2022 QCCA 1481, 2022 QCCA 1481

Mirzoian c. R. 2022 QCCA 1481 COURT OF APPEAL CANADA PROVINCE DE QUEBEC REGISTRY OF MONTREAL N° : 500-10-007393-208 (540-01-085873-183) DATE : 27 October 2022 PANEL : THE HONOURABLES MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. PETER KALICHMAN, J.A. LEVON MIRZOIAN APPELLANT – Accused c.

HER MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT [ 1 ] This is an appeal against findings of guilt by the Court of Quebec [1] on four counts: attempted murder of Gevorg Papanyan by using a restricted or prohibited firearm, [2] aggravated assault, [3] discharging a restricted or prohibited firearm with intent to wound, maim or disfigure and/or endanger his life, [4] and knowingly uttering threats to cause death or bodily harm to the victim’s children. [5] [ 2 ] First, the central issue at trial was identification and it remains the central issue on appeal.

Second, the appellant submits that the trial judge failed to consider evidence that was favourable to the appellant. Third, the appellant claims that the trial was unfair due to a deficient translation of a fragment of evidence from Armenian to English and seeks the admission of fresh evidence to correct the perceived unfairness. Despite his characterisation of the first two grounds as questions of law, they are properly considered as questions of fact.

Summary [ 3 ] The appellant is the son of a man whose company was hired early in 2018 to perform renovations in the victim’s home. The original estimate of this work was $175,000.00. The estimate subsequently rose and completion of the work was delayed. Before the shooting the victim had paid approximately $150,000.00 to $155,000.00 to the appellant’s father and after the shooting, he paid a further amount of $20,000.00.

The appellant was not involved directly in any financial negotiations or arrangements concerning the renovations. [ 4 ] But, as noted by the judge, the appellant and the victim were not strangers. They had met on several occasions and had spoken by telephone. The victim recognised the appellant. There was no evidence of conflict between them. [ 5 ] On 31 August 2018, the victim received a telephone call from Andréi Arakelov, a person involved in the renovations and in that conversation spoke briefly with a person whose voice he recognised as the appellant’s. Mr.

Arakelov testified that he was in the victim’s house during this call and that a person whom he did not recognise entered the house from the front door at approximately 16h15 or 16h20. That person asked Mr. Arakelov to call the victim, which he did, and after they spoke briefly the man thanked Mr. Arakelov and left. [ 6 ] Mr. Arakelov described this person as approximately 5’7”, white, between 35 and 40 years old, and about 180 or 185 pounds. He said further that the man was wearing a black cap, black T-shirt, sunglasses, dark jeans, and dark shoes.

Andréi Arakelov later identified the appellant in a photo line-up as the person who most closely resembled the person who asked for the telephone to speak with the victim but added that he could not be certain that it was. [ 7 ] After the telephone conversation, the victim returned home and asked Andréi Arakelov and another person who was working there, where the appellant was. He then went to the basement and as he went down the stairs he was shot from behind by someone positioned below the stairs.

He saw the appellant, who shouted “ die, die, die, sharmutta .” He was then shot again. [ 8 ] The victim was injured but managed to escape outside. He testified that the appellant followed and threatened to kill him and his children if he reported the incident to police. He said further that the appellant then left in a black Honda Fit. [ 9 ] The appellant’s DNA was later found on a cigarette butt recovered in the basement behind the stairs where spent cartridges were

also found. [ 10 ] A mobile telephone linked to the investigation was analysed. The analysis revealed that the telephone was registered in the name of the appellant’s father but had apparently been used by the appellant. Calls from this telephone between 16h34 and 17h04 were traced to towers at distances of 1.06 km to 1.23 km from the scene of the shooting. [ 11 ] On 1 September 2018, at about 01h30, the appellant entered the United States while driving a black Honda Fit that was owned by his mother. A warrant was issued for his arrest on 10 September 2018 of which he was informed on 20 September 2018.

The appellant returned to Canada on 18 October 2018. Identification [ 12 ] The trial judge decided that the only reasonable conclusion allowed by the cumulative effect of direct and circumstantial evidence of identification, despite any weaknesses, was proof beyond reasonable doubt that the victim was attacked by the appellant.

To reach this conclusion the judge stated the applicable legal principles relating to this type of evidence and applied those principles in a detailed review of the evidence. [ 13 ] The appellant’s first ground of appeal is that the “trial judge failed to properly [ sic ] scrutinize the reliability of the recognition evidence.” This formulation makes plain at first view that, unless the judge disregarded admissible evidence, it is not a question of law but a question of the assessment of evidence concerning recognition and identification of the appellant by the victim.

