



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ismail, 2018 ONCA 543

DATE: 20180612

DOCKET: C63971

Pepall, Hourigan and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahad Ismail

Appellant

Diane Condo, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: June 8, 2018

On appeal from the conviction entered on November 4, 2015
    and the sentence imposed on June 15, 2016 by Justice Robert N. Fournier of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Mr. Ismail appeals his convictions on 11 counts of weapons offences. He
    also appeals his sentence of eight years.

[2]

The background facts are that the appellant and a
    friend were together on June 17, 2014 in a neighbourhood in the City of
    Ottawa.  They got into an argument.  While they were engaged in this argument,
    a third male walked up and shot the appellant in the face.  The appellant fell
    to the ground.  However, he recovered and got to his feet.  Someone chased the
    shooter until he got into a taxicab and escaped.  Two shots were fired at the
    taxicab by the pursuer.  The sole issue at trial was whether the pursuer was
    the appellant or the appellants friend.

[3]

A number of eyewitnesses gave evidence at the trial. 
    Not surprisingly, the witnesses did not agree on various aspects of what had
    occurred, including their descriptions of the pursuer, the clothing that the
    pursuer was wearing, the pursuers appearance, and so forth.  One thing that
    all of the eyewitnesses do appear to have agreed upon, however, is that the
    pursuer was obviously injured and bleeding.

[4]

One witness observed a male deposit something into a
    recycling bin.  This witness went to the recycling bin and discovered a handgun
    inside that had blood on it.   The witness took the recycling bin, with the
    handgun in it, to a police officer.  Subsequent forensic examination of the
    handgun determined that the blood on the handgun was that of the appellant.

[5]

The appellants focus on this appeal was that the trial
    judge relied on inferences favourable to the Crown over those favourable to the
    defence.  We do not agree.

[6]

The trial judge was quite conscious of the problems that he faced in
    working his way through each of the individual witnesses evidence.  We do not
    accept that he failed to properly apply the burden of proof.

[7]

The trial judge considered the frailties of eyewitness identification.
    Unlike many eyewitness identification cases it was clear that the pursuer was
    either the appellant or his friend.

[8]

In the end result, the majority of the witnesses described the clothing
    of the pursuer as matching that worn by the appellant and not that worn by his
    friend.  More importantly, there is the salient fact that only the appellant,
    and not his friend, was injured in the shooting and was bleeding.  Further, the
    appellants blood was found on the handgun that was recovered at the scene.

[9]

The trial judge was satisfied beyond a reasonable doubt on the evidence
    that the appellant was guilty.  We see no error in his conclusion.

[10]

The
    appellant sought to introduce fresh evidence regarding possible drug activity
    by one of the prosecution witnesses.  We would not admit that fresh evidence. 
    It does not meet the test in
R. v. Palmer
, [1980] 1 S.C.R. 759.  In
    particular, the fresh evidence does not bear upon a decisive or potentially
    decisive issue in the trial nor could it reasonably be expected to have
    affected the result.  The fresh evidence is, at most, tangentially relevant to
    the credibility of a single prosecution witness.

[11]

Finally,
    we see no basis to interfere with the eight year sentence imposed by the trial
    judge.  This was the second offence by the appellant involving firearms.  The
    offences were committed while the appellant was subject to two weapons
    prohibition orders.  While it does not appear that the trial judge was aware of
    it, at the time of sentencing, the appellant was subject to the mandatory
    minimum penalty of seven years, because it was a second offence as defined in
    s. 244(3) of the
Criminal Code
.  Nevertheless, the trial judge
    sentenced the appellant to seven years plus one year consecutive on the weapons
    prohibition order breach.  We would add that, even absent the mandatory
    minimum, the sentence imposed would be within the range of sentence for these
    offences committed by a repeat offender.  This offence occurred in broad
    daylight in an area where children were present.  The appellant also disposed
    of the gun in a manner where it could have been found by those same children.

[12]

In
    the end result, there is no error in principle, failure to consider a relevant
    factor, or erroneous consideration of an aggravating or mitigating factor,
    affecting the sentence that would justify appellate intervention:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

Conclusion

[13]

The appeal is dismissed.  While leave to appeal sentence is granted, the
    sentence appeal is also dismissed.

S.E. Pepall J.A.

C.W. Hourigan
    J.A.

I.V.B. Nordheimer
    J.A.


