Court of Appeal for Ontario

Citation: R. v. Conteh, 2016 ONCA 808

Date: 2016-10-31

Docket: C55348

Judges: Laskin, Sharpe and Huscroft JJ.A.

Between:

Her Majesty the Queen Respondent

and

Ishmail Conteh Appellant

Counsel: Mark Halfyard and Breanna Vandebeek, for the appellant Gillian Roberts, for the respondent

Heard and released orally: October 27, 2016

On appeal from the finding of guilt entered on December 3, 2009 and the disposition imposed on June 16, 2010 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals both his conviction and his sentence. On his conviction appeal the appellant submits that the trial judge erred in his charge in two respects:

(1) He made comments that unfairly denigrated the defence; and

(2) He did not properly caution the jury on inferences they could draw about the appellant’s age and, in addition, he did not expressly refer to the probation officer’s evidence.

[2] We did not call on the Crown on these two submissions. Read as a whole, we are satisfied the trial judge’s charge was fair. He did point out matters the jury could consider in assessing the evidence of the ten year old girl who was the defence’s main witness, but he did not inappropriately express his opinion on her evidence. In his charge on age we are satisfied the trial judge adequately equipped the jury to consider whether the appellant’s age had any bearing on his likelihood of having participated in the murder of the victim.

[3] We therefore dismiss the conviction appeal.

[4] On the sentence appeal the appellant submits that the trial judge’s ruling on age was unreasonable. We do not agree with this submission. The trial judge gave thorough reasons for finding that the appellant was at least 16 and a half years old. We agree with the Crown that the trial judge correctly approached the issue of assessing the appellant’s evidence. He did not examine that evidence piece meal but looked at it cumulatively or holistically over a period of time. The evidence he had to consider was in part documentary, in part direct, and in part circumstantial. All the considerations the trial judge discussed were relevant.

[5] In particular the trial judge was statutorily entitled to consider the appellant’s appearance. As this was not an identification case, no concerns arose about any cross-racial identification. Moreover, contrary to the appellant’s contention, we do not think that the trial judge gave his assessment of the appellant’s appearance too much weight. The appellant’s appearance was one of the list of considerations that bore on the appellant’s age.

[6] Also the case law shows that a young person’s criminal record and the young person’s peer group are relevant considerations. Indeed the trial judge could have buttressed his reliance on the appellant’s criminal record by pointing out that in his numerous court appearances the appellant confirmed his birthdate as either August 28, 1989 or 1990.

[7] Taken as a whole, in our opinion the evidence from when the appellant came to Canada overwhelmingly shows that he was over 16. The trial judge’s ruling was not unreasonable.

[8] Accordingly, the sentence appeal is dismissed.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“Grant Huscroft J.A.”