Court of Appeal for Ontario

Date: 2018-12-24

Docket: C61690 & C62005

Judges: Juriansz, Benotto and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Mohamed Hersi and Guled Mahadale Appellants

Counsel

• Catriona Verner, for the appellant Hersi
• R. Craig Bottomley, for the appellant Mahadale
• Elise Nakelsky, for the respondent

Heard: December 20, 2018

On appeal from: The convictions entered on May 1, 2015, and the sentence imposed on Mohamed Hersi on September 4, 2015, by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] The appellants were charged with gang-related criminal offences, including trafficking in firearms and drugs. They were both members of a criminal organization known as YBK (Young Buck Killers). The gang was based in Toronto, but their activities extended to the western provinces.

[2] Hersi was convicted of trafficking a firearm, possession of a firearm, trafficking drugs, conspiracy to traffic drugs, all in connection with a criminal organization. Mahadale was convicted of trafficking of a firearm for the benefit or in association with a criminal organization. They both challenge their convictions. Hersi also seeks leave to appeal his sentence.

Trafficking a Firearm

[3] Both appellants argue that the trial judge erred in his instructions to the jury on the trafficking charges. Section 99 of the Criminal Code creates the following offence:

99. (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or

(b) offers to do anything referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm…..

[4] In R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.), trafficking by offer was discussed in the context of drug offences. Doherty J.A. said, at p. 238, that the offence of trafficking by offer is made out if the accused intends to make an offer that will be taken as a genuine offer by the recipient. He further stated, at p. 236: "Provincial appellate courts have repeatedly held that where an accused is charged with trafficking by offer, the Crown is not required to prove that the accused actually intended to go through with the offer and sell or otherwise provide the thing that is offered." This definition of trafficking by offer was applied in the context of s. 99 of the Criminal Code in R. v. Duncan, 2015 ONCA 928, 332 C.C.C. (3d) 347, at para. 92.

[5] Neither appellant argues that the verdicts are unreasonable. Instead, they argue that the jury was misdirected. We disagree.

[6] Mahadale argues that the trial judge improperly told the jury that, in his testimony, he admitted to offering to transfer a firearm, essentially inviting the jury to convict. In our view, the trial judge merely summarized Mahadale's evidence. Mahadale had acknowledged that he uttered the words captured by the wiretaps but testified that he never intended to provide a firearm to the person with whom he was communicating. In his closing address, his trial counsel (not Mr. Bottomley) repeated this evidence and submitted that it was never her client's intent to go through with the transaction. As noted above, an intention to follow through with an offer is not an element of the offence, and the denial of such an intention is not, in itself, exculpatory. Given the state of the record, the jury was left to determine whether Mahadale intended his words to be taken as a genuine offer. It was open to the jury to find that he did. The function of the jury was not usurped by the trial judge's instructions.

[7] Hersi also argues that the trial judge erred in his instructions to the jury on trafficking. Hersi concedes he made an offer and that it was genuine, but says that at the time he made the offer he was not able to transfer a firearm. He submits that his intercepted communications showed that he first needed to acquire a firearm in order to make the transfer.

[8] The submission fails because actual access to a firearm is not an element of the offence under s. 99. The intercepts show that the other party to the discussion, Gardner, wanted Hersi to acquire the gun. He said words like, "Yeah deal with that" and "Yeah co-all him please…I need something right now."

[9] Again, counsel does not assert that the jury's verdict was unreasonable. We would dismiss this ground of appeal.

Territorial Jurisdiction

[10] Hersi argues that the trial judge erred by failing to instruct the jury that they could only consider offences that were committed in Ontario, thereby running afoul of s. 478 of the Criminal Code, which provides: "Subject to this Act, a court in a province shall not try an offence committed entirely in another province."

[11] We do not accept this argument. In this case, none of the offences for which Hersi was convicted was committed entirely in another province; they were of a truly interprovincial nature, each with a connection to Ontario. They involved concerted criminal activity by YBK, a Toronto-based gang, that was branching out to the western provinces. With each of the counts, there was a meaningful link to Ontario.

[12] This ground of appeal is dismissed.

The Co-Conspirators Exception to the Hearsay Rule

[13] Hersi argues that the trial judge's instructions on this hearsay exception were deficient because he failed to provide the jury with examples of how the exception applied.

[14] We note that no objection is taken to the substantive content of the trial judge's instructions on this issue, which were given more than once. The trial judge illustrated this hearsay exception in a general way during his discussion of voice identification. Considered as a whole, the instructions properly equipped the jury to deal with this body of evidence.

Inadmissible Hearsay

[15] Hersi argues that the trial judge erred in admitting hearsay evidence in an intercept in which an individual referred to Hersi as "H". His counsel argued that this utterance made the critical link in the wiretaps between the use of "H" and Hersi.

[16] The trial judge admitted the evidence on the basis that it would not be used for its truth, but only to establish the state of mind of the declarant. We see no error in this analysis. We also observe that the link between "H" and Hersi is found elsewhere in the record. Consequently, even if the evidence was wrongly admitted, the impact was inconsequential: s. 686(1)(b)(iii).

Sentence

[17] Hersi was sentenced to a total term of 13 years' imprisonment. At the time of the offences, he was 22 years old. He had prior findings of guilt as a youth and convictions as an adult for offences of violence. After the offences in this case, he was sentenced in Saskatchewan to a four-year penitentiary term for drug offences in connection with YBK, which he completed before the imposition of the 13-year sentence.

[18] Hersi's counsel submits that the trial judge erred by sentencing him for offences committed outside of Ontario. For the reasons stated above on the issue of territorial jurisdiction, we do not accept this argument.

[19] Nor do we accept the submission that the trial judge failed to take into account the principle of totality in relation to the Saskatchewan sentence. In his reasons, the sentencing judge specifically referred to the totality principle and declined to impose a shorter sentence because the Saskatchewan sentence arose out of "an entirely separate proceeding." In our view, he was correct to do so. That sentence had already been served, months before the sentencing in this case. The sentence imposed was proportionate to Hersi's moral culpability; it was also necessary to deter and denounce the extremely serious offences committed in the name of a violent criminal organization.

Disposition

[20] The appeals against conviction are dismissed.

[21] Hersi's application for leave to appeal sentence is granted, but the appeal is dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

Gary T. Trotter J.A.