



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Yehya, 2019 ONCA 781

DATE: 20191003

DOCKET: C66029

Juriansz, Benotto and
    Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anwar
    Yehya

Appellant

Najma Jamaldin, for the appellant

Lorna Bolton, for the respondent

Heard and released orally: September 27, 2019

On appeal from the conviction entered on March 8, 2018 by Justice
    P.J. Flynn of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of offences related
    to a home invasion robbery. He appeals and alleges multiple errors in the trial
    judges instructions and charge to the jury.

[2]

The chief submission is that the Crown, in its closing
    submission, invited the jury to speculate that a firearm had been discharged
    from the vehicle that was used to leave the scene of the robbery and that this
    was not corrected by the trial judge.

[3]

We do not accept counsels characterization of
    the Crowns remarks. On our reading, the Crown listed a number of possibilities
    and then clearly told the jury that it did not have to decide an explanation
    for the shell casings in the car. In any event, this was not key evidence.

[4]

The second submission is that the Crown invited
    the jury to draw an impermissible inference: that the appellant came from
    Toronto to commit the offence in Waterloo. We do not accept this submission. The
    Crown could properly draw the jurys attention to the fact that the appellant
    and the four other people in the getaway car were from Toronto. This was just
    one piece of circumstantial evidence.

[5]

The jury charge was adequate on the issue of
    circumstantial evidence because the trial judge instructed the jury that a
    reasonable doubt can arise from a lack of evidence. In any event, this language
    was suggested by the defence counsel at trial and the instruction was
    reinforced by the closing submissions of the defence and the Crown.

[6]

We are satisfied that the jury was properly
    instructed and that the verdict was available on the evidence.

[7]

For these reasons, the appeal is dismissed.

R.G.
    Juriansz J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


