Court of Appeal for Ontario

CITATION: R. v. Mohamed, 2009 ONCA 424

DATE: 20090522

DOCKET: C49635

BEFORE: Rosenberg, Armstrong and Epstein JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Bashir Mohamed

Appellant

COUNSEL:

Anthony Moustacalis for the appellant

Steve A. Coroza for the respondent

HEARD: May 11, 2009

On appeal from conviction by Justice Al O’Marra of the Superior Court of Justice dated September 18, 2008 and sentence imposed dated November 4, 2008.

Endorsement

By The Court:

[1] The Appellant appeals his conviction and sentence on charges of trafficking in cocaine, possession of the proceeds of crime, offering to sell cocaine, and possession of cocaine for the purpose of trafficking. He was sentenced to 20 months imprisonment after credit of 28 months for pre-sentence custody, and three years probation. For the following reasons the appeal is dismissed.

[2] The appellant’s primary defence at trial was mistaken identification. He claimed that he did not sell or offer the drugs to the undercover police officer and suggested that it may have been someone else, Winston Ellis. He also denied that he was in possession of drugs when he was searched during execution of a search warrant at 1119 Dufferin Street. The appellant offered exculpatory explanations for the circumstantial evidence that supported the identification evidence. He also claimed that he was beaten by the police during the search. Finally, he suggested that he had been targeted by the police because of complaints he had made on prior occasions.

[3] The trial judge in very lengthy and comprehensive reasons dealt with all of the evidence and the explanations offered by the appellant. The trial judge made no legal errors in his legal analysis. He was alive to the principles concerning identification evidence, but also noted that this was a case of recognition, since the officer had previously dealt with the appellant.

[4] We have also not been persuaded that the trial judge erred in his appreciation of the evidence. For example, the appellant submitted that there was a discrepancy in the packaging of drugs that the police took from him during the search. However, we are satisfied that the trial judge’s description is entirely accurate. The trial judge was alive to the appellant’s explanations and, for example, acquitted him on one count of possession of proceeds of crime in view of the evidence that the appellant had withdrawn the money from the bank that seized from him during the search. In effect, the appellant is asking this court to retry the case and reach different conclusions as to who told the truth at the trial. We have no power to do so. It was for the trial judge to make those assessments and his conclusions are reasonable and grounded in the evidence.

[5] We mention one other matter. At certain points during his oral submissions the appellant made allegations against his former counsel. We offered the appellant the opportunity to adjourn his appeal so that he could properly raise these allegations of ineffective assistance of counsel. The appellant declined this offer on several occasions and agreed that he would not raise ineffective assistance of counsel as a ground of appeal.

[6] With respect to sentence, the appellant sold and then offered to sell increasingly larger amounts of crack cocaine, a highly addictive substance. He has a lengthy record going back to 1999 including offences of violence and weapons offences. Given the seriousness of these offences and the appellant’s record a significant penitentiary sentence was required. The trial judge took into account the appropriate mitigating circumstances, especially the appellant’s chaotic upbringing, but properly held that the paramount considerations were denunciation and deterrence. As well, there was a particular need for specific deterrence, given the appellant’s continuing criminal behaviour and substance abuse.

[7] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“G. J. Epstein J.A.”

RELEASED: “MR” May 22, 2009