Court of Appeal for Ontario

CITATION: R. v. Ahmed, 2013 ONCA 473

DATE: 20130719

DOCKET: C56551

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Ahmed

Applicant / Appellant

Jonathan Dawe, for the Appellant

Matthew Asma, for the Respondent

Heard and released orally: June 21, 2013

On appeal from the conviction entered on April 15, 2013 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] In our view this appeal must be allowed because of the inadequacy of the reasons. First, the trial judge failed to take into account Ms. Cato’s evidence. The trial judge gave no reasons for not considering this evidence from which an inference could be drawn that the appellant did not come out of the wrong door contrary to the evidence of the police. Second, the trial judge failed to consider the unlikelihood that the appellant would have been able to take off two winter coats and put one of the coats back on, all within seconds and while seated in the car.

[2] Third, the trial judge erred in failing to consider the statement of the driver showing knowledge of the presence of the gun. The trial judge erred in holding it was inadmissible hearsay. It was admissible for the non hearsay purpose of showing the driver’s state of mind. In fairness to the trial judge defence counsel at trial, not Mr. Dawe, did not expressly point out that the utterance had this non- hearsay purpose.

[3] Finally the trial judge erred in failing to consider the impact of the destruction of the TTC video, particularly given the efforts made by the defence to obtain the video at a time that they did not know it had been destroyed. Even absent a s.7 violation this was a factor to be considered. As was said in R. v. Bero, in some circumstances the absence of evidence can give rise to reasonable doubt. While in the course of submissions the trial judge referred to the use of the video respecting the clothing, he did not consider the impact of the destruction of the video on Ms. Cato’s evidence and what exit the appellant came out of.

[4] Accordingly, the appeal is allowed, the convictions are set aside and a new trial is ordered.

“M. Rosenberg J.A.”

“R.J. Sharpe J.A.”

“E.E. Gillese J.A.”