COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ibrahim, 2014 ONCA 477

DATE: 20140619

DOCKET: C56383

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdikarim Ibrahim

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Stacey P. Young, for the respondent

Heard: June 11, 2014

On appeal from convictions entered by Justice Michael G. Quigley of the Superior Court of Justice, dated July 25, 2011 and the sentence imposed on October 31, 2011.

ENDORSEMENT

The Conviction Appeal

[1] Counsel raises two grounds of appeal.

I

was the appellant arbitrarily detained and should the subsequent identification evidence have been excluded under section 24(2)?

[2] We agree with the trial judge that the police officer had reasonable and probable grounds to arrest the appellant who, after being detained, refused to remove his hands from his pockets. There was a genuine police safety issue. Moreover, objectively viewed, reasonable and probable grounds to arrest the appellant existed well before then. On the evidence, there was ample reason for the police officer to conclude that the appellant was the suspect reported to be fleeing from other officers. When the officers first observed the appellant crossing the street, they could have arrested him as soon as they noticed that he was out of breath and appeared to have been running very fast.

[3] On the trial judge’s analysis, there was a proper investigative detention followed virtually immediately by an arrest based on the appellant’s refusal to remove his hands from his pockets. This parsing of the facts reflects the officer’s testimony about when he formed the subjective belief that he had reasonable and probable grounds to arrest. The trial judge’s analysis is true to that evidence and, in our view, does not demonstrate any error in law.

[4] However, even if the trial judge did err in finding no breach of s. 9, the evidence could not be excluded under s. 24(2). The first and third factors, identified in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (SCC), strongly favour admission. The second factor, the impact of the breach on the accused’s Charter-protected interests, will often favour exclusion. It does in this case, but only minimally. We say that because, as noted above, on the evidence, had this officer turned his mind to the question of arrest, he had adequate, reasonable and probable grounds to arrest the appellant at the time he detained him and before the appellant refused to remove his hands from his pockets. Consequently, any arbitrary detention would have flowed from the officer’s failure to appreciate that he had grounds for arrest. Since the officer could have arrested the appellant when he chose only to detain him, any prejudice to the appellant’s liberty or security interest is minimal, indeed.

II

did the trial judge properly assess the identification evidence?

[5] The identification evidence came from police officers who observed the appellant at different times during a car and foot chase.

[6] We see no error in the trial judge’s assessment of the identification evidence. He identified the many factors relevant to the assessment of that evidence. It was open to him to consider, as one factor, that the observations were made by police officers engaged in activities that were part of the course of their duties. The trial judge did not suggest that police identification evidence belonged in a special category or that police identification evidence was automatically entitled to enhanced weight. He simply referred to the life experiences of the identification witnesses, who were police officers, as one factor to be considered in assessing the reliability of their observations.

[7] We also agree with the trial judge that the factual circumstances surrounding the identification, especially the appellant’s capture so near the scene of the flight, provided some circumstantial confirmation of the identification evidence.

[8] The conviction appeal is dismissed.

The Sentence Appeal

[9] We agree with the trial judge that sentences totalling eight years, three months were appropriate in the circumstances. We do not, however, agree with the credit given by the trial judge for pre-trial custody.

[10] These offences preceded the amendments to the Criminal Code that limit credit for pre-trial custody to a maximum of 1.5 days for every day in pre-trial custody. At the sentencing proceedings, the trial judge canvassed with counsel the applicability of the amendments. It was agreed that they would not apply. Counsel for the appellant then proposed to make submissions in support of 2:1 credit. Unfortunately, he was not given the opportunity to make those submissions. The trial judge allowed 1.5:1 credit.

[11] We have considered the submissions made in this court in support of 2:1 credit. We have come to the conclusion that the appellant is entitled to that credit. We do so for the following reasons:

• Prior to the amendments limiting credit to 1.5:1, this court described 2:1 credit as “the general practice” in the Toronto area: see R. v. Francis (2006), 2006 10203 (ON CA), 79 O.R. (3d) 551;

• There is no evidence that the appellant had attempted to “game the system” in order to take advantage of enhanced credit for pre-trial custody;

• There is some evidence that the appellant does take advantage of programs available within the institution, thereby making pre-trial custody where those programs may not be available more onerous.

[12] Consequently, we allow the sentence appeal to the extent of increasing credit for pre-trial custody to four years, six months (two years, three months x 2), resulting in a net sentence of three years, nine months. That sentence, of course, runs from the date the sentence was imposed by the trial judge.

“Doherty J.A.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”