



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marzouk, 2021 ONCA 855

DATE: 20211201

DOCKET: C68089

Rouleau, Huscroft and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Marzouk

Appellant

Faisal Mirza and Kelly Gates, for the appellant

Jeffrey Wyngaarden
, for the respondent

Heard: October 29, 2021, by
    video conference

On appeal from the conviction entered on
    January 9, 2020 with reasons reported at 2020 ONSC 168, and the sentence
    imposed on March 3, 2020 by Justice Dunphy of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant appeals his conviction for robbery
    and the resulting three-year sentence.

[2]

The robbery occurred after the complainant contacted
    Mr. Jermaine Jackson to arrange for an advance of money to pay his rent. Mr.
    Jackson was leaving the country and unable to meet the complainant, so he made
    arrangements whereby a friend, the appellant, would advance the funds. The
    appellants telephone number was provided to the complainant. Following an
    exchange of texts between the complainant and the appellant, the complainant
    drove to an agreed rendezvous spot. The complainant had never met the appellant.
    When he reached the agreed meeting spot, the appellant entered his car, forced the
    complainant to exit at gun point, and then drove away with the complainants
    car.

[3]

The central issue at trial was identity.

[4]

The appellants primary ground of appeal is that
    the identity evidence relied on by the trial judge to convict the appellant was
    so weak that the verdict is unreasonable.

[5]

We disagree. The evidence in this case strongly
    implicated the appellant. The trial judge set out 10 pieces of evidence that
    support his conclusion that the appellant committed the carjacking. The
    appellant does not dispute the existence of this evidence, but argues that two
    of the points relied on by the trial judge  the complainants in-court
    identification of the appellant and the complainants identification of the
    appellant in a photo shown to him by police  were of no value and ought to
    have been given no weight by the trial judge.

[6]

The appellant explains that the factors to be
    considered when assessing the reliability of eyewitness identification raised
    concerns: see
R
. v. T
at
(1997), 117 C.C.C. (3d) 481
    (Ont. C.A.). Specifically, the appellant was not known to the complainant; he was
    seen only briefly in stressful circumstances; and his identification was tainted
    because the complainant was presented with a single photo by police and was simply
    asked to confirm that it depicted the perpetrator. In these circumstances, the
    appellant argues, the identification was worthless.

[7]

While we agree that the factors noted by the
    appellant are of concern, they do not render the complainants identification valueless.
    There was considerable additional evidence to support the complainants
    identification, such as the phone number used to arrange the meeting. The trial
    judge was well aware of the difficulties with each piece of evidence and the
    limits to its use. We see no error in his analysis and reliance on the
    complainants identification evidence.

[8]

The appellant also argues that the trial judge
    overlooked a critical piece of evidence that ought to have raised doubt as to the
    appellants connection with the phone number used by the perpetrator of the
    crime. That evidence consists of a comment by Mr. Jackson that, when he later received
    a text message from the phone number associated with the perpetrator, he
    thought the appellant may have been in custody.

[9]

We agree with the Crowns submission that the
    evidence cited by the appellant was, at best, equivocal. The appellant
    presented no evidence regarding his whereabouts when Mr. Jackson received this
    text messages. The trial judges failure to advert to this evidence does not
    constitute an error.

[10]

In any event, the available evidence links the
    appellant to the perpetrators phone number at the time of the offence. The
    complainant had never met the perpetrator. Their contact was entirely arranged
    through the telephone number the complainant received from Mr. Jackson. Mr.
    Jackson testified that the number belonged to the appellant, and that the
    appellant was the only person to answer his request for help.

[11]

The appellants final concern with respect to
    identity is the trial judges reliance on the list of 10 items of evidence confirmatory
    of identity. The appellant argues that each of these items suggests a very tenuous
    links between the appellant and the crime. Even taken together, they are
    insufficient to support the trial judges conclusion.

[12]

In our view, the trial judges reasons
    demonstrate that he was clearly aware that, taken in isolation, there were
    limits and frailties in each individual piece of identification evidence. He
    concluded, however, that viewed cumulatively, they fully supported a finding
    that the appellant committed the robbery. The weighing of evidence is clearly
    within the trial judges domain and we see no error in his conclusion in that
    regard.

[13]

The appellants second ground of appeal is that
    the trial judge erred in allowing the Crown to call rebuttal evidence. The
    Crown presented an uncropped version of the photo shown to the complainant by
    police to identify the appellant. The cropped version was provided to police by
    Mr. Jackson and was put into evidence by the Crown. In his testimony, Mr.
    Jackson identified the cropped photo depicting the appellant and explained that
    the uncropped photo was one of him with the appellant. Prior to providing the
    photo to police, he cropped it to remove himself from the picture so as to avoid
    confusion when it was shown to the complainant. Mr. Jackson testified that the photo
    was taken when he and the appellant were in a relationship. No issue was taken
    with this aspect of Mr. Jacksons testimony and he was not cross-examined on
    these assertions. When the appellant testified in his defence, he denied having
    had a relationship with Mr. Jackson and strenuously denied that a photo
    depicting him with Mr. Jackson in fact existed.

