Court of Appeal for Ontario

Date: 2019-04-11 Docket: C63068

Judges: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Hanes Schal Abdelnasir Appellant

Counsel

Pierre-Luc Fréchette, for the appellant

Kathleen Farrell, for the respondent

Heard and Released

Heard and released orally: March 29, 2019

On appeal from: the conviction entered by Justice D. Rutherford of the Superior Court of Justice on March 23, 2016.

Reasons for Decision

[1] Sean Leduc was robbed and beaten by two men. He identified the appellant as one of his assailants. He had some prior connection with the appellant. Identification was the only issue at trial. The appellant did not testify. The trial judge convicted on all counts. The appellant appeals only conviction.

[2] The case for the Crown rested on Mr. Leduc's identification of the appellant as one of the assailants and Mr. Leduc's evidence that at the preliminary inquiry he spoke with the appellant, who effectively expressed a willingness to replace or return Mr. Leduc's stolen property. The Crown argued that the appellant's statements to Mr. Leduc were "tantamount" to an admission by the appellant that he was involved in the robbery.

[3] The trial judge considered Mr. Leduc's identification evidence, including the various frailties associated with that evidence. The trial judge decided that in light of those frailties, the evidence was entitled to some weight. However, on its own, it could not justify a conviction. As he put it, a conviction on the identification evidence alone would be "questionable".

[4] The trial judge accepted Mr. Leduc's evidence concerning the gist of the conversation with the appellant at the preliminary inquiry. The trial judge concluded, based on the Mr. Leduc's evidence, that the appellant had offered to replace or return the property. The trial judge saw this comment by the appellant as inconsistent with any conclusion, other than that the appellant was involved in the robbery.

[5] The trial judge was satisfied that the identification evidence provided by Mr. Leduc, combined with the evidence of the appellant's statement to Mr. Leduc at the preliminary inquiry, proved the allegations beyond a reasonable doubt.

[6] There are two grounds of appeal.

Ground #1 – Did the trial judge err in giving any weight to the identification evidence?

[7] The trial judge's reasons demonstrate that he fully appreciated the identification evidence, including its various frailties. He acknowledged many of the factors that tended to undermine the reliability of the identification evidence, including the fact that Mr. Leduc had initially identified someone else at the photo lineup.

[8] The trial judge was required to consider the factors undermining the identification evidence. He did so. He was, however, entitled, as the trier of fact, to still give that evidence some weight. His finding that the identification evidence was entitled to some weight was open on this record. We defer to that assessment, absent legal error, a material misapprehension of underlying evidence, or an unreasonable finding. None of those have been made out here.

Ground #2 – Did the trial judge misapprehend or misuse the evidence relating to the conversation between Mr. Leduc and the appellant at the preliminary inquiry?

[9] The trial judge reviewed this evidence. He acknowledged that Mr. Leduc was unable to recall the exact words that the appellant had said. The trial judge ultimately determined that the gist of the evidence was that the appellant had offered to return or replace the stolen articles.

[10] Although Mr. Leduc's evidence is not entirely clear, we do not agree that the trial judge misapprehended that evidence in coming to his conclusion as to the gist of the conversation. The trial judge correctly found that Mr. Leduc said that he had initiated a conversation with the appellant in the course of which the appellant effectively offered to return or replace the stolen property. In our view, referring to the appellant's "offer" to replace or return the property is not a mischaracterization of the conversation.

[11] We also do not agree that the trial judge misused the evidence and the inferences he drew from the conversation between Mr. Leduc and the appellant. In deciding whether that evidence supported the inference urged by the Crown, the trial judge was required to consider all of the evidence, including the identification evidence. He was required to draw inferences based on the totality of the evidence which he accepted and not from isolated pieces of circumstantial evidence. The trial judge correctly drew inferences based on the totality of the evidence. Those inferences were not, in our view, unreasonable.

[12] The appeal must be dismissed.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"B. Zarnett J.A."