



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Philip, 2021 ONCA 295

DATE: 20210506

DOCKET: C62154

Doherty, van Rensburg and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Philip

Appellant

Breana Vandebeek, for the appellant

Lisa Joyal, for the respondent

Heard: April 28, 2021 by video conference

On appeal from the
convictions entered
    by Justice S. Armstrong of the Ontario Court of Justice, dated January 9, 2015
    and on appeal from the sentences imposed on October 16, 2015.

REASONS FOR DECISION


[1]

The appellant was convicted of numerous offences after a trial in the
    Ontario Court of Justice. The offences arose out of a carjacking on August 1,
    2011 and a home invasion on August 5, 2011. The Crown alleged the appellant
    participated in both, using a firearm in the carjacking but not in the home
    invasion.

[2]

The defence maintained there was no carjacking. Instead, the appellant
    and others, including the alleged victim of the carjacking, had agreed to steal
    money the supposed victims brother had given him to purchase drugs. The
    carjacking was to be used as a cover for that robbery. The defence further
    contended the supposed victims of the August 5, 2011 home invasion were also
    privy to the real plan, which was, once again, to steal money from the supposed
    victims brother.

[3]

The trial judge rejected the appellants testimony. He was satisfied the
    Crown had proved both robberies beyond a reasonable doubt. He convicted on
    various charges and imposed sentences totalling nine years.

[4]

The appellant appeals conviction and sentence.

[5]

At the end of oral argument, we dismissed the conviction and sentence appeals
    with reasons to follow. These are our reasons.

The August 1, 2011 Carjacking

[6]

Arash Hafez (Arash) testified, that he agreed to meet Kimya Bagheri in
    a parking lot to sell her a gold chain. After some discussion in Arashs
    vehicle, he and Ms. Bagheri went to her car to get the money to pay for the
    gold chain. Arash testified, that on the way back to his vehicle he was
    attacked by four black men. One pointed a silver or grey handgun at him.

[7]

Arash indicated he was assaulted and forced into the backseat of his
    vehicle. His friend, Wali Noor (Wali), who had gone with him to meet Ms.
    Bagheri, was also assaulted and forced into the backseat. Wali, however, managed
    to escape from the vehicle before it left the parking lot.

[8]

Arash testified he was terrified. The robbers tied his hands and ankles with
    zip ties, and wrapped duct tape around his face. They repeatedly struck him
    with some kind of metal object.

[9]

When the car eventually stopped, the robbers took Arash into what he believed
    to be a hotel room. They threw him in the bathtub. He was still tied up and had
    duct tape around his face. The robbers demanded money and continued to assault
    Arash. He insisted he had no money.

[10]

Later
    that day, the robbers put Arash back in the car. After travelling some
    distance, the car stopped. One of the robbers removed the duct tape from Arashs
    eyes and wrapped a t-shirt around his face. The robbers pushed Arash from the
    car, but before doing so warned him not to look at the car as it drove away. Arash
    could see three black men in the vehicle.

[11]

Arash
    made his way to a nearby store. He called his girlfriend and then he called his
    brother, Ali. By the time Arash spoke with Ali, the police had already been
    made aware of the robbery and were speaking to Ali. The police spoke to Arash
    and told him to stay where he was until they arrived.

[12]

Arash
    testified, that during the robbery and unlawful confinement, the robbers took
    his cellphone, watch, ring, gold chain, car keys and car. He testified he was
    repeatedly beaten, sometimes with a metal object. Arash had only very minor
    injuries.

The August 5, 2011 Incident

[13]

On
    August 5, 2011, Arash and Wali were visiting Ali at the home where Ali was
    required to live with his surety under the terms of a bail order. Two men
    rushed into the basement where Ali, Arash and Wali were sitting. Neither was
    armed and both had their t-shirts pulled up over their faces.

[14]

One
    intruder, identified as the appellant, punched Ali in the head and demanded the
    money. The other, identified as Jamar Green, tried to grab Arash. After some
    commotion, the robbers fled the house without any money. Arash picked up a
    knife and chased Mr. Green, but eventually lost sight of him. After losing
    sight of Mr. Green, Arash saw the appellant in a forested area near the house.
    The police were called and, after a canine search, the appellant was located
    nearby.

The Appellants Version of Events

[15]

After
    his arrest, the appellant was interviewed by the police. He denied any
    involvement in the August 1 or 5, 2011 robberies. According to him, the police
    got the wrong guy  I wasnt there at all man.

[16]

When
    the appellant testified at trial, he indicated he was very much involved in
    both incidents, but that neither involved the robbery of Arash or Wali. The
    real target was Arashs brother, Ali, who the appellant knew to be a major drug
    dealer.

[17]

The
    appellant testified he, Ms. Bagheri, and Arash agreed that Arash would obtain $20,000
    from Ali to purchase cocaine from Ms. Bagheri. When Arash and Ms. Bagheri met
    to make the deal, the appellant and two others would show up and stage the
    carjacking. They would force Arash into his own vehicle and take him to a
    pre-selected location. They would inflict some physical injury on him to give
    the story credibility. After waiting some time, they would split up the money
    and release Arash.

