahad Ismail Appellant

Counsel

Diane Condo, for the appellant Kevin Rawluk, for the respondent

Heard and released orally: June 8, 2018

On appeal from: the conviction entered on November 4, 2015 and the sentence imposed on June 15, 2016 by Justice Robert N. Fournier of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Background and Issue

[1] Mr. Ismail appeals his convictions on 11 counts of weapons offences. He also appeals his sentence of eight years.

[2] The background facts are that the appellant and a friend were together on June 17, 2014 in a neighbourhood in the City of Ottawa. They got into an argument. While they were engaged in this argument, a third male walked up and shot the appellant in the face. The appellant fell to the ground. However, he recovered and got to his feet. Someone chased the shooter until he got into a taxicab and escaped. Two shots were fired at the taxicab by the pursuer. The sole issue at trial was whether the pursuer was the appellant or the appellant's friend.

Eyewitness Evidence

[3] A number of eyewitnesses gave evidence at the trial. Not surprisingly, the witnesses did not agree on various aspects of what had occurred, including their descriptions of the pursuer, the clothing that the pursuer was wearing, the pursuer's appearance, and so forth. One thing that all of the eyewitnesses do appear to have agreed upon, however, is that the pursuer was obviously injured and bleeding.

Physical Evidence

[4] One witness observed a male deposit something into a recycling bin. This witness went to the recycling bin and discovered a handgun inside that had blood on it. The witness took the recycling bin, with the handgun in it, to a police officer. Subsequent forensic examination of the handgun determined that the blood on the handgun was that of the appellant.

Conviction Appeal

[5] The appellant's focus on this appeal was that the trial judge relied on inferences favourable to the Crown over those favourable to the defence. We do not agree.

[6] The trial judge was quite conscious of the problems that he faced in working his way through each of the individual witnesses' evidence. We do not accept that he failed to properly apply the burden of proof.

[7] The trial judge considered the frailties of eyewitness identification. Unlike many eyewitness identification cases it was clear that the pursuer was either the appellant or his friend.

[8] In the end result, the majority of the witnesses described the clothing of the pursuer as matching that worn by the appellant and not that worn by his friend. More importantly, there is the salient fact that only the appellant, and not his friend, was injured in the shooting and was bleeding. Further, the appellant's blood was found on the handgun that was recovered at the scene.

[9] The trial judge was satisfied beyond a reasonable doubt on the evidence that the appellant was guilty. We see no error in his conclusion.

Fresh Evidence

[10] The appellant sought to introduce fresh evidence regarding possible drug activity by one of the prosecution witnesses. We would not admit that fresh evidence. It does not meet the test in R. v. Palmer, [1980] 1 S.C.R. 759. In particular, the fresh evidence does not bear upon a decisive or potentially decisive issue in the trial nor could it reasonably be expected to have affected the result. The fresh evidence is, at most, tangentially relevant to the credibility of a single prosecution witness.

Sentence Appeal

[11] Finally, we see no basis to interfere with the eight year sentence imposed by the trial judge. This was the second offence by the appellant involving firearms. The offences were committed while the appellant was subject to two weapons prohibition orders. While it does not appear that the trial judge was aware of it, at the time of sentencing, the appellant was subject to the mandatory minimum penalty of seven years, because it was a second offence as defined in s. 244(3) of the Criminal Code. Nevertheless, the trial judge sentenced the appellant to seven years plus one year consecutive on the weapons prohibition order breach. We would add that, even absent the mandatory minimum, the sentence imposed would be within the range of sentence for these offences committed by a repeat offender. This offence occurred in broad daylight in an area where children were present. The appellant also disposed of the gun in a manner where it could have been found by those same children.

[12] In the end result, there is no error in principle, failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor, affecting the sentence that would justify appellate intervention: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

Conclusion

[13] The appeal is dismissed. While leave to appeal sentence is granted, the sentence appeal is also dismissed.

"S.E. Pepall J.A." "C.W. Hourigan J.A." "I.V.B. Nordheimer J.A."