COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hasan, 2013 ONCA 487

DATE: 20130719

DOCKET: C53698

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Moh’d Omar Hasan

Appellant

Counsel:

Howard L. Krongold, for the appellant

Robert W. Hubbard, for the respondent

Heard and released orally: June 19, 2013

On appeal from the conviction entered on February 4, 2011 and the sentence imposed on April 26, 2011 by Justice Celynne Dorval of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] As to conviction we have not been persuaded that the trial judge erred. This was a confusing encounter involving many persons.

[2] The trial judge did an admirable job in sorting through the evidence. She was well aware of the dangers of eye-witness identification. Her reasons are fully supported by the evidence; accordingly the conviction appeal is dismissed.

[3] As to sentence, in our view, the trial judge erred in principle in finding that the appellant was a danger to the community. This is not supported by the evidence. Whatever the case right after the offence, four years later when the appellant came to be sentenced the record shows that the appellant was rehabilitated. He had found a new community of friends. The fact that he pleaded not guilty and maintained his innocence was not and does not show that he was dangerous. His comment of being in the wrong place at the wrong time was no more than an expression of his defence that while he was at the location, he was not the one who assaulted the victims.

[4] Given the error in principle it falls to this court to impose sentence. The exceptional circumstance in this case is the over six years that the appellant has been on bail awaiting trial and then appeal without incident. This is a significant factor for a relatively young man. Taking into account the amount of time the appellant has now served of the original sentence, no interest would be served by returning the appellant to custody at this time. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence reduced to time served plus 18 months probation on the terms imposed by the trial judge.

“M. Rosenberg J.A.”

“R.J. Sharpe J.A.”

“E.E. Gillese J.A.”