



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Assimi, 2015 ONCA 327

DATE: 20150508

DOCKET: C58714

Feldman, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Assimi

Appellant

Joseph Di Luca, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: April 30, 2015

On appeal from the conviction entered on December 21,
    2012 by Justice Susan Himel of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for 3 firearm offences and
    possession of crack cocaine for the purpose of trafficking, in relation to a
    loaded firearm and quantity of crack cocaine found in the centre console of a
    car he was driving, but which did not belong to him.

[2]

There are two grounds of appeal; the first is unreasonable verdict.  The
    appellant says that because the evidence is circumstantial there had to be no
    other reasonable conclusion but guilt available.  He argues that the person who
    rented the car, Mr. Chow, was the obvious other possible possessor of the gun
    and drugs.

[3]

In our view, the verdict was reasonable.  The trial judge specifically
    accepted the evidence of Mr. Chow that the gun and drugs were not his. 
    Although his conduct could certainly be viewed as suspicious, the trial judges
    conclusion that she accepted his explanation for his conduct and his denial of
    possession are findings of credibility that were based on the evidence and are
    entitled to deference.

[4]

In oral argument Crown counsel outlined the circumstances of this
    offence that make the trial judges conclusion that the appellants guilt was
    the only reasonable inference, not only reasonable, but compelling.  In our view,
    the verdict was a reasonable one.

[5]

The second ground of appeal is based on the trial judges use of the
    fact that the appellant lied to the police about his identity.  The trial judge
    concluded that the reasons he lied were four-fold:  he did not have a drivers
    licence, he knew he was in breach of a probation order, he knew he was driving a
    car taken without consent, and he knew he had a gun and drugs in the car.  The
    appellant argues that this is after the fact conduct and on the principle in
R.
    v. Arcangioli
, [1994] 1 S.C.R. 129, the trial judge could not rely on the
    lie as equally related to the possession inference as to the other inferences.

[6]

A similar issue was recently dealt with by this court in
R. v.

Tomlin
,
    2014 ONCA 357, where the court held that a false declaration made at the time
    of importing was not after the fact conduct.  In any event, in this case, the
    trial judge relied on sufficient other circumstances to infer possession.  Her
    reference to the lie demonstrates consistency with that conclusion.  We see no
    error in her treatment of that evidence.

[7]

The appeal is therefore dismissed.

K.
    Feldman J.A.

G.
    Pardu J.A.

"David
    Brown J.A."


