COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2020 ONCA 653

DATE: 20201015

DOCKET: C67411

Pardu, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamal Mohamed

Appellant

Jamal Mohamed, acting in person

Gerald Chan, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: October 8, 2020 by video conference

On appeal from the conviction entered on June 20, 2019 and the sentence imposed on September 3, 2019 by Justice Trevor A. Brown of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant, Jamal Mohamed, was convicted of aggravated assault, discharging a firearm and related charges arising out of an incident in which the victim was shot in the leg. He raises two grounds on this appeal from both conviction and sentence.

[2] First, he argues that the identification evidence of the victim was unreliable and that it was unreasonable for the trial judge to rely upon it. Second, he argues that some of the counts should have been stayed on the basis of the Kienapple principle: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. This issue was never raised with the trial judge. The Crown agrees with the second ground. On consent, an order will issue staying counts 2, 3, 4, 5 and 10.

[3] The appeal is otherwise dismissed for the following reasons.

Factual Background

[4] The shooting took place shortly after 1:30 p.m. on a weekday afternoon.

[5] There were two witnesses. The first one was the victim Albert McLeod and the second was a neighbour who lived in an apartment overlooking the street where the incident took place. The first officer to head to the scene was dispatched at 1:54 p.m. As he was approaching the scene, he noticed a green Saturn driving towards him at a high rate of speed which, he testified, made an “evasive manoeuvre” to bypass him. He was able to catch a partial plate, “BTHM”, from his driver’s side mirror when the car slowed to make its evasive move.

[6] As a result of information received from Mr. McLeod, the police proceeded to Mr. Mohamed’s residence almost immediately after the shooting. A car meeting the officer’s description was in the parking area. It appeared to have been recently driven, it bore the licence plate BTHM 081 and it belonged to the appellant. A video camera at the building captured Mr. Mohamed entering the apartment building where he was living at 2:11 p.m.

[7] At trial, Albert McLeod identified the appellant as the man who shot him in the leg. He testified that he knew him as “Mike” or “Mikey” because he used to buy crack cocaine from him and resell it at a profit to friends. Before the shooting, he testified, he had stopped buying drugs from Mikey because of their poor quality, and Mikey was not happy about this. He testified that he was walking in the area when he came upon Mikey. They had spoken by phone earlier in the day. After a brief discussion, Mikey pulled the gun from his pants and shot him in the leg. Mikey initially walked away, putting the gun behind his back, and then ran away.

[8] Evidence was presented that Mr. McLeod had identified the appellant unequivocally from a photo lineup with which the appellant takes no issue.

Analysis

[9] Mr. Chan submitted that the trial judge failed to scrutinize Mr. McLeod’s evidence as rigorously as he should have, given the dangers of eyewitness identification. He focused on a number of inconsistencies in Mr. McLeod’s evidence at trial, and also on the fact that he had been drinking the night before and was on his way to drink some more. He also noted that Mr. McLeod had failed to point to any particular identifying features of the appellant, saying only “I know him”.

[10] We would not give effect to this argument.

[11] The trial judge was alive to the dangers of eyewitness identification, and particularly the danger that an eyewitness may be honestly mistaken. He did note that this was not a case of a passing familiarity, but that Mr. McLeod knew the appellant and had a very good opportunity to see and recognize him at the time: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501. It was broad daylight and there was a face-to-face verbal confrontation before the shooting at close range. As the trial judge commented, “he knew the man”. The trial judge recognized some of the difficulties with the reliability and credibility of Mr. McLeod’s evidence, such as the fact that he had been inconsistent about whether he had known the appellant for 5 months or 1 year. He expressly considered the fact that Mr. McLeod had been drinking. However, he ultimately accepted his evidence that the appellant was the man who shot him.

[12] Important to the trial judge’s conclusion was the “body of circumstantial evidence [providing] considerable support to the direct identification of Mr. Mohamed that was provided by Mr. McLeod”. He stated that “[a]ny concerns that I otherwise might have been left with by Mr. McLeod’s evidence have been resolved by the strong body of evidence”. He found that Mr. McLeod’s description of the encounter, while not free of inconsistencies, was generally corroborated by the neighbour who observed the incident from his apartment nearby. The appellant acknowledged that he was known as “Mike” or “Mikey,” that he had seen Mr. McLeod in the area of the shooting on other occasions and that he would know him to see him. The fact that the appellant frequented the area was confirmed by video surveillance.

[13] The testimony of the neighbour who observed the incident from a distance provided general corroboration to the evidence of Mr. McLeod as to the way the events unfolded. In addition, the trial judge found that the officer’s evidence concerning the green Saturn that had the partial plate matched that of the appellant’s car.

[14] The trial judge carefully considered both the case law and its application to this case. He was entitled to find, on the record before him, that Mr. McLeod’s evidence was corroborated not only by the police evidence which recorded the partial license plate of the appellant’s car driving away from the area of the shooting in the minutes that followed, but the description of the witness who observed from his nearby apartment. We see no error in his analysis of the law and the evidence or in the trial judge’s conclusion that the Crown had proved beyond a reasonable doubt that the appellant was the man who shot Mr. McLeod in the leg.

Disposition

[15] The appeal is allowed to the extent that the guilty verdicts on counts 2, 3, 4, 5 and 10 shall be set aside and stays are substituted. The appeal is otherwise dismissed.

“G. Pardu J.A.”

“David M. Paciocco J.A.”

“A. Harvison Young J.A.”