



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2020 ONCA 653

DATE: 20201015

DOCKET: C67411

Pardu, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamal Mohamed

Appellant

Jamal
    Mohamed, acting in person

Gerald Chan, appearing as
    duty counsel

Michael
    Fawcett, for the respondent

Heard:
    October 8, 2020 by video conference

On appeal
    from the conviction entered on June 20, 2019 and the sentence imposed on September
    3, 2019 by Justice Trevor A. Brown of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant, Jamal Mohamed, was convicted of
    aggravated assault, discharging a firearm and related charges arising out of an
    incident in which the victim was shot in the leg. He raises two grounds on this
    appeal from both conviction and sentence.

[2]

First, he argues that the identification
    evidence of the victim was unreliable and that it was unreasonable for the
    trial judge to rely upon it. Second, he argues that some of the counts should
    have been stayed on the basis of the
Kienapple
principle:
R. v.
    Kienapple
, [1975] 1 S.C.R. 729. This issue was never raised with the trial
    judge. The Crown agrees with the second ground. On consent, an order will issue
    staying counts 2, 3, 4, 5 and 10.

[3]

The appeal is otherwise dismissed for the
    following reasons.

Factual Background

[4]

The shooting took place shortly after 1:30 p.m.
    on a weekday afternoon.

[5]

There were two witnesses. The first one was the
    victim Albert McLeod and the second was a neighbour who lived in an apartment
    overlooking the street where the incident took place. The first officer to head
    to the scene was dispatched at 1:54 p.m. As he was approaching the scene, he
    noticed a green Saturn driving towards him at a high rate of speed which, he
    testified, made an evasive manoeuvre to bypass him. He was able to catch a
    partial plate, BTHM, from his drivers side mirror when the car slowed to
    make its evasive move.

[6]

As a result of information received from Mr.
    McLeod, the police proceeded to Mr. Mohameds residence almost immediately
    after the shooting. A car meeting the officers description was in the parking
    area. It appeared to have been recently driven, it bore the licence plate BTHM
    081 and it belonged to the appellant. A video camera at the building captured Mr.
    Mohamed entering the apartment building where he was living at 2:11 p.m.

[7]

At trial, Albert McLeod identified the appellant
    as the man who shot him in the leg. He testified that he knew him as Mike or
    Mikey because he used to buy crack cocaine from him and resell it at a profit
    to friends. Before the shooting, he testified, he had stopped buying drugs from
    Mikey because of their poor quality, and Mikey was not happy about this. He
    testified that he was walking in the area when he came upon Mikey. They had
    spoken by phone earlier in the day. After a brief discussion, Mikey pulled the
    gun from his pants and shot him in the leg. Mikey initially walked away,
    putting the gun behind his back, and then ran away.

[8]

Evidence was presented that Mr. McLeod had identified
    the appellant unequivocally from a photo lineup with which the appellant takes
    no issue.

Analysis

[9]

Mr. Chan submitted that the trial judge failed
    to scrutinize Mr. McLeods evidence as rigorously as he should have, given the
    dangers of eyewitness identification. He focused on a number of inconsistencies
    in Mr. McLeods evidence at trial, and also on the fact that he had been
    drinking the night before and was on his way to drink some more. He also noted
    that Mr. McLeod had failed to point to any particular identifying features of
    the appellant, saying only I know him.

[10]

We would not give effect to this argument.

[11]

The trial judge was alive to the dangers of
    eyewitness identification, and particularly the danger that an eyewitness may
    be honestly mistaken. He did note that this was not a case of a passing
    familiarity, but that Mr. McLeod knew the appellant and had a very good
    opportunity to see and recognize him at the time:
R. v. Olliffe
, 2015
    ONCA 242, 322 C.C.C. (3d) 501. It was broad daylight and there was a
    face-to-face verbal confrontation before the shooting at close range. As the
    trial judge commented, he knew the man. The trial judge recognized some of
    the difficulties with the reliability and credibility of Mr. McLeods evidence,
    such as the fact that he had been inconsistent about whether he had known the
    appellant for 5 months or 1 year. He expressly considered the fact that Mr.
    McLeod had been drinking. However, he ultimately accepted his evidence that the
    appellant was the man who shot him.

[12]

Important to the trial judges conclusion was
    the body of circumstantial evidence [providing] considerable support to the
    direct identification of Mr. Mohamed that was provided by Mr. McLeod. He
    stated that [a]ny concerns that I otherwise might have been left with by Mr.
    McLeods evidence have been resolved by the strong body of evidence. He found
    that Mr. McLeods description of the encounter, while not free of
    inconsistencies, was generally corroborated by the neighbour who observed the
    incident from his apartment nearby. The appellant acknowledged that he was
    known as Mike or Mikey, that he had seen Mr. McLeod in the area of the
    shooting on other occasions and that he would know him to see him. The fact
    that the appellant frequented the area was confirmed by video surveillance.

[13]

The testimony of the neighbour who observed the
    incident from a distance provided general corroboration to the evidence of Mr.
    McLeod as to the way the events unfolded. In addition, the trial judge found
    that the officers evidence concerning the green Saturn that had the partial
    plate matched that of the appellants car.

[14]

The trial judge carefully considered both the
    case law and its application to this case. He was entitled to find, on the
    record before him, that Mr. McLeods evidence was corroborated not only by the
    police evidence which recorded the partial license plate of the appellants car
    driving away from the area of the shooting in the minutes that followed, but
    the description of the witness who observed from his nearby apartment. We see
    no error in his analysis of the law and the evidence or in the trial judges
    conclusion that the Crown had proved beyond a reasonable doubt that the
    appellant was the man who shot Mr. McLeod in the leg.

Disposition

[15]

The appeal is allowed to the extent that the
    guilty verdicts on counts 2, 3, 4, 5 and 10 shall be set aside and stays are
    substituted. The appeal is otherwise dismissed.

G.
    Pardu J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


