Court of Appeal for Ontario

Date: 2019-11-07

Docket: C58915

Judges: Feldman, Trotter and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Bilal Deeb Appellant

Counsel

James Lockyer and Jack Gemmell, for the appellant

Robin Flumerfelt, for the respondent

Heard: October 15, 2019

Appeal Information

On appeal from the conviction entered by Justice Jane E. Kelly of the Superior Court of Justice, sitting without a jury, on July 18, 2013, and from the sentence imposed on December 20, 2013, with reasons reported at 2013 ONSC 4852 and 2013 ONSC 7870.

Reasons for Decision

Facts

[1] Around midday on November 12, 2011, Jesse Kay was shot three times at close range. The shooting occurred at a busy intersection in Toronto shortly after Mr. Kay got off a TTC bus. One of the bullets entered Mr. Kay's spinal cord rendering him a quadriplegic, paralyzing him from the neck down and confining him to a wheelchair.

[2] Mr. Kay identified the appellant, whom he had known in high school but had not seen for about 5 years, as the person who shot him. He had recognized the appellant when the appellant boarded the bus Mr. Kay was on, together with another man Mr. Kay did not know. Mr. Kay testified that after he got off the bus he heard footsteps behind him. When he turned, he saw the appellant pointing a gun at his head just before he was shot.

[3] The appellant appeals his conviction for attempted murder and the life sentence the trial judge imposed.

Conviction Appeal

[4] On the conviction appeal, the appellant argues that the trial judge failed to approach the evidence with the necessary caution given that this was an eyewitness identification case. In particular, the appellant argues that: (i) the trial judge failed to place appropriate significance on the failure of the police to obtain the security camera footage from the TTC bus (the "bus video"), which could have confirmed whether the appellant had boarded the bus as Mr. Kay claimed; (ii) the trial judge overemphasized the honesty and confidence of Mr. Kay in his identification of the appellant, when that had little relationship to the real issue, whether the identification was reliable; (iii) the trial judge did not appreciate the significance of the factors that undermined the reliability of Mr. Kay's identification, such as the five year gap since Mr. Kay had last seen the appellant; and (iv) the trial judge overemphasized the ability of Mr. Kay to recognize the appellant when he turned to see someone pointing a gun at him. Related to the last point, the appellant seeks to introduce as fresh evidence certain surveillance videos of the area taken on the date of the shooting.

[5] We reject these arguments.

Bus Video Issue

[6] With respect to the bus video, this was not a case of the loss or destruction of evidence in the possession or control of the police arising from unacceptable police negligence, as occurred in R. v. Bero (2000), 137 O.A.C. 335 (C.A.). The appellant's argument that the trial judge should have instructed herself, as contemplated by Bero at p. 350, is therefore off point. The police never had possession of the bus video. They made efforts to obtain it. Those efforts began almost immediately after the shooting, when the police asked the TTC supervisor they had called to the scene to identify and preserve the videos from all buses travelling on the route for a period surrounding the shooting, and were told this would be done. The efforts continued without break, resulting in the police being supplied with some bus videos, but not the relevant one, which had been taped over by the TTC. Defence counsel at trial conceded that in light of the police efforts to obtain the bus video, no "lost evidence application" had been brought as any such application would not have been successful.

[7] The appellant argued the police could have done more and that evidence from the TTC should have been called. There is no basis to suggest that any additional efforts by the police would have yielded a different result or that evidence of the TTC would have shown that the police efforts fell so below what was expected as to amount to "unacceptable police negligence". The trial judge's observation that it was speculative whether the video would have shown anything favourable to the appellant was not, in the circumstances, indicative of any error on her part. We reject this ground of appeal.

Credibility vs. Reliability of Identification

[8] We also reject the argument that the trial judge put misplaced reliance on the honesty and confidence of Mr. Kay's identification, rather than its reliability. The trial judge was acutely alive to the issue of the reliability of the identification, even though this was a recognition case. She appropriately considered whether Mr. Kay was credible and sincere in his identification of the appellant. During cross-examination, it was suggested to Mr. Kay that he had not been able to remember who had shot him when first shown a photo line-up, and that it was important to Mr. Kay that his son would be able "to put an identity, a face, to the person, a name to the person who caused this". The trial judge treated this as a suggestion that "Mr. Kay was intent on falsely identifying [the appellant] as the shooter to give his son knowledge". She rejected the suggestion. But after finding Mr. Kay credible and sincere, she went on to caution herself that such factors were a "poor measure of the accuracy of the identification". And she further noted that even though a recognition witness may be in a better position than someone identifying a stranger, the need for caution still applied.

