COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zene, 2020 ONCA 99

DATE: 20200210

DOCKET: C64994

Benotto, Miller and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdelsabour Mahamat Zene

Appellant

Mark Halfyard and Chris Rudnicki for the appellant

Michael Dunn, for the respondent

Heard and released orally: February 4, 2020

On appeal from the conviction entered on November 3, 2017 and the sentence imposed on February 23, 2018 by Justice S.A.Q. Akhtar of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of two counts of possession of a restricted firearm. He submits that the trial judge erred by not addressing the identification evidence, by failing to address inconsistencies in the evidence and by relying on inadmissible hearsay.

[2] The issue at trial was whether a black backpack containing the gun belonged to the appellant. The trial judge accepted the evidence that the man on the bicycle was seen by Sarhan and Anderson and that they saw him wearing the backpack.

[3] The trial judge extensively considered the inconsistencies in the evidence, particularly, Sarhan’s. He referred to discrepancies with respect to the height of the appellant, that the gun was low in the pants he was wearing, the colour of the pants and the fact that Sarhan made a late entry of the backpack in his notes. Notwithstanding the inconsistencies, the trial judge concluded that Sarhan was credible. The trial judge accepted the evidence of Sarhan and Anderson that they saw the appellant with the backpack.

[4] With respect to the allegation that the wrong person was arrested, the trial judge accepted Anderson’s evidence that he maintained eyes on the appellant while Sarhan went to get the police.

[5] Even if we agreed with the appellant that Sarhan’s description of the appellant’s clothing given to McGrath could not be used to enhance his credibility, it was not material to his decision. The trial judge specifically said that his decision did not stand on Sarhan’s evidence but rather he accepted that of Anderson.

[6] For these reasons the appeal is dismissed.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“A. Harvison Young J.A.”