Court of Appeal for Ontario

CITATION: R. v. Guedez-Infante, 2009 ONCA 739

DATE: 20091022

DOCKET: C49510

Before: Weiler, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Javier Alfonso Guedez-Infante

Appellant

Counsel

Javier Alfonso Guedez-Infante, acting in person

Greg Skerkowski, for the respondent

Heard and released orally: October 19, 2009

On appeal from the conviction entered on June 20, 2008 and the sentence imposed on October 2, 2008 by Justice Carolyn Horkins of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of attempted murder with the use of a firearm and sentenced to 10 years imprisonment. He appeals his conviction and seeks leave to appeal his sentence. In relation to conviction he raises three principal issues.

[2] The first is whether there is a reasonable doubt the appellant was the shooter. The trial judge was alive to the fact that the victim did not pick the appellant out of two photo line-ups. The trial judge did not rely on the evidence of identification of the victim alone but the totality of the evidence in coming to her conclusion including the circumstantial evidence of the appellant’s friend, Mr. Torres, who placed the appellant in the washroom just before the shooting. The trial judge’s finding as to identity is amply supported by the evidence.

[3] In relation to whether the appellant intended to kill the victim, the appellant relies on the victim’s statement to the police that he was unsure whether the shooter intended to kill him or whether the shooting was accidental. This was but one factor. The trial judge took into consideration the circumstances of the case including: 1) After being ejected the appellant entered the bar with a loaded pistol concealed in his pant pocket. 2) When the victim went to prevent the appellant from going into the main area of the bar, he was told, “You don’t want to be doing this.” 3) After the appellant was pushed outside a second time, he had the option of simply leaving. Instead he chose to go back inside and shoot the victim. 4) The appellant aimed the gun at the middle of the victim’s body at close range. 5) The injury was life threatening.

[4] On the issue of intoxication, the appellant testified that he was not with Mr. Torres prior to going to the Fairbank bar. Three rounds were bought at the Fairbank and there was still some beer left in the glasses after the incident. No one testified that the appellant was intoxicated. Even if the trial judge accepted the evidence of Mr. Torres that the appellant was drinking with him at another bar earlier that night, there was no evidence as to how much alcohol was consumed earlier. We see no error in the trial judge’s rejection of the defence submissions in this regard. The appeal as to conviction is dismissed.

[5] With respect to sentence, we are of the opinion that having regard to all the circumstances, the sentence imposed was not outside the appropriate range of sentence for this offence and this offender. Although the appellant is a young man with no prior criminal record, the shooting took place in a public place, the injury was serious and the victim has been left with a disability to his bowel that requires him to wear adult diapers for the rest of his life. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.

“K.M. Weiler J.A.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”