



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Abdullahi, 2015 ONCA 549

DATE: 20150727

DOCKET:
C57432

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Abdullahi

Appellant

Carlos Rippell, for the appellant

Roger Shallow, for the respondent

Heard:  July 21, 2015

On appeal from the conviction entered by Justice Michael
    G. Quigley of the Superior Court of Justice on July 13, 2012 and the sentence
    imposed on October 1, 2012.

By the Court:

THE conviction apppeal

[1]

This was a one-issue case, did the Crown prove beyond a reasonable doubt
    that the appellant was in possession of the handgun as alleged by the police
    witnesses?  The appellant testified and denied that he was in possession of the
    gun.

[2]

Counsel for the appellant alleged several misapprehensions of the
    evidence by the trial judge.  He submits that these misapprehensions played a
    central role in the trial judges rejection of the appellants evidence as
    untrue and incapable of leaving the trial judge with a reasonable doubt.  The
    appeal focused on the trial judges reasons for rejecting the appellants
    evidence, as articulated at para. 55 of his reasons.

[3]

The trial judge set out six reasons for rejecting the appellants
    evidence.  One of those reasons reveals a misapprehension of the evidence.  The
    trial judge found the appellant incredible in part because, on the trial
    judges understanding, the appellant had denied ever seeing cocaine in the
    apartment, even after he was arrested.  Contrary to the trial judges
    understanding, the appellant had denied seeing cocaine in the apartment before
    the police arrived, but acknowledged seeing the cocaine after he was arrested
    and seated in the living room.

[4]

In addition to that one factual error, the trial judge mischaracterized,
    to some degree, the appellants evidence on cross-examination when asked about
    the floor in the bedroom.  The trial judge described the appellant as reluctant
    to admit that the bedroom floor was tiled.  The tiling on the floor was of some
    significance because the officer had testified that he heard the gun hit the
    floor when it was dropped by the appellant.  Our review of the relevant part of
    the cross-examination suggests a disagreement between the Crown and the
    appellant that was more semantical than substantial.  The appellant readily
    admitted that the floor was made of a hard substance.  It was that feature of
    the flooring that was important to the credibility of the officers evidence.

[5]

We do not accept counsels submissions that any of the other four
    reasons advanced by the trial judge for rejecting the appellants evidence are
    also tainted by factual error.  Those reasons are firmly rooted in the record.

[6]

In deciding whether a misapprehension of the evidence requires that a
    conviction be quashed, the court must test the misapprehension against a
    stringent standard.  Misapprehensions of the evidence merit reversal if they
    are material in that they play an essential role in the reasoning process that
    led to the conviction.  In determining the materiality of a misapprehension,
    the court will have regard to the entirety of the reasons and the evidence as a
    whole:
R. v. Lohrer
, 2004 SCC 80.

[7]

In this case, two factors compel the conclusion that the trial judges
    misapprehension of the evidence and arguable mischaracterization of a part of
    the appellants cross-examination do not constitute a material misapprehension
    requiring reversal.  First, the verdict was not based only on the rejection of
    the appellants evidence, but also on the finding that the Crowns evidence
    established the case beyond a reasonable doubt.  This was a strong case for the
    Crown.  One of the three officers who testified (Officer Hoeller) confirmed
    crucial evidence given by Officer Wallace who gave direct evidence of the
    appellants possession of the handgun.  Officer Hoellers credibility was not
    challenged at trial.

[8]

Second, the other reasons given by the trial judge for rejecting the
    appellants evidence are cogent and go more directly to the appellants
    credibility on the central factual issue at trial.  For example, the trial
    judges analysis of the appellants evidence about his activities in the
    bedroom before the arrival of the police and his reaction to the arrival of the
    police was rejected as entirely incredible.  The trial judges analysis of that
    part of the appellants evidence is without error and goes much more directly
    to his credibility on the question of his possession of the gun than does his
    evidence about whether he ever saw cocaine in the apartment.

[9]

Taking the trial judges reasons for rejecting the appellants evidence
    as a whole, we are satisfied that his assessment of the appellants credibility
    would not have been any different had he not made the errors identified above. 
    The appellant has not met the onus of demonstrating that the misapprehension of
    appellants evidence about seeing cocaine in the apartment, even combined with the
    relatively benign mischaracterization of a portion of the appellants cross-examination,
    played an essential role in the reasoning process that led to the appellants
    conviction:  see
R. v. M.M.C.
, 2014 ONCA 307.

[10]

In
    addition to the alleged specific misapprehensions of evidence, counsel for the appellant
    also referred to passages from the reasons for judgment, which he argued showed
    that the trial judge did not properly apply the burden of proof despite the
    trial judges specific references to the appropriate authorities.  Some of the
    passages identified by counsel are concerning.  However, placing those passages
    in the context of the entire reasons, we are not satisfied that they reveal legal
    error.  Considered as a whole, the reasons reflect a proper application of the criminal
    burden of proof and are distinguishable on that basis from the reasons given by
    the same trial judge in an earlier case in which he used some of the same
    unfortunate language:  see
R. v. A.P.
, 2013 ONCA 344.

the sentence appeal

[11]

The
    appellant also appeals sentence.  The trial judge imposed the following
    sentences:

·

Count 1:  Possession of a loaded restricted firearm (s. 95(1)): 
    4 years;

·

Count 3:  Possession of a firearm knowing its possession is
    unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and

·

Counts 4 and 5:  Possession of a firearm and possession of
    ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1)
    sentences, but concurrent to each other.

