DATE: 20010620 DOCKET: C32208

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– WAEL CHAMOUN (Appellant)

BEFORE: FINLAYSON, WEILER and SHARPE JJ.A.

COUNSEL: Susan Mulligan, for the appellant Leslie Paine, for the respondent

HEARD: June 15, 2001

RELEASED ORALLY: June 15, 2001

On appeal from the conviction imposed by Justice Lynn D. Ratushny dated March 24, 1999.

E N D O R S E M E N T

[1] The appellant was convicted of two counts of aggravated assault, two counts of use of a firearm in the commission of an indictable offence, possession of a dangerous weapon, breach of probation and possession of a firearm while prohibited by court order. He appeals his conviction and raises two grounds of appeal.

[2] The first ground of appeal is that the trial judge erred in not excluding evidence resulting from the breach of the appellant’s ss. 7 and 10(b) Charter rights. Following his arrest, the appellant participated in an informal line-up without being told about it by the police beforehand. He was arrested for assault, formally advised of his right to counsel and then informally reminded he had a right to speak to a lawyer when he was told that he was a suspect on the more serious charge of aggravated assault. At the time that the informal line-up took place, the appellant had not expressed any desire to contact counsel. It was only towards the end of the informal line-up after the witness had admittedly seen the appellant that the appellant indicated he wished to speak to counsel. In our opinion, there was no breach of the appellant’s Charter rights. Even if there was a breach of Charter rights such that the evidence should not have been admitted, the trial judge stated that she was not relying on that evidence in order to convict the appellant. This ground of appeal is dismissed.

[3] The appellant also says that the trial judge misapprehended parts of the evidence of the identification witnesses and ignored other relevant exculpatory evidence. While there were inconsistencies in the evidence of the witnesses as to what they told the police, the witnesses all agreed that the person who committed the aggravated assault by firing a weapon was the person who was pursued by the crowd, beaten up, and had a scar on his face. The only person who fit that description was the accused. There is no error in the trial judge’s conclusion that the appellant was the shooter.

[4] Accordingly, the appeal is dismissed.

Signed: "G.D. Finlayson J.A." "Karen M. Weiler J.A." "Robert J. Sharpe J.A."