



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fahad, 2019 ONCA 73

DATE: 20190201

DOCKET: C64402

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahmud Fahad

Appellant

Richard Litkowski, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: January 30, 2019

On appeal from the conviction entered on July 28, 2017,
    and the sentence imposed on October 16, 2017, by Justice Regis of the Ontario
    Court of Justice.

ORAL ENDORSEMENT

[1]

Mr. Fahad appeals his conviction after a judge alone trial on one count
    of counseling to kidnap and one count of counseling to rob.  He was sentenced
    to nine months imprisonment.  Central to his appeal is the appellants
    contention that the trial judge failed to undertake an equal assessment of the
    evidence of the defence as contrasted with the evidence of the Crown. We do not
    accept that submission.

[2]

We do not see any failing in the approach that the trial judge took to
    the evidence.  The trial judge completely rejected the appellants evidence and
    gave reasons for that.  The trial judge then considered the evidence submitted
    by the Crown.  He accepted that evidence with certain reservations.  Of
    particular importance is the fact that the trial judge completely accepted the
    evidence of the undercover officer which was supported by various intercepted
    communications.

[3]

In our view, there is no basis to find that the trial judge
    erred in concluding that the evidence established either that the accused had the
    intent to commit the offences or was reckless as to the risk inherent in
    counselling: see
R. v. Hamilton
,
    2005 SCC 47
.  The evidence was sufficient, at the very least, to
    establish a great unjustified risk that the offences might likely be
    committed.  That conclusion is consistent with the test in
Hamilton
of a substantial and unjustified risk and is
    sufficient to sustain the convictions.

[4]

In terms of the sentence
    appeal, we view the sentence as a fit one.  However, the trial judge failed to
    address defence counsels submissions either on the issue of pre-trial custody
    or on the issue of restrictive bail conditions.  The appellant spent nine days
    in pre-trial custody for which he is entitled to a credit of 14 days.  The
    appellant was also under restrictive bail conditions for over a year.  We view
    an appropriate credit for that to be an additional two weeks.

[5]

In the end result, the conviction appeal
    is dismissed.  Leave to appeal sentence is granted, and the sentence is reduced
    from nine to eight months in custody.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.


