DATE: 20030318

DOCKET: C36999

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JAMEEL MOHAMMED (Appellant)

BEFORE: MCMURTRY C.J.O., MORDEN and CRONK JJ.A.

COUNSEL: Anil K. Kapoor for the appellant

Susan Magotiaux for the respondent

HEARD: March 11, 2003

RELEASED ORALLY: March 11, 2003

On appeal from the conviction dated September 12, 2001 and sentence dated April 22, 2002 of Justice Robert F. Scott of the Superior Court of Justice sitting without a jury.

E N D O R S E M E N T

[1] We do not think that there is merit in either of the first two grounds of appeal:

(1) There was clearly sufficient evidence to support the trial judge’s finding that the fire seriously threatened the health or safety of the two firefighters. It is not in issue that s. 434.1 of the Criminal Code applies to a firefighter.

(2) The finding that the fire was of incendiary origin and was caused by the appellant is reasonably supportable on the evidence.

[2] We are persuaded, however, that the third ground of appeal has merit and, in light of the trial judge’s reasons, the conviction cannot stand. We refer to the following passages in the reasons:

The issue here is what or who caused the fire. I believe that the central issue is one of credibility. Who do you believe, and that will lead us to who did the fire.

Where there is a difference between the evidence at trial and his [the accused’s] evidence earlier, there were statements of others who have testified, I prefer the evidence of the others and his earlier testimony where there exists contradictions.

I find Mr. Mohammed to be incredible in these matters, which would tend to suggest that he committed the arson. I find beyond a reasonable doubt that Mr. Mohammed set the fire and on that basis I find him guilty of counts 1 and 2 on the indictment.

[2] The reasoning in those passages is consistent with the following statement of the trial judge in the course of the final submissions:

No, I know you don’t have to prove his innocence at all. It’s whether or not he did it beyond a reasonable doubt, and I think you should concentrate on the evidence as to whether or not I should believe him or not.

[3] The reasons contain no real analysis of the Crown’s evidence on “who did the fire”. Further, it appears to us that the trial judge decided the case on the basis that he did not believe the appellant and, on that ground, he was prepared to make his finding beyond a reasonable doubt. He approached the case as a credibility contest and, in so doing, did not address the steps in the D.W. analysis (R.W.(D.), (1991) 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)) in any form. As can be seen from his reasons, he was prepared to infer guilt directly from his rejection of the appellant’s evidence.

[4] The appeal is allowed, the conviction is set aside, and a new trial is ordered.

“R.R. McMurtry C.J.O.”

“J.W. Morden J.A.”

“E.A. Cronk J.A.”