COURT OF APPEAL FOR ONTARIO

DATE: 20210506 DOCKET: C62154

Doherty, van Rensburg and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Adrian Philip Appellant

Counsel: Breana Vandebeek, for the appellant Lisa Joyal, for the respondent

Heard: April 28, 2021 by video conference

On appeal from the convictions entered by Justice S. Armstrong of the Ontario Court of Justice, dated January 9, 2015 and on appeal from the sentences imposed on October 16, 2015.

REASONS FOR DECISION

[1] The appellant was convicted of numerous offences after a trial in the Ontario Court of Justice. The offences arose out of a carjacking on August 1, 2011 and a home invasion on August 5, 2011. The Crown alleged the appellant participated in both, using a firearm in the carjacking but not in the home invasion.

[2] The defence maintained there was no carjacking. Instead, the appellant and others, including the alleged victim of the carjacking, had agreed to steal money the supposed victim’s brother had given him to purchase drugs. The carjacking was to be used as a cover for that robbery. The defence further contended the supposed victims of the August 5, 2011 home invasion were also privy to the real plan, which was, once again, to steal money from the supposed victim’s brother.

[3] The trial judge rejected the appellant’s testimony. He was satisfied the Crown had proved both robberies beyond a reasonable doubt. He convicted on various charges and imposed sentences totalling nine years.

[4] The appellant appeals conviction and sentence.

[5] At the end of oral argument, we dismissed the conviction and sentence appeals with reasons to follow. These are our reasons.

The August 1, 2011 Carjacking

[6] Arash Hafez (“Arash”) testified, that he agreed to meet Kimya Bagheri in a parking lot to sell her a gold chain. After some discussion in Arash’s vehicle, he and Ms. Bagheri went to her car to get the money to pay for the gold chain. Arash testified, that on the way back to his vehicle he was attacked by “four black men”. One pointed a silver or grey handgun at him.

[7] Arash indicated he was assaulted and forced into the backseat of his vehicle. His friend, Wali Noor (“Wali”), who had gone with him to meet Ms. Bagheri, was also assaulted and forced into the backseat. Wali, however, managed to escape from the vehicle before it left the parking lot.

[8] Arash testified he was terrified. The robbers tied his hands and ankles with zip ties, and wrapped duct tape around his face. They repeatedly struck him with some kind of metal object.

[9] When the car eventually stopped, the robbers took Arash into what he believed to be a hotel room. They threw him in the bathtub. He was still tied up and had duct tape around his face. The robbers demanded money and continued to assault Arash. He insisted he had no money.

[10] Later that day, the robbers put Arash back in the car. After travelling some distance, the car stopped. One of the robbers removed the duct tape from Arash’s eyes and wrapped a t-shirt around his face. The robbers pushed Arash from the car, but before doing so warned him not to look at the car as it drove away. Arash could see three black men in the vehicle.

[11] Arash made his way to a nearby store. He called his girlfriend and then he called his brother, Ali. By the time Arash spoke with Ali, the police had already been made aware of the robbery and were speaking to Ali. The police spoke to Arash and told him to stay where he was until they arrived.

[12] Arash testified, that during the robbery and unlawful confinement, the robbers took his cellphone, watch, ring, gold chain, car keys and car. He testified he was repeatedly beaten, sometimes with a metal object. Arash had only very minor injuries.

The August 5, 2011 Incident

[13] On August 5, 2011, Arash and Wali were visiting Ali at the home where Ali was required to live with his surety under the terms of a bail order. Two men rushed into the basement where Ali, Arash and Wali were sitting. Neither was armed and both had their t-shirts pulled up over their faces.

[14] One intruder, identified as the appellant, punched Ali in the head and demanded the money. The other, identified as Jamar Green, tried to grab Arash. After some commotion, the robbers fled the house without any money. Arash picked up a knife and chased Mr. Green, but eventually lost sight of him. After losing sight of Mr. Green, Arash saw the appellant in a forested area near the house. The police were called and, after a canine search, the appellant was located nearby.

The Appellant’s Version of Events

[15] After his arrest, the appellant was interviewed by the police. He denied any involvement in the August 1 or 5, 2011 robberies. According to him, the police “got the wrong guy … I wasn’t there at all man”.

[16] When the appellant testified at trial, he indicated he was very much involved in both incidents, but that neither involved the robbery of Arash or Wali. The real target was Arash’s brother, Ali, who the appellant knew to be a major drug dealer.

[17] The appellant testified he, Ms. Bagheri, and Arash agreed that Arash would obtain $20,000 from Ali to purchase cocaine from Ms. Bagheri. When Arash and Ms. Bagheri met to make the deal, the appellant and two others would show up and stage the carjacking. They would force Arash into his own vehicle and take him to a pre-selected location. They would inflict some physical injury on him to give the story credibility. After waiting some time, they would split up the money and release Arash.