The appellant acknowledges that the judge addressed the principles applicable to the assessment of identification evidence, including recognition evidence with respect to a person already known to the observer, but claims that he erred when he said that recognition evidence is “significantly different” and concluded that it was intrinsically more reliable. [ 14 ] There is nothing in the trial judgment to support the view that the judge committed any error.

The judge rightly observes that evidence relating to strangers or to acquaintances requires close attention to the factual context in which the identification occurs. [6] This includes any relevant factors concerning the personal capacity of the observer to perceive, recall and communicate. [7] It also includes any relevant circumstances that might affect the ability of the observer to exercise that capacity in a manner that is trustworthy and probative. [8] [ 15 ] The appellant specifies the purported error of the trial judge as follows: 50.

The trial judge completely omitted to consider the frailties of the recognition evidence such as the length and the circumstances of the observation, the lighting, the obstructions to view and the degree of attention and awareness at the time of the crime. 51.

More specifically, the judgement shows that the trial judge did not properly scrutinize the reliability of the recognition evidence and omitted to consider the following evidence in his analysis: • Gevorg Papanyan received one shot on his upper left thigh while he was going down the two or three steps of the basement; • The shots came from behind and under the stairs. While he was turning in reaction of the first shot, he saw the appellant, who was standing behind the stairs, shouting, “ die, die, die ”.

He also remembers that the word ‘” Sharmoota ” was pronounced which is an Arabic word; • Logically he can say that he was trying to turn and that’s why he got the shots; Death threats interfere with the gun shot sound; • Mr.

Arakelov explains that the individual who came inside the house and asked him if he knew Gevorg Papanyan’s number and if he can call him spoke in Armenian; • The basement wasn’t bright; • The basement was dark and there was no light; • The basement was tinted and dusted in such a way that you couldn’t see from wall to wall; • One has to turn to be able to see behind the stairs as it is impossible to see beneath the stairs for the first 3 or 4 steps; • After receiving the second shot, Gevorg Papanyan was almost unconscious and his health was deteriorating; • He felt foggy; • Yet, he was able to identify the appellant as the individual that came out of the garage door threatening to kill his wife and children should he declare to the police he saw the gun in the appellant’s hand but does not remember its colour besides being it dark; • He doesn’t remember what the appellant was wearing besides the fact that he had a 2x2 bag in front of him.

He doesn’t remember if the clothing was dark or light; • Mr. Arakelov does not mention that the individual in question had a 2x2 bag in front of him. [9] [ 16 ] The appellant argues in effect that the judge should have engaged in a piecemeal, fragmented review of individual items of evidence to ascertain how they, individually or cumulatively, could affect the reliability of the victim’s recognition evidence. This is not the function of a trial judge [10] and it is certainly not this Court’s function as a test of the judge’s assessment of the evidence.

All of the items enumerated by the appellant are consistent with the judge’s conclusion that, despite any weaknesses, the victim’s evidence was

credible and reliable. Absence of proved motive [ 17 ] The appellant’s second ground is that the judge erred in law by failing to consider the absence of proved motive as a relevant circumstance to be considered in favour of the accused as tending to support the presumption of innocence. This proposition, which seems to imply that the absence of proved motive must be considered as evidence in favour of the appellant, is undeveloped in the appellant’s argument.

In the circumstances of the present case, there is no coherent foundation to the suggestion that the absence of a proved motive has probative value for or against the victim’s identification of the appellant, either with respect to his credibility as a witness or the reliability of his testimony. [11] Fresh evidence [ 18 ] The Court granted leave to the appellant to present fresh evidence for this panel to determine its admissibility and, if necessary, its probative value. [12] [ 19 ] The proposed fresh evidence is an affidavit by Mr.

Hagop Karlozian, who acted as the certified translator at the trial, in which he affirms that the transcript of proceedings on 11 March 2020, at p. 51 and 52, contains an error in translation in a single sentence of a statement by the victim, who testified in Armenian. The transcript records the translated statement by the victim relating to payment of the appellant’s father in the renovation of his house as follows: “The only cheque I gave him is the last cheque.” Mr.

Karlozian affirms that the statement in question should instead read as follows: “The only cheque that I did not give him is the last cheque.” However, in the same affidavit, Mr. Karlozian indicates that he cannot be certain if the word “not” was used. [ 20 ] The proposed evidence fails to meet any of the criteria stated in Palmer v. The Queen . [13] Among other deficiencies, it would have no relevance except to the issue of motive, which itself has no relevance to the question of identification advanced by the appellant in his first ground. The proposed evidence is therefore inadmissible.

FOR THESE REASONS THE COURT : [ 21 ] DISMISSES the motion to present fresh evidence; [ 22 ] DISMISSES the appeal. MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. PETER KALICHMAN, J.A. Mtre Sevag Abrahamian ABRAHAMIAN AVOCAT For the Appellant Mtre Simon Blais DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Hearing date : 20 October 2022