CITATION: R. v. Hassan, 2011 ONCA 407
DATE: 20110526
DOCKET: C51373
COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Abdiweli Hassan
Appellant
Kevin Tilley, for the appellant
Gregory J. Tweney, for the respondent
Heard: May 11, 2011
On appeal from the conviction entered on May 22, 2009 and the sentence imposed on July 14, 2009 by Justice P. A. Grossi of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
Introduction
[1] The appellant was charged with numerous weapons offences involving a firearm and attempted murder. After a nine day trial, the jury found him guilty of the firearms offences but not guilty of attempted murder; rather, they found him guilty of aggravated assault.
[2] The appellant played in a basketball game against the victim and his friends. Following the game, the victim, Terrence Wilson and his friends, Leon Samuels and Brittney Moore saw the appellant in a group in the parking lot. They pulled up in their car, words were exchanged, and then the appellant drew a gun and shot into the car, hitting Wilson.
[3] The only issue at trial was identification and the case turned entirely on eyewitness evidence.
Issues
[4] On appeal, the appellant makes three arguments:
(i) That the lack of corroborating evidence and the frailties in the eyewitness evidence make the verdict unreasonable.
(ii) That the trial judge failed to adequately assist the jury when they asked questions during deliberations.
(iii) That the trial judge failed to properly consider the appellant’s youth and thereby imposed an unfit sentence.
The identification evidence
[5] Wilson and Moore were shown photographic lineups the following week. Moore conducted two lineups, in which he selected no one, before selecting the appellant in a third lineup, which was conducted in a police van. Wilson selected the appellant in his first lineup, conducted in the hospital. Samuels was also shown a photographic lineup (which was later excluded).
[6] In a voir dire, the appellant sought to exclude the photo lineup identification evidence and in-dock identification evidence. The trial judge excluded Samuels’ photo lineup and prohibited the Crown from adducing in-dock identification evidence from him. The judge did allow the Crown to question Samuels about the appellant’s participation in the basketball games, but not about the events around the car. However, he allowed the Crown to lead photo lineup and in-dock identification evidence from Wilson and Moore.
[7] In his charge to the jury, the trial judge told them to disregard the evidence of Samuels, cautioned them about the frailties of eyewitness identification evidence, summarized the positions of counsel and gave a lengthy instruction on the elements of the offence. He indicated to them that the videotape of Moore’s statement to the police was an exhibit and would be made available, though the Crown later pointed out that the videotape was not made an exhibit.
Issue 1: Unreasonable verdict
[8] The appellant submits that this is a classic case of eyewitness identification in that when the evidence is carefully scrutinized it is apparent that it is unreliable and not credible. It is this ground of appeal that he argues results in an unreasonable verdict.
[9] The appellant submits that there was no external corroborating evidence, whether forensic evidence, video surveillance, or hard evidence from a search of the appellant’s home. The complainants, he asserts, had only very limited opportunity to view the perpetrator; the photo lineup procedure was problematic because it was conducted a week after the incident, late at night after Moore had finished a shift at work; and there was no audio or video recording of it. We disagree.
[10] Although there was no evidence to confirm or corroborate the identification evidence of Wilson and Moore, the other concerns with eyewitness evidence identified by this Court in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 did not exist in this case. That is:
• Wilson and Moore recognized the appellant in the parking lot from the game. Thus, the appellant was not a stranger to them.
• Wilson and Moore had a reasonable opportunity to observe the appellant, during the basketball game, in the parking lot and, in Moore’s case, in the discussion before the shooting. The circumstances of the identification, therefore, were conducive to an accurate identification.
• Wilson and Moore picked the appellant out of a properly constituted and properly conducted photo lineup; the photo is consistent with the descriptions provided. Both of them were given proper cautions prior to conducting the lineup, and Moore viewed three lineups. Pre-trial identification processes, therefore, were sound.
[11] While the lineups were arguably not perfect, the evidence of Wilson and Moore was more than capable of being believed and accepted by the jury. Furthermore, the trial judge instructed the jury about the frailties of eyewitness identification evidence and they must be taken to have considered this. The decision of the jury, based on the evidence, is entirely reasonable.
