Court of Appeal for Ontario

CITATION: R. v. Muse, 2025 ONCA 38

DATE: 20250120

DOCKET: C69461

Nordheimer, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Abdirisaq Muse

Appellant

Elijah White, for the appellant

Brett Cohen, for the respondent

Heard: January 15, 2025

On appeal from the convictions entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on November 22, 2019.

REASONS FOR DECISION

[1] Mr. Muse appeals his convictions for robbery. The sole ground of appeal is the dismissal, by the trial judge, of the appellant’s application to adduce unknown third-party suspect evidence. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] A husband and wife were robbed while in their vehicle shortly after midnight on May 10, 2017. Two males approached their vehicle. One accosted the husband, who was in the driver’s seat, and held a knife to his throat. The other male accosted the wife, which led to a struggle between the two. The husband attempted to escape by accelerating the vehicle, which resulted in the vehicle striking the male who was accosting his wife. That male, who was knocked to the ground, was found by the jury to be the appellant. The appellant contended that he was an innocent bystander who had simply been struck by the vehicle during the events.

[3] At trial, the appellant sought to adduce unknown third-party suspect evidence arising from an attempted carjacking that involved two male suspects, and which had occurred on September 20, 2017, a few blocks from where this incident had occurred.

[4] The central complaint by the appellant is that, in dismissing the third-party suspect application, the trial judge referred to some of the evidence that the wife had given at trial. More specifically, the trial judge referred to the evidence of the wife that the person with whom she had struggled was the person who was struck by the vehicle and fell to the ground.

[5] Assuming for the purposes of this appeal that it was an error for the trial judge to refer to this evidence, it does not change the core reasoning of the trial judge that led to the dismissal of the third-party suspect application. The trial judge applied the factors and analysis found in R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475. She concluded that the two incidents were not sufficiently similar to suggest that the same individuals committed both offences. She found that the descriptions of the individuals involved were generic as were the descriptions of the clothing that was worn. She noted differences in the ages of the individuals and in their heights. She also noted that the areas where the two incidents occurred were not significantly distinctive to create a nexus between them.

[6] None of these findings are undermined by the trial judge’s reference to the evidence of the one witness. They were sufficient, on their own, to warrant the dismissal of the third-party suspect application. No error is shown in the core conclusion that the trial judge reached.

[7] It is for these reasons that the appeal was dismissed.

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”