Court File and Parties

Court of Appeal for Ontario Date: 20231211 Docket: C65649

Paciocco, George and Dawe JJ.A.

Between

His Majesty the King Respondent

and

Nabil Benhsaien Appellant

Counsel: Nabil Benhsaien, acting in person Erica Whitford, for the respondent

Heard: December 4, 2023

On appeal from the convictions entered by Justice Colin McKinnon of the Superior Court of Justice, sitting with a jury, on January 21, 2016.

Reasons for Decision

[1] The appellant appeals his convictions for four counts of aggravated assault and five counts of assault with a weapon. He argues that 1) the jury’s verdict is incapable of being supported by the evidence and is therefore unreasonable, 2) the trial judge erred by granting the Crown’s similar fact application, and 3) he received ineffective assistance from counsel. In his notice of appeal, the appellant also claims that the trial judge improperly sustained Crown objections and prevented him from presenting an alibi and other valid defences, but these grounds of appeal were abandoned.

[2] The first two grounds are related, since the appellant’s argument that the verdicts were unreasonable is premised on his contention that the jury should have been instructed that they should consider each count separately.

[3] The appellant has not demonstrated that the trial judge committed any of these errors.

[4] With respect to the Crown’s similar fact evidence application, the trial judge’s reasons demonstrate that he understood, and properly applied, the relevant test. He considered the probative value of the similar fact evidence on the issue of identity, weighed the probative value of this evidence against its prejudicial effect, and – after specifically addressing the degree of similarity, possibility of collusion, likelihood of coincidence, and the risk of propensity reasoning – determined that the evidence should apply across all of the counts charged. We reject this ground of appeal.

[5] With respect to the argument that the verdicts were unreasonable, an appellate court can only intervene under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 where the verdict is reached “illogically or irrationally” or cannot be supported by the evidence: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 44. In the case of a jury trial, the verdict must be one that no properly instructed jury could have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, at para. 23; R. v. Daponte, 2023 ONCA 572, at para. 22. The jury in this case was properly instructed about how it could use the evidence across counts. Here, the guilty verdict was plainly available to the jury given the ample evidence supporting it, including extensive testimony, physical evidence, photographic and video evidence, DNA evidence and the similar fact evidence. This evidence – considered in its totality – explains why it was open to the jury to find the appellant guilty. We therefore reject this ground of appeal.

[6] Lastly, there is no merit to the appellant’s claim of ineffective assistance of counsel. It is important to note that the appellant was not represented by counsel; amicus was appointed to assist the court by ensuring that all relevant information was before the court and that all relevant arguments were made. In any event, amicus ably examined all of the Crown’s witnesses and brought to the jury’s attention the inconsistencies in their description of the assailant.

[7] The appeal is dismissed.

“David M. Paciocco J.A.”

“J. George J.A.”

“Dawe J.A.”