CITATION: R. v. Al-Enzi, 2016 ONSC 1677
COURT FILE NO.: 14-9204
DATE: 2016/03/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ADEL AL-ENZI
Appellant
Stephen Donoghue, for the Crown
Michael A. Crystal, for the Appellant
HEARD: March 2, 2016
Reasons for judgment
on appeal from of the decision of justice webber of the Ontario court of justice at ottawa dated september 25, 2014.
MARANGER J.
[1] This is an appeal from a conviction for driving while disqualified contrary to section 259 (4) of the Criminal Code of Canada by Justice M. Webber of the Ontario Court of Justice registered on September 25, 2014.
[2] While the notice of appeal listed a number of grounds for appeal, at the hearing proper the position advocated by the appellant consisted of a single ground of appeal. The appellant submits that the verdict registered by the learned Justice was an unreasonable verdict in that he should have had a reasonable doubt about whether the Appellant was in fact driving on the date in question.
[3] The trial in this case lasted about one hour. It involved one police witness, Detective Dinardo, who testified as to the following:
• On November 20, 2013, at approximately 8:15 p.m., he was working in a coordinated surveillance operation as part of his duties as a member of the guns and gangs unit of the Ottawa Police Services.
• He was instructed to focus his surveillance on a particular brown van.
• He followed the van into a parking lot at the corner of Bank Street and Walkley Road in the city of Ottawa.
• He saw an individual exit the driver side of the vehicle and enter the Value Village store. He testified that the parking lot was well lit.
• He then testified that he recognized the individual who exited the vehicle as the appellant.
• He said that he had between 12 to 20 face-to-face encounters with the appellant in relation to other investigations and compliance checks and had attended the appellant’s home “probably half a dozen times”.
• He testified that he saw the appellant exit the store with another male. The appellant got in the passenger side and the other male got in the driver side.
• He testified that the vehicle was followed to an address on Sandalwood Drive, but was unsure whether it was him or another officer who had followed the vehicle to that address.
• The Detective was aware that the appellant was a prohibited driver, but waited to process the charges because his sergeant instructed him to do so to avoid compromising other investigations.
[4] Some of the weaknesses in the Crown’s case brought out by the appellant included the following:
• The detective provided inconsistent and contradictory evidence concerning the last time he saw the appellant before November 20, 2013. The trial judge described this aspect of his testimony as “disquieting”.
• He failed to provide any notes or records concerning his interactions with the appellant before November 20, 2013.
• The identification was cross racial.
• The appellant has 11 brothers many of whom have been involved with the criminal justice system in Ottawa. There was a good chance that it could have been one of the appellant’s brothers who was driving the vehicle.
• The detective failed to record the license plate number of the van.
• The van was not registered to the appellant.
• The Detective could not recall if he followed the van to Sandalwood Drive.
Standard of Review:
[5] The approach to be used by a court sitting in appeal of a trial judge’s decision was described by the Supreme Court of Canada in R v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at para. 14, in the following terms:
In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it… Provided this threshold is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
[6] A trial judge should be afforded considerable deference as to whether or not the allegations before the court have been made out beyond a reasonable doubt. In R v. Biniaris, 2000 SCC 5, [2000] 1 S.C.R. 381, at para 24, Justice Arbour indicated:
Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and in the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier fact, except unreasonable ones embodied in a legally binding conviction.
The Trial Judges reasons:
[7] The trial judge in this particular case delivered his reasons for judgment two weeks after the trial. My review of his reasons leads me to the conclusion that the appeal should be dismissed for the following reasons:
• The reasons provided by Justice Webber were very thorough, clear and logical.
• In his reasons he articulated and recognized the frailties and weaknesses inherent in cases relying on identification evidence.
• He fairly and correctly explained cases of identification involving a measure of recognition.
• He properly took into account the weaknesses in the Crown’s case, in particular weaknesses in the testimony of the police officer.
• In his conclusion the trial judge listed six different factors he took as supporting the specific identification in this case. These satisfied him beyond a reasonable doubt that the accused person was the driver of the vehicle. The factors listed by the judge logically flowed from the testimony of the police officer at trial.
[8] Finally, the trial judge in this case clearly stated the guiding principles for any criminal trial. He applied the evidence before him as well as the governing principles and convicted the accused. In my estimation this is certainly not a case where the conclusion reached can be categorized as unreasonable, it was a verdict that was available on the evidence. Consequently the appeal is dismissed.
Maranger J.
Released: March 11, 2016
CITATION: R. v. Al-Enzi, 2016 ONSC 1677
COURT FILE NO.: 14-9204
DATE: 2016/03/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
ADEL AL-ENZI
Appellant
summary conviction appeal
Maranger J.
Released: March 11, 2016