



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 31

DATE: 20160113

DOCKET: C54696

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lloyd Ceymour Johnson

Appellant

Heather Pringle, for the appellant

Lorna Bolton, for the respondent

Heard: January 11, 2016

On appeal from the conviction entered on January 27, 2011
    and the sentence imposed on March 8, 2011 by Justice Dougald McDermid of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by McDermid J. of the Superior
    Court of Justice for attempted murder, attempted robbery x2, wear disguise
    while committing an indictable offence, careless use of a firearm x2, point
    firearm, and possession of a firearm x2. He also appeals his sentence of 14
    years incarceration.

[2]

The victim, Salheldin Ali, let his ex-girlfriend, Nadia Ayyad, into his
    apartment to pick up her remaining belongings. Shortly after, there was a knock
    on the door. Mr. Ali opened the door to find Ms. Ayyad and two masked men
    standing in the doorway, one with a gun and the other with a knife. One of the
    men shot Mr. Ali in the chest. Ms. Ayyad and the two men then ran to a car that
    they had parked nearby.

[3]

A week and a half later, the appellant was reported for driving
    erratically and was pulled over by the police. On a search incident to arrest,
    a police officer located the gun that had been used in the shooting. The trial
    judge found that the police breached the appellants ss. 8 and 10(b)
Charter
rights but admitted the gun as evidence under s. 24(2) of the
Charter
.
    The appellant was convicted of nine offences, including attempted murder.

Conviction appeal

[4]

The appellant contends that the trial judge erred with respect to his
    treatment of the
Vetrovec
witness, Nadia Ayyad. According to the
    appellant, the trial judge did not look for independent evidence that
    corroborated Ms. Ayyads testimony as he was required to do before accepting it
    as true.

[5]

We do not accept this submission. This was a judge alone trial. The
    trial judge would be well aware of the law relating to a
Vetrovec
witness, and especially to the dangers associated with relying on their
    testimony. Accordingly, as this court expressed it in
R. v. Snyder
,
    2011 ONCA 445, at para. 24:

There is no need to import the requirement of a 
Vetrovec

    caution designed to alert juries to the danger of relying on the evidence of
    certain witnesses into a trial judges reasons for judgment. Judges know the
    risks inherent in relying on witnesses like Burgess and Doucette. It would be
    pure formalism to require judges to articulate those dangers in their reasons.

[6]

The trial judge was aware of, and expressly referred to, some of the
    dangers of accepting Ms. Ayyads testimony on the crucial issue of who shot Mr.
    Ali. He explained why he nevertheless accepted that she was being truthful in
    identifying the appellant as the shooter.

[7]

In any event, there was evidence confirming that the appellant was the
    shooter including, importantly, the fact that the gun used in the shooting was
    found in the rental car being driven by the appellant when he was arrested.

[8]

The appellant further submits that the trial judge, having found that
    the police violated his ss.8 and 10(b)
Charter
rights, erred by
    admitting the evidence relating to the gun under s. 24(2) of the
Charter
.

[9]

We disagree. Although we would not want to be taken as agreeing with the
    trial judges finding that there was a s. 8
Charter
violation in light
    of this courts decisions in the similar cases of
R. v. Morris
, 2013
    ONCA 223 and
R. v. Huang
, 2013 ONCA 430, we can see no error in the
    trial judges s. 24(2) analysis. He applied the three branches of the
Grant
test and reached a reasonable conclusion.

[10]

The
    appellant also tenders fresh evidence  hearsay evidence from a long-time
    friend of the appellant  designed to establish that the other man involved in
    the attack on Mr. Ali, Curtis Elliott, was the shooter. In our view, this is far
    removed from being fresh evidence  Mr. Elliott was available as a witness at
    the appellants trial; the defence, presumably for tactical reasons, chose not
    to call him.

Sentence appeal

[11]

The
    appellant asserts that the 14-year sentence failed to take into account the
    principle of restraint, especially in light of the fact that he had no previous
    criminal record before these offences.

[12]

We
    do not accept this submission. The shooting of Mr. Ali was a cold-blooded
    assault on a man the appellant had never met and, apparently, for no
    discernible reason. Mr. Ali almost died, was in a coma for many days, and
    suffered long-term serious injuries. Even the defence proposed a sentencing
    range of 10-12 years.

Disposition

[13]

The
    conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


