WARNING
The President of the panel has directed that no information is to be published regarding this appeal that would identify the young persons in these proceedings. This non-publication order relates to a prohibition on the publication of the names of or any other information that would identify E.A. and Z.A. in this proceeding and the contents of Exhibit 10 filed at trial.
This is ordered in accordance with
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Abbasi, 2016 ONCA 219
DATE: 20160318
DOCKET: C60162
Doherty, Simmons and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Naqash Abbasi
Appellant
Peter Copeland, for the appellant
Jessica Smith Joy, for the respondent
Heard: March 14, 2016
On appeal from the conviction entered by Justice J. Stribopoulos of the Ontario Court of Justice, dated December 16, 2014, and the sentence imposed on March 12, 2015.
ENDORSEMENT
[1] On February 9, 2012, in the dead of night, someone fired several shots from a high powered rifle into the home of E.D. No one was hit.
[2] E.D. was scheduled to give evidence against Z.A. in an upcoming criminal proceeding. Z.A. was a friend of the appellant and his brother.
[3] The shots came from a rifle purchased a few days before the incident by the appellant. He kept the rifle in a gun safe in his bedroom.
[4] The appellant was charged with several firearms-related offences arising out of the shooting. The Crown alleged that the appellant, in an effort to assist his friend, Z.A., had fired the shots into E.D.’s home hoping to dissuade her from giving evidence against his friend.
[5] The appellant testified and denied that he committed the offences. He identified his brother as a person who had access to the guns kept in the appellant’s safe in his bedroom. The brother did not testify.
[6] The trial judge convicted the appellant on most of the charges and sentenced him to a total of eight years imprisonment, less credit of one year for presentence custody and strict bail conditions.
[7] The appellant appeals conviction and sentence.
The Conviction Appeal
[8] The appellant alleges several errors by the trial judge in his analysis of the evidence, his credibility findings, and his factual conclusions. The appellant’s submissions essentially reargue the issues litigated at trial and suggest alternative conclusions to those arrived at by the trial judge. The appellant’s arguments do not, however, demonstrate that the trial judge made any reversible error in his treatment of those submissions.
[9] The appellant argues that the trial judge made several errors in relying on the evidence of the appellant’s statement to the police that it was not possible that his brother took his gun. This statement was significant to the Crown’s case as at trial it was central to the defence position that the brother did have access to the gun and was the person who had fired the gun into E.D.’s home.
[10] The trial judge addressed the evidence surrounding the appellant’s statement to the police and the arguments made by counsel (see reasons for judgment at paras. 72-73). He ultimately accepted the statement at face value as a denial by the appellant that his brother could have used the gun.
[11] It was open to the trial judge to take that view of the evidence and use the statement in assessing both the appellant’s credibility and the force of the circumstantial evidence relied on by the Crown. Arguments that may have persuaded some other judge to look at the evidence differently do not justify appellate intervention.
[12] The appellant also challenges the trial judge’s finding that on the evidence he accepted the appellant had exclusive access to the firearm used to commit the offences. As we read the trial judge’s reasons (paras. 82-83), he considered a combination of the evidence of the appellant’s mother to the effect that neither she nor her husband had access to the gun in the safe and the evidence of the appellant’s statement to the police that his brother had not used the gun to conclude that the appellant was the only person in the household with access to the gun.
[13] In our view, that finding was open to the trial judge. Arguably, he did refer to evidence that falls under the rubric of implied hearsay in addressing the evidence of exclusive access (see para. 82). However, he did not rely on that implied hearsay in coming to his conclusion that the appellant had exclusive access to the gun.
[14] The appellant did not make oral submissions in relation to the remaining grounds of appeal. We have considered the written arguments and, in our view, none of those grounds can succeed.
[15] The conviction appeal is dismissed.
The Sentence Appeal
[16] The appellant was sentenced to a total of eight years’ imprisonment, less credit of one year for presentence custody and strict bail conditions. He submits that the trial judge erred in imposing consecutive sentences on count 3 (mischief by wilfully damaging a dwelling house by discharging a firearm into the dwelling house and endangering life) and count 1 (intimidating a justice system participant in order to impede her in the performance of her duties). The appellant submits the same conduct gave rise to both charges and provided the factual basis for both convictions. He submits that the sentences should have been concurrent.
[17] The trial judge concluded that the two offences reflected distinct wrongs that justified the imposition of consecutive sentences. He imposed a sentence of four years on count 3 and a sentence of three years consecutive on count 1. In doing so, he specifically referred to the totality principle and its significance given the appellant’s youth and minimal criminal record.
[18] The trial judge had the discretion to impose consecutive sentences on the two charges. We would not interfere with the exercise of that discretion. More importantly, as the trial judge observed, whether consecutive or concurrent sentences were to be imposed, the totality of the sentences imposed was what ultimately mattered.
[19] The offences committed by the appellant were very serious. They involved the use of a very dangerous lethal weapon for a purpose that struck at the very heart of the due administration of justice. As observed by the trial judge:
This was a planned and deliberate attack on the home of a witness in a criminal case using a high powered semi-automatic restricted firearm. Although no one was injured or killed in this attack, that was a matter of sheer luck. Had a member of the … family been asleep on the sofa in the living room or getting a drink from the kitchen when the shooting took place they could very likely have been killed.
[20] Later in his reasons for sentence, the trial judge observed:
The seriousness of the crimes involved in this case is hard to overstate. The accused committed a planned assault on the home of a witness in a criminal case in the middle of the night using a high powered rifle. These were deliberate and calculated crimes designed to intimidate a witness. This was not simply an assault on a home in the tranquility of a residential community, it was an assault on the administration of justice. …
[21] We adopt the language of the trial judge. No doubt the sentence imposed on the charge of intimidating a justice system participant (three years) would have been much higher, but for concerns over the totality of the sentences imposed in light of the appellant’s age and the absence of any prior significant criminal involvement.
[22] The total sentence imposed is not unreasonable. We would not interfere with the quantum of the sentence.
[23] One aspect of the sentencing does require correction. Although the trial judge waived the victim fine surcharges, an order imposing the surcharges was signed by the clerk of the court. The Crown agrees that this order must be quashed.
[24] The sentence appeal is dismissed save that the order imposing victim fine surcharges is quashed.
“Doherty J.A.”
“Janet Simmons J.A.”
“K.M. van Rensburg J.A.”