DATE: 20021118

DOCKET: C34937

C34881

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– MICHAEL ALI and KEVIN HOULDER (Appellants)

BEFORE: WEILER, CHARRON and MOLDAVER JJ.A.

COUNSEL: David E. Harris and Michael A. Moon, for the appellants

Laura Eplett, for the respondent

HEARD: November 8, 2002

RELEASED ORALLY: November 8, 2002

The appellant, Michael Ali, appeals against the convictions imposed by Justice Hugh Locke of the Superior Court of Justice, sitting without a jury, dated April 17, 2000, and against the sentence imposed by Justice Locke dated June 8, 2000.

The appellant, Kevin Houlder, appeals against the conviction imposed by Justice Hugh Locke of the Superior Court of Justice, sitting without a jury, dated April 17, 2000.

E N D O R S E M E N T

[1] Late at night on a residential street, Rebecca Cox was robbed by a man who got out of a red jeep and who, when she refused to hand over her purse, pointed a gun to her head. She ran home, called 911 and gave the police a partial licence plate number and a description of the robber. Very shortly after, the police stopped the jeep. Roopchand was in the back seat, Ali was the driver and Houlder was in the front seat. Two guns were on the seat in the back.

[2] The appellants Kevin Houlder and Michael Ali were jointly charged that they robbed Rebecca Cox while armed with a firearm. Houlder, Ali and a third person, Roopchand, were further charged that they had possession of a weapon for a purpose dangerous to the public peace. Ali was also charged with carrying a concealed weapon and pointing a firearm.

[3] The trial judge found Ali guilty of robbery and possession of the weapon dangerous charge. The related charges were stayed on the Kienapple principle. Houlder was acquitted of the robbery but found guilty of possession of a weapon for a purpose dangerous to the public peace. Roopchand was acquitted of the weapon charge.

[4] Ali appeals his conviction on the robbery charge on the basis that the trial judge erred in failing to recognize a major flaw in the identification evidence. As a result, he submits that the verdict is unreasonable or alternatively, that a new trial ought to be ordered.

[5] Houlder appeals his conviction on the basis that the trial judge made inconsistent findings, both in terms of Houlder’s control of the guns and his role as driver of the vehicle at the time of the robbery.

The Houlder appeal

[6] The trial judge considered the fact that Houlder was picked up at a different place than usual, he had purchased one of the weapons located in the vehicle, the weapons were loaded, he had control over the weapons in the weeks prior to the night in question, that he and Ali were close friends and that after the event, and just prior to apprehension, he had changed clothes with Ali.

[7] Having regard to these factors, it was open to the trial judge to conclude that Houlder and Ali colluded with each other for an unlawful purpose, namely, in the trial judge’s words, “to cruise neighborhoods late at night in the city in search of human prey upon whom robbery was going to be committed.” In our view these findings are not inconsistent with the trial judge’s finding that Houlder was not the driver at the time of the robbery of Ms. Cox. As for the trial judge’s remark at one point in his reasons that Ali was “the controller” of both weapons, we do not take this to be an indication that Ali had exclusive control.

[8] Mr. Houlder’s appeal is dismissed.

The Ali appeal

[9] Mr. Harris fairly concedes that the robbery was either committed by the appellant Ali or Roopchand. Despite his able submissions, in our view, the trial judge was alive to the frailties in Ms. Cox’s eyewitness’s identification evidence and in particular, her evidence surrounding the selection of Ali’s photograph. We are not persuaded that he gave undue weight to her evidence. In this regard, as the trial judge noted, Ms. Cox described the robber as having marks on the left hand side of his mouth and Ali had mole-like marks in the location she described. This enhanced the worth of her evidence. Nonetheless, the trial judge quite properly observed that the eyewitness identification evidence alone was insufficient.

[10] However, on the totality of the evidence and particularly the compelling circumstantial evidence, including the fact that it was Ali’s vehicle, and unlike Mr. Roopchand, he was in control, and a co-possessor of both the weapons, we are not persuaded that the verdict is unreasonable.

[11] Mr. Ali’s appeal from conviction is also dismissed.

[12] Mr. Ali’s appeal from sentence related to the weapons charge hinged on the success of his appeal against conviction for robbery. Given our disposition of that matter, there is no basis for interfering with the concurrent sentence imposed on the weapons charge. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

Signed: “Karen Weiler J.A.”

“Louise Charron J.A.”

“M.J. Moldaver J.A.”