



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yusuf, 2020 ONCA 69

DATE: 20200130

DOCKET: C65516

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahad Yusuf

Appellant

Jessica Zita, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally:
    January 20, 2020

On appeal from the conviction entered on
    November 9, 2017 and the sentence imposed on April 13, 2018 by Justice Neil L.
    Kozloff of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario
    Court of Justice, the appellant was convicted of robbery; unlawful confinement;
    and breach of recognizance arising out of his participation in a home invasion
    robbery. The trial judge imposed a sentence of 4.5 years from which he deduced
    21.5 months credit for pre-sentence custody. The net sentence imposed was 2
    years, 10 months and 15 days.

[2]

The appellant appeals both conviction and
    sentence.

The Appeal from Conviction

[3]

On the appeal from conviction, the appellant
    advances arguments which challenge the conviction of unlawful confinement only.

[4]

In our view, these arguments fail.

The Background Facts

[5]

The offences arise out of a home invasion of an
    apartment occupied by three students at a local community college. The
    appellant, who was known to the principal victim, was the person who arranged
    to attend at the apartment on a pretext. When the victim answered the door and
    turned his back to it, the appellant and two others, who were masked, entered
    the premises. One was armed with what the trial judge found was an imitation
    firearm. The victims were confined within their home and several items of
    personal property, including cash and various items of electronic equipment, taken
    from them.

The Grounds of Appeal

[6]

The appellant contends that the conviction of
    unlawful confinement cannot stand because:

i.

the offence did not amount to a separate delict
    discrete from the conduct that constituted the offence of robbery;

ii.

the trial judge erroneously applied the
    principles set down in
Kienapple v. R
., [1975] 1 S.C.R. 729, to
    conclude that the offence of unlawful confinement had been made out; and

iii.

the trial judge ruled on the application of the
Kienapple
principle in giving his reasons for conviction when the issue had not been
    raised by either counsel, and did not afford counsel the opportunity to make
    submissions.

[7]

We reject these complaints of error.

Discussion

[8]

The evidence adduced at trial, taken as a whole,
    amply supports the finding of guilt of unlawful confinement. This is not a
    case, in our view, in which it can be said that there was not a domination and
    coercive restraint of the principal victim of a sufficient length of time to
    attract liability for unlawful confinement discrete from the appellants
    liability for robbery.

[9]

In our view, it would have been better had the
    trial judge not dealt with the application of the principles in
Kienapple
until after he recorded his findings of guilt, or at the time of sentencing,
    and received submissions from counsel on the issue. However, the appellant
    suffered no tangible prejudice. Above all else, the ruling was correct.

The Appeal from Sentence

[10]

As to sentence, the appellant says that the
    principal sentence imposed on him should have been four years, rather than four
    and one-half years. The appellant points to the principle of restraint and to
    the jump principle in support of this submission.

[11]

In our view, the sentence imposed reflects no
    error in principle. It sits within the range of sentence fit for this offence
    and the offender who committed it. There is no basis for our interference.

DISPOSITION

[12]

The appeal from conviction is dismissed. Leave
    to appeal sentence is granted, but the appeal from sentence is dismissed,
    except to the extent that the victim surcharge imposed by the trial judge is
    set aside.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


