Court of Appeal for Ontario

Date: 2022-03-24 Docket: C64140

Judges: Miller, Zarnett and Coroza JJ.A.

Between: Her Majesty the Queen, Respondent and Ahmed Farah, Appellant

Counsel: Breana Vandebeek, for the appellant Kevin Rawluk, for the respondent

Heard: January 6, 2022 by video conference

On appeal from the convictions entered on April 30, 2016, and the sentence imposed on August 5, 2016, by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

[1] A wiretap investigation led police investigators to the conclusion that someone using the alias “Hurdaye” was engaged in firearms trafficking for the benefit of the Dixon City Bloods street gang. Circumstantial evidence pointed them to the appellant. Following a trial, a jury concluded that the Crown proved beyond a reasonable doubt that the appellant was the person overheard in the intercepted communications and known as Hurdaye. The appellant was convicted of multiple firearms offences, including trafficking firearms for the benefit of a criminal organization. He received a custodial sentence of 12 years.

[2] At trial, the main issue was identification. On appeal, he made two arguments: (1) that the trial judge erred in admitting Leaney identification evidence provided by police officers relating to photos on the appellant’s phone; and (2) that the jury returned an unreasonable verdict. The appellant abandoned a third ground – that the trial judge erred in failing to instruct the jury with respect to the appellant’s exculpatory post-offence conduct – at the outset of the oral hearing. With respect to sentence, the appellant argues the trial judge erred by failing to give credit for harsh remand conditions.

[3] For the reasons that follow, I would dismiss the appeals against conviction and sentence.

Background

[4] The Crown’s case rested on six links between the appellant and the person known as Hurdaye:

1. Two text messages were sent from the appellant’s cell phone in which the sender identified himself as Hurdaye;
2. In one of those text messages, the sender who identified as Hurdaye revealed his birthday. The appellant’s birthday is the same day;
3. In an intercepted phone call, Hurdaye described how he escaped two police officers during a chase on foot. Two police officers testified at trial that the appellant – who they identified visually – escaped from them after a chase through the parking lot of the appellant’s building on April 6, 2013;
4. One of the officers who chased the appellant noted the appellant’s “droopy” eyelids, which gave him a sleepy appearance. Hurdai means “sleepy” in Somali, suggesting the inference that Hurdaye was so-called because of droopy eyelids;
5. A day after the police chase in the parking lot, a police wiretap of Hurdaye recorded Hurdaye giving a woman named Mengistu an account of how he had escaped on foot from police. The appellant had a connection to a woman named Mengistu – the day of the police chase, the police had observed the appellant sitting in a car registered to Mengistu;
6. Photographs admitted into evidence at trial included images of individuals said to be associates of Hurdaye, together with someone the jury was invited to conclude was the appellant. Six of these images were found on the appellant’s phone.

[5] The defence opposed the Crown’s application to allow Det. Cst. Hockaday to testify as to the identity of the men in the photographs. The bases of the objection were threefold: (1) he did not know the men to be identified sufficiently well to identify them; (2) the identification would be hearsay, since it depended on statements made by the men to Det. Cst. Hockaday about their identities; and (3) the prejudicial effect of the identification evidence would outweigh its probative value.

[6] Following a voir dire, the trial judge granted the application and permitted the testimony. The trial judge reasoned that the police officer had met most of the men in the photographs multiple times and was, per R. v. Leaney, [1989] 2 S.C.R. 393, in a better position than the trier of fact to identify them.

[7] The trial judge rejected the argument that Det. Cst. Hockaday’s testimony would constitute hearsay. He provided two reasons: (1) self-identification is an exception to hearsay, and the police officer would be relaying the men’s own identification of themselves at trial; and (2) the evidence could be used to establish that the men had made the assertions about their identity, rather than for the truth of the statements. The trial judge found the prejudice to be minimal, since the officer would not be identifying the accused, only third parties, and defence counsel would have the opportunity to cross-examine him.

Issues

[8] The appellant raised the following issues on appeal:

1. Did the trial judge err by admitting the identification evidence from Det. Cst. Hockaday?
2. Did the jury return an unreasonable verdict?
3. Did the trial judge err by not providing the appellant with 1.5 to 1 credit for each day spent in pre-trial incarceration?

Analysis

(1) The identification evidence

[9] As explained below, I am not persuaded that the trial judge erred in admitting the identification evidence.

