Court of Appeal for Ontario

Date: 2018-06-25 Docket: C57288

Judges: Sharpe, Roberts and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ali Murtaza Appellant

Counsel

For the Appellant: Anil K. Kapoor and Dana Achtemichuk

For the Respondent: Marie Comiskey and Sébastien Lafrance

Heard: June 21, 2018

On appeal from: The conviction entered on June 24, 2013 by Justice J.M. Fragomeni of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] The appellant appeals from his convictions following his jury trial for the importation and possession of over 100 kilograms of heroin, and possession of some $650,000 as proceeds of crime.

Facts

[2] An RCMP controlled delivery on July 14, 2009 of about 8.45 kilograms of heroin, discovered during a random customs search, led the police to the appellant's house. The appellant had paid for and directed that a courier deliver this shipment to his house. His wife and co-accused, Nazma Murtaza, accepted some of the shipment at their home and also picked up the balance of the shipment at the courier's warehouse.

[3] During a subsequent authorized search, the police seized about 108 kilograms of heroin from one of the storage units rented by the appellant for which he had the entrance code. Another authorized search of a second storage unit rented by the appellant yielded about $650,000 in cash.

[4] At trial, the appellant denied any knowledge of the heroin shipments and maintained the monies represented casino winnings.

Trial Outcome

[5] The jury convicted the appellant on all counts and the trial judge sentenced him to life imprisonment on the importation charges, 15 years' concurrent imprisonment on the heroin possession charges, and 10 years' concurrent imprisonment on the proceeds of crime charges.

Grounds of Appeal

[6] The appellant's submissions on appeal can be summarized as follows:

i. The jury instructions were inadequate regarding the identification evidence given by Jude Joseph, a courier who had delivered shipments to one of the appellant's storage units.

ii. Sergeant Pat Marten, of the RCMP Integrated Unit Proceeds of Crime team, was not qualified to give expert evidence regarding FINTRAC reports concerning the appellant's casino winnings.

iii. The trial judge incorrectly curtailed the cross-examination of the appellant's wife and co-accused, Nazma Murtaza, concerning the identity of a third person on the July 21, 2009 telephone call with them, following the delivery of the controlled shipment to the appellant's home, during which Ms. Murtaza was directed not to call the police by the appellant and the third person.

Court's Analysis

[7] We are not persuaded by these submissions.

[8] It is important to put them into context. The Crown presented an overwhelming case. It did not significantly depend on the identification evidence, the FINTRAC reports or the July 21, 2009 telephone call. There was important, uncontroverted evidence tying the appellant to the delivery of the heroin to his home and to the storage units where large quantities of heroin and cash were found. In any event, we find no error with the trial judge's treatment of these issues.

Identification Evidence

[9] We start first with the identification evidence. Mr. Joseph was a legitimate, commercial courier who identified the appellant as the person to whom he had made two deliveries at the appellant's rented storage unit from which the police seized approximately 108 kilograms of heroin. Mr. Joseph had identified the appellant from a photograph during a photo-pack line-up process and at trial.

[10] In his charge, the trial judge enumerated the various deficiencies in the photo-pack line-up process that fell short of the Sophonow Inquiry recommendations and that were highlighted by the defence expert. While flawed, the process was not so deficient that its results were inadmissible. The trial judge properly left the weight to be given to this evidence to the jury. He also clearly warned the jury about the frailties of eyewitness identification evidence. While he did not specifically address the potential problems with in court identification, this caused no harm because the main focus of the jury's consideration was on the photo-pack line up identification. We are satisfied that when read as a whole in the context of this record, the trial judge's charge was fair and balanced.

Expert Evidence Regarding FINTRAC Reports

[11] Turning next to the issue of Sergeant Marten's evidence, we agree with the trial judge's determination that Sergeant Marten's evidence concerning the FINTRAC reports was not expert evidence but factual evidence that he could give as a result of his experience dealing with these reports. He testified about basic information in the reports including the meaning of common abbreviations and the different treatment of casino winnings and purchases in the reports. Sergeant Martin was not required to interpret competing meanings in the reports based on his expertise but was able to explain the structure of the reports in much the same way that a computer user could explain the keyboard structure.

Cross-Examination of Co-Accused

[12] Finally, we do not agree that there was any unfairness caused to the appellant by the trial judge's refusal to allow his counsel to cross-examine Ms. Murtaza about the identity of the other person on the July 21, 2009 telephone call. The appellant submits that he was prejudiced because he was unable to elicit from his wife corroborative evidence of his fear of danger to his family by others involved in the heroin importation which had been canvassed during his testimony.

[13] We do not agree there was any unfairness to the appellant.

[14] The issue faced by the trial judge came up towards the end of a lengthy and hard-fought trial involving multiple accused persons. The problem arose because counsel for Ms. Murtaza decided to pursue a line of questioning that was related to an area that all other counsel agreed not to broach, at Ms. Murtaza's counsel's request. The request was related to a potential conflict of interest.

[15] Ms. Murtaza's counsel "opened the door" by asking the appellant about the call and whether he knew the third person. However, the appellant testified that he did not know who it was, although the name of the person whom appellant's trial counsel wished to suggest to Ms. Murtaza as the third person on the call was well known to the appellant and Ms. Murtaza. The call and the identity of the third person were not pursued with the appellant during his re-examination. Rather, appellant's trial counsel waited until his cross-examination of Ms. Murtaza to continue this line of inquiry.

[16] In her evidence, Ms. Murtaza said there was "someone else who spoke in the background" of the call but did not identify who it was. While precluded from pursuing the identity of the third person, there was nothing precluding appellant's counsel from exploring Ms. Murtaza's fear of danger to her and her family, if any, during the period prior to the charges, as it was for the period post charges.

[17] Faced with a dispute that really pitted the fair trial interests of one accused against the other, the trial judge decided trial fairness required that he put an end to this matter and restore the trial to its previous path. This was a reasonable exercise of his discretion. There is no basis to interfere with it.

Disposition

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

Robert J. Sharpe J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.