[18]

Wali
    was not privy to the plan to stage the robbery and steal Alis money. The
    appellant and the others thought Walis presence at the time of the supposed
    carjacking would lend some authenticity to the carjacking story.

[19]

The
    appellant indicated the plan unfolded as anticipated, except Wali escaped from
    the vehicle. The appellant acknowledged he was armed during the supposed
    carjacking, but insisted the weapon was only a pellet gun. According to the
    appellant, after sitting for some time in the hotel room and having celebratory
    drinks, the co-conspirators split up the money and released Arash.

[20]

The
    appellant testified that the staged robbery on August 1, 2011 went so well, he,
    Ms. Bagheri and Arash settled on a second plan designed to steal more money
    from Arashs brother. They believed Ali kept a large amount of money and
    possibly drugs in a safe located in the house where Ali was living. The
    appellant, Ms. Bagheri and Arash developed a plan, whereby the appellant and Mr.
    Green would enter the home, confront Ali and Arash, and force Ali to open the
    safe. According to the appellant, they did not anticipate any resistance because
    Ali had recently suffered a significant physical injury. On the appellants
    evidence, Ms. Bagheri devised the August 5, 2011 plan and he, Mr. Green and
    Arash agreed to participate in the plan.

[21]

On
    August 5, 2011, the appellant and Mr. Green entered the house where Ali was
    living. They confronted Ali, Arash and Wali in the basement. Neither the
    appellant, nor Mr. Green were armed. The appellant demanded to know where Ali
    kept his money. Ali responded by striking the appellant. The appellant hit him
    back, knocking Ali to the floor. Ali screamed he was going to call the police. According
    to the appellant, this reaction surprised him because he did not think a drug
    dealer would call the police. After some confusion, the appellant and Mr. Green
    fled the scene without any money. The appellant was arrested a few hours later.
[1]

The Conviction Appeal

[22]

In
    her factum, counsel for the appellant advanced four grounds of appeal. She abandoned
    the ground based on an alleged breach of s. 11(b) of the
Charter
.

[23]

The
    remaining grounds of appeal take issue with the trial judges ruling admitting
    certain reply evidence, his reference in his reasons to guilty pleas entered by
    Mr. Green and Ms. Bagheri, and what the appellant submits is the trial judges
    failure to meaningfully come to grips with several material inconsistencies and
    deficiencies in the evidence relied on by the Crown.

(a)

The Reply Evidence

[24]

Counsel
    for the appellant does not argue that the Crown should have anticipated the defence
    advanced through the appellants testimony before the Crown closed its case.
    The Crown had no reason to believe the appellant would eventually testify and
    acknowledge his participation in the events of August 1 and 5, 2011, but
    maintain they were attempts to steal Alis money, and not robberies.

[25]

Not
    surprisingly, the appellants evidence advancing his version of events led to a
    motion by the Crown to call reply evidence. The proposed evidence came from several
    different witnesses, addressing different aspects of the appellants narrative.
    It is not necessary to detail the proposed reply evidence, as counsel,
    correctly in our view, concedes the bulk of that evidence was properly admitted
    as reply evidence.

[26]

Counsel
    does submit, however, that the trial judge erred in admitting certain cellphone
    records. These records were relevant to the appellants whereabouts on August 1
    and 5, 2011 and his contact, or lack thereof, with other persons alleged to
    have been involved in the events of August 1 and 5, 2011.

[27]

Counsel
    for the appellant argues that, to the extent the phone records provided
    circumstantial evidence relevant to any of the charges, those records should
    have been entered by the Crown as part of its case. Counsel further submits
    that, to the extent the records could be used solely to attack the credibility
    of appellants narrative, those records were not properly admitted as reply
    evidence.

[28]

We
    see no error in the trial judges ruling. He correctly identified the
    principles governing the admissibility of reply evidence. The trial judge further
    observed that the appellants testimony introduced an entirely new dimension to
    the case. The Crown was entitled to challenge that narrative by way of reply
    evidence.

[29]

The
    cellphone records were capable of rebutting significant parts of the
    appellants narrative. For example, according to the appellant, a person named
    Jones was involved in the staged carjacking on August 1, 2011. Mr. Joness
    identity surfaced for the first time during the appellants evidence. Cellphone
    records offered in reply supported the inference that there was no
    communication between the appellant and Mr. Jones during the relevant time. That
    inference contradicted the appellants evidence about his communications with
    Jones. The records became relevant only when the appellant testified.

[30]

Some
    of the cellphone records had relevance to the Crowns case in the sense that
    they could help locate the appellant at certain places, at certain times and,
    by doing so, provide some link to the alleged offences on August 1 and 5, 2011.
    Those records could have been introduced as part of the Crowns case. They
    would, however, have added little, if anything, to the probative force of that
    case. Those records took on much more significance in the face of the
    appellants more detailed testimony about his comings and goings at the relevant
    times. As the trial judge correctly noted, evidence of marginal or minimal
    significance to the Crowns case may, in the exercise of the trial judges
    discretion, be received in reply if, by virtue of the defence called, that
    evidence takes on much more significance. That is exactly what happened here.

