DATE: 20010614 DOCKET: C30379
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– MOHAMMED IBRAHIM (Appellant)
BEFORE: FINLAYSON, CARTHY and SIMMONS JJ.A.
COUNSEL: Joseph Wilkinson, for the appellant
Christopher Webb, for the respondent
HEARD: May 18, 2001
RELEASED ORALLY: May 18, 2001
On appeal from the conviction and sentence imposed by Justice Hugh Silverman dated December 1, 1997.
E N D O R S E M E N T
[1] In this case, the trial judge was unequivocal in his finding that he did not believe the evidence of the accused, did not find it to be reasonably true and found it to be a concoction. In these circumstances, any reference to the instruction set out in W.(D.) [^1] would have been superfluous.
[2] That the appellant was the aggressor in this confrontation and fight with the victim is beyond dispute. The appellant pleads self-defence but there is no independent evidence to suggest such a defence. Once the trial judge rejected the evidence of the appellant, there was no basis for instructing himself as to this defence.
[3] Any criticism of the language of the trial judge’s reasons in arriving at his verdict are subsumed in the following concluding paragraphs:
Mr. Mohammed Ibrahim had no reason whatsoever to pick up that knife and to use it on the victim. He was not in any fear of his personal safety or of any grievous bodily harm or anything even more serious. He was the aggressor with respect to the knife. He also used Exhibit No. 6, the stick, and he used it as against Mr. Ahmed and he seriously wounded Mr. Ahmed.
The Crown has proven its case beyond a reasonable doubt. As I said, I simply cannot accept the version of events as related in this court by the accused person which was, as I say, not straightforward and it was rambling and evasive. It’s not true, nor is it reasonably true. To put it in simple terms, the accused person overreacted and reacted violently when it was totally unjustified for him to do so. As I have said, the Crown has proven its case beyond a reasonable doubt on all counts, and I find the accused guilty as charged.
[4] The trial judge’s two references earlier in his reasons to relying on credible evidence, as opposed to the totality of the evidence, were in error. However, considered in the context of his reasons as a whole, they were of little significance. There was simply no alternative verdict available to him in this case. In the last analysis, we would rely upon the proviso set out in s. 686.(1)(b)(iii) of the Criminal Code.
[5] The appeal is dismissed.
Signed: “G.D. Finlayson J.A.”
“J.J. Carthy J.A.”
“Janet Simmons J.A.”
[^1]: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).