



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deeb, 2019 ONCA 875

DATE: 20191107

DOCKET: C58915

Feldman, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bilal Deeb

Appellant

James Lockyer and Jack Gemmell, for the appellant

Robin Flumerfelt, for the respondent

Heard: October 15, 2019

On appeal from the conviction entered by Justice Jane E.
    Kelly of the Superior Court of Justice, sitting without a jury, on July 18,
    2013, and from the sentence imposed on December 20, 2013, with reasons reported
    at 2013 ONSC 4852 and 2013 ONSC 7870.

REASONS FOR DECISION

[1]

Around midday on November 12, 2011, Jesse Kay was shot three times at
    close range. The shooting occurred at a busy intersection in Toronto shortly
    after Mr. Kay got off a TTC bus. One of the bullets entered Mr. Kays spinal
    cord rendering him a quadriplegic, paralyzing him from the neck down and
    confining him to a wheelchair.

[2]

Mr. Kay identified the appellant, whom he had known in high school but
    had not seen for about 5 years, as the person who shot him. He had recognized
    the appellant when the appellant boarded the bus Mr. Kay was on, together with
    another man Mr. Kay did not know. Mr. Kay testified that after he got off the
    bus he heard footsteps behind him. When he turned, he saw the appellant
    pointing a gun at his head just before he was shot.

[3]

The appellant appeals his conviction for attempted murder and the life
    sentence the trial judge imposed.

[4]

On the conviction appeal, the appellant argues that the trial judge
    failed to approach the evidence with the necessary caution given that this was
    an eyewitness identification case. In particular, the appellant argues that: (i)
    the trial judge failed to place appropriate significance on the failure of the
    police to obtain the security camera footage from the TTC bus (the bus video),
    which could have confirmed whether the appellant had boarded the bus as Mr. Kay
    claimed; (ii) the trial judge overemphasized the honesty and confidence of Mr. Kay
    in his identification of the appellant, when that had little relationship to
    the real issue, whether the identification was reliable; (iii) the trial judge
    did not appreciate the significance of the factors that undermined the
    reliability of Mr. Kays identification, such as the five year gap since Mr.
    Kay had last seen the appellant; and (iv) the trial judge overemphasized the
    ability of Mr. Kay to recognize the appellant when he turned to see someone pointing
    a gun at him. Related to the last point, the appellant seeks to introduce as
    fresh evidence certain surveillance videos of the area taken on the date of the
    shooting.

[5]

We reject these arguments.

[6]

With respect to the bus video, this was not a case of the loss or
    destruction of evidence in the possession or control of the police arising from
    unacceptable police negligence, as occurred in
R. v. Bero
(2000), 137
    O.A.C. 335 (C.A.). The appellants argument that the trial judge should have
    instructed herself, as contemplated by
Bero
at p. 350, is therefore off
    point. The police never had possession of the bus video. They made efforts to
    obtain it. Those efforts began almost immediately after the shooting, when the
    police asked the TTC supervisor they had called to the scene to identify and
    preserve the videos from all buses travelling on the route for a period
    surrounding the shooting, and were told this would be done. The efforts continued
    without break, resulting in the police being supplied with some bus videos, but
    not the relevant one, which had been taped over by the TTC. Defence counsel at
    trial conceded that in light of the police efforts to obtain the bus video, no
    lost evidence application had been brought as any such application would not
    have been successful.

[7]

The appellant argued the police could have done more and that evidence
    from the TTC should have been called. There is no basis to suggest that any
    additional efforts by the police would have yielded a different result or that
    evidence of the TTC would have shown that the police efforts fell so below what
    was expected as to amount to unacceptable police negligence. The trial
    judges observation that it was speculative whether the video would have shown
    anything favourable to the appellant was not, in the circumstances, indicative
    of any error on her part. We reject this ground of appeal.

[8]

We also reject the argument that the trial judge put misplaced reliance
    on the honesty and confidence of Mr. Kays identification, rather than its
    reliability. The trial judge was acutely alive to the issue of the reliability
    of the identification, even though this was a recognition case. She
    appropriately considered whether Mr. Kay was credible and sincere in his identification
    of the appellant. During cross-examination, it was suggested to Mr. Kay that he
    had not been able to remember who had shot him when first shown a photo line-up,
    and that it was important to Mr. Kay that his son would be able to put an
    identity, a face, to the person, a name to the person who caused this. The
    trial judge treated this as a suggestion that Mr. Kay was intent on falsely
    identifying [the appellant] as the shooter to give his son knowledge. She
    rejected the suggestion. But after finding Mr. Kay credible and sincere, she
    went on to caution herself that such factors were a poor measure of the
    accuracy of the identification. And she further noted that even though a
    recognition witness may be in a better position than someone identifying a
    stranger, the need for caution still applied.

