COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdullahi, 2015 ONCA 549

DATE: 20150727

DOCKET: C57432

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Abdullahi

Appellant

Carlos Rippell, for the appellant

Roger Shallow, for the respondent

Heard: July 21, 2015

On appeal from the conviction entered by Justice Michael G. Quigley of the Superior Court of Justice on July 13, 2012 and the sentence imposed on October 1, 2012.

By the Court:

THE conviction apppeal

[1] This was a one-issue case, did the Crown prove beyond a reasonable doubt that the appellant was in possession of the handgun as alleged by the police witnesses? The appellant testified and denied that he was in possession of the gun.

[2] Counsel for the appellant alleged several misapprehensions of the evidence by the trial judge. He submits that these misapprehensions played a central role in the trial judge’s rejection of the appellant’s evidence as untrue and incapable of leaving the trial judge with a reasonable doubt. The appeal focused on the trial judge’s reasons for rejecting the appellant’s evidence, as articulated at para. 55 of his reasons.

[3] The trial judge set out six reasons for rejecting the appellant’s evidence. One of those reasons reveals a misapprehension of the evidence. The trial judge found the appellant incredible in part because, on the trial judge’s understanding, the appellant had denied ever seeing cocaine in the apartment, even after he was arrested. Contrary to the trial judge’s understanding, the appellant had denied seeing cocaine in the apartment before the police arrived, but acknowledged seeing the cocaine after he was arrested and seated in the living room.

[4] In addition to that one factual error, the trial judge mischaracterized, to some degree, the appellant’s evidence on cross-examination when asked about the floor in the bedroom. The trial judge described the appellant as reluctant to admit that the bedroom floor was tiled. The tiling on the floor was of some significance because the officer had testified that he heard the gun hit the floor when it was dropped by the appellant. Our review of the relevant part of the cross-examination suggests a disagreement between the Crown and the appellant that was more semantical than substantial. The appellant readily admitted that the floor was made of a hard substance. It was that feature of the flooring that was important to the credibility of the officer’s evidence.

[5] We do not accept counsel’s submissions that any of the other four reasons advanced by the trial judge for rejecting the appellant’s evidence are also tainted by factual error. Those reasons are firmly rooted in the record.

[6] In deciding whether a misapprehension of the evidence requires that a conviction be quashed, the court must test the misapprehension against a stringent standard. Misapprehensions of the evidence merit reversal if they are material in that they play an essential role in the reasoning process that led to the conviction. In determining the materiality of a misapprehension, the court will have regard to the entirety of the reasons and the evidence as a whole: R. v. Lohrer, 2004 SCC 80.

[7] In this case, two factors compel the conclusion that the trial judge’s misapprehension of the evidence and arguable mischaracterization of a part of the appellant’s cross-examination do not constitute a material misapprehension requiring reversal. First, the verdict was not based only on the rejection of the appellant’s evidence, but also on the finding that the Crown’s evidence established the case beyond a reasonable doubt. This was a strong case for the Crown. One of the three officers who testified (Officer Hoeller) confirmed crucial evidence given by Officer Wallace who gave direct evidence of the appellant’s possession of the handgun. Officer Hoeller’s credibility was not challenged at trial.

[8] Second, the other reasons given by the trial judge for rejecting the appellant’s evidence are cogent and go more directly to the appellant’s credibility on the central factual issue at trial. For example, the trial judge’s analysis of the appellant’s evidence about his activities in the bedroom before the arrival of the police and his reaction to the arrival of the police was rejected as entirely incredible. The trial judge’s analysis of that part of the appellant’s evidence is without error and goes much more directly to his credibility on the question of his possession of the gun than does his evidence about whether he ever saw cocaine in the apartment.

[9] Taking the trial judge’s reasons for rejecting the appellant’s evidence as a whole, we are satisfied that his assessment of the appellant’s credibility would not have been any different had he not made the errors identified above. The appellant has not met the onus of demonstrating that the misapprehension of appellant’s evidence about seeing cocaine in the apartment, even combined with the relatively benign mischaracterization of a portion of the appellant’s cross-examination, played an essential role in the reasoning process that led to the appellant’s conviction: see R. v. M.M.C., 2014 ONCA 307.

