



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Omar, 2019 ONCA 221

DATE: 20190319

DOCKET: C65532

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mustaf Abdul Omar

Appellant

Mustaf Abdul Omar, acting in person

Michael Fawcett, for the respondent

Nader Hasan, duty counsel

Heard and released orally: March 12, 2019

On appeal from the conviction entered on December 5, 2017
    and the sentence imposed on February 5, 2018 by Justice Norman S. Douglas of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario Court of Justice, the
    appellant was convicted of using an imitation firearm while committing the
    offence of assault with a weapon and failure to comply with a recognizance. He
    was sentenced on each count to a term of imprisonment of one year, followed by
    probation for two years, the sentences to be served concurrently the one to the
    other. The usual catalogue of ancillary orders followed the convictions.

[2]

The appellant appeals both conviction and sentence and was assisted by
    duty counsel.

The Appeal from Conviction

[3]

On the appeal from conviction of using a firearm, duty counsel says that
    the trial judge erred in grounding his finding of guilt on the accessorial
    liability provisions of s. 21(2) of the
Criminal Code
. The error, he
    submits, has two aspects: one legal, the other factual. The trial judge failed
    to properly instruct himself on the constituent elements of liability under s.
    21(2), that is to say, agreement, offence and knowledge, rather simply read the
    section without elaboration. Apart from a conclusory statement that guilt was
    established under s. 21(2), the trial judge, duty counsel says, failed to make
    the findings of fact essential to establish liability under s. 21(2). What is
    more, he continues, the evidence adduced at trial was incapable of sustaining
    the findings of fact essential to prove guilt under s. 21(2).

[4]

The respondent does not endeavour to support the finding of guilt
    through the application of s. 21(2). The conclusion of guilt, the respondent
    argues, follows inexorably from the application of the provisions of ss.
    21(1)(b) and 21(1)(c) of the
Criminal Code
to the evidence adduced at
    trial. The appellant, the respondent says, is not prejudiced by affirming his
    conviction on this ground, even though it was not a basis of accessoryship
    advanced by the Crown at trial.

[5]

In our view, this is not a case in which the appellants guilt falls to
    be established under s. 21(2), if at all.

[6]

Section 21(2) extends liability for crime in two respects. The first has
    to do with the
persons
whose participation in a common unlawful
    enterprise may attract criminal liability. The second relates to the
offence
for which participants in that common unlawful enterprise may be held
    criminally liable: see
R. v. Simon
, 2010 ONCA 754, at para. 40.

[7]

In this case, the appellant was one of a number of persons, each of whom
    was armed in various ways, who advanced towards a vehicle in which the victim
    was seated. The co-accused shot the victim while the appellant, armed, stood on
    the drivers side of the vehicle. This conduct and the circumstances in which
    it occurred demonstrate not only the conduct requirement of aiding or abetting,
    but also the required fault element.

[8]

In our view, despite the miscasting of the basis of liability at trial
    under s. 21(2), the conviction is firmly grounded, legally and factually, on
    aiding or abetting. Nor is the appellant prejudiced by sustaining the
    conviction on this basis. The defence he advanced by trial, unsupported by his
    own evidence, was that the allegations made by the principal Crown witnesses
    were the product of collusion falsely accusing him of participation in an
    offence when he was not even there.

[9]

The appeal from conviction is dismissed.

The Appeal from Sentence

[10]

The
    custodial portion of the sentence has been served. No complaint is advanced
    about the fact, the terms or the length of the probation order. Nor is any dissatisfaction
    expressed about any ancillary order, apart from the victim surcharge.

[11]

We
    grant leave to appeal sentence and set aside the victim surcharge, but
    otherwise dismiss the sentence appeal.

David Watt
    J.A.

C.W. Hourigan
    J.A.

Grant Huscroft
    J.A.


