



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdelnasir, 2019 ONCA 292

DATE: 20190411

DOCKET: C63068

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hanes Schal Abdelnasir

Appellant

Pierre-Luc Fréchette, for the appellant

Kathleen Farrell, for the respondent

Heard and released orally: March 29, 2019

On appeal from the conviction entered by Justice D.
    Rutherford of the Superior Court of Justice on March 23, 2016.

REASONS FOR DECISION

[1]

Sean Leduc was robbed and beaten by two men. He identified the appellant
    as one of his assailants. He had some prior connection with the appellant.
    Identification was the only issue at trial. The appellant did not testify. The
    trial judge convicted on all counts. The appellant appeals only conviction.

[2]

The case for the Crown rested on Mr. Leducs identification of the
    appellant as one of the assailants and Mr. Leducs evidence that at the
    preliminary inquiry he spoke with the appellant, who effectively expressed a
    willingness to replace or return Mr. Leducs stolen property. The Crown argued
    that the appellants statements to Mr. Leduc were tantamount to an admission
    by the appellant that he was involved in the robbery.

[3]

The trial judge considered Mr. Leducs identification evidence,
    including the various frailties associated with that evidence. The trial judge
    decided that in light of those frailties, the evidence was entitled to some
    weight. However, on its own, it could not justify a conviction. As he put it, a
    conviction on the identification evidence alone would be questionable.

[4]

The trial judge accepted Mr. Leducs evidence concerning the gist of the
    conversation with the appellant at the preliminary inquiry. The trial judge
    concluded, based on the Mr. Leducs evidence, that the appellant had offered to
    replace or return the property. The trial judge saw this comment by the
    appellant as inconsistent with any conclusion, other than that the appellant
    was involved in the robbery.

[5]

The trial judge was satisfied that the identification evidence provided
    by Mr. Leduc, combined with the evidence of the appellants statement to Mr.
    Leduc at the preliminary inquiry, proved the allegations beyond a reasonable
    doubt.

[6]

There are two grounds of appeal.

Ground #1  Did the trial judge err in giving any weight to
    the identification evidence?

[7]

The trial judges reasons demonstrate that he fully appreciated the
    identification evidence, including its various frailties. He acknowledged many
    of the factors that tended to undermine the reliability of the identification
    evidence, including the fact that Mr. Leduc had initially identified someone
    else at the photo lineup.

[8]

The trial judge was required to consider the factors undermining the
    identification evidence. He did so. He was, however, entitled, as the trier of
    fact, to still give that evidence some weight. His finding that the
    identification evidence was entitled to some weight was open on this record. We
    defer to that assessment, absent legal error, a material misapprehension of
    underlying evidence, or an unreasonable finding. None of those have been made
    out here.

Ground #2  Did the trial judge misapprehend or misuse the
    evidence relating to the conversation between Mr. Leduc and the appellant at
    the preliminary inquiry?

[9]

The trial judge reviewed this evidence. He acknowledged that Mr. Leduc
    was unable to recall the exact words that the appellant had said. The trial
    judge ultimately determined that the gist of the evidence was that the
    appellant had offered to return or replace the stolen articles.

[10]

Although
    Mr. Leducs evidence is not entirely clear, we do not agree that the trial
    judge misapprehended that evidence in coming to his conclusion as to the gist
    of the conversation. The trial judge correctly found that Mr. Leduc said that
    he had initiated a conversation with the appellant in the course of which the
    appellant effectively offered to return or replace the stolen property. In our
    view, referring to the appellants offer to replace or return the property is
    not a mischaracterization of the conversation.

[11]

We
    also do not agree that the trial judge misused the evidence and the inferences
    he drew from the conversation between Mr. Leduc and the appellant. In deciding
    whether that evidence supported the inference urged by the Crown, the trial
    judge was required to consider all of the evidence, including the
    identification evidence. He was required to draw inferences based on the
    totality of the evidence which he accepted and not from isolated pieces of
    circumstantial evidence. The trial judge correctly drew inferences based on the
    totality of the evidence. Those inferences were not, in our view, unreasonable.

[12]

The
    appeal must be dismissed.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


