Court of Appeal for Ontario

Date: 2018-10-22 Docket: C64056

Justices: Sharpe, Lauwers and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Guled Jimaleh Appellant

Counsel

Dirk Derstine, for the appellant

Candice Suter, for the respondent

Heard

October 3, 2018

Appeal

On appeal from the conviction entered on October 6, 2016, by Justice N. Backhouse of the Superior Court of Ontario, sitting without a jury.

Reasons for Decision

Introduction

[1] The appellant was convicted of attempted murder and a number of related firearm offences. The appellant argues that the verdict was unreasonable because "no properly instructed trier of fact could reasonably conclude that the Appellant was the shooter beyond a reasonable doubt".

[2] The appellant advances two main arguments. The first is that the police committed procedural missteps, which would not have been necessarily fatal on their own, but which became fatal when coupled with the second error. The second is that the trial judge erred by focussing on credibility, not reliability, in circumstances where the complainant's reliability was clearly in doubt. This resulted in misapprehensions of key aspects of the evidence.

[3] We reject the appellant's arguments and dismiss the appeal for the following reasons.

The Facts

[4] We begin with the narrative of events. According to the complainant, he was walking toward the bus stop from his wife's apartment, when he was approached by two males. He recognized one of them as "Gucci". It seemed to the complainant from their conversation that "Gucci" did not remember him. The complainant was on the cellphone with his cousin during his encounter, and told him he was talking to "Gucci". The complainant then looked away from the two men to a nearby vehicle, looked back, and was shot by "Gucci". He was hit four times in the torso and once in the face.

[5] Some details of the conversation between the complainant and "Gucci" were recounted by the trial judge:

[W]hen [the complainant] asked "Aren't you Gucci from Jamestown" and told him that he knew him from high school, Gucci did not deny that this was his name. Instead, he said "How do you know me?", intimating that he was who Mr. Ali believed him to be. Mr. Ali told his cousin he was talking to "Gucci" which likely led to his being shot.

These details flow from the complainant's testimony; he was not cross-examined on the words he exchanged with "Gucci".

[6] The complainant's wife called 911 and two police officers soon arrived. The complainant was in pain and suffering from loss of blood. One of the officers asked the complainant who shot him, and he replied that "Gucci" had shot him. He described "Gucci" as a Somalian man wearing a blue bandana.

The Complainant Identifies the Appellant as the Shooter

[7] The complainant identified the appellant as the shooter on two occasions. The first was while he was in the ambulance awaiting transportation to the hospital. After telling the officer that "Gucci" had shot him, the officer showed the complainant a picture of a person known to the police by the nickname "Gucci", which had been sent by a colleague to the officer's cellphone. The complainant confirmed that the person in the picture was the one who shot him.

[8] The second was four days later when the police showed the same photo to the complainant when he was in the hospital. Again, he identified the man in the picture as the shooter.

[9] The appellant argued that flawed police methodology compromised the reliability of the complainant's identification from the police photo. This court has said: "Irreversible prejudice to an accused may flow from the use of inappropriate police procedure and, unless adequately counterbalanced during the course of the judicial process, may result in a serious miscarriage of justice": R. v. Miaponoose, 30 O.R. (3d) 419, [1996] O.J. No. 3216 (C.A.), at para. 17; see also R. v. F.A., 183 C.C.C. (3d) 518, [2004] O.J. No. 1119 (C.A.), at paras. 46-47.

[10] It would be unfair to criticise the police officer's action in showing the complainant the photograph on the first occasion when his death seemed imminent. Even so, the trial judge acknowledged that "showing the picture to Mr. Ali of the man the police believed was "Gucci" weakens the reliability of the photographic evidence." But she then explained why she nonetheless found the identification to be compelling:

I also take into account that Mr. Ali's condition was deteriorating and that he had an oxygen mask over his face by the time Cst. Chalmers held a picture over his face. […] I bear in mind that Mr. Ali was not being asked to identify a picture of someone he saw for the first time during a traumatic incident but a person he knew who he had identified to the police by nickname, area of residence and cultural background. He was then able to answer Cst. Chalmers' question about whether he had a conversation with the guy who shot him by accurately responding "yes and then he shot me". I also consider it significant that the initial identification of "Gucci" as the shooter, a Somalian from Jamestown, came from Mr. Ali, not from the police and then confirmed by Mr. Ali.

[11] With respect to the second identification of the appellant by the complainant, the appellant argued that the police should have presented the complainant with a "photo line-up". The police simply showed the complainant the photograph he had identified in the ambulance as that of the shooter.

