Court of Appeal for Ontario

Date: 2018-05-30 Docket: C63676

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Nasir Ahmaddy Appellant

Counsel

Faisal Mirza, for the appellant James D.M. Clarke, for the respondent

Heard: May 28, 2018

On appeal from the conviction entered on November 17, 2017 by Justice Harvey P. Brownstone of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of a single count of trafficking cocaine, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] In brief compass, the facts are as follows. The appellant was alleged to have sold nine ounces of cocaine to a drug dealer named Mohammad Nassimi, who in turn sold drugs to an undercover officer. Nassimi was observed getting into the appellant's car and then leaving with a bag. The trial judge found that, shortly afterwards, Nassimi gave the same bag to an undercover officer. Nassimi was arrested, along with his girlfriend. In the meantime, the police had the appellant's vehicle under surveillance. After Nassimi and his girlfriend were arrested, so was the appellant.

[3] Nassimi testified at the appellant's trial, claiming that he had purchased the cocaine from the appellant. Nassimi's credibility was challenged by the defence. The appellant did not testify. The trial judge accepted Nassimi's evidence and was satisfied beyond a reasonable doubt that the appellant sold cocaine to Nassimi that evening. The trial judge also found that the appellant's guilt could be independently established on the basis of the police surveillance evidence.

[4] The appellant advances several grounds of appeal, focusing on how the trial judge dealt with Nassimi's evidence. We are not persuaded that any of them should succeed. The trial judge was entitled to accept Nassimi's evidence.

[5] The trial judge did not improperly rely on Nassimi's demeanour in finding him to be a credible witness. The trial judge carefully scrutinized Nassimi's evidence, whom he characterized as an "admittedly problematic" witness. Nassimi was very uncomfortable testifying against the appellant. He had already pled guilty and been sentenced. Having accepted responsibility for his part, Nassimi thought the appellant should have as well.

[6] The appellant takes issue with the trial judge's observation that, when Nassimi expressed these sentiments, "he was looking directly at [the appellant] when he was saying that." This was the only direct reference to Nassimi's demeanour. Triers of fact are entitled to consider demeanour, as long as it is not given undue consideration. In this case, the trial judge did not make this mistake.

[7] The appellant advances an assortment of other arguments concerning the trial judge's treatment of Nassimi's evidence. These include Nassimi's desire to shield his girlfriend from criminal liability, as well as the "massive benefit" Nassimi received when he pled guilty and received a sentence of 18 months' imprisonment.

[8] We see no error in the manner in which the trial judge treated Nassimi's evidence. He looked at all of the factors that were relevant to the assessment of his credibility. There was no misapprehension of the evidence. Presumed to know the law, the trial judge was not required to specifically instruct himself on the dangers of relying on the evidence of an unsavoury witness: see R. v. Snyder, 2011 ONCA 2635, at para. 24. Nevertheless, the trial judge did look for evidence that confirmed Nassimi's account. This evidence was plentiful. As noted above, the trial judge would have found the appellant guilty on the basis of the surveillance evidence alone.

[9] For these reasons, the appeal is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."