Court of Appeal for Ontario

Date: 2021-04-29 Docket: C64564

Before: Doherty, van Rensburg and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Yaqoub Ali, Appellant

Counsel: Howard L. Krongold, for the appellant Adam Wheeler, for the respondent

Heard: In writing

On appeal from the convictions entered by Justice R.L. Maranger of the Superior Court of Justice, dated June 16, 2016.

Reasons for Decision

[1] The victim was shot in the foot outside of a busy store on boxing day in Ottawa. The appellant was charged with a number of offences arising out of the shooting. At trial, identification was the only issue. The trial judge convicted the appellant on 10 of the 11 counts.

[2] The appellant appeals. He contends the trial judge misapprehended and/or failed to consider material evidence. He also argues the verdicts are unreasonable. Lastly, counsel submits, that even if the findings of guilt stand, the trial judge should have stayed the convictions on several counts pursuant to the rule against multiple convictions as set down in R. v. Kienapple, [1975] 1 S.C.R. 729.

[3] The Crown submits the trial judge’s finding that the appellant was the shooter is both reasonable and unassailable on appeal. Crown counsel concedes the “Kienapple” argument and concedes that stays should have been entered on several counts.

[4] We see no error in the trial judge’s analysis of the evidence. Nor are we satisfied the verdict is unreasonable. We do agree that several of the counts should have been stayed.

[5] At trial, the identification issue presented two discrete questions:

• Was the person wearing the Superman shirt the shooter?
• Was the appellant that person?

[6] The trial judge answered “yes” to both questions. On appeal, the appellant does not challenge the finding that the person wearing the Superman shirt was the shooter. The appeal focuses exclusively on the trial judge’s finding that the appellant was that person.

[7] The appellant contends the trial judge failed to properly consider that one of the eyewitnesses, Mr. Felix, when shown a photo lineup containing a photo of the appellant, identified two other photos as possibly photos of the shooter and expressly put the word “no” beside the photo of the appellant. Counsel describes this as exculpatory evidence, which should have been weighed in the balance against the potentially incriminating evidence when determining whether the Crown had met its burden on the identification issue.

[8] The trial judge accurately summarized Mr. Felix’s evidence. Ultimately, he concluded that evidence, like most of the eyewitness identification evidence, was equivocal, lacking in precision, and unreliable for many of the reasons associated with the frailties of eyewitness evidence in the case law and various studies. That characterization of Mr. Felix’s evidence was reasonable on the evidence.

[9] Given the trial judge’s assessment of Mr. Felix’s evidence, although it clearly could not assist the Crown in meeting its burden on the identification issue, it could not be characterized as exculpatory evidence. The trial judge did not err.

[10] The appellant next argues, that of the four factors identified by the trial judge as the basis upon which he concluded the appellant was the shooter, two amounted to the same thing. Counsel argues the trial judge’s double-counting requires a new trial.

[11] We agree with the Crown’s submission on this argument. Each of the four factors identified by the trial judge had independent value on the issue of identification. The trial judge was entitled to look at the video and come to his own conclusion as to whether the person in the Superman shirt was the appellant. Appropriately, the trial judge proceeded cautiously in doing so. He concluded that, while there was a “resemblance” between the person in the video and the appellant before the court, he would go no further than that. Evidence of a “resemblance” could not make out the case for the Crown but could assist the Crown in making out its case.

[12] It was also open to the trial judge to compare the photographs of the appellant, filed as exhibits, with what he saw in the video. Based on that comparison, the trial judge concluded that the appellant, in a photograph taken a few days before the shooting, was wearing what appeared to be the same hat as the shooter. The design of the hat being worn by the appellant in the photograph, which matched the hat worn by the man in the Superman shirt, was somewhat uncommon.

[13] We detect no double-counting.

[14] The appellant next argues the trial judge should have cautioned himself about the dangers of cross-racial identification when looking at the video. The appellant is black, and the trial judge is white.

[15] This argument was not made at trial. It is unclear that the well-understood concerns about cross-racial eyewitness identification apply to an “identification” made by a trial judge after watching and re-watching a video in the course of a trial. The circumstances in which a trial judge examines a video are very different than the circumstances in which eyewitnesses make identifications. Those differences suggest that concerns relating to cross-racial identification may be very different in the two very different situations.

[16] We are not satisfied that the trial judge’s failure to specifically refer to concerns arising out of cross-racial identification amounted to reversible error.

[17] We also reject the appellant’s unreasonable verdict argument. The evidence provided a basis upon which a reasonable trier of fact could be satisfied beyond a reasonable doubt that the appellant was the person wearing the Superman shirt.

[18] On the Kienapple point, we agree the convictions on counts 1, 2, 3, 5, 6 and 10 should have been stayed. The convictions on count 4 (carry concealed weapon), count 7 (possession of a loaded/prohibited restricted firearm without authorization), count 9 (breaching a s. 109 order), and count 11 (discharging a firearm with intent to wound, maim or disfigure) stand.

[19] The trial judge imposed concurrent sentences on all of the counts, so our order staying several of the convictions has no effect on the sentence imposed.

"Doherty J.A."

"K. van Rensburg J.A."

"J.A. Thorburn J.A."