



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2018 ONCA 941

DATE: 20191122

DOCKET: C62671

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdi Rashid Mohamed

Appellant

Samantha Robinson, for the appellant

Erica Whitford, for the respondent

Heard and released orally: November 16, 2018

On appeal from the convictions entered by Justice Robert
    Wadden of the Ontario Court of Justice on January 6, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for various firearm offences.
    The charges followed from a series of events on the morning of January 31,
    2015.

[2]

Witnesses saw a man discharge a firearm several times in the middle of a
    residential street. The shooter was among a group of several black men, two of
    whom, including the shooter, fled to a nearby apartment building.

[3]

Witnesses described the shooter as large and heavyset, and the other man
    fleeing with him was described as being much smaller. The two men were let into
    the apartment building by the appellants girlfriend, Ms. Labranche. The
    buildings video surveillance camera captured their entry and its footage confirmed
    the descriptions of the two men given by various witnesses at trial.

[4]

Within about an hour of the incident, Ms. Labranche, the appellant and a
    third person, Mr. Bache, were arrested inside Ms. Labranches apartment. The
    appellant can be properly described as a large, heavyset man and Mr. Bache as being
    considerably smaller.

[5]

Police searched the apartment and found the gun that had been discharged
    earlier that morning.

[6]

The primary issue at trial was identity. The Crowns theory was that the
    appellant had discharged the weapon and then fled, being let into his
    girlfriends apartment building with his friend Mr. Bache. The defence theory
    was that the appellant was asleep inside his girlfriends apartment at the time
    of the incident and the two men seen fleeing and entering the building were Mr.
    Bache and an unknown large black man who had, prior to the arrest, left the
    apartment. The appellant did not testify at trial or present any evidence on
    his own behalf.

[7]

The trial judge rejected the defence theory as implausible and
    unsupported by the evidence. He accepted the identification evidence placing
    the appellant as the shooter and found him guilty.

[8]

On appeal the appellant argues that there were very serious problems
    with the evidence of Mr. Warren, a key identification witness. He submits that
    the evidence ought to have been rejected and, absent that evidence, the
    convictions cannot stand. The problems raised by the appellant include the fact
    that Mr. Warren admitted to having difficulty with cross-racial
    identification, Mr. Warrens description of the shooter being largely
    limited to his size and build, and Mr. Warren originally selecting the wrong
    photo during the photo line-up before correctly identifying the appellant. In
    addition, there was good reason to be concerned with Mr. Warrens
    identification given that he admitted to having been drinking and consuming drugs
    the evening before and he had been beaten up and was lying wounded in a
    snowbank at the time of the incident.

[9]

In the appellants submission, the trial judge simply paid lip service
    to these concerns and then improperly relied on Mr. Warren having earlier met
    the appellant, his demeanour and the confidence with which he identified the appellant
    as constituting the basis for accepting his testimony.

[10]

We
    see no error in how the trial judge treated Mr. Warrens evidence. The trial
    judges reasons reveal a careful treatment of that evidence and demonstrate
    that he was clearly alive to the concerns raised by the appellant. Further, the
    trial judge did not place undue weight on Mr. Warrens demeanour and confidence
    in the identification of the appellant as the shooter. They were only factors
    considered by the trial judge. Two additional witnesses provided an account of
    the events and there was other evidence corroborating Mr. Warrens
    identification. This included video surveillance showing two persons of a similar
    size and build to the appellant and Mr. Bache being let into the apartment by Ms.
    Labranche. As noted by the trial judge, who viewed the video, the person
    depicted in the video bore a striking similarity to the appellant. There was
    also circumstantial evidence viewed by the trial judge as compelling. It
    included the fact that the appellant and the firearm were found in Ms.
    Labranches apartment about an hour or so after the incident.

[11]

The
    weight to be given to Mr. Warrens evidence was for the trial judge to decide and
    we see no error in the trial judges treatment of and reliance on that
    evidence.

[12]

As
    a result, the appeal is dismissed.

Doherty J.A.

Paul Rouleau
    J.A.

K. van Rensburg J.A.


