Court of Appeal for Ontario

Date: 2019-06-10 Docket: C63836

Judges: Feldman, van Rensburg and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Hussein Mohammad Appellant

Counsel

Richard Addelman, for the appellant

Roger A. Pinnock, for the respondent

Heard and Released

Heard and released orally: June 6, 2019

On appeal from: The conviction entered on September 27, 2016 and the sentence imposed on May 5, 2017 by Justice J. Bourgeois of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant submits that the trial judge erred in finding him a party to the use of a firearm in the course of a drive-by shooting.

[2] We disagree.

[3] The evidence at trial was largely undisputed. The appellant was driving a car when the passenger in the front seat fired a single shot into the door of the vehicle next to him. Following the shooting, the appellant drove evasively in fleeing the scene.

[4] The appellant says that the trial judge wrongly concluded that he had the requisite mens rea for party liability concerning the use of the firearm. There was no evidence that he knew of the guns or the shooter's intention until moments before the shooting, so his actions cannot be said to have aided or abetted the shooter. He says, further, that the trial judge misapprehended the evidence concerning the appellant's driving.

[5] The trial judge found that the appellant knew what was going to happen "at least moments before" the shooting, and assisted by driving his car alongside the victim's vehicle, before driving away evasively. These findings were amply supported by the evidence and are sufficient to establish party liability under s. 21(1) of the Criminal Code.

[6] We see no misapprehension of the evidence. The appellant is in essence making an unreasonable verdict argument. However, it is clear from the trial judge's reasons that she accepted that the only reasonable inference on the evidence was that the appellant had the requisite knowledge to be a party to the offence before it occurred.

[7] The appeal is dismissed.

"K. Feldman J.A."

"K. van Rensburg J.A."

"Grant Huscroft J.A."