Court of Appeal for Ontario

Date: 2019-09-25 Docket: C65246

Judges: Juriansz, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Roehid Hakimi Appellant

Counsel

Stephanie DiGiuseppe, for the appellant

Jill Cameron and Katie Doherty, for the respondent

Heard: September 16, 2019

On Appeal

On appeal from the conviction entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on March 3, 2016 and the sentence imposed on January 25, 2017.

Reasons for Decision

Conviction Appeal

[1] The appellant was convicted by a jury of aggravated assault and three firearm offences. He appeals his convictions and seeks leave to appeal his 12-year global sentence.

[2] The victim had a confrontation inside an after-hours restaurant with a man who fired a gun twice into the ceiling. When the victim exited the restaurant, he was shot in the stomach and hand. The central issue at trial was whether the appellant was identified beyond a reasonable doubt as the person who fired the shots inside the restaurant and as the person who shot the victim.

[3] At trial, the victim and two witnesses recanted from prior statements given to the police. One witness, a waiter who was familiar with the appellant, gave two statements to the police and testified at the preliminary inquiry. Until trial, he consistently identified the appellant as the person who fired the gun inside the restaurant, including in a photo line-up. Another witness, the owner of the restaurant who was also familiar with the appellant, gave video-recorded police statements dated January 8, 2011 and January 18, 2011. He, too, identified the appellant in a photo line-up as the person who fired the gun inside the restaurant. The victim, who was also a witness, gave a January 14, 2011 video-recorded statement to the police describing the shooter and identifying him as the same man who also shot his gun inside the restaurant.

Hearsay Evidence and Procedural Reliability

[4] Before this court, the appellant's counsel advanced a substantive reliability analysis as described in the Supreme Court of Canada's recent decision in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. She argued there was insufficient corroborative evidence to establish the threshold reliability of the statements. In our view, her reliance on the substantive reliability analysis in Bradshaw is misplaced. The threshold reliability of the statements in this case was established by procedural, not substantive, reliability. The Supreme Court in Bradshaw reiterated that procedural reliability can establish threshold reliability, at para. 28:

Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination". These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, is usually required. [Citations omitted; emphasis in original.]

[5] We find it unnecessary to discuss the circumstances of each of the statements in detail. It is sufficient to say the statements were video-recorded and the declarants were under oath or were otherwise cautioned to tell the truth. Two of the witnesses had been cross-examined at the preliminary inquiry. At trial, all three witnesses were effectively cross-examined. The trial judge made no error in admitting the statements for the truth of their contents.

[6] The evidence at trial, including the statements, readily provided the jury with a basis for finding the appellant was the person who fired the gun both inside and outside the restaurant. The verdict was not unreasonable.

Jury Instructions

[7] Turning to the jury charge, we note that defence counsel did not object to the trial judge's instructions on identification evidence or on post-offence conduct.

[8] The trial judge gave the jury thorough and accurate instructions as to how to approach their assessment of the identification evidence. She pointed out the frailties in that evidence and adopted the language from R. v. Miapanoose, 30 O.R. (3d) 419. We see no error in her instructions on identification evidence.

[9] In the context of this case and considering the trial judge's post-offence instructions as a whole, we are also satisfied the jury was not misled in what use could be made of the post-offence conduct evidence.

[10] Accordingly, we dismiss the appellant's appeal of conviction.

Sentence Appeal

[11] The appellant also sought leave to appeal his global sentence of 12 years, less credit of 32 months on account of pre-sentence custody. The trial judge imposed a sentence of eight years for the aggravated assault conviction, four years concurrent for the careless use of a firearm conviction, four years consecutive for the pointing of a firearm conviction, and four years concurrent for the possession of a weapon conviction. She gave the appellant credit of 32 months for pre-sentence custody on a 1:1 basis.

[12] We see no basis for appellate intervention. The consecutive term was appropriate as the offences inside the restaurant and outside the restaurant were separate transactions. The trial judge's conclusions on aggravating and mitigating factors were available on the evidence before her. The sentence she imposed is not demonstrably unfit.

[13] The appellant submits the trial judge erred in denying him enhanced credit for time served. The trial judge concluded the appellant was not a good candidate for early release. This conclusion was open to her based on the evidence of his institutional misconduct, his conviction for aggravated assault during a prior release, and the escalation in his violence. We see no error.

[14] Leave to appeal sentence is granted but the appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.