COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yusuf, 2020 ONCA 69

DATE: 20200130

DOCKET: C65516

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahad Yusuf

Appellant

Jessica Zita, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally: January 20, 2020

On appeal from the conviction entered on November 9, 2017 and the sentence imposed on April 13, 2018 by Justice Neil L. Kozloff of the Ontario Court of Justice.

REASONS FOR DECISION

[1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of robbery; unlawful confinement; and breach of recognizance arising out of his participation in a home invasion robbery. The trial judge imposed a sentence of 4.5 years from which he deduced 21.5 months’ credit for pre-sentence custody. The net sentence imposed was 2 years, 10 months and 15 days.

[2] The appellant appeals both conviction and sentence.

The Appeal from Conviction

[3] On the appeal from conviction, the appellant advances arguments which challenge the conviction of unlawful confinement only.

[4] In our view, these arguments fail.

The Background Facts

[5] The offences arise out of a home invasion of an apartment occupied by three students at a local community college. The appellant, who was known to the principal victim, was the person who arranged to attend at the apartment on a pretext. When the victim answered the door and turned his back to it, the appellant and two others, who were masked, entered the premises. One was armed with what the trial judge found was an imitation firearm. The victims were confined within their home and several items of personal property, including cash and various items of electronic equipment, taken from them.

The Grounds of Appeal

[6] The appellant contends that the conviction of unlawful confinement cannot stand because:

i. the offence did not amount to a separate delict discrete from the conduct that constituted the offence of robbery;

ii. the trial judge erroneously applied the principles set down in Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729, to conclude that the offence of unlawful confinement had been made out; and

iii. the trial judge ruled on the application of the Kienapple principle in giving his reasons for conviction when the issue had not been raised by either counsel, and did not afford counsel the opportunity to make submissions.

[7] We reject these complaints of error.

Discussion

[8] The evidence adduced at trial, taken as a whole, amply supports the finding of guilt of unlawful confinement. This is not a case, in our view, in which it can be said that there was not a domination and coercive restraint of the principal victim of a sufficient length of time to attract liability for unlawful confinement discrete from the appellant’s liability for robbery.

[9] In our view, it would have been better had the trial judge not dealt with the application of the principles in Kienapple until after he recorded his findings of guilt, or at the time of sentencing, and received submissions from counsel on the issue. However, the appellant suffered no tangible prejudice. Above all else, the ruling was correct.

The Appeal from Sentence

[10] As to sentence, the appellant says that the principal sentence imposed on him should have been four years, rather than four and one-half years. The appellant points to the principle of restraint and to the jump principle in support of this submission.

[11] In our view, the sentence imposed reflects no error in principle. It sits within the range of sentence fit for this offence and the offender who committed it. There is no basis for our interference.

DISPOSITION

[12] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed, except to the extent that the victim surcharge imposed by the trial judge is set aside.

“David Watt J.A.”

“M. Tulloch J.A.”

“Gary Trotter J.A.”