DATE: 20030512

DOCKET: C36366

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– KHALID RAHMAN (Appellant)

BEFORE: LABROSSE, WEILER and CRONK JJ.A.

COUNSEL: Frank Addario and Jonathan Dawe for the appellant

Randy Schwartz for the respondent

HEARD: May 8, 2003

On appeal from the conviction entered by Justice Ted Matlow of the Superior Court of Justice, sitting with a jury, dated November 7, 2000 and from the sentence imposed by Justice Matlow dated November 14, 2000.

E N D O R S E M E N T

[1] The appellant was tried, by a court composed of Matlow J. and a jury, on numerous offences as a result of the shooting and wounding of the complainant Kimberly McLean. He pleaded guilty to a charge of being in possession of a weapon while under prohibition. He was acquitted on a charge of attempted murder and was convicted of aggravated assault, discharge of a firearm with intent to wound, and use of a firearm during the commission of an indictable offence. The last charge was stayed on the Kienapple principle. In addition to having served 11 months in pre-trial custody, the appellant was sentenced to a total of 8 years’ imprisonment, plus a lifetime weapons prohibition and a DNA order.

[2] The appellant appeals against both conviction and sentence.

[3] The complainant testified that she met the appellant one evening while partying with friends. Later, in the early morning hours, they proceeded to the appellant’s apartment where they had sex. At one point, the appellant took out a revolver, pointed the gun at her and repeatedly pulled the trigger, eventually shooting her in the neck. The complainant suffered life-threatening injuries with long-term effects, which have a continuing devastating impact upon her life.

[4] The Crown’s case rested almost entirely on the complainant’s testimony. Expert witnesses testified that the gun could not have been fired at the angle and at the proximity described by the complainant.

[5] The appellant did not testify and the defence did not lead any other evidence. The defence position was that the jury should have had a reasonable doubt as to the appellant’s guilt because the complainant’s evidence was unreliable and she was not a credible witness. It was submitted that there was uncertainty as to whether the appellant was holding the gun when it fired. It was also submitted that if the appellant was holding the gun, there was uncertainty as to whether the appellant had fired it accidentally.

[6] The appeal from conviction raises the following issues:

(a) Did the trial judge err by failing to give the jury an appropriate limiting instruction regarding the evidence of the appellant’s post-offence conduct?

(b) Did the trial judge err by failing to properly instruct the jury on the position of the defence, and the evidence supporting that position?

[7] The appeal against sentence raises the following issues:

(a) Did the sentencing judge err by failing to consider mitigating factors?

(b) Did the sentencing judge err by overemphasizing the principle of denunciation, resulting in a sentence that is excessive and unfit?

1. The Appeal From Conviction

(a) The Appellant’s Post-Offence Conduct

[8] The post-offence conduct consisted of evidence of the appellant’s delay in obtaining help after the complainant was shot, and evidence of concealment, which included the appellant asking the complainant to lie about the shooting, his failing to remain at the hospital and his attempting to destroy the mattress on which the complainant had bled after she was shot. The appellant concedes that the evidence of delay in obtaining help after the complainant was shot is relevant to his state of mind at the time of the shooting. The appellant submits, however, that the evidence as to concealment is not relevant because a defence of accident was raised and the attempts at concealment were equally consistent with panic or fear. He submits that the trial judge should have instructed the jury accordingly. We disagree. The conduct in issue was one course of conduct. Like any piece of circumstantial evidence, evidence of concealment may be subject to competing interpretations and must be weighed by the jury in light of all the evidence to determine whether it is consistent with guilt and inconsistent with any other rational explanation. See R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72 at para. 21.

[9] In addition, it was undisputed that the complainant was shot when she was alone with the appellant in his bedroom. There were only two persons who could have pulled the trigger. Given that the appellant did not testify, there was simply no evidence supporting the suggestion that the complainant fired the gun or that the shooting was accidental. Moreover, in the absence of evidence to the contrary, the only reasonable inference was that the appellant intended to wound the complainant. In the circumstances of this case, there was no real possibility that the jury would lose sight of the innocent explanation for the shooting advanced by the defence, or misuse the evidence of post-offence conduct for an improper purpose.

[10] It follows, in our view, that the trial judge was not required to instruct the jury that the appellant’s post-offence conduct could not be used to draw the inference that the shooting had been deliberate or that the appellant had the specific intent to wound the complainant.

[11] Even if the appellant’s post-offence conduct were somehow not relevant to these issues, we would have no hesitation in concluding, in the circumstances of this case, that the absence of a limiting instruction caused no substantial wrong or miscarriage of justice. The evidence in support of the convictions was overwhelming.

(b) The Trial Judge’s Treatment of the Position of the Defence

[12] With respect to this ground of appeal, it is submitted that the trial judge failed to adequately instruct the jury on two “accident” scenarios advanced by defence counsel, namely: (i) the appellant had pulled the trigger accidentally; and (ii) the appellant had pulled the trigger believing, incorrectly, that there was no bullet in the chamber.

[13] The trial judge charged the jury in accordance with his pre-charge discussion with defence counsel. More specifically, although the instructions of the trial judge on this issue were brief, he highlighted the frailties of the complainant’s evidence and instructed the jury to assess whether they undermined her reliability and gave rise to a reasonable doubt. He also raised the possibility that the complainant may have been holding the gun or that it may have discharged accidentally.

[14] Defence counsel, who was in the best position to gauge the fairness of the charge, did not object to the trial judge’s presentation of the position of the defence. Moreover, given that the appellant did not testify and there was no evidence supporting either accident scenario, we would not accede to this ground of appeal.

2. Appeal from Sentence

[15] The Crown sought a global sentence of 10 to 12 years’ imprisonment in addition to pre-sentence custody of 11 months, combined with an order under s. 743.6 of the Criminal Code. Defence counsel sought a global sentence of 3 to 4 years. The trial judge imposed a global sentence of 8 years’ imprisonment in addition to pre-sentence custody, including a one-year consecutive sentence for possession of a revolver while prohibited. He did not impose the s. 743.6 order sought by the Crown.

[16] The appellant terrorized the complainant in his apartment. It was only a fortuitous accident of fate that he did not kill her. He deserves little credit for his tardy efforts to obtain medical assistance for the appellant.

[17] The trial judge noted the young age (23) of the appellant and his prior criminal record. He also noted the absence of evidence explaining what mental forces led the appellant to shoot and injure the complainant. He concluded that the appellant had demonstrated that he represents a danger to society.

[18] Although there is a wide range of sentences imposed for crimes bearing some similarity to those in this case, the sentence ordered by the trial judge falls within the acceptable range of sentences imposed for comparable offences. The sentence reflects no error in principle and is fit.

[19] Accordingly, the appeal with respect to conviction is dismissed. Leave to appeal sentence is granted, and the appeal against sentence is dismissed.

Signed: “J.-M. Labrosse J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”