(b)

The Reference to the
    Guilty Pleas of Mr. Green and Ms. Bagheri

[31]

The
    trial judge indicated he found the appellants evidence improbable, incredible
    and unreliable. He explained, in detail, over some 20 pages of transcript, his
    reasons for coming to that conclusion. The reasons included:

The fact that Kimya Bagheri and Jamar Green pleaded guilty and
    were sentenced to penitentiary sentences for their involvement in the August 1,
    2011 robbery

[32]

Counsel
    submits that the guilty pleas and sentences imposed on Mr. Green and Ms.
    Bagheri could have no relevance to a proper assessment of the credibility or
    reliability of the appellants evidence. We accept this submission as it
    relates to Ms. Bagheri, but not as it relates to Mr. Green.

[33]

When
    dealing with Mr. Greens guilty plea, the trial judge said:

The suggestion that the August 1, 2011 robbery was staged or
    fake, was credibly rejected by Jamar Green. From his testimony, it is apparent
    that Mr. Green had memory issues. However, he did not deny being involved in
    the robbery to which he had pleaded guilty and for which he was serving a
    sentence. He maintained that he was guilty of the offence, but that he could
    not remember the details of the robbery.

[34]

Mr.
    Greens evidence, that the robberies were real, if accepted, clearly undermined
    the credibility and reliability of the appellants evidence to the contrary. It
    was open to the trial judge to conclude Mr. Greens guilty plea and subsequent
    conviction for which he received a penitentiary sentence lent some added
    credibility to Mr. Greens testimony that the robbery was real. To the extent
    Mr. Greens guilty plea and sentence enhanced his credibility, they served to
    undermine the appellants claim the robberies were staged with the full
    cooperation of Arash.

[35]

Unlike
    Mr. Green, Ms. Bagheri did not testify. Evidence that she pled guilty to
    robbery came out during the cross-examination of another witness. We agree with
    counsel for the appellant that Ms. Bagheris guilty plea had no probative value
    and could not assist in assessing the appellants credibility.

[36]

We
    are satisfied the improper reference to Ms. Bagheris guilty plea, made in the
    context of a detailed, careful and otherwise errorless analysis of the evidence
    relevant to the appellants credibility and reliability, caused no miscarriage
    of justice. The trial judge gave a myriad of reasons for his outright rejection
    of the appellants evidence, all of them, save the reference to Ms. Bagheris
    guilty plea, fully supported by the evidence.

(c)

Did the Trial Judge
    Fail to Address Material Inconsistencies and Other Problems in the
    Prosecutions Case?

[37]

It
    is fair to say that there was good reason to doubt the truth of some of the
    evidence given by Arash. For example, his testimony that he met with Ms. Bagheri
    only to discuss the purchase of a gold chain, and not to purchase drugs from
    Ms. Bagheri, a drug dealer, seems suspect. Given the nature of Arashs injuries,
    it also seems likely he overstated the assaults perpetrated against him.

[38]

The
    trial judge acknowledged these concerns. However, as the trial judge also
    indicated, a finding Arash was not entirely truthful about some things, such as
    his injuries or his reasons for meeting Ms. Bagheri, in no way precluded a
    finding that he was in fact robbed by the appellant and his associates.

[39]

The
    trial judges extensive reasons deal with most, if not all, of the alleged
    material inconsistencies in the prosecutions case, identified by the
    appellant. The trial judges reasons explain why he did not ultimately view
    these inconsistencies and deficiencies as barriers to a finding the Crown had
    proved its case beyond a reasonable doubt.

[40]

We
    see no error in the trial judges analysis and decline the appellants implicit
    invitation to engage in our own analysis of the evidence.

[41]

The
    conviction appeal is dismissed.

The Sentence Appeal

[42]

The
    appellant, who received sentences totalling nine years, is now on parole.

[43]

The
    offences were very serious. The appellant, although young, has accumulated a
    significant criminal record. When he committed these offences, including the
    armed robbery on August 1, 2011, the appellant was subject to the terms of two
    conditional sentences and seven weapons prohibition orders. Clearly, specific
    deterrence had to be the primary consideration in fixing the appropriate
    sentence.

[44]

The
    significant differences between the circumstances of the appellant and those of
    the co-accused make comparisons with the sentences imposed on the co-accused of
    limited value.

[45]

We
    would not interfere with the sentences imposed.

Conclusion:

[46]

For
    these reasons, the conviction and sentence appeals were dismissed.

Doherty J.A.

K. van Rensburg J.A.

J.A. Thorburn J.A.





[1]

The trial judge convicted the appellant of an attempted
    robbery of Arash and Wali, apparently because he did not actually steal
    anything. An actual theft is not necessary under the definition of robbery in
    s. 343(c) of the
Criminal Code
. Even on the
    appellants version of events, he committed a robbery, although the victim was
    Ali, and not Arash or Wali, the persons identified in the charge.


