



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barkhadle, 2018 ONCA 569

DATE: 20180621

DOCKET: C63837

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ismail Said Barkhadle

Appellant

Howard L. Krongold, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: June 20, 2018

On appeal from the convictions entered on September 7,
    2016 by Justice Marc R. Labrosse of the Superior Court of Justice sitting
    without a jury.

REASONS FOR DECISION


[1]

Mr. Barkhadle appeals his conviction on one
    count of unlawful possession of a loaded prohibited firearm.

[2]

The background facts, briefly stated, are that
    the police, based on a complaint, raided a small apartment located on Baycrest
    Drive in the City of Ottawa.  Eight officers entered the apartment in a
    dynamic fashion.  They found nine males in the small apartment.  The lead
    officer saw the appellant move towards the back of the apartment, hunched over
    and with his right hand near his waist band.  The officer tackled the
    appellant.  As the two fell to the floor, the officer saw the appellants hands
    come out as if to break his fall.  The officer saw a gun in the appellants hands
    that came loose and clattered to the floor.  The gun came to rest about a foot
    from the appellants right hand.

[3]

The appellant gave evidence.  He said that he
    did not have a gun in his possession when he was tackled by the officer.  He
    also said that he did not put his hands out when he was falling to the ground. 
    The appellant also said that he did not see a gun on the floor as he was being
    arrested.

[4]

The trial judge convicted the appellant.  In
    doing so, the trial judge instructed himself that he had to apply the test in
R.
    v. W.(D.)
,
[1991] 1 S.C.R. 742, which he set out in his reasons. 
    The trial judge did not accept the appellants evidence.  He gave reasons for
    his rejection of that evidence.  He also found that the appellants evidence
    did not raise a reasonable doubt.

[5]

The trial judge went on to find that he did
    believe the evidence of the officer.  He found that the officer was consistent
    in his evidence as to the events and that he gave a detailed description as to
    how those events unfolded.  The trial judge also noted that the officers
    evidence was confirmed in some respects by the evidence of several of the other
    officers involved.

[6]

The appellant complains that the trial judge
    failed to subject the officers evidence to adequate scrutiny.  In particular,
    the appellant asserts that the trial judge failed to consider the difference
    between certainty and reliability, failed to consider the role of stress in the
    recollection, failed to consider the inherent problems with split second
    observations, and finally the further concern about the possibility of
    reconstruction.

[7]

We do not agree with the appellants
    submissions.  We do not accept that the trial judge failed to properly
    scrutinize the officers evidence.  To the contrary, the trial judge engaged in
    an entirely appropriate review of that evidence including all of the relevant
    factors regarding its reliability.

[8]

It is the role of trial judges, when acting as
    the trier of fact, to reach conclusions as to the evidence that they accept and
    the evidence that they do not accept.  Their conclusions on those issues are
    entitled to deference from appellate courts.  The appellant has failed to
    establish that there was any palpable and overriding error in the conclusion
    that the trial judge reached in this case.

Conclusion

[9]

The appeal is dismissed.

C.W. Hourigan J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