[18] Wali was not privy to the plan to stage the robbery and steal Ali’s money. The appellant and the others thought Wali’s presence at the time of the supposed carjacking would lend some authenticity to the “carjacking” story.

[19] The appellant indicated the plan unfolded as anticipated, except Wali escaped from the vehicle. The appellant acknowledged he was armed during the supposed carjacking, but insisted the weapon was only a pellet gun. According to the appellant, after sitting for some time in the hotel room and having celebratory drinks, the co-conspirators split up the money and released Arash.

[20] The appellant testified that the staged robbery on August 1, 2011 went so well, he, Ms. Bagheri and Arash settled on a second plan designed to steal more money from Arash’s brother. They believed Ali kept a large amount of money and possibly drugs in a safe located in the house where Ali was living. The appellant, Ms. Bagheri and Arash developed a plan, whereby the appellant and Mr. Green would enter the home, confront Ali and Arash, and force Ali to open the safe. According to the appellant, they did not anticipate any resistance because Ali had recently suffered a significant physical injury. On the appellant’s evidence, Ms. Bagheri devised the August 5, 2011 plan and he, Mr. Green and Arash agreed to participate in the plan.

[21] On August 5, 2011, the appellant and Mr. Green entered the house where Ali was living. They confronted Ali, Arash and Wali in the basement. Neither the appellant, nor Mr. Green were armed. The appellant demanded to know where Ali kept his money. Ali responded by striking the appellant. The appellant hit him back, knocking Ali to the floor. Ali screamed he was going to call the police. According to the appellant, this reaction surprised him because he did not think a drug dealer would call the police. After some confusion, the appellant and Mr. Green fled the scene without any money. The appellant was arrested a few hours later. [^1]

The Conviction Appeal

[22] In her factum, counsel for the appellant advanced four grounds of appeal. She abandoned the ground based on an alleged breach of s. 11(b) of the Charter.

[23] The remaining grounds of appeal take issue with the trial judge’s ruling admitting certain reply evidence, his reference in his reasons to guilty pleas entered by Mr. Green and Ms. Bagheri, and what the appellant submits is the trial judge’s failure to meaningfully come to grips with several material inconsistencies and deficiencies in the evidence relied on by the Crown.

(a) The Reply Evidence

[24] Counsel for the appellant does not argue that the Crown should have anticipated the defence advanced through the appellant’s testimony before the Crown closed its case. The Crown had no reason to believe the appellant would eventually testify and acknowledge his participation in the events of August 1 and 5, 2011, but maintain they were attempts to steal Ali’s money, and not robberies.

[25] Not surprisingly, the appellant’s evidence advancing his version of events led to a motion by the Crown to call reply evidence. The proposed evidence came from several different witnesses, addressing different aspects of the appellant’s narrative. It is not necessary to detail the proposed reply evidence, as counsel, correctly in our view, concedes the bulk of that evidence was properly admitted as reply evidence.

[26] Counsel does submit, however, that the trial judge erred in admitting certain cellphone records. These records were relevant to the appellant’s whereabouts on August 1 and 5, 2011 and his contact, or lack thereof, with other persons alleged to have been involved in the events of August 1 and 5, 2011.

[27] Counsel for the appellant argues that, to the extent the phone records provided circumstantial evidence relevant to any of the charges, those records should have been entered by the Crown as part of its case. Counsel further submits that, to the extent the records could be used solely to attack the credibility of appellant’s narrative, those records were not properly admitted as reply evidence.

[28] We see no error in the trial judge’s ruling. He correctly identified the principles governing the admissibility of reply evidence. The trial judge further observed that the appellant’s testimony introduced an entirely new dimension to the case. The Crown was entitled to challenge that narrative by way of reply evidence.

[29] The cellphone records were capable of rebutting significant parts of the appellant’s narrative. For example, according to the appellant, a person named Jones was involved in the staged carjacking on August 1, 2011. Mr. Jones’s identity surfaced for the first time during the appellant’s evidence. Cellphone records offered in reply supported the inference that there was no communication between the appellant and Mr. Jones during the relevant time. That inference contradicted the appellant’s evidence about his communications with Jones. The records became relevant only when the appellant testified.

[30] Some of the cellphone records had relevance to the Crown’s case in the sense that they could help locate the appellant at certain places, at certain times and, by doing so, provide some link to the alleged offences on August 1 and 5, 2011. Those records could have been introduced as part of the Crown’s case. They would, however, have added little, if anything, to the probative force of that case. Those records took on much more significance in the face of the appellant’s more detailed testimony about his comings and goings at the relevant times. As the trial judge correctly noted, evidence of marginal or minimal significance to the Crown’s case may, in the exercise of the trial judge’s discretion, be received in reply if, by virtue of the defence called, that evidence takes on much more significance. That is exactly what happened here.

