COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdi, 2014 ONCA 520

DATE: 20140703

DOCKET: C54404

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shakir Abdi

Appellant

Ian R. Smith and Lynda E. Morgan, for the appellant

Jennifer Woollcombe, for the respondent

Heard and released orally: June 27, 2014

On appeal from the conviction entered on May 26, 2011 and the sentence imposed on June 30, 2011 by Justice Alfred J. O’Marra of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant submits that the trial judge erred in his acceptance of the identification evidence by the four tellers in the four bank robberies and in his acceptance of the evidence of Officer Taylor who identified the appellant from prior dealings with him. In particular, the appellant submits that the tellers’ descriptions of the robber’s features were general in nature and that they had significant discrepancies on the issues of height, age and presence of facial hair. He also submits that the photo line-ups conducted were flawed in that the witnesses were allowed to view and compare the photos in those line-ups, contrary to the suggestion from the Sophonow Inquiry Report that this comparison procedure should be avoided. The witnesses should only be deciding if any of the included photographs represents the perpetrator of the offence.

[2] In our view, the trial judge, in his careful and thorough reasons, was alive to the dangers and frailties of eye witness evidence and photo-line-up identification. He quoted at length from the case of R. v. Hanemaayer, [2008] O.J. No. 308, a decision of Rosenberg J.A. where he discusses and outlines the criteria required for photo I.D. evidence to be properly accepted and assessed. The trial judge applied the test explicitly to each of the witnesses and concluded that he was satisfied of the identification beyond a reasonable doubt.

[3] The trial judge also considered fully in his pre-trial ruling whether Officer Taylor’s evidence met the test for a recognition witness and concluded that it did. When he referred to that evidence in his reasons for judgment, he noted that the appellant’s height as well as the shape of his face, chin, eyes, ears and body shape were visible from the robbery photographs that the officer saw when he recognized the appellant. We see no error in the basis for his decision to accept that evidence.

[4] We further note that the trial judge stated early in his reasons, at page 4:

The Crown and defense agree, based on the surveillance photographs and description of the manner in which each robbery was committed, that all four robberies were committed by the same person. Further, the evidence of the youth supports that conclusion. The question is whether the Crown has proven beyond a reasonable doubt that the perpetrator was Shakir Abdi.

The trial judge was entitled to use this concession as part of his assessment of the identification evidence.

[5] The appeal against conviction is therefore dismissed.

[6] The appellant also seeks leave to appeal his sentence of 7.5 years asking that it be reduced to 6 years on the basis that the trial judge failed to consider the principle of totality when imposing mandatory consecutive sentences for the firearms offences, and that he imposed a sentence that was crushing. He also argues that the sentence failed to take into account sufficiently the prospects for rehabilitation.

[7] In our view, the trial judge did not make the errors alleged. The sentence was within the appropriate range. The appellant’s prospects for rehabilitation were recognized by the trial judge as limited at the time. Hopefully, those prospects are now greater. We accept the submission of the Crown that given his release date is in October of this year, this issue is best left to the parole board at this time.

[8] In the result, leave to appeal sentence is granted but the appeal is dismissed.

“G.R. Strathy C.J.O.”

“K. Feldman J.A.”

“David Watt J.A.”