[9] A review of the trial judge's reasons shows that she found the identification reliable based on: Mr. Kay's past history with the appellant and the opportunity he had to see the appellant on the day of the shooting; the evidence of a witness who testified that he saw the shooter, who was wearing a hoodie and a blue bandanna, sit beside him on the bus, get off at the same stop as Mr. Kay, and point what he believed to be a firearm at a person on the street; certain circumstantial evidence that linked the appellant to the area of the shooting around the relevant time; and evidence that hoodies and bandannas were found in an apartment linked to the appellant when it was searched. The trial judge appropriately concluded that: "…I find that Mr. Kay was not only a credible witness but more importantly a reliable one … there is no danger of an honest but inaccurate identification of [the appellant] as the shooter".

Five Year Gap

[10] In oral argument, the appellant submitted that the trial judge gave insufficient attention to the five year gap between Mr. Kay having last seen the appellant and the day of the shooting. We disagree.

[11] The trial judge was alive to and expressly referenced the five year gap. But she found that the quality and quantity of Mr. Kay's past interactions with the appellant rendered his ability to recognize the appellant on the day of the shooting, for example, as a passenger on the bus, highly reliable. We add, as Crown counsel pointed out, that there was no suggestion of a change in appearance sufficient to undermine Mr. Kay's ability to identify the appellant. Mr. Kay identified the appellant's obviously adult photo as that of the shooter from a photo line-up shortly after the shooting.

Identification on the Street

[12] We also reject the argument that the trial judge overstated Mr. Kay's opportunity to identify the shooter on the street. The trial judge noted that Mr. Kay's identification of the appellant as the shooter on the street was made "in a very short period of time and under extremely stressful circumstances"; Mr. Kay had just turned around, saw his attacker pointing a gun, raised his hands to protect himself, and was "shot within seconds". She evaluated this evidence together with Mr. Kay's excellent opportunity to recognize the appellant on the bus, the evidence of the other witnesses, and the circumstantial evidence, to find the overall identification reliable.

Fresh Evidence Application

[13] The fresh evidence – video clips of the intersection where the shooting occurred from surveillance cameras of two nearby businesses – is sought to be tendered to show the length of time Mr. Kay would have had to view the shooter on the street before being shot. The video was available at trial and defence counsel at trial chose not to introduce it. The appellant argues that the due diligence requirement for fresh evidence should not be determinative here because in her reasons, the trial judge appears to have approached the matter on the basis that Mr. Kay had a ten second opportunity to observe the shooter between turning around and being shot, something unexpected as the Crown had not contended at trial that the time period was that long.

[14] The trial judge in her reasons referred to the time period between when Mr. Kay turned and when he was shot as "within seconds". Elsewhere in her reasons she finds that Mr. Kay observed the appellant for "a number of seconds before he was shot" and that it was not a "fleeting glimpse". She does add that it was "described by Mr. Kay as lasting about 10 seconds". The Crown does not contend that there was admissible evidence on which the trial judge could find that the time interval was ten seconds, if that is what the trial judge intended by that reference. Accordingly, we do not reject the fresh evidence on the due diligence ground.

[15] However, we dismiss the fresh evidence application on the basis that the evidence, which we viewed, could not reasonably be expected to have affected the verdict. The trial judge's conclusion was not dependent on there having been a ten second period; it was dependent on there having been more than a "fleeting glimpse", a period long enough for Mr. Kay to "look at [the shooter's] face, notice that his eyebrows were furrowed, look at the gun and look back at his face before he was shot". The trial judge's conclusion that that occurred could not be displaced by the videos given what they do and do not show.

[16] The conviction appeal is dismissed.

Sentence Appeal

[17] The appellant argues that the sentence imposed by the trial judge was demonstrably unfit, given his age at the time of the offence. The trial judge, however, expressly noted the appellant's youth, as well as his supportive family, as mitigating factors. She declined to accede to the Crown's request for delayed parole eligibility for ten years. But she properly noted the existence of significant aggravating factors, and that the totality of the circumstances justified the maximum sentence. There was no error in principle. As was the case in R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264, at para. 30, in which a life sentence was imposed, this was an unprovoked attempted murder involving the use of a gun in a busy, public place, drastically altering Mr. Kay's life which the appellant intended to end. As noted in Brown, the serious concern of growing gun violence in Toronto is a legitimate consideration, and one the trial judge properly took into account. Accordingly, we grant leave to appeal sentence but dismiss the sentence appeal.

K. Feldman J.A.

G.T. Trotter J.A.

B. Zarnett J.A.