



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ali, 2021 ONCA 277

DATE: 20210429

DOCKET: C64564

Doherty, van Rensburg and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yaqoub Ali

Appellant

Howard L. Krongold, for the appellant

Adam Wheeler, for the respondent

Heard: In writing

On appeal from the convictions entered by Justice R.L.
    Maranger of the Superior Court of Justice, dated June 16, 2016.

REASONS FOR DECISION

[1]

The victim was shot in the foot outside of a
    busy store on boxing day in Ottawa. The appellant was charged with a number of
    offences arising out of the shooting. At trial, identification was the only
    issue. The trial judge convicted the appellant on 10 of the 11 counts.

[2]

The appellant appeals. He contends the trial judge
    misapprehended and/or failed to consider material evidence. He also argues the
    verdicts are unreasonable. Lastly, counsel submits, that even if the findings
    of guilt stand, the trial judge should have stayed the convictions on several
    counts pursuant to the rule against multiple convictions as set down in
R.
    v. Kienapple
, [1975] 1 S.C.R. 729
.

[3]

The Crown submits the trial judges finding that the appellant was the
    shooter is both reasonable and unassailable on appeal. Crown counsel concedes
    the 
Kienapple
 argument and concedes that stays should have been
    entered on several counts.

[4]

We see no error in the trial judges analysis of the evidence. Nor are
    we satisfied the verdict is unreasonable. We do agree that several of the
    counts should have been stayed.

[5]

At trial, the identification issue presented two discrete questions:

·

Was the person wearing the Superman shirt the shooter?

·

Was the appellant that person?

[6]

The trial judge answered yes to both questions. On appeal, the
    appellant does not challenge the finding that the person wearing the Superman
    shirt was the shooter. The appeal focuses exclusively on the trial judges
    finding that the appellant was that person.

[7]

The appellant contends the trial judge failed to properly consider that
    one of the eyewitnesses, Mr. Felix, when shown a photo lineup containing a
    photo of the appellant, identified two other photos as possibly photos of the
    shooter and expressly put the word no beside the photo of the appellant.
    Counsel describes this as exculpatory evidence, which should have been weighed
    in the balance against the potentially incriminating evidence when determining
    whether the Crown had met its burden on the identification issue.

[8]

The trial judge accurately summarized Mr. Felixs evidence. Ultimately,
    he concluded that evidence, like most of the eyewitness identification
    evidence, was equivocal, lacking in precision, and unreliable for many of the
    reasons associated with the frailties of eyewitness evidence in the case law
    and various studies. That characterization of Mr. Felixs evidence was
    reasonable on the evidence.

[9]

Given the trial judges assessment of Mr. Felixs evidence, although it
    clearly could not assist the Crown in meeting its burden on the identification
    issue, it could not be characterized as exculpatory evidence. The trial judge
    did not err.

[10]

The
    appellant next argues, that of the four factors identified by the trial judge
    as the basis upon which he concluded the appellant was the shooter, two
    amounted to the same thing. Counsel argues the trial judges double-counting
    requires a new trial.

[11]

We
    agree with the Crowns submission on this argument. Each of the four factors
    identified by the trial judge had independent value on the issue of identification.
    The trial judge was entitled to look at the video and come to his own
    conclusion as to whether the person in the Superman shirt was the appellant. Appropriately,
    the trial judge proceeded cautiously in doing so. He concluded that, while
    there was a resemblance between the person in the video and the appellant
    before the court, he would go no further than that. Evidence of a resemblance
    could not make out the case for the Crown but could assist the Crown in making
    out its case.

[12]

It was also open to the trial judge to compare the photographs of
    the appellant, filed as exhibits, with what he saw in the video. Based on that
    comparison, the trial judge concluded that the appellant, in a photograph taken
    a few days before the shooting, was wearing what appeared to be the same hat as
    the shooter. The design of the hat being worn by the appellant in the
    photograph, which matched the hat worn by the man in the Superman shirt, was
    somewhat uncommon.

[13]

We
    detect no double-counting.

[14]

The
    appellant next argues the trial judge should have cautioned himself about the
    dangers of cross-racial identification when looking at the video. The appellant
    is black, and the trial judge is white.

[15]

This
    argument was not made at trial. It is unclear that the well-understood concerns
    about cross-racial eyewitness identification apply to an identification made
    by a trial judge after watching and re-watching a video in the course of a
    trial. The circumstances in which a trial judge examines a video are very different
    than the circumstances in which eyewitnesses make identifications. Those
    differences suggest that concerns relating to cross-racial identification may
    be very different in the two very different situations.

[16]

We
    are not satisfied that the trial judges failure to specifically refer to
    concerns arising out of cross-racial identification amounted to reversible
    error.

[17]

We
    also reject the appellants unreasonable verdict argument. The evidence
    provided a basis upon which a reasonable trier of fact could be satisfied
    beyond a reasonable doubt that the appellant was the person wearing the
    Superman shirt.

[18]

On the
Kienapple
point, we agree the convictions on counts
    1, 2, 3, 5, 6 and 10 should have been stayed. The convictions on count 4 (carry
    concealed weapon), count 7 (possession of a loaded/prohibited restricted
    firearm without authorization), count 9 (breaching a s. 109 order), and count
    11 (discharging a firearm with intent to wound, maim or disfigure) stand.

[19]

The trial judge imposed concurrent sentences on all of the counts,
    so our order staying several of the convictions has no effect on the sentence
    imposed.

Doherty J.A.

K. van Rensburg J.A.

J.A. Thorburn J.A.


