Court of Appeal for Ontario

Date: 2018-06-21 Docket: C63837

Judges: Hourigan, Pardu and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Ismail Said Barkhadle Appellant

Counsel

Howard L. Krongold, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: June 20, 2018

On appeal from: the convictions entered on September 7, 2016 by Justice Marc R. Labrosse of the Superior Court of Justice sitting without a jury.

Reasons for Decision

[1] Mr. Barkhadle appeals his conviction on one count of unlawful possession of a loaded prohibited firearm.

[2] The background facts, briefly stated, are that the police, based on a complaint, raided a small apartment located on Baycrest Drive in the City of Ottawa. Eight officers entered the apartment in a "dynamic" fashion. They found nine males in the small apartment. The lead officer saw the appellant move towards the back of the apartment, hunched over and with his right hand near his waistband. The officer tackled the appellant. As the two fell to the floor, the officer saw the appellant's hands come out as if to break his fall. The officer saw a gun in the appellant's hands that came loose and clattered to the floor. The gun came to rest about a foot from the appellant's right hand.

[3] The appellant gave evidence. He said that he did not have a gun in his possession when he was tackled by the officer. He also said that he did not put his hands out when he was falling to the ground. The appellant also said that he did not see a gun on the floor as he was being arrested.

[4] The trial judge convicted the appellant. In doing so, the trial judge instructed himself that he had to apply the test in R. v. W.(D.), [1991] 1 S.C.R. 742, which he set out in his reasons. The trial judge did not accept the appellant's evidence. He gave reasons for his rejection of that evidence. He also found that the appellant's evidence did not raise a reasonable doubt.

[5] The trial judge went on to find that he did believe the evidence of the officer. He found that the officer was consistent in his evidence as to the events and that he gave a detailed description as to how those events unfolded. The trial judge also noted that the officer's evidence was confirmed in some respects by the evidence of several of the other officers involved.

[6] The appellant complains that the trial judge failed to subject the officer's evidence to adequate scrutiny. In particular, the appellant asserts that the trial judge failed to consider the difference between certainty and reliability, failed to consider the role of stress in the recollection, failed to consider the inherent problems with split-second observations, and finally the further concern about the possibility of reconstruction.

[7] We do not agree with the appellant's submissions. We do not accept that the trial judge failed to properly scrutinize the officer's evidence. To the contrary, the trial judge engaged in an entirely appropriate review of that evidence including all of the relevant factors regarding its reliability.

[8] It is the role of trial judges, when acting as the trier of fact, to reach conclusions as to the evidence that they accept and the evidence that they do not accept. Their conclusions on those issues are entitled to deference from appellate courts. The appellant has failed to establish that there was any palpable and overriding error in the conclusion that the trial judge reached in this case.

Conclusion

[9] The appeal is dismissed.

"C.W. Hourigan J.A."

"G. Pardu J.A."

"I.V.B. Nordheimer J.A."