W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20041108

DOCKET: C39863

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and-

IBRAHIM AHMED (Appellant)

BEFORE:

CATZMAN, LASKIN and BLAIR JJ.A.

COUNSEL:

Irwin Koziebrocki

for the appellant

Shelley Hallett

for the respondent

HEARD AND ENDORSED:

November 8, 2004

On appeal from the conviction entered by Justice Nicholson D. McRae of the Superior Court of Justice, sitting without a jury, on October 31, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] We would not admit the proposed fresh evidence in the consideration of this appeal. We reach that conclusion because, in our view, the evidence does not meet the first or the fourth criteria in R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.). Even if we were to relax the due diligence criterion, we conclude that the note in question and any evidence relating to it could not be reasonably expected to have affected the result. In so concluding, we have regard to both the wording of the note itself and to the decision of experienced trial counsel not to pursue it (which reflected his assessment of the significance of that note in the overall context of the trial).

[2] The appeal is dismissed.