Court of Appeal for Ontario

Citation: R. v. Assimi, 2015 ONCA 327 Date: 2015-05-08 Docket: C58714

Before: Feldman, Pardu and Brown JJ.A.

Between:

Her Majesty the Queen Respondent

and

Mohamed Assimi Appellant

Counsel: Joseph Di Luca, for the appellant Kevin Rawluk, for the respondent

Heard and released orally: April 30, 2015

On appeal from the conviction entered on December 21, 2012 by Justice Susan Himel of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his convictions for 3 firearm offences and possession of crack cocaine for the purpose of trafficking, in relation to a loaded firearm and quantity of crack cocaine found in the centre console of a car he was driving, but which did not belong to him.

[2] There are two grounds of appeal; the first is unreasonable verdict. The appellant says that because the evidence is circumstantial there had to be no other reasonable conclusion but guilt available. He argues that the person who rented the car, Mr. Chow, was the obvious other possible possessor of the gun and drugs.

[3] In our view, the verdict was reasonable. The trial judge specifically accepted the evidence of Mr. Chow that the gun and drugs were not his. Although his conduct could certainly be viewed as suspicious, the trial judge’s conclusion that she accepted his explanation for his conduct and his denial of possession are findings of credibility that were based on the evidence and are entitled to deference.

[4] In oral argument Crown counsel outlined the circumstances of this offence that make the trial judge’s conclusion that the appellant’s guilt was the only reasonable inference, not only reasonable, but compelling. In our view, the verdict was a reasonable one.

[5] The second ground of appeal is based on the trial judge’s use of the fact that the appellant lied to the police about his identity. The trial judge concluded that the reasons he lied were four-fold: he did not have a driver’s licence, he knew he was in breach of a probation order, he knew he was driving a car taken without consent, and he knew he had a gun and drugs in the car. The appellant argues that this is “after the fact” conduct and on the principle in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, the trial judge could not rely on the lie as equally related to the possession inference as to the other inferences.

[6] A similar issue was recently dealt with by this court in R. v. Tomlin, 2014 ONCA 357, where the court held that a false declaration made at the time of importing was not “after the fact” conduct. In any event, in this case, the trial judge relied on sufficient other circumstances to infer possession. Her reference to the lie demonstrates consistency with that conclusion. We see no error in her treatment of that evidence.

[7] The appeal is therefore dismissed.

“K. Feldman J.A.”

“G. Pardu J.A.”

"David Brown J.A."