



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reis, 2019 ONCA 168

DATE: 20190305

DOCKET: C63626

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tryden Reis

Appellant

Faisal Mirza and Kelly Gates, for the appellant

Amy Alyea, for the respondent

Heard: February 28, 2019

On appeal from the conviction entered on January 13,
    2017, and the sentence imposed on April 24, 2017, by Justice
Suhail
    A.Q.
Akhtar of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was found guilty of aggravated assault, discharging
    firearm with intent to wound, and use of a firearm while committing an
    indictable offence, arising out of an altercation with two men in which one of
    them was shot.

[2]

The appellant and three other men were approached by two men, Nana Tutu
    and Kaion Brown, as they sat in a gazebo. Tutu had pulled a gun and pointed it
    at the appellant and his friends a few weeks previously. On this occasion, Tutu
    approached the appellant and the other men and stated: Is it a thing? Is it a
    thing? An altercation ensued, during which the appellant took Tutus gun from
    him and shot Brown. The trial judge found that the appellant shot Brown
    deliberately, rejecting his claims of accident and self-defence.

[3]

The primary issue on appeal is whether the trial judge erred in
    rejecting the appellants claim of self-defence.

[4]

The trial judge properly set out the requirements of the law of
    self-defence. The appellant was entitled to be found not guilty if he believed
    on reasonable grounds that force was being used against him; his actions were
    committed for the purpose of defending himself; and his actions were reasonable
    in the circumstances. The trial judge found that the defence met the air of
    reality test and, as a result, the Crown was required to disprove the defence
    beyond a reasonable doubt.

[5]

The trial judge found that the danger to the appellant posed by Tutu had
    passed: Tutu was walking away from the appellant, with his gun in his
    waistband, when the appellant attacked him from behind and took his gun. On
    this basis, he concluded that there was no reason for the appellant to pursue
    and attack Tutu. The trial judge found, further, that there was no reason for
    the appellant to shoot Brown. There was no evidence that Brown had any type of
    weapon prior to the altercation.

[6]

The appellant submits that the trial judge erred in finding that the
    danger had passed, in view of Tutus prior conduct and gun violence in his
    neighbourhood. He characterized this variously as an error in principle, an
    unreasonable finding, and a palpable and overriding error.

[7]

We do not accept this submission.

[8]

This was a factual matter and was for the judge to determine. He
    specifically considered and rejected the appellants evidence that Tutu was
    holding a gun and facing him when he charged at him. That finding was open to
    him on the evidence, and cannot be said to be unreasonable or a palpable and
    overriding error.

[9]

The appellant argues, next, that the trial judge erred in finding that
    Brown posed no danger to him, and in particular erred in focusing on whether or
    not Brown had a gun. The altercation was ongoing; Brown was with Tutu when the
    appellant had been threatened on the prior occasion, and in all of the
    circumstances it was reasonable to think that he might have been armed.

[10]

Again,
    we disagree.

[11]

The
    trial judge considered and rejected the appellants evidence that he was
    terrified and had no intention of shooting Brown or harming anyone. He found
    that there was no reason to think that Brown was armed with a gun or any other
    weapon, and that the appellants actions had been motivated by a desire to make
    sure that he and his friends were not to be threatened by Tutu or his friends
    again. This finding is amply supported by the evidence and is neither
    unreasonable nor does it reveal a palpable and overriding error.

[12]

The
    trial judge considered and rejected evidence that the gun had discharged
    accidentally or unintentionally. He reviewed video evidence showing the
    appellant pursuing Brown and striking him after he had fallen. As the trial
    judge put it, If one thing is clear from the video, it is that the accused
    wanted to hurt Brown and hurt him badly. This was the trial judges call to
    make and we see no error that requires intervention.

[13]

These
    conclusions are sufficient to dispose of the appeal. The appellant acknowledged
    that the appeal could not succeed if the trial judges finding that the danger
    to the appellant had passed was upheld.

[14]

Nevertheless,
    the remaining grounds of appeal addressed by the appellant at the hearing may
    be dealt with briefly.

[15]

We
    see no error in the trial judges treatment of the post-offence conduct. He
    accepted that flight following the shooting might be explainable in all of the
    circumstances. However, the appellants post-offence conduct went beyond this,
    and in particular involved steps taken to dispose of incriminating evidence,
    including his clothing and the gun. It was open to the trial judge to find that
    taken as a whole, the appellants post-offence conduct was powerful
    circumstantial evidence of his guilt.

[16]

The
    appellant argued that the trial judge erred in relying on a KGB statement from
    Nicholas Gray, as discrepancies between the statement and his evidence at trial
    did not rise to the level of an unambiguous recantation.

[17]

We
    disagree.

[18]

The
    KGB statement was properly admitted for the truth of its contents. The trial
    judge accepted that Grays trial evidence was not an outright recantation of
    the statement, and was entitled to determine what weight to give to his
    evidence. His decision reveals no error, nor did the trial judge err in
    dismissing the appellants application to lead an utterance designed to bolster
    the appellants credibility. The trial judge properly applied the exception set
    out by this court in
R. v. Edgar
, 2010 ONCA 529, in which it was made
    clear that an out of court utterance by the accused is admissible as evidence
    of reaction and consistency, but only if the utterance is made in response to
    an accusation of a crime. In this case, the utterance was made in response to a
    question, so was inadmissible.

[19]

The
    appeal is dismissed.

Doherty
    J.A.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.