Issue 2: Jury questions
[12] The appellant submits that the trial judge improperly addressed questions by the jury in that he: (i) accepted a question verbally through the court deputy; (ii) failed to solicit counsel's submissions before responding to the jury; (iii) failed to correct his earlier comment that the video tape could not be reproduced; (iv) failed to read the second written question out in full; and (v) failed to provide copies of the transcripts as requested.
[13] The first two allegations of impropriety on the part of the trial judge, we see as nothing more than a procedural misstep that is of minor significance. In any event, defence counsel confirmed that she would not have wanted the videotape entered as an exhibit. Moreover, neither counsel asked the judge to re-charge the jury on either the significance or unavailability of the videotape, or objected to the judge’s subsequent denial of the jury’s request to view the video. In relation to the third allegation, the trial judge’s refusal to give the jury the video was proper; it was not evidence; portions of it had merely been used to cross-examine the complainant. Counsel for the defence said she “may” be able to extrapolate from the video the portions she had used in cross-examination. It was not clear that she would have been able to do so.
[14] The next two allegations of impropriety deal with the jury request for the Wilson and Moore transcripts and two questions related to them. Although the transcript of Wilson’s evidence was available the complete transcript of Moore’s evidence was not. The trial judge advised the jury that transcripts could not be provided but offered to have the reporter read back the portions of evidence they were concerned about.
[15] Regarding the jury request for the transcript of Moore’s evidence, both counsel interpreted the request the same as the trial judge, and quickly identified the relevant portions of the trial transcript. Indeed, they advised the trial judge as follows:
Your honour, my friend and I have collectively put our heads together. We have, sort of, highlighted just on a yellow sticky sheet the relevant portions that we feel will answer the jury’s questions.
[16] The trial judge then recalled the jury and had the relevant portions counsel had highlighted read to them. This was entirely appropriate and nothing further was required. The jury would not have thought further questions were precluded. The only issue was identification; the jury was given the help it required to discharge its duty. This ground of appeal is rejected.
Issue 3: Sentence
[17] The Crown requested a total sentence of 10-12 years, while the defence requested a total sentence of 5-6 years. The appellant was 22 years old at the time of the shooting and had a criminal record for a single incident that involved assault and uttering threats. For that conviction he received a conditional discharge and probation.
[18] The trial judge identified a number of aggravating factors, noting the importance of deterring firearms offences and that “any sentence must reflect society’s abhorrence of these acts and concerns for the public safety.” As mitigating factors, he cited the appellant’s youth, the support of his family and an interest in continuing his education.
[19] The trial judge held that denunciation and deterrence are of primary importance, though regard must be given to the rehabilitation interest of the appellant and the principle of totality. He imposed an 8 year total sentence with credit of 34 months for 17 months of pre-sentence custody, leaving a net sentence of 5 years and 2 months imprisonment.
[20] The appellant’s argument here is that the trial judge’s sentence was the product of over reliance on denunciation and general deterrence in the case of a youthful offender and it constituted an error in principle. The appellant also submits that as this is the appellant’s first sentence of imprisonment the sentence is manifestly unfit because it is too long. Again, we disagree.
[21] The trial judge expressly identified the appellant’s youth as a mitigating factor and noted that, “notwithstanding the aggravating circumstances of the case, regard must be given to the rehabilitation interest of Mr. Hassan and the principle of totality.” The sentence imposed is within the range in similar cases.
[22] Although this is a lengthy first sentence of imprisonment, the offences in this case were extremely serious. This was an unprovoked act of violence in a public place, committed against strangers, and the victim suffered traumatic effects, coming within an inch of death. The reasons for sentence are sound and the sentence is fit. Deference is owed to the trial judge’s decision. Accordingly, leave to appeal is granted but the appeal against sentence is dismissed.
“Karen M. Weiler J.A.”
“E.E. Gillese J.A.”
“H.S. LaForme J.A.”