Court of Appeal for Ontario

CITATION: R. v. Johnson, 2016 ONCA 31

DATE: 20160113

DOCKET: C54696

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lloyd Ceymour Johnson

Appellant

Counsel:

Heather Pringle, for the appellant

Lorna Bolton, for the respondent

Heard: January 11, 2016

On appeal from the conviction entered on January 27, 2011 and the sentence imposed on March 8, 2011 by Justice Dougald McDermid of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction by McDermid J. of the Superior Court of Justice for attempted murder, attempted robbery x2, wear disguise while committing an indictable offence, careless use of a firearm x2, point firearm, and possession of a firearm x2. He also appeals his sentence of 14 years’ incarceration.

[2] The victim, Salheldin Ali, let his ex-girlfriend, Nadia Ayyad, into his apartment to pick up her remaining belongings. Shortly after, there was a knock on the door. Mr. Ali opened the door to find Ms. Ayyad and two masked men standing in the doorway, one with a gun and the other with a knife. One of the men shot Mr. Ali in the chest. Ms. Ayyad and the two men then ran to a car that they had parked nearby.

[3] A week and a half later, the appellant was reported for driving erratically and was pulled over by the police. On a search incident to arrest, a police officer located the gun that had been used in the shooting. The trial judge found that the police breached the appellant’s ss. 8 and 10(b) Charter rights but admitted the gun as evidence under s. 24(2) of the Charter. The appellant was convicted of nine offences, including attempted murder.

Conviction appeal

[4] The appellant contends that the trial judge erred with respect to his treatment of the Vetrovec witness, Nadia Ayyad. According to the appellant, the trial judge did not look for independent evidence that corroborated Ms. Ayyad’s testimony as he was required to do before accepting it as true.

[5] We do not accept this submission. This was a judge alone trial. The trial judge would be well aware of the law relating to a Vetrovec witness, and especially to the dangers associated with relying on their testimony. Accordingly, as this court expressed it in R. v. Snyder, 2011 ONCA 445, at para. 24:

There is no need to import the requirement of a “Vetrovec” caution designed to alert juries to the danger of relying on the evidence of certain witnesses into a trial judge’s reasons for judgment. Judges know the risks inherent in relying on witnesses like Burgess and Doucette. It would be pure formalism to require judges to articulate those dangers in their reasons.

[6] The trial judge was aware of, and expressly referred to, some of the dangers of accepting Ms. Ayyad’s testimony on the crucial issue of who shot Mr. Ali. He explained why he nevertheless accepted that she was being truthful in identifying the appellant as the shooter.

[7] In any event, there was evidence confirming that the appellant was the shooter including, importantly, the fact that the gun used in the shooting was found in the rental car being driven by the appellant when he was arrested.

[8] The appellant further submits that the trial judge, having found that the police violated his ss.8 and 10(b) Charter rights, erred by admitting the evidence relating to the gun under s. 24(2) of the Charter.

[9] We disagree. Although we would not want to be taken as agreeing with the trial judge’s finding that there was a s. 8 Charter violation in light of this court’s decisions in the similar cases of R. v. Morris, 2013 ONCA 223 and R. v. Huang, 2013 ONCA 430, we can see no error in the trial judge’s s. 24(2) analysis. He applied the three branches of the Grant test and reached a reasonable conclusion.

[10] The appellant also tenders fresh evidence – hearsay evidence from a long-time friend of the appellant – designed to establish that the other man involved in the attack on Mr. Ali, Curtis Elliott, was the shooter. In our view, this is far removed from being fresh evidence – Mr. Elliott was available as a witness at the appellant’s trial; the defence, presumably for tactical reasons, chose not to call him.

Sentence appeal

[11] The appellant asserts that the 14-year sentence failed to take into account the principle of restraint, especially in light of the fact that he had no previous criminal record before these offences.

[12] We do not accept this submission. The shooting of Mr. Ali was a cold-blooded assault on a man the appellant had never met and, apparently, for no discernible reason. Mr. Ali almost died, was in a coma for many days, and suffered long-term serious injuries. Even the defence proposed a sentencing range of 10-12 years.

Disposition

[13] The conviction and sentence appeals are dismissed.

“J.C. MacPherson J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”