2022 QCCA 448, 2022 QCCA 448

Giraud c. R. 2022 QCCA 448 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007245-192 , 500-10-007372-202 ( 500-01-156195-171 ) MINUTES OF THE HEARING DATE : March 31, 2022 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARTIN VAUCLAIR, J.A. SOPHIE LAVALLÉE, J.A. No.: 500-10-007245-192 APPELLANT COUNSEL Ryan Giraud Mtre Sharon Sandiford ( Silver, Sandiford ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Richard Audet ( Director of Criminal and Penal Prosecutions ) By videoconference No.: 500-10-007372-202 APPLICANT COUNSEL Ryan Giraud Mtre Sharon Sandiford ( Silver, Sandiford ) RESPONDENT COUNSEL

HER MAJESTY THE QUEEN Mtre Richard Audet ( Director of Criminal and Penal Prosecutions ) By videoconference 500-10-007245-192 On appeal from a judgment rendered on November 27, 20 19 by the Honourable Dennis Galiatsatos of the Court of Quebec, Criminal and Penal Division , District of Montreal . 500-10-007372-202 On appeal from a judgment rendered on July 22, 2020 by the Honourable Dennis Galiatsatos of the Court of Quebec, Criminal and Penal Division , District of Montreal .

DESCRIPTION: 500-10-007245-192 Culpability – Assault with a weapon causing harm. 500-10-007372-202 Sentence – Motion for leave to appeal deferred. Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault HEARING 9:39 Commencement of the hearing.

Identification of counsel. 9:40 Submissions by Mtre Sandiford in the file 500-10-007245-192. 9:42 Comment by the Court and Mtre Sandiford resumes her submissions. 9:50 Submissions by Mtre Sandiford in the file 500-10-007372-202. 9:51 Recess of the hearing. 10:01 Resumption of the hearing. 10:02 Submissions by Mtre Audet in the file 500-10-007245-192. 10:06 Comment by the Court and Mtre Audet resumes his submissions. 10:11 Submissions by Mtre Audet in the file 500-10-007372-202. 10:17 Reply by Mtre Sandiford. 10:19 Recess of the hearing. 10:23 Resumption of the hearing. 10:24 BY THE COURT: Judgment – see page 4. 10:25 Discussion between the Court and Mtre Sandiford. 10:27 Conclusion of the hearing.

René Gutknecht, Clerk at the hearing

JUDGMENT [ 1 ] FOR REASONS TO FOLLOW, THE COURT: In the file 500-10-007245-192: [2] DISMISSES the appeal against the verdict; In the file 500-10-007372-202: [3] DISMISSES the motion for leave to appeal the sentence; [4] ORDERS Mr. Giraud to report to the prison authorities at the latest on Monday, April 4, 2022 at 11 a.m. FRANÇOIS PELLETIER, J.A. MARTIN VAUCLAIR, J.A. SOPHIE LAVALLÉE, J.A. Giraud c. R. 2022 QCCA 448 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007245-192, 500-10-007372-202 (500-01-156195-171) DATE: April 1, 2022 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARTIN VAUCLAIR, J.A. SOPHIE LAVALLÉE, J.A. RYAN GIRAUD

APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor REASONS FOR JUDGMENT RENDERED AT THE HEARING OF MARCH 31, 2022 [1] On March 31, 2022, the Court dismissed, with reasons to follow, an appeal from a judgment rendered by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Dennis Galiatsatos), on November 27, 2019, which found him guilty of having assaulted the victim, Abdullahi Sulei, with a weapon (s. 267(

a) Cr.C .) and having caused him bodily harm (s. 267(

b) Cr.C. ). [ 2 ] The Court also dismissed the motion seeking leave to appeal the sentence. The appellant argued that the judge committed two errors which led to an unreasonable and disproportionate sentence.

On July 22, 2020, the appellant was sentenced to imprisonment for fourteen months, followed by a two-year probation and other ancillary orders. [ 3 ] The reasons of the Court for dismissing the appeal and the motion seeking leave to appeal the sentence, are the following. * [ 4 ] On the appeal against the conviction, the appellant contends that the judge erred in concluding that the prosecution had proven the identity of the assailant beyond a reasonable doubt, that the judge’s finding is tainted by errors of fact and law and that it is thus manifestly unreasonable.

