Court of Appeal for Ontario

Date: 2025-07-21
Docket: COA-23-CR-1046 & COA-23-CR-1158
Coram: Fairburn A.C.J.O., Trotter and Harvison Young JJ.A.

Between:
His Majesty the King (Respondent)
and
Ashir Mahmood (Appellant)

Appearances:
Myles Anevich and Bhanjot Bhangu, appearing as duty counsel for the appellant
Nicholas Hay, for the respondent

Heard and released orally: July 15, 2025

On appeal from the conviction entered by Justice David E. Harris of the Superior Court of Justice, sitting with a jury, on December 19, 2022, and from the sentence imposed on May 30, 2023.

Reasons for Decision

Introduction

[1] This is an appeal from conviction for sexual assault and from the three-year sentence imposed. The appellant raises three grounds of appeal from conviction, two of which were advanced in oral submissions.

Post-Offence Conduct Instruction

[2] First, the appellant argues that the trial judge should have given a post-offence conduct instruction in relation to a text message he sent to the complainant the day after the alleged incident. In that message, he wrote:

Hey [C.A.].. I’m so sorry for the night… I was fucked up on a few things.. I can not 2 even begin to tell you how sorry I am… please call me back I really need to tell you and [A] what happened…. Please call me..

[3] This was an admissible statement as a party admission. The appellant suggests there was an innocent explanation for this text, consistent with his evidence at trial: he was apologizing for having startled the complainant and her friend the previous evening. Read as a whole, the jury clearly understood the defence position on this point. Having received an unassailable instruction pursuant to R. v. W.D., [1994] 3 S.C.R. 521, and in light of the verdict rendered, the jury evidently rejected the innocent explanation offered in the appellant’s testimony. In our view, no further instruction regarding post-offence conduct was required.

Prior Consistent Statements

[4] Second, the appellant argues that the trial judge provided insufficient instructions regarding the use of prior consistent statements, specifically text messages between the complainant’s friend and the appellant’s fiancée. In our view, the jury was properly instructed on the singular use that could be made of these statements, both in mid-trial instructions and later in the charge to the jury. Among other things, the jury was told that the statements could not be used for their truth as they were hearsay and could only be used as part of the narrative. As the trial judge said:

It is inadmissible to prove that there was actually a sexual assault. The statements by [K] and by [A] cannot be used for their truth either as they were also hearsay. The only use you can make of them is to explain some of the aftermath. This is a very limited purpose and they will be of little importance to you for that purpose.

[5] There was no objection to these instructions which were in our view sufficient.

Allegation of Unbalanced Charge

[6] Finally, the appellant says the charge was unbalanced. We disagree. There was no objection to the charge and, having reviewed the charge as a whole, we see no basis for this position.

Sentence Appeal

[7] On the sentence appeal, the appellant argues that the trial judge gave insufficient attention to his youth and lack of a criminal record, thereby failing to give effect to the principle of restraint. The three-year sentence imposed is at the bottom end of the range. The reasons for sentence demonstrate the trial judge was alive to the issues raised, specifically noting the appellant’s positive rehabilitative potential. In these circumstances, we defer to the sentence imposed by the trial judge.

Disposition

[8] The conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Fairburn A.C.J.O.”
“G.T. Trotter J.A.”
“A. Harvison Young J.A.”

Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.