



WARNING

The President of the panel has directed
    that no information is to be published regarding this appeal that would
    identify the young persons in these proceedings. This non-publication order
    relates to a prohibition on the publication of the names of or any other
    information that would identify E.A. and Z.A. in this proceeding and the
    contents of Exhibit 10 filed at trial.

This is ordered in accordance with

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) 
    Subject to this section, no person shall publish the name of a young person, or
    any other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act

111. (1) 
    Subject to this section, no person shall publish the name of a child or young
    person, or any other information related to a child or a young person, if it
    would identify the child or young person as having been a victim of, or as
    having appeared as a witness in connection with, an offence committed or
    alleged to have been committed by a young person

138. (1) 
    Every person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of
    Canada, 1985,

(a) is guilty of
    an indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)  is guilty of an offence punishable on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Abbasi, 2016 ONCA 219

DATE: 20160318

DOCKET: C60162

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naqash Abbasi

Appellant

Peter Copeland, for the appellant

Jessica Smith Joy, for the respondent

Heard:  March 14, 2016

On appeal from the conviction entered by Justice J.
    Stribopoulos of the Ontario Court of Justice, dated December 16, 2014, and the sentence
    imposed on March 12, 2015.

ENDORSEMENT

[1]

On February 9, 2012, in the dead of night, someone fired several shots
    from a high powered rifle into the home of E.D.  No one was hit.

[2]

E.D. was scheduled to give evidence against Z.A. in an upcoming criminal
    proceeding.  Z.A. was a friend of the appellant and his brother.

[3]

The shots came from a rifle purchased a few days before the incident by
    the appellant.  He kept the rifle in a gun safe in his bedroom.

[4]

The appellant was charged with several firearms-related offences arising
    out of the shooting.  The Crown alleged that the appellant, in an effort to
    assist his friend, Z.A., had fired the shots into E.D.s home hoping to
    dissuade her from giving evidence against his friend.

[5]

The appellant testified and denied that he committed the offences.  He
    identified his brother as a person who had access to the guns kept in the
    appellants safe in his bedroom.  The brother did not testify.

[6]

The trial judge convicted the appellant on most of the charges and
    sentenced him to a total of eight years imprisonment, less credit of one year
    for presentence custody and strict bail conditions.

[7]

The appellant appeals conviction and sentence.

The Conviction Appeal

[8]

The appellant alleges several errors by the trial judge in his analysis
    of the evidence, his credibility findings, and his factual conclusions.  The
    appellants submissions essentially reargue the issues litigated at trial and
    suggest alternative conclusions to those arrived at by the trial judge.  The
    appellants arguments do not, however, demonstrate that the trial judge made
    any reversible error in his treatment of those submissions.

[9]

The appellant argues that the trial judge made several errors in relying
    on the evidence of the appellants statement to the police that it was not
    possible that his brother took his gun.  This statement was significant to the
    Crowns case as at trial it was central to the defence position that the brother
    did have access to the gun and was the person who had fired the gun into E.D.s
    home.

[10]

The
    trial judge addressed the evidence surrounding the appellants statement to the
    police and the arguments made by counsel (see reasons for judgment at paras.
    72-73).  He ultimately accepted the statement at face value as a denial by the appellant
    that his brother could have used the gun.

[11]

It
    was open to the trial judge to take that view of the evidence and use the
    statement in assessing both the appellants credibility and the force of the
    circumstantial evidence relied on by the Crown.  Arguments that may have
    persuaded some other judge to look at the evidence differently do not justify
    appellate intervention.

[12]

The
    appellant also challenges the trial judges finding that on the evidence he
    accepted the appellant had exclusive access to the firearm used to commit the
    offences.  As we read the trial judges reasons (paras. 82-83), he considered a
    combination of the evidence of the appellants mother to the effect that neither
    she nor her husband had access to the gun in the safe and the evidence of the
    appellants statement to the police that his brother had not used the gun to
    conclude that the appellant was the only person in the household with access to
    the gun.

[13]

In
    our view, that finding was open to the trial judge.  Arguably, he did refer to evidence
    that falls under the rubric of implied hearsay in addressing the evidence of
    exclusive access (see para. 82).  However, he did not rely on that implied
    hearsay in coming to his conclusion that the appellant had exclusive access to
    the gun.

[14]

The
    appellant did not make oral submissions in relation to the remaining grounds of
    appeal.  We have considered the written arguments and, in our view, none of
    those grounds can succeed.

[15]

The
    conviction appeal is dismissed.

The Sentence Appeal

[16]

The
    appellant was sentenced to a total of eight years imprisonment, less credit of
    one year for presentence custody and strict bail conditions.  He submits that
    the trial judge erred in imposing consecutive sentences on count 3 (mischief by
    wilfully damaging a dwelling house by discharging a firearm into the dwelling
    house and endangering life) and count 1 (intimidating a justice system
    participant in order to impede her in the performance of her duties).  The
    appellant submits the same conduct gave rise to both charges and provided the
    factual basis for both convictions.  He submits that the sentences should have
    been concurrent.

[17]

The
    trial judge concluded that the two offences reflected distinct wrongs that
    justified the imposition of consecutive sentences.  He imposed a sentence of
    four years on count 3 and a sentence of three years consecutive on count 1.  In
    doing so, he specifically referred to the totality principle and its
    significance given the appellants youth and minimal criminal record.

[18]

The
    trial judge had the discretion to impose consecutive sentences on the two
    charges.  We would not interfere with the exercise of that discretion.  More
    importantly, as the trial judge observed, whether consecutive or concurrent
    sentences were to be imposed, the totality of the sentences imposed was what ultimately
    mattered.

[19]

The
    offences committed by the appellant were very serious.  They involved the use
    of a very dangerous lethal weapon for a purpose that struck at the very heart
    of the due administration of justice.  As observed by the trial judge:

This was a planned and deliberate attack on the home of a
    witness in a criminal case using a high powered semi-automatic restricted
    firearm.  Although no one was injured or killed in this attack, that was a
    matter of sheer luck.  Had a member of the  family been asleep on the sofa in
    the living room or getting a drink from the kitchen when the shooting took
    place they could very likely have been killed.

[20]

Later
    in his reasons for sentence, the trial judge observed:

The seriousness of the crimes involved in this case is hard to
    overstate.  The accused committed a planned assault on the home of a witness in
    a criminal case in the middle of the night using a high powered rifle.  These
    were deliberate and calculated crimes designed to intimidate a witness.  This
    was not simply an assault on a home in the tranquility of a residential
    community, it was an assault on the administration of justice.

[21]

We
    adopt the language of the trial judge.  No doubt the sentence imposed on the
    charge of intimidating a justice system participant (three years) would have
    been much higher, but for concerns over the totality of the sentences imposed in
    light of the appellants age and the absence of any prior significant criminal
    involvement.

[22]

The
    total sentence imposed is not unreasonable.  We would not interfere with the
    quantum of the sentence.

[23]

One
    aspect of the sentencing does require correction.  Although the trial judge
    waived the victim fine surcharges, an order imposing the surcharges was signed
    by the clerk of the court.  The Crown agrees that this order must be quashed.

[24]

The
    sentence appeal is dismissed save that the order imposing victim fine surcharges
    is quashed.

Doherty J.A.

Janet Simmons J.A.

K.M. van Rensburg
    J.A.


