DATE: 20050202

DOCKET: C40988

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- AHMED HAZIME (Appellant)

BEFORE:

LASKIN, ROSENBERG and LaFORME JJ.A.

COUNSEL:

Frank Miller

for the appellant

Christine Tier

for the respondent

HEARD AND RELEASED ORALLY:

January 31, 2005

On appeal from the conviction entered by Justice Edward Ducharme of the Superior Court of Justice, sitting without a jury, on October 3, 2003 and from the sentence imposed by Justice Ducharme on November 21, 2003.

E N D O R S E M E N T

[1] The appellant has served the custodial part of his sentence and, therefore, abandons his appeal against sentence.

[2] He raises two grounds of appeal against his conviction. First, he submits that the trial judge erred in law by failing to consider the defence of self-defence. We do not agree with this submission. In our view, the evidence does not suggest any air of reality to this defence. In so stating, we have taken into account, not just the evidence of the participants to the incident, but also the differences in their size and weight. That the defence had no air of reality is borne out by the fact defence counsel did not argue the issue in his closing submissions.

[3] Second, the appellant submits that the trial judge failed to consider the middle ground in R. v. W.D. (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) – whether the defence evidence in the context of the evidence as a whole raised a reasonable doubt. Again, we disagree. Although the trial judge did not expressly set out the three-step formula prescribed by W.(D.), his reasons read as a whole and, especially at pp. 6-7, show that he not only rejected the accused’s evidence, but also found that it did not raise a reasonable doubt.

[4] Accordingly, the appeal against conviction is dismissed.

Signed: “John Laskin J.A.”

“Marc Rosenberg J.A.”

“H.S. LaForme J.A.”