[12]

The
    trial judge imposed a total sentence of six years.  The appellant had spent 520
    days in presentence custody.  The trial judge gave 1.5:1 credit for 72 of those
    days on the basis that the appellant was held in very crowded conditions during
    that time period.  He gave the appellant 1:1 credit for the remaining
    presentence custody.  In the result, the appellant received 18 ½ months credit
    for presentence custody, resulting in an effective sentence of four years, five
    and one-half months.

(i)

Should the sentence on count 3 be concurrent?

[13]

The
    appellant submits that the trial judge erred in principle in imposing a
    one-year consecutive sentence on count 3, the charge under s. 92(1).  He
    submits that the possession underlying count 3 was indistinguishable from the
    possession underlying count 1 (the s. 95(1) charge) and that while the added
mens
    rea
requirement justified a separate conviction, it did not justify a
    consecutive sentence.

[14]

The
    Crown concedes that the one-year sentence on the s. 92(1) charge should have
    been concurrent to the sentence imposed on the s. 95(1) charge.  Crown counsel submits,
    however, that we should increase the sentence on the s. 95(1) to five years so
    as to maintain the total sentence imposed by the trial judge.

[15]

We
    see no reason to interfere with the sentence imposed by the trial judge on the
    s. 95(1) charge.  While the trial judge did have an eye toward the totality of
    the sentences imposed, he imposed the additional one-year sentence on the s.
    92(1) charge because of what he perceived to be the added
mens rea
component.  That distinction does not warrant a consecutive sentence.  Nor can
    it justify increasing the otherwise appropriate sentence imposed on the s.
    95(1) charge.

(ii)

The credit for presentence custody

[16]

The
    trial judge did not have the benefit of the Supreme Court of Canadas decision
    in
R. v. Summers
, 2014 SCC 26 when considering the credit the
    appellant should receive for his presentence custody.  It is appropriate that
    this court reconsider the trial judges assessment in the light of
Summers
. 
    As explained in
Summers
, s. 719(3.1) caps credit for presentence
    incarceration at 1.5:1.  In determining the appropriate credit:

Judges should continue to assign credit on the basis of the
    quantitative rationale, to account for lost eligibility for early release and
    parole during presentence custody, and the qualitative rationale, to account
    for the relative harshness of the conditions in detention centres. [para. 70].

[17]

The
    trial judge applied the qualitative rationale in giving the appellant 1.5:1
    credit for the 72 days he was required to share a cell with two other persons. 
    We accept that part of his analysis.  The trial judge did not separately
    address the quantitative rationale.

[18]

As
    observed in
Summers
, at para. 71, the quantitative rationale, that is loss
    of eligibility for early release and parole, will generally be a sufficient
    basis upon which to award credit at 1.5:1.  The credit is not, however,
    automatic.  If the circumstances of a specific offender render the possibility
    of early release or parole highly unlikely, then a trial judge can adjust, or even
    refuse enhanced credit:
Summers
,
at paras. 71, 79;
R. v. Nelson
, 2014 OJ. No. 5729, at para. 51-53.

[19]

To
    assist in the proper application of
Summers
, this court received a
    report from the Ministry of the Solicitor General and Correctional Services outlining
    the appellants conduct since his incarceration of these charges.  His conduct
    could hardly be worse.  Unfortunately, his conduct since incarceration clearly
    demonstrates that he continues to engage in serious criminal and anti-social
    conduct even while in custody.  There is no realistic possibility that the
    appellant will be given any form of early release or parole.  Applying the
    quantitative rationale underlying enhanced credit for presentence custody, the
    appellant is not entitled to any credit beyond 1:1 credit.

[20]

The
    approach to presentence custody dictated by
Summers
leads to the same
    conclusion as was reached by the trial judge.  We would not interfere with the
    trial judges determination as to the appropriate credit for presentence
    custody.

(iii)

The proper sentence

In summary, leave to appeal sentence is granted and the
    sentence is varied by making the one-year sentence imposed on the s. 92(1)
    charge (count 3) concurrent to the four-year sentence imposed on the s. 95(1)
    charge (count 1).  The one-year sentences on the possession of firearm and
    ammunition while prohibited (counts 4 and 5) are unchanged.  Those sentences
    are consecutive to the four-year sentence imposed on count 1, but concurrent to
    each other.  In the result, the total sentence is reduced from six years to
    five years or 60 months.  The 18 and one-half months credited for pretrial
    custody must be deducted from the 60 months, yielding an effective sentence of
    41 and one-half months.

RELEASED:  DD  JUL 27 2015

Doherty J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.


