Court of Appeal for Ontario

Date: 2019-01-30 Docket: C64402

Judges: Feldman, Lauwers and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Mahmud Fahad Appellant

Counsel

Richard Litkowski, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: January 30, 2019

On appeal from: the conviction entered on July 28, 2017, and the sentence imposed on October 16, 2017, by Justice Regis of the Ontario Court of Justice.

Oral Endorsement

[1] Mr. Fahad appeals his conviction after a judge alone trial on one count of counseling to kidnap and one count of counseling to rob. He was sentenced to nine months imprisonment. Central to his appeal is the appellant's contention that the trial judge failed to undertake an equal assessment of the evidence of the defence as contrasted with the evidence of the Crown. We do not accept that submission.

[2] We do not see any failing in the approach that the trial judge took to the evidence. The trial judge completely rejected the appellant's evidence and gave reasons for that. The trial judge then considered the evidence submitted by the Crown. He accepted that evidence with certain reservations. Of particular importance is the fact that the trial judge completely accepted the evidence of the undercover officer which was supported by various intercepted communications.

[3] In our view, there is no basis to find that the trial judge erred in concluding that the evidence established either that the accused had the intent to commit the offences or was reckless as to the risk inherent in counselling: see R. v. Hamilton, 2005 SCC 47. The evidence was sufficient, at the very least, to establish a "great unjustified risk" that the offences might likely be committed. That conclusion is consistent with the test in Hamilton of a substantial and unjustified risk and is sufficient to sustain the convictions.

[4] In terms of the sentence appeal, we view the sentence as a fit one. However, the trial judge failed to address defence counsel's submissions either on the issue of pre-trial custody or on the issue of restrictive bail conditions. The appellant spent nine days in pre-trial custody for which he is entitled to a credit of 14 days. The appellant was also under restrictive bail conditions for over a year. We view an appropriate credit for that to be an additional two weeks.

[5] In the end result, the conviction appeal is dismissed. Leave to appeal sentence is granted, and the sentence is reduced from nine to eight months in custody.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.