



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sharif, 2015 ONCA 694

DATE: 20151015

DOCKET: C56251

Sharpe, Hourigan, Benotto JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Jamal Sharif

Appellant

Jamal Sharif, in person

Jill Presser, duty counsel

Michael Bernstein, for the respondent

Heard and released orally: October 8, 2015

ENDORSEMENT

[1]

The appellant raises the argument that he was given ineffective
    assistance by his trial counsel. His complaint is that by virtue of his
    counsels conduct, he was effectively prevented from testifying on his own
    behalf to give an alternate version of the events that transpired.

[2]

From his evidence filed in support of the ineffective assistance ground
    and in his submissions before us today, we conclude that he did discuss the
    question of whether or not he should testify with his counsel and that he chose
    not to do so because he did not want to be cross-examined on the identify the
    person he said was the actual shooter. In these circumstances, we see no merit
    to the ground that the appellant had ineffective assistance of trial counsel.

[3]

The appellants second ground for appeal from conviction is that the
    verdict was unreasonable. Assuming that this was a purely circumstantial case,
    as we read the reasons of the trial judge, he properly instructed himself on
    the law with respect to a case based on circumstantial evidence.

[4]

In our view, on the evidence that was before the trial judge, there
    really was no reasonable alternative to concluding that the appellant had
    possession of the firearm and that he discharged it as alleged by the crown. There
    was evidence that the appellant approached the car with a firearm. There was no
    evidence before the trial judge as to where he got the firearm, why he was
    approaching the car with it, or who was in the car. The suggestion that the
    initial shots came from the car was advanced before us as part of the
    ineffective assistance ground. There was no evidence to that effect before the
    trial judge. On the basis of the evidence led a trial, the possibility that the
    first shots were fired by the driver after the appellant had handed him the
    firearm would have been entirely speculative.

[5]

Accordingly, the appeal from conviction is dismissed.

[6]

We now turn to the sentence appeal.

[7]

The trial judge did not have the benefit of the Supreme Court of
    Canadas decision in
R.

v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575
and, as the crown
    quite properly concedes, the trial judge erred in failing to give 1.5 credit
    for the pretrial custody that the appellant had served.

[8]

By our calculation, instead of 11 months credit for pretrial custody,
    the trial judge ought to have given 14.25 months credit and, accordingly, we reduce
    the sentence on count 1 by 3.25 months.

[9]

The second ground with respect to sentence relates to the appellants
    status as a relatively youthful first offender.

[10]

The
    trial judge noted that the appellant was a relatively youthful first time
    offender. The trial judge also found the appellant had good prospects for
    rehabilitation. Indeed, in his reasons, he described those prospects as excellent.
    The case law from this court from
R.
    v. Priest
(1996), 30 O.R.
    (3d) 538
forward
emphasizes the
    need for restraint when sentencing a young first offender with good prospects
    for rehabilitation. The appellant faced a minimum 5 year sentence for the
    offence of discharging a firearm at an unknown person with intent to endanger
    life. In the specific circumstances of this case, it is our view that it was an
    error in principle for the trial judge to have gone beyond that mandatory
    minimum. Accordingly, we will reduce the sentence by an additional 1 year.

[11]

Leave
    to appeal sentence granted, the sentence appeal is allowed and the sentence
    with respect to count 1 is reduced in accordance with these reasons. In all
    other respects, the sentence is maintained.

Robert J. Sharpe
    J.A.

C.W. Hourigan J.A.

Mary Lou Benotto
    J.A.


