Court of Appeal for Ontario

Date: 2018-11-16 Docket: C62671

Judges: Doherty, Rouleau and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Abdi Rashid Mohamed Appellant

Counsel

Samantha Robinson, for the appellant Erica Whitford, for the respondent

Heard and released orally: November 16, 2018

On appeal from: the convictions entered by Justice Robert Wadden of the Ontario Court of Justice on January 6, 2016.

Reasons for Decision

[1] The appellant appeals from his convictions for various firearm offences. The charges followed from a series of events on the morning of January 31, 2015.

[2] Witnesses saw a man discharge a firearm several times in the middle of a residential street. The shooter was among a group of several black men, two of whom, including the shooter, fled to a nearby apartment building.

[3] Witnesses described the shooter as large and heavyset, and the other man fleeing with him was described as being much smaller. The two men were let into the apartment building by the appellant's girlfriend, Ms. Labranche. The building's video surveillance camera captured their entry and its footage confirmed the descriptions of the two men given by various witnesses at trial.

[4] Within about an hour of the incident, Ms. Labranche, the appellant and a third person, Mr. Bache, were arrested inside Ms. Labranche's apartment. The appellant can be properly described as a large, heavyset man and Mr. Bache as being considerably smaller.

[5] Police searched the apartment and found the gun that had been discharged earlier that morning.

[6] The primary issue at trial was identity. The Crown's theory was that the appellant had discharged the weapon and then fled, being let into his girlfriend's apartment building with his friend Mr. Bache. The defence theory was that the appellant was asleep inside his girlfriend's apartment at the time of the incident and the two men seen fleeing and entering the building were Mr. Bache and an unknown large black man who had, prior to the arrest, left the apartment. The appellant did not testify at trial or present any evidence on his own behalf.

[7] The trial judge rejected the defence theory as implausible and unsupported by the evidence. He accepted the identification evidence placing the appellant as the shooter and found him guilty.

[8] On appeal the appellant argues that there were very serious problems with the evidence of Mr. Warren, a key identification witness. He submits that the evidence ought to have been rejected and, absent that evidence, the convictions cannot stand. The problems raised by the appellant include the fact that Mr. Warren admitted to having difficulty with cross-racial identification, Mr. Warren's description of the shooter being largely limited to his size and build, and Mr. Warren originally selecting the wrong photo during the photo line-up before correctly identifying the appellant. In addition, there was good reason to be concerned with Mr. Warren's identification given that he admitted to having been drinking and consuming drugs the evening before and he had been beaten up and was lying wounded in a snowbank at the time of the incident.

[9] In the appellant's submission, the trial judge simply paid lip service to these concerns and then improperly relied on Mr. Warren having earlier met the appellant, his demeanour and the confidence with which he identified the appellant as constituting the basis for accepting his testimony.

[10] We see no error in how the trial judge treated Mr. Warren's evidence. The trial judge's reasons reveal a careful treatment of that evidence and demonstrate that he was clearly alive to the concerns raised by the appellant. Further, the trial judge did not place undue weight on Mr. Warren's demeanour and confidence in the identification of the appellant as the shooter. They were only factors considered by the trial judge. Two additional witnesses provided an account of the events and there was other evidence corroborating Mr. Warren's identification. This included video surveillance showing two persons of a similar size and build to the appellant and Mr. Bache being let into the apartment by Ms. Labranche. As noted by the trial judge, who viewed the video, the person depicted in the video bore "a striking similarity to the appellant." There was also circumstantial evidence viewed by the trial judge as "compelling". It included the fact that the appellant and the firearm were found in Ms. Labranche's apartment about an hour or so after the incident.

[11] The weight to be given to Mr. Warren's evidence was for the trial judge to decide and we see no error in the trial judge's treatment of and reliance on that evidence.

[12] As a result, the appeal is dismissed.

"Doherty J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."