These broad and diffuse arguments may be reduced to a contestation of the identification evidence presented at trial. [ 5 ] In the month or two preceding the assault, the victim, Mr. Sulei, who was 63 years old at the time of the assault, had seen the appellant in a municipal park, asking people for cigarettes, and he had had brief contact with him on two occasions. During these encounters, while Mr. Sulei was sitting on a park bench, the appellant, aged 25 at the time, had asked him for cigarettes.

On the third encounter, which occurred on the day of the assault and lasted approximately 10 minutes, the appellant smoked a cigarette on the same park bench as the victim. When the appellant asked for a second cigarette, Mr. Sulei refused and got up to leave. The appellant eventually grabbed him, and the victim’s cellular phone fell to the ground. When Mr. Sulei bent down to retrieve his phone, he was struck on the head. The appellant immediately ran away. [ 6 ] Mr. Sulei received stitches. The trial judge described the injury as relatively minor. A scar was visible when Mr.

Sulei appeared before the trial judge. [ 7 ] At the time of the assault, Mr. Sulei provided the police with a description of the appellant, including the length of his hair, which he described as short. He also said the appellant spoke with a Jamaican accent. He said the appellant had been drinking from a can of beer of a certain brand and had thrown it away. The can of beer was recovered. When the appellant was arrested a few days after, he was drinking that same brand of beer. Finally, Mr.

Sulei was able to see the appellant running, as he fled from the park, in a direction which happened to correspond precisely to where he lived. Two days later, Mr. Sulei immediately and without difficulty identified the appellant in a photo line-up, noting, however, that his hair was different and short at the time of the assault. [ 8 ] The appellant testified. The trial judge rejected his testimony. That finding is not appealed from. The appellant acknowledges that the trial judge made no error stating the law regarding identification evidence. The error, he claims, lies in the application of said principles.

He mainly emphasizes that the identification relies on only one witness, that the appellant did not have short hair and that he did not have a Jamaican accent. [ 9 ] First, the evidence allowed the judge to find that the appellant’s hairstyle at the time of the offence gave the appearance of short hair. Second, the judge was correct in finding that the appellant’s Dominican accent could well have been confused with a Jamaican accent. Third, contrary to the appellant’s suggestion, Mr.

Sulei expressed no uncertainty in the photo line-up process, and he reiterated at trial that he was sure of his identification. [ 10 ] The trial judge applied the law correctly. He carefully and expressly warned himself against all the pitfalls of identification evidence, as he did with respect to the analysis of all the evidence. The appellant has not shown any errors.

The appeal of the verdict is therefore dismissed. [ 11 ] In his motion for leave to appeal from the sentence, the appellant argues (1) that the judge failed to consider any mitigating factors and (2) that he considered the fact that the appellant had exercised his right to have a trial as an aggravating factor. He therefore argues that due to these two errors, the sentence is unreasonable and disproportionate to the crime. [ 12 ] The appellant has not indicated any existing mitigating factors, and he has not presented any arguments that seriously support his allegation as to the second error.

In his oral argument, he stressed only his young age, a factor, however, that was duly considered by the judge. The judge did mention that a guilty plea is a mitigating factor in sentencing. That is not an error. While comparing sentences for similar offences, he was correct to hold that a guilty plea may be a distinguishing element. Although another judge might have evaluated

the circumstances differently to arrive at a lighter sentence, based on the arguments presented, the proposed appeal is bound to fail. [ 13 ] For the foregoing reasons, the Court dismissed both the appeal and the motion seeking leave to appeal the sentence at the hearing, and ordered the appellant to report to the prison authorities at the latest on Monday, April 4, 2022, at 11 a.m. FRANÇOIS PELLETIER, J.A. MARTIN VAUCLAIR, J.A. SOPHIE LAVALLÉE, J.A. Mtre Sharon Sandiford SILVER SANDIFORD For the appellant Mtre Richard Audet CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent Date of hearing: March 31, 2022