Court of Appeal for Ontario

Date: 2019-03-19 Docket: C65532

Justices: Watt, Hourigan and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Mustaf Abdul Omar Appellant

Counsel

Mustaf Abdul Omar, acting in person Michael Fawcett, for the respondent Nader Hasan, duty counsel

Heard and released orally: March 12, 2019

On appeal from: the conviction entered on December 5, 2017 and the sentence imposed on February 5, 2018 by Justice Norman S. Douglas of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of using an imitation firearm while committing the offence of assault with a weapon and failure to comply with a recognizance. He was sentenced on each count to a term of imprisonment of one year, followed by probation for two years, the sentences to be served concurrently the one to the other. The usual catalogue of ancillary orders followed the convictions.

[2] The appellant appeals both conviction and sentence and was assisted by duty counsel.

The Appeal from Conviction

[3] On the appeal from conviction of using a firearm, duty counsel says that the trial judge erred in grounding his finding of guilt on the accessorial liability provisions of s. 21(2) of the Criminal Code. The error, he submits, has two aspects: one legal, the other factual. The trial judge failed to properly instruct himself on the constituent elements of liability under s. 21(2), that is to say, agreement, offence and knowledge, rather simply read the section without elaboration. Apart from a conclusory statement that guilt was established under s. 21(2), the trial judge, duty counsel says, failed to make the findings of fact essential to establish liability under s. 21(2). What is more, he continues, the evidence adduced at trial was incapable of sustaining the findings of fact essential to prove guilt under s. 21(2).

[4] The respondent does not endeavour to support the finding of guilt through the application of s. 21(2). The conclusion of guilt, the respondent argues, follows inexorably from the application of the provisions of ss. 21(1)(b) and 21(1)(c) of the Criminal Code to the evidence adduced at trial. The appellant, the respondent says, is not prejudiced by affirming his conviction on this ground, even though it was not a basis of accessoryship advanced by the Crown at trial.

[5] In our view, this is not a case in which the appellant's guilt falls to be established under s. 21(2), if at all.

[6] Section 21(2) extends liability for crime in two respects. The first has to do with the persons whose participation in a common unlawful enterprise may attract criminal liability. The second relates to the offence for which participants in that common unlawful enterprise may be held criminally liable: see R. v. Simon, 2010 ONCA 754, at para. 40.

[7] In this case, the appellant was one of a number of persons, each of whom was armed in various ways, who advanced towards a vehicle in which the victim was seated. The co-accused shot the victim while the appellant, armed, stood on the driver's side of the vehicle. This conduct and the circumstances in which it occurred demonstrate not only the conduct requirement of aiding or abetting, but also the required fault element.

[8] In our view, despite the miscasting of the basis of liability at trial under s. 21(2), the conviction is firmly grounded, legally and factually, on aiding or abetting. Nor is the appellant prejudiced by sustaining the conviction on this basis. The defence he advanced by trial, unsupported by his own evidence, was that the allegations made by the principal Crown witnesses were the product of collusion falsely accusing him of participation in an offence when he was not even there.

[9] The appeal from conviction is dismissed.

The Appeal from Sentence

[10] The custodial portion of the sentence has been served. No complaint is advanced about the fact, the terms or the length of the probation order. Nor is any dissatisfaction expressed about any ancillary order, apart from the victim surcharge.

[11] We grant leave to appeal sentence and set aside the victim surcharge, but otherwise dismiss the sentence appeal.

"David Watt J.A."

"C.W. Hourigan J.A."

"Grant Huscroft J.A."