[12] The trial judge recognized that the actions of the police on this second occasion were not helpful. She noted that "[h]aving been previously shown the accused's picture and identified it, of course, may have predisposed Mr. Ali to reconfirm his previous identification." She took this into account, and concluded:

Nevertheless, it must be remembered that "Gucci" was someone that Mr. Ali knew from seeing at regular intervals for a year in a small specialty school and who he recognized immediately when he was approached by the 2 males. He confirmed when he was not in extremis from gunshot wounds that that was "Gucci" in the picture, the man who had shot him. It is apparent from looking at Exhibit 4 that it is a picture of the accused.

[13] The appellant accepted that the trial judge rightly cautioned herself that "[m]istaken eyewitness identification is the overwhelming factor leading to wrongful convictions," and that "in cases of eye witness identification including recognition identification, the evidence has to be treated with caution." The trial judge covered the factors relevant to the evaluation of the complainant's identification evidence, particularly the useful list in R. v. Virk, 2015 BCSC 981, at para. 117, which the court distilled from other cases.

[14] The trial judge found, considering the Virk reliability factors, that the complainant was in a position to recognize "Gucci" as the shooter because the incident occurred in broad daylight and nothing impeded his view of the shooter. The complainant was not impaired or intoxicated. He recognized "Gucci" from the small high school they attended and knew some details about him (he was from Jamestown), even though he did not know his real name. The trial judge made these findings:

I accept Mr. Ali's evidence that he knew "Gucci" from attending the same small speciality school, catering mainly to Somalian students. While he did not know him well enough to know his real name or to call him a friend, he saw "Gucci" three times a week during a year, knew his nickname, that he was Somalian and that he was from Jamestown. Mr. Ali may have been incorrect that they had an English class in common, although the student timetables for the accused and Mr. Ali which were entered into evidence during cross-examination were for different years. The timetable for the accused shows "Gucci" as having a Jamestown address at that time. The 4 years since Mr. Ali had seen "Gucci" was not such a long period that one would expect him to no longer be able to recognize him. I find that Mr. Ali was capable of recognizing "Gucci" and was in a position to accurately observe the assailant who he recognized during the minute or so conversation with him which preceded the shooting.

Credibility vs. Reliability

[15] In support of the argument that the trial judge focused on credibility at the expense of reliability, the appellant points out that the reasons have a "Credibility" heading but none for reliability. Counsel noted several problems with the accuracy of the complainant's recall. He targeted particularly the complainant's assertion that he knew "Gucci" because they had attended the same English class every other day. However, in cross-examination, on being shown timetables for two different years, the complainant admitted he was mistaken about the English class. The appellant argued that this rendered unreliable the complainant's identification of the appellant as the one who shot him, from the photograph.

[16] The trial judge agreed that there were reasons to be cautious about Mr. Ali's identification evidence because there is no physical evidence, because of the way the photo was put to him and because of the instances of his unreliability and lack of credibility. The trial judge found the complainant to be generally a credible witness, even though his memory was unreliable in some respects but not on material points. He also admitted he lied on two occasions, but she did not find these lies to be material. However, she concluded that "there are other overriding factors present in this case which have persuaded me that it is safe to rely upon Mr. Ali's evidence." She listed those in succeeding paragraphs of her reasons. It is plain that she was conducting a reliability assessment.

[17] The appellant argued that the trial judge erred by implicitly accepting that the appellant was nicknamed "Gucci" in the absence of evidence; this amounted to a misapprehension. However, the trial judge's treatment of the evidence is more nuanced. She made two links. The first was between the photograph and the appellant; she noted from her personal observation that the photograph "is a picture of the accused". The second was that the complainant had recognized the appellant as the shooter. The trial judge recited the evidence at some length, and concluded:

There was nothing to support that Mr. Ali might have been fabricating his evidence that he recognized "Gucci". I am satisfied beyond a reasonable doubt that Mr. Ali was being truthful and was reliable about recognizing "Gucci" from school and the picture of the accused as the person he knew as "Gucci" who shot him and I accept this evidence.

The trial judge plainly knew that this was not a case about who "Gucci" was, but about whether the appellant was the shooter.

[18] While we agree with the appellant that the appeal turns on whether the evidence of the appellant's identity as the shooter was sufficiently reliable to sustain the conviction, we find there to be no merit to the appellant's argument that the trial judge focussed on credibility at the expense of reliability in her careful reasons. In effect, the appellant asks this court to retry the case on the same arguments heard and rejected by the trial judge. The appellant is unable to point to an error in principle made by the trial judge, or to a palpable and overriding error of fact. We reject the appellant's argument that the trial judge allowed credibility to overcome reliability.

[19] The appeal is dismissed.

Robert J. Sharpe J.A.

P. Lauwers J.A.

K. van Rensburg J.A.