[14]

At the close of the appellants case, the trial
    judge allowed the Crown to lead the uncropped photo as rebuttal evidence. We
    see no error in the trial judge having done so. The uncropped photo was
    obtained by the Crown only after its existence became an issue in the course of
    the appellants testimony. In presenting its case, the Crown clearly did not
    and could not have reasonably expected that the uncropped photo would be an
    issue. It therefore cannot be faulted for not having sought to obtain it from
    Mr. Jackson and introduced it as part of its case. In these circumstances,
    including the appellants failure to challenge Mr. Jackson on his evidence
    relating to the photo and their past relationship, the trial judge did not err
    in allowing this rebuttal evidence.

[15]

The final ground of appeal as to conviction is
    that the trial judge erred in rejecting the appellants alibi evidence. The
    appellant argues that this rejection was based on a misapprehension of the
    evidence. In his evidence, the appellant claimed that, at the time of the
    offence, he was attending a course at York University. He presented evidence consisting
    of the course schedule and confirmation of his registration. In rejecting this
    alibi evidence, the trial judge noted that no attendance is taken in class. The
    Crown concedes that there was no evidence of this led at trial.

[16]

We agree with the Crown that this
    misapprehension is of no moment as it did not play a material part in the
    judges reasoning process. The appellant did not disclose his alibi before
    trial, and the materials he produced at trial did not prove that he had been in
    class at the time of the carjacking or even that he had completed the course he
    was supposed to be attending. The trial judge, finding that the appellant
    lacked credibility, rejected his evidence and drew an adverse inference against
    the appellants alibi based on its late disclosure. We therefore reject this
    ground of appeal.

[17]

We turn now to the sentence appeal.

[18]

The appellant argues that the three-year
    sentence over-emphasized general deterrence and denunciation and failed to
    sufficiently consider the principles of restraint and parity as compared to
    other youthful first-time offenders with strong rehabilitative prospects.

[19]

The appellant explains that, although the trial
    judge indicates that he considered the cases referenced by the parties, he does
    not cite any of those cases or explain how the sentence he imposed is
    consistent with those authorities. Had he properly considered the case law, he
    would have found that similarly situated youthful individuals with no record
    and excellent rehabilitative prospects received far lesser sentences. In the
    appellants submission, a sentence of 12 months would be more in line with the
    case law. He notes that, in
R. v. Ha
ti
my
, 2014 ONSC 1586, a comparable case
    involving more serious injuries, the sentence imposed was one year.

[20]

The appellant also tenders fresh evidence
    showing that he has continued on his positive progress.

[21]

The Crown concedes that the appellant has
    excellent rehabilitative prospects but submits that the trial judge was well
    aware of this. In the Crowns submission, the sentence he imposed is entitled
    to deference and, absent an error in principle or a finding that it is
    demonstratively unfit, it ought not to be interfered with. The Crown relies on
    the decision in
R. v.
    Noor
,
2007 CanLII 44822 (Ont. S.C.) as being
    similar. In that case, the sentence was three and a half years.

[22]

In our view, the case of
Noor
is quite
    dissimilar. In that case, the offender did not show strong rehabilitative
    prospects like those of the appellant. In
Noor
, the trial judge
    explained that, following his release after being charged, the offender had occupied
    himself almost exclusively, it would seem, with getting into further trouble
    with the law.

[23]

Although the trial judge acknowledged the
    appellants mitigating factors and his excellent rehabilitative prospects, when
    he turned to the applicable sentencing principles, he referenced only
    denunciation and deterrence. However, when sentencing a youthful first offender,
    even for very serious offences justifying incarceration, rehabilitation remains
    an important consideration:
R v. S.K.
, 2021 ONCA 619, at para. 12 citing
R v. Priest
(1996), 110 C.C.C. (3d) 289 (Ont. C.A.). In our view, the
    trial judge erred in principle by focusing almost exclusively on the objectives
    of denunciation and deterrence:
R v. Borde
, 63 O.R. (3d) 417 (C.A.), at
    para. 36. This error had an impact on the sentence imposed, such that we must
    intervene:
R v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 64.

[24]

The trial judge properly noted that carjacking
    is a very serious offence. The appellant planned the robbery from his first
    contact with the complainant and used an imitation firearm. The ordeal
    continues to haunt the complainant. However, in the specific context of this
    case, including the appellants exceptional rehabilitative prospects, a fit
    sentence is one that does not result in a penitentiary sentence for this first
    offence. We note in particular that, in the period following the laying of the
    charge, the appellant completed his university degree in kinesiology and health
    sciences. He also has a strong pro-social family network and established community
    ties.

[25]

Therefore, considering the severity of the
    offence, along with the fact that the appellant is a youthful first-time
    offender with excellent rehabilitative prospects, we consider a sentence of two
    years less a day followed by one year of probation to be appropriate.

[26]

Nonetheless, we would dismiss the motion to file
    fresh evidence. In our view, the evidence serves only to confirm the
    appellants rehabilitative prospects, the evidence of which was already before
    the trial judge. As such, it does not meet the test set out in
R v.
Palmer,
    [1980] 1 S.C.R. 759.

[27]

In conclusion, the conviction appeal is dismissed,
    and the sentence is varied to one of two years less a day followed by one year
    of probation, subject to the submissions of the parties as to terms. The
    parties are to provide proposed terms for the probation within 10 days of this
    decision. The balance of the terms of sentence remains the same.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

J.A.
    Thorburn J.A.


