



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hakimi, 2019 ONCA 749

DATE: 20190925

DOCKET: C65246

Juriansz, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roehid Hakimi

Appellant

Stephanie DiGiuseppe, for the appellant

Jill Cameron and Katie Doherty, for the
    respondent

Heard: September 16, 2019

On appeal from the conviction entered by
    Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on
    March 3, 2016 and the sentence imposed on January 25, 2017.

REASONS FOR DECISION


[1]

The appellant was convicted by a jury of
    aggravated assault and three firearm offences. He appeals his convictions and
    seeks leave to appeal his 12-year global sentence.

[2]

The victim had
    a confrontation inside an after-hours restaurant with a man who fired a gun
    twice into the ceiling. When the victim exited the restaurant, he was shot in
    the stomach and hand. The central issue at trial was whether the appellant was
    identified beyond a reasonable doubt as the person who fired the shots inside
    the restaurant and as the person who shot the victim.

[3]

At trial, the
    victim and two witnesses recanted from prior statements given to the police.
    One witness, a waiter who was familiar with the appellant, gave two statements to
    the police and testified at the preliminary inquiry. Until trial, he
    consistently identified the appellant as the person who fired the gun inside
    the restaurant, including in a photo line-up. Another witness, the owner of the
    restaurant who was also familiar with the appellant, gave video-recorded police
    statements dated January 8, 2011 and January 18, 2011. He, too, identified the
    appellant in a photo line-up as the person who fired the gun inside the
    restaurant. The victim, who was also a witness, gave a January 14, 2011 video-recorded
    statement to the police describing the shooter and identifying him as the same
    man who also shot his gun inside the restaurant.

[4]

Before this
    court, the appellants counsel advanced a substantive reliability analysis as
    described in the Supreme Court of Canadas recent decision in
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865. She argued there was
    insufficient corroborative evidence to establish the threshold reliability of
    the statements. In our view, her reliance on the substantive reliability
    analysis in
Bradshaw
is misplaced. The threshold reliability
    of the statements in this case was established by procedural, not substantive,
    reliability. The Supreme Court in
Bradshaw
reiterated that procedural reliability
    can establish threshold reliability, at para. 28:

Procedural
reliability is established when there are adequate substitutes for
    testing the evidence, given that the declarant has not state[d] the evidence
    in court, under oath, and under the scrutiny of contemporaneous
    cross-examination. These substitutes must provide a satisfactory basis for the
    trier of fact to rationally evaluate the truth and accuracy of the hearsay
    statement. Substitutes for traditional safeguards include a video recording of
    the statement, the presence of an oath, and a warning about the consequences of
    lying. However, some form of cross-examination of the declarant, such as
    preliminary inquiry testimony or cross-examination of a recanting witness at
    trial, is usually required. [Citations omitted; emphasis in original.]

[5]

We find it unnecessary to discuss the circumstances
    of each of the statements in detail. It is sufficient to say the statements
    were video-recorded and the declarants were under oath or were otherwise
    cautioned to tell the truth. Two of the witnesses had been cross-examined at
    the preliminary inquiry. At trial, all three witnesses were effectively
    cross-examined. The trial judge made no error in admitting the statements for
    the truth of their contents.

[6]

The evidence at trial, including the statements,
    readily provided the jury with a basis for finding the appellant was the person
    who fired the gun both inside and outside the restaurant. The verdict was not
    unreasonable.

[7]

Turning to the jury charge, we note that defence
    counsel did not object to the trial judges instructions on identification
    evidence or on post-offence conduct.

[8]

The trial judge gave the jury thorough and
    accurate instructions as to how to approach their assessment of the
    identification evidence. She pointed out the frailties in that evidence and
    adopted the language from
R. v. Miapanoose
(1996), 30 O.R. (3d) 419
    (C.A.). We see no error in her instructions on identification evidence.

[9]

In the context of this case and considering the
    trial judges post-offence instructions as a whole, we are also satisfied the
    jury was not misled in what use could be made of the post-offence conduct
    evidence.

[10]

Accordingly, we dismiss the appellants appeal
    of conviction.

[11]

The appellant also sought leave to appeal his
    global sentence of 12 years, less credit of 32 months on account of
    pre-sentence custody. The trial judge imposed a sentence of eight years for the
    aggravated assault conviction, four years concurrent for the careless use of a
    firearm conviction, four years consecutive for the pointing of a firearm conviction,
    and four years concurrent for the possession of a weapon conviction. She gave
    the appellant credit of 32 months for pre-sentence custody on a 1:1 basis.

[12]

We see no basis for appellate intervention. The
    consecutive term was appropriate as the offences inside the restaurant and
    outside the restaurant were separate transactions. The trial judges
    conclusions on aggravating and mitigating factors were available on the
    evidence before her. The sentence she imposed is not demonstrably unfit.

[13]

The appellant submits the trial judge erred in
    denying him enhanced credit for time served. The trial judge concluded the
    appellant was not a good candidate for early release. This conclusion was open
    to her based on the evidence of his institutional misconduct, his conviction
    for aggravated assault during a prior release, and the escalation in his
    violence. We see no error.

[14]

Leave to appeal sentence is granted but the
    appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


