CITATION: R. v. Noor, 2009 ONCA 795

DATE: 20091112

DOCKET: C49002

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shamsi Noor

Appellant

Jag Virk, for the appellant

Robin Flumerfelt, for the respondent

Heard in writing

On appeal from the conviction entered on February 12, 2008 and the sentence imposed on June 24, 2008 by Justice John R. Belleghem of the Superior Court of Justice, sitting without a jury.

By the court:

[1] In this in-writing appeal, the appellant appeals his convictions for robbery with a weapon and use of an imitation firearm while committing the offence of robbery. He also seeks leave to appeal his global sentence of 18 months imprisonment and 36 months probation. His term of imprisonment was composed of the mandatory minimum one-year sentence for the use of the firearm (s. 85(3)(a) of the Criminal Code) and six months imprisonment consecutive for the robbery.

I. Background

[2] On December 2, 2006, at approximately 1:00 a.m., the appellant, age 18, met five other men, all of whom were under the age of 18, in Toronto at a Tim Horton’s. The six men drove to Guelph in a stolen car. On arriving in Guelph, the men spent about two hours at the home of one of the young men. They left the home and drove to the vicinity of the Esso Gas Bar that was subsequently robbed. They parked the car in the parking lot of a seniors’ centre. One of the five, perhaps the appellant remained with the car. The other five forced their way into the nearby Esso Gas Bar after one had tricked the attendant into opening the door.

[3] One of the men held a pellet gun that resembled a firearm to the face of the 21-year old pregnant attendant. He told her to “let them take the money and don’t move.” The other men removed cash and cigarettes and ran out of the gas bar in the direction of the seniors’ centre parking lot.

[4] At 4:14 a.m., the clerk alerted the police. Two police cruisers arrived at 4:20 a.m. One officer observed a car leave the seniors’ centre parking lot “packed full of people”. She contacted another officer in a nearby cruiser. Both police vehicles pursued the car, which lost control and hit a fire hydrant.

[5] One man was apprehended at the scene. The remaining five, including the appellant, fled on foot. They were apprehended in a nearby apartment lobby at 4:23 a.m.

[6] Five men, who were all young offenders, pled guilty to robbery. Charges against them regarding the use of the imitation firearm were withdrawn. None of the young offenders received a custodial term. The appellant, who was 18, proceeded to trial on both charges.

[7] The guilty pleas of the five young offenders formed part of the agreed facts at the appellant’s trial. One of the young offenders, Mr. I., testified for the appellant at trial. He stated that it was obvious from the car’s visibly altered ignition that it was stolen and, further, that the occupants talked about the fact that the car was stolen on their way to Guelph. Mr. I. also testified about the stop at the house in Guelph and the drive to the senior’s parking lot en route to the gas bar. In addition, he testified the appellant remained with the car while the others went to the gas bar. On his evidence, the five young offenders only decided to commit the robbery on the way to the gas bar. He also denied any knowledge of a plan to use a firearm.

[8] The appellant testified that the men drove straight to the Guelph gas bar from Tim Horton’s in Toronto, that he remained in the car while the others went to the gas bar, and that he knew nothing of a plan to rob the gas bar, much less one that included the use of a firearm. The appellant said that he fled the scene with the others because he was “scared so I just ended up running.”

[9] The trial judge relied on parts of Mr. I’s evidence in rejecting the appellant’s version of the events and determined that the only reasonable conclusion on the evidence was that the appellant was a party to the robbery.

II. Discussion

[10] The appellant argues that there is an inconsistency between the trial judge’s reasons for conviction and sentence regarding his participation in the robbery.

[11] In his reasons for conviction, the trial judge concluded that the appellant either entered the store as a participant in the robbery or he remained with the car as a look-out or driver. In his reasons for sentence, after noting that he would not review the details of the offences, the trial judge described the appellant as apparently having acted as the look-out or driver.

[12] We see this change in description as no more than a refinement of the trial judge’s reasons for the purpose of sentencing. Having concluded, based on the evidence that he accepted, that the appellant was a party to the plan to rob the gas bar while using an imitation firearm, the appellant’s exact role in the execution of that plan was irrelevant to his liability under s. 21(1) of the Criminal Code for both robbery and the use of an imitation firearm in the commission of the robbery. We do not think the trial judge erred in his application of s. 21(1) of the Criminal Code; nor did he rely on s. 21(2).

[13] The appellant also alleges that the trial judge misapprehended several aspects of the evidence. We are satisfied that the trial judge did not misapprehend the evidence in any material manner. For example, we do not agree with the appellant that the trial judge misapprehended the evidence concerning the appellant’s knowledge of whether the car was stolen. There was ample evidence to support the trial judge’s finding that the appellant knew that the car was stolen. It may be that some of the matters, for example the trial judge’s reference to the appellant’s age compared to that of his associates, were of little significance in assessing the evidence. However, considering the whole of the reasons, these relatively unimportant factors did not play a significant role in the trial judge’s overall assessment of the case.

[14] The appellant submits that the trial judge should have drawn an adverse inference from the Crown’s failure to call the other four persons who had pled guilty to the robbery. We cannot accept this argument. There are obvious reasons why the Crown would not necessarily want to call these witnesses whose guilty pleas were referred to as part of the agreed statement of facts. The trial judge had to decide the case on the basis of the evidence that the Crown and defence chose to put before him.

[15] The appellant submits that the trial judge should have given himself a Vetrovec- type caution with respect to the he evidence of Mr. I. Mr. I. gave evidence exculpating the appellant from any involvement in the robbery. While certain parts of his evidence were inconsistent with parts of the appellant’s evidence, including his evidence about the stop at the house in Guelph and whether the car’s occupants knew it was stolen, Mr. I. is properly viewed as a witness whose evidence was “favourable to the defence”. A Vetrovec-type caution would not have been appropriate. See R. v. Watkins (1972), 1992 CanLII 12750 (ON CA), 70 C.C.C. (3d) 341 at p. 345. In any event, the real issue is whether the trial judge was alive to the problems regarding Mr. I.’s credibility. We are satisfied that he was.

[16] The appellant also argues that the trial judge should not have discounted the fact that the appellant may have fled the scene because of his involvement in the possession of the stolen car or his fear of the police dog. The appellant denied that he knew the car was stolen. In our view, the trial judge was entitled to consider the appellant’s flight as part of the totality of the circumstances surrounding the commission of the robbery to determine whether the appellant was a party to the robbery.

[17] Turning to the issue of sentence, the disparity in the sentences is explained in large measure by the fact that the appellant was convicted of the additional offence of using an imitation firearm and that the other participants, all of whom were young offenders, were not. The sentence is not unreasonable having regard to the seriousness of the offences and the mandatory minimum sentence required under s. 85(3)(a) for the use of the imitation firearm during the robbery.

[18] The appeals of conviction and sentence are dismissed.

RELEASED: November 12, 2009

“DD” “Doherty J.A.”

“Janet Simmons J.A.”

“S.E. Lang J.A.”