



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2013 ONCA 473

DATE: 20130719

DOCKET: C56551

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Ahmed

Applicant / Appellant

Jonathan Dawe, for the Appellant

Matthew Asma, for the Respondent

Heard and released orally: June 21, 2013

On appeal from the conviction entered on April 15, 2013
    by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

In our view this appeal must be allowed because of the inadequacy of the
    reasons. First, the trial judge failed to take into account Ms. Catos
    evidence. The trial judge gave no reasons for not considering this evidence
    from which an inference could be drawn that the appellant did not come out of
    the wrong door contrary to the evidence of the police. Second, the trial judge
    failed to consider the unlikelihood that the appellant would have been able to
    take off two winter coats and put one of the coats back on, all within seconds
    and while seated in the car.

[2]

Third, the trial judge erred in failing to consider the statement of the
    driver showing knowledge of the presence of the gun. The trial judge erred in
    holding it was inadmissible hearsay. It was admissible for the non hearsay
    purpose of showing the drivers state of mind. In fairness to the trial judge
    defence counsel at trial, not Mr. Dawe, did not expressly point out that the
    utterance had this non- hearsay purpose.

[3]

Finally the trial judge erred in failing to consider the impact of the
    destruction of the TTC video, particularly given the efforts made by the
    defence to obtain the video at a time that they did not know it had been
    destroyed. Even absent a s.7 violation this was a factor to be considered. As
    was said in
R. v. Bero
, in some circumstances the absence of evidence
    can give rise to reasonable doubt. While in the course of submissions the trial
    judge referred to the use of the video respecting the clothing, he did not
    consider the impact of the destruction of the video on Ms. Catos evidence and
    what exit the appellant came out of.

[4]

Accordingly, the appeal is allowed, the convictions are set aside and a
    new trial is ordered.

M. Rosenberg J.A.

R.J. Sharpe J.A.

E.E.
    Gillese J.A.


