COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dirie, 2016 ONCA 502

DATE: 20160627

DOCKET: C57661 C57902

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamud Dirie and Mohamud Omar

Appellant

Ariel Herscovitch, for the appellant Dirie

Mark Halfyard and Breana Vandebeek, for the appellant Omar

Brock Jones, for the respondent

Heard: June 15, 2016

On appeal from the conviction entered on January 3, 2013 and the sentence imposed on April 12, 2013 by Justice A.L. Harvison Young of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellants were both convicted of possession of a weapon for a purpose dangerous to the public peace, carrying an unlicensed concealed weapon, possession of a loaded unlicensed firearm, and possession of a firearm knowing that it was unlicensed. The appellant Mohamud Dirie was also convicted of breaching a probation order to keep the peace and possession of a firearm while prohibited from doing so pursuant to an order made under s.109 of the Criminal Code. Both appellants were acquitted of discharging a firearm and using a firearm in a careless manner without lawful excuse.

[2] The convictions relate to events that occurred in the vicinity of an apartment building in northwest Toronto. The primary issue at trial was identity.

[3] The evidence included video surveillance footage from the building’s security system. That footage showed two men entering the building holding objects that the Crown alleged to be firearms. It also showed the same two men in front of the building apparently arguing with someone in an apartment that was out of the camera’s sight.

[4] The trial judge found beyond a reasonable doubt that the two men in the video footage were the appellants. She based her conclusion on her comparison of her observation of the men in court and her review of the security footage. In finding the appellant guilty, the trial judge also gave some weight to the evidence of Officer Hockaday, who had encountered Mr. Dirie on many occasions and who testified that he recognized Mr. Dirie in the video. Among other features, Officer Hockady highlighted the posture of the man in the video and the way he spoke out of the side of his mouth.

[5] The appellants submit that the trial judge erred in the following ways. First, she made an unreasonable finding of fact that the appellants were the individuals depicted in the video. According to the appellants, the quality of the video footage and the limited view offered by the video were insufficient to support a finding that the appellants were the perpetrators. Mr. Dirie also argues that the trial judge erred in considering the features highlighted by Officer Hockaday. Second, the appellant Mohamed Omar submits that she erred in ignoring the absence of evidence resulting from the execution of a search warrant at his home. That search did not turn up any clothing depicted in the video. Third, Mr. Omar argues that the trial judge improperly scrutinized and rejected the exculpatory evidence of his mother. Fourth, the appellants argue that the trial judge made an unreasonable finding of fact that the objects held by the individuals in the video were loaded restricted firearms.

[6] We would not give effect to these grounds of appeal.

[7] First, it is clear from her reasons that the trial judge was alive to the risks inherent in identification evidence. In reviewing the video evidence, she properly instructed herself in accordance with the principles in R. v. Nikolovski, [1996] 3 S.C.R. 1197. She found that the video was of sufficient clarity and quality for comparison purposes. She carefully reviewed the video multiple times and compared the images to the appellants. In so doing, she was entitled to take into account the evidence given by Officer Hockaday regarding Mr. Dirie’s posture and the way he spoke. Having reviewed the video, we are satisfied that it was of sufficient quality to permit the trial judge to make an identification. There is no basis for appellate interference with this finding.

[8] Second, we are not satisfied that the trial judge ignored the evidence related to the execution of the search warrant. Indeed, in her reasons she expressly averted to the fact that the search did not assist the Crown’s case. The trial judge’s subsequent comment that the only evidence of any value was the video footage was simply a recognition of the significance of the video to the Crown’s case.

[9] Third, the trial judge did not improperly scrutinize and reject the evidence given by Mr. Omar’s mother. The trial judge found that the witness was not credible and cited specific examples in support of her conclusion. There was no undue reliance on the witness’s demeanour or her relationship with Mr. Omar. The trial judge’s assessment of credibility is entitled to deference by this court.

[10] Fourth, there was ample evidence to support the trial judge’s finding that the appellants were carrying loaded restricted weapons, including the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, captured on video, as well as the evidence that shots were fired from at least two different guns. The trial judge found that it was clear that the appellants arrived with some sort of altercation in mind, and that there were two general groups involved. We agree with her observation that it defies credulity to think that the appellants “would have arrived with some sort of altercation with this group clearly contemplated, knowing as they must have known others could or would be armed, without real or loaded weapons.”

[11] The appeals are dismissed.

“Alexandra Hoy A.C.J.O.”

“John Laskin J.A.”

“C. W. Hourigan J.A.”