Court of Appeal for Ontario

Date: 2019-10-03 Docket: C66029

Judges: Juriansz, Benotto and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Anwar Yehya Appellant

Counsel

Najma Jamaldin, for the appellant Lorna Bolton, for the respondent

Heard and released orally: September 27, 2019

On appeal from: the conviction entered on March 8, 2018 by Justice P.J. Flynn of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of offences related to a home invasion robbery. He appeals and alleges multiple errors in the trial judge's instructions and charge to the jury.

[2] The chief submission is that the Crown, in its closing submission, invited the jury to speculate that a firearm had been discharged from the vehicle that was used to leave the scene of the robbery and that this was not corrected by the trial judge.

[3] We do not accept counsel's characterization of the Crown's remarks. On our reading, the Crown listed a number of possibilities and then clearly told the jury that it did not have to decide an explanation for the shell casings in the car. In any event, this was not key evidence.

[4] The second submission is that the Crown invited the jury to draw an impermissible inference: that the appellant came from Toronto to commit the offence in Waterloo. We do not accept this submission. The Crown could properly draw the jury's attention to the fact that the appellant and the four other people in the getaway car were from Toronto. This was just one piece of circumstantial evidence.

[5] The jury charge was adequate on the issue of circumstantial evidence because the trial judge instructed the jury that a reasonable doubt can arise from a lack of evidence. In any event, this language was suggested by the defence counsel at trial and the instruction was reinforced by the closing submissions of the defence and the Crown.

[6] We are satisfied that the jury was properly instructed and that the verdict was available on the evidence.

[7] For these reasons, the appeal is dismissed.

"R.G. Juriansz J.A." "M.L. Benotto J.A." "B.W. Miller J.A."