[10] In addition to the alleged specific misapprehensions of evidence, counsel for the appellant also referred to passages from the reasons for judgment, which he argued showed that the trial judge did not properly apply the burden of proof despite the trial judge’s specific references to the appropriate authorities. Some of the passages identified by counsel are concerning. However, placing those passages in the context of the entire reasons, we are not satisfied that they reveal legal error. Considered as a whole, the reasons reflect a proper application of the criminal burden of proof and are distinguishable on that basis from the reasons given by the same trial judge in an earlier case in which he used some of the same unfortunate language: see R. v. A.P., 2013 ONCA 344.

the sentence appeal

[11] The appellant also appeals sentence. The trial judge imposed the following sentences:

• Count 1: Possession of a loaded restricted firearm (s. 95(1)): 4 years;

• Count 3: Possession of a firearm knowing its possession is unauthorized (s. 92(1)): 1 year consecutive to the s. 95(1) charge; and

• Counts 4 and 5: Possession of a firearm and possession of ammunition while prohibited: 1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

[12] The trial judge imposed a total sentence of six years. The appellant had spent 520 days in presentence custody. The trial judge gave 1.5:1 credit for 72 of those days on the basis that the appellant was held in very crowded conditions during that time period. He gave the appellant 1:1 credit for the remaining presentence custody. In the result, the appellant received 18 ½ months’ credit for presentence custody, resulting in an effective sentence of four years, five and one-half months.

(i) Should the sentence on count 3 be concurrent?

[13] The appellant submits that the trial judge erred in principle in imposing a one-year consecutive sentence on count 3, the charge under s. 92(1). He submits that the possession underlying count 3 was indistinguishable from the possession underlying count 1 (the s. 95(1) charge) and that while the added mens rea requirement justified a separate conviction, it did not justify a consecutive sentence.

[14] The Crown concedes that the one-year sentence on the s. 92(1) charge should have been concurrent to the sentence imposed on the s. 95(1) charge. Crown counsel submits, however, that we should increase the sentence on the s. 95(1) to five years so as to maintain the total sentence imposed by the trial judge.

[15] We see no reason to interfere with the sentence imposed by the trial judge on the s. 95(1) charge. While the trial judge did have an eye toward the totality of the sentences imposed, he imposed the additional one-year sentence on the s. 92(1) charge because of what he perceived to be the added mens rea component. That distinction does not warrant a consecutive sentence. Nor can it justify increasing the otherwise appropriate sentence imposed on the s. 95(1) charge.

(ii) The credit for presentence custody

[16] The trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Summers, 2014 SCC 26 when considering the credit the appellant should receive for his presentence custody. It is appropriate that this court reconsider the trial judge’s assessment in the light of Summers. As explained in Summers, s. 719(3.1) caps credit for presentence incarceration at 1.5:1. In determining the appropriate credit:

Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during presentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. [para. 70].

[17] The trial judge applied the “qualitative rationale” in giving the appellant 1.5:1 credit for the 72 days he was required to share a cell with two other persons. We accept that part of his analysis. The trial judge did not separately address the “quantitative rationale”.

[18] As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1. The credit is not, however, automatic. If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit: Summers, at paras. 71, 79; R. v. Nelson, 2014 ONCA 853, 2014 OJ. No. 5729, at para. 51-53.

[19] To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges. His conduct could hardly be worse. Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody. There is no realistic possibility that the appellant will be given any form of early release or parole. Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit.

[20] The approach to presentence custody dictated by Summers leads to the same conclusion as was reached by the trial judge. We would not interfere with the trial judge’s determination as to the appropriate credit for presentence custody.

(iii) The proper sentence

In summary, leave to appeal sentence is granted and the sentence is varied by making the one-year sentence imposed on the s. 92(1) charge (count 3) concurrent to the four-year sentence imposed on the s. 95(1) charge (count 1). The one-year sentences on the possession of firearm and ammunition while prohibited (counts 4 and 5) are unchanged. Those sentences are consecutive to the four-year sentence imposed on count 1, but concurrent to each other. In the result, the total sentence is reduced from six years to five years or 60 months. The 18 and one-half months credited for pretrial custody must be deducted from the 60 months, yielding an effective sentence of 41 and one-half months.

RELEASED: “DD” “JUL 27 2015”

“Doherty J.A.”

“E.E. Gillese J.A.”

“David Brown J.A.”