[9]

A review of the trial judges reasons shows that she found the
    identification reliable based on: Mr. Kays past history with the appellant and
    the opportunity he had to see the appellant on the day of the shooting; the
    evidence of a witness who testified that he saw the shooter, who was wearing a
    hoodie and a blue bandanna, sit beside him on the bus, get off at the same stop
    as Mr. Kay, and point what he believed to be a firearm at a person on the
    street; certain circumstantial evidence that linked the appellant to the area
    of the shooting around the relevant time; and evidence that hoodies and bandannas
    were found in an apartment linked to the appellant when it was searched. The
    trial judge appropriately concluded that: I find that Mr. Kay was not only a
    credible witness but more importantly a reliable one  there is no danger of an
    honest but inaccurate identification of [the appellant] as the shooter.

[10]

In oral argument, the appellant submitted that the trial judge gave
    insufficient attention to the five year gap between Mr. Kay having last seen
    the appellant and the day of the shooting. We disagree.

[11]

The trial judge was alive to and expressly referenced the five year gap.
    But she found that the quality and quantity of Mr. Kays past interactions with
    the appellant rendered his ability to recognize the appellant on the day of the
    shooting, for example, as a passenger on the bus, highly reliable. We add, as
    Crown counsel pointed out, that there was no suggestion of a change in
    appearance sufficient to undermine Mr. Kays ability to identify the appellant.
    Mr. Kay identified the appellants obviously adult photo as that of the shooter
    from a photo line-up shortly after the shooting.

[12]

We also reject the argument that the trial judge overstated Mr. Kays
    opportunity to identify the shooter on the street. The trial judge noted that Mr.
    Kays identification of the appellant as the shooter on the street was made in
    a very short period of time and under extremely stressful circumstances; Mr.
    Kay had just turned around, saw his attacker pointing a gun, raised his hands
    to protect himself, and was shot within seconds. She evaluated this evidence
    together with Mr. Kays excellent opportunity to recognize the appellant on the
    bus, the evidence of the other witnesses, and the circumstantial evidence, to
    find the overall identification reliable.

[13]

The fresh evidence  video clips of the intersection where the shooting
    occurred from surveillance cameras of two nearby businesses  is sought to be tendered
    to show the length of time Mr. Kay would have had to view the shooter on the
    street before being shot. The video was available at trial and defence counsel
    at trial chose not to introduce it. The appellant argues that the due diligence
    requirement for fresh evidence should not be determinative here because in her
    reasons, the trial judge appears to have approached the matter on the basis
    that Mr. Kay had a ten second opportunity to observe the shooter between
    turning around and being shot, something unexpected as the Crown had not
    contended at trial that the time period was that long.

[14]

The trial judge in her reasons referred to the time period between when Mr.
    Kay turned and when he was shot as within seconds. Elsewhere in her reasons
    she finds that Mr. Kay observed the appellant for a number of seconds before
    he was shot and that it was not a fleeting glimpse. She does add that it was
    described by Mr. Kay as lasting about 10 seconds. The Crown does not contend
    that there was admissible evidence on which the trial judge could find that the
    time interval was ten seconds, if that is what the trial judge intended by that
    reference. Accordingly, we do not reject the fresh evidence on the due
    diligence ground.

[15]

However, we dismiss the fresh evidence application on the basis that the
    evidence, which we viewed, could not reasonably be expected to have affected
    the verdict. The trial judges conclusion was not dependent on there having
    been a ten second period; it was dependent on there having been more than a fleeting
    glimpse, a period long enough for Mr. Kay to look at [the shooters] face,
    notice that his eyebrows were furrowed, look at the gun and look back at his
    face before he was shot. The trial judges conclusion that that occurred could
    not be displaced by the videos given what they do and do not show.

[16]

The conviction appeal is dismissed.

[17]

The appellant argues that the sentence imposed by the trial judge was
    demonstrably unfit, given his age at the time of the offence. The trial judge,
    however, expressly noted the appellants youth, as well as his supportive
    family, as mitigating factors. She declined to accede to the Crowns request
    for delayed parole eligibility for ten years. But she properly noted the
    existence of significant aggravating factors, and that the totality of the
    circumstances justified the maximum sentence. There was no error in principle.
    As was the case in
R. v. Brown
, 2009 ONCA 563, 251 O.A.C. 264, at para.
    30, in which a life sentence was imposed, this was an unprovoked attempted
    murder involving the use of a gun in a busy, public place, drastically altering
    Mr. Kays life which the appellant intended to end. As noted in
Brown
,
    the serious concern of growing gun violence in Toronto is a legitimate
    consideration, and one the trial judge properly took into account. Accordingly,
    we grant leave to appeal sentence but dismiss the sentence appeal.

K.
    Feldman J.A.

G.T.
    Trotter J.A.

B.
    Zarnett J.A.