(b) The Reference to the Guilty Pleas of Mr. Green and Ms. Bagheri

[31] The trial judge indicated he found the appellant’s evidence “improbable, incredible and unreliable”. He explained, in detail, over some 20 pages of transcript, his reasons for coming to that conclusion. The reasons included:

The fact that Kimya Bagheri and Jamar Green pleaded guilty and were sentenced to penitentiary sentences for their involvement in the August 1, 2011 robbery …

[32] Counsel submits that the guilty pleas and sentences imposed on Mr. Green and Ms. Bagheri could have no relevance to a proper assessment of the credibility or reliability of the appellant’s evidence. We accept this submission as it relates to Ms. Bagheri, but not as it relates to Mr. Green.

[33] When dealing with Mr. Green’s guilty plea, the trial judge said:

The suggestion that the August 1, 2011 robbery was staged or fake, was credibly rejected by Jamar Green. From his testimony, it is apparent that Mr. Green had memory issues. However, he did not deny being involved in the robbery to which he had pleaded guilty and for which he was serving a sentence. He maintained that he was guilty of the offence, but that he could not remember the details of the robbery.

[34] Mr. Green’s evidence, that the robberies were real, if accepted, clearly undermined the credibility and reliability of the appellant’s evidence to the contrary. It was open to the trial judge to conclude Mr. Green’s guilty plea and subsequent conviction for which he received a penitentiary sentence lent some added credibility to Mr. Green’s testimony that the robbery was real. To the extent Mr. Green’s guilty plea and sentence enhanced his credibility, they served to undermine the appellant’s claim the robberies were staged with the full cooperation of Arash.

[35] Unlike Mr. Green, Ms. Bagheri did not testify. Evidence that she pled guilty to robbery came out during the cross-examination of another witness. We agree with counsel for the appellant that Ms. Bagheri’s guilty plea had no probative value and could not assist in assessing the appellant’s credibility.

[36] We are satisfied the improper reference to Ms. Bagheri’s guilty plea, made in the context of a detailed, careful and otherwise errorless analysis of the evidence relevant to the appellant’s credibility and reliability, caused no miscarriage of justice. The trial judge gave a myriad of reasons for his outright rejection of the appellant’s evidence, all of them, save the reference to Ms. Bagheri’s guilty plea, fully supported by the evidence.

(c) Did the Trial Judge Fail to Address Material Inconsistencies and Other Problems in the Prosecution’s Case?

[37] It is fair to say that there was good reason to doubt the truth of some of the evidence given by Arash. For example, his testimony that he met with Ms. Bagheri only to discuss the purchase of a gold chain, and not to purchase drugs from Ms. Bagheri, a drug dealer, seems suspect. Given the nature of Arash’s injuries, it also seems likely he overstated the assaults perpetrated against him.

[38] The trial judge acknowledged these concerns. However, as the trial judge also indicated, a finding Arash was not entirely truthful about some things, such as his injuries or his reasons for meeting Ms. Bagheri, in no way precluded a finding that he was in fact robbed by the appellant and his associates.

[39] The trial judge’s extensive reasons deal with most, if not all, of the alleged material inconsistencies in the prosecution’s case, identified by the appellant. The trial judge’s reasons explain why he did not ultimately view these inconsistencies and deficiencies as barriers to a finding the Crown had proved its case beyond a reasonable doubt.

[40] We see no error in the trial judge’s analysis and decline the appellant’s implicit invitation to engage in our own analysis of the evidence.

[41] The conviction appeal is dismissed.

The Sentence Appeal

[42] The appellant, who received sentences totalling nine years, is now on parole.

[43] The offences were very serious. The appellant, although young, has accumulated a significant criminal record. When he committed these offences, including the armed robbery on August 1, 2011, the appellant was subject to the terms of two conditional sentences and seven weapons prohibition orders. Clearly, specific deterrence had to be the primary consideration in fixing the appropriate sentence.

[44] The significant differences between the circumstances of the appellant and those of the co-accused make comparisons with the sentences imposed on the co-accused of limited value.

[45] We would not interfere with the sentences imposed.

Conclusion:

[46] For these reasons, the conviction and sentence appeals were dismissed.

“Doherty J.A.”

“K. van Rensburg J.A.”

“J.A. Thorburn J.A.”

[^1]: The trial judge convicted the appellant of an attempted robbery of Arash and Wali, apparently because he did not actually steal anything. An actual theft is not necessary under the definition of robbery in s. 343 (c) of the Criminal Code. Even on the appellant’s version of events, he committed a robbery, although the victim was Ali, and not Arash or Wali, the persons identified in the charge.