



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Conteh, 2016 ONCA 808

DATE: 20161031

DOCKET: C55348

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ishmail Conteh

Appellant

Mark Halfyard and Breanna Vandebeek, for the appellant

Gillian Roberts, for the respondent

Heard and released orally: October 27, 2016

On appeal from the finding of guilt entered on December 3, 2009 and the disposition imposed on June 16, 2010 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals both his conviction and his sentence. On his
    conviction appeal the appellant submits that the trial judge erred in his
    charge in two respects:

(1)

He made comments that unfairly denigrated the defence; and

(2)

He did not properly caution the jury on inferences they could draw about
    the appellants age and, in addition, he did not expressly refer to the
    probation officers evidence.

[2]

We did not call on the Crown on these two submissions. Read as a whole,
    we are satisfied the trial judges charge was fair. He did point out matters
    the jury could consider in assessing the evidence of the ten year old girl who
    was the defences main witness, but he did not inappropriately express his
    opinion on her evidence. In his charge on age we are satisfied the trial judge
    adequately equipped the jury to consider whether the appellants age had any
    bearing on his likelihood of having participated in the murder of the victim.

[3]

We therefore dismiss the conviction appeal.

[4]

On the sentence appeal the appellant submits that the trial judges
    ruling on age was unreasonable. We do not agree with this submission. The trial
    judge gave thorough reasons for finding that the appellant was at least 16 and
    a half years old. We agree with the Crown that the trial judge correctly
    approached the issue of assessing the appellants evidence. He did not examine
    that evidence piece meal but looked at it cumulatively or holistically over a
    period of time. The evidence he had to consider was in part documentary, in
    part direct, and in part circumstantial. All the considerations the trial judge
    discussed were relevant.

[5]

In particular the trial judge was statutorily entitled to consider the
    appellants appearance. As this was not an identification case, no concerns
    arose about any cross-racial identification. Moreover, contrary to the
    appellants contention, we do not think that the trial judge gave his
    assessment of the appellants appearance too much weight. The appellants
    appearance was one of the list of considerations that bore on the appellants
    age.

[6]

Also the case law shows that a young persons criminal record and the
    young persons peer group are relevant considerations. Indeed the trial judge
    could have buttressed his reliance on the appellants criminal record by
    pointing out that in his numerous court appearances the appellant confirmed his
    birthdate as either August 28, 1989 or 1990.

[7]

Taken as a whole, in our opinion the evidence from when the appellant
    came to Canada overwhelmingly shows that he was over 16. The trial judges
    ruling was not unreasonable.

[8]

Accordingly, the sentence appeal is dismissed.

John
    Laskin J.A.

Robert J.
    Sharpe J.A.

Grant
    Huscroft J.A.