[10] The appellant advances three arguments: first, that the trial judge erred in concluding that the identification evidence was not, at least in part, hearsay; second, that the trial judge erred in not finding that the identification evidence was inadmissible because Det. Cst. Hockaday was not sufficiently familiar with the photographed individuals to make a reliable identification; and third, the trial judge erred in finding that the probative value of the evidence outweighed its prejudicial effect.

(a) Was the evidence admissible “for a non-hearsay purpose”?

[11] As discussed below, the trial judge concluded that the identification evidence came within a traditional exception to the rule against the admission of hearsay and was admissible on that basis. But he also determined that the evidence was admissible “for a non-hearsay purpose”, as circumstantial evidence that supports the identification from the photos, and so its admission did not depend on the hearsay analysis. The trial judge reasoned that the officer’s evidence – that the photographed individuals had previously identified themselves to him using particular names – was simply evidence that they had so identified themselves to the officer, and this is how he knew them and was able to identify them in photographs. The evidence need not be tendered for the truth of the statements, as the cogency of the evidence would not depend on whether the individuals had given false names to the officer.

[12] The appellant argues that this conclusion was an error because the identification evidence was nevertheless partly hearsay – a mix between hearsay and opinion. Reporting statements made by others is hearsay, and the officer made use of these statements to support his identification of the individuals in the photos.

[13] I do not agree that the trial judge made any error. The trial judge well understood – and well articulated – the distinction between the use of the utterances as circumstantial evidence, and the use of the utterances for the truth of their content.

(b) Was the evidence admissible as hearsay?

[14] As this court held in R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, and R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 30-32, with respect to the threshold requirement for admissibility of identification evidence, the focus is on the level of familiarity the witness has with the person to be identified, to be assessed by considering the nature of the relationship, which includes the frequency and intensity of past interactions. The case law flowing from R. v. Leaney has been developed in the context of identification of an accused, rather than third parties. In the appellant’s case, Det. Cst. Hockaday identified third parties who were not called as witnesses, and so were not available to the trier of fact to make its own determination of whether the individuals bore a resemblance to the images in the photos.

[15] On appeal, as at first instance, the appellant chronicles all of the interactions in evidence between the police witness and the individuals in question and invites the court to conclude that because many of these interactions were “brief and innocuous” or otherwise dated and unmemorable, Det. Cst. Hockaday was not sufficiently familiar with the individuals to make a reliable identification.

[16] This argument was before the trial judge, who considered the evidence of the interactions, together with Det. Cst. Hockaday’s role as an officer embedded in the community in which the individuals lived. After reviewing the evidence at length in his ruling, the trial judge concluded that the interactions were not transitory or brief, but were significant, memorable investigative events.

[17] The appellant’s argument on appeal is that the trial judge erred in characterizing the encounters this way. Counsel invites this court to make a wholesale review of the evidence and substitute our conclusion about its significance for that of the trial judge. But absent some palpable and overriding factual error, which the appellant has not identified, the trial judge’s findings are entitled to deference and I would not disturb them.

(c) Does the prejudice outweigh the probative value?

[18] The appellant’s third argument is that the trial judge erred in concluding that the probative value of the identification evidence exceeded the prejudice it caused to the appellant. The prejudicial effect of the evidence, on the appellant’s submission, is that because all of Det. Cst. Hockaday’s interactions with the individuals were in the context of policing, evidence of these interactions would suggest to the jury that the appellant, by his association with them, must have been involved in criminal activity himself, and in particular, must have been participating in a criminal organization.

[19] Again, there is no suggestion that the trial judge made an error of law or misapprehended any of the evidence. The quarrel is with the trial judge’s assessment of the relative degree of prejudice and how it compared to probative value. Again, this is an area in which the trial judge’s assessment is entitled to deference. It is telling that defence counsel at trial did not seek any instruction to the jury as to the proper use of the identification evidence to mitigate any perceived prejudice to the accused, notwithstanding the trial judge inviting such a submission.

[20] The evidence had probative value. It was one piece of circumstantial evidence in the case against the appellant: wiretap evidence supported the conclusion that Hurdaye had communications with certain named individuals. Det. Cst. Hockaday’s testimony allowed for the conclusion that the photos in evidence – including photos found on the appellant’s phone – showed the appellant together with the individuals who were intercepted communicating with Hurdaye. All of this evidence together supported the conclusion that the appellant was the person known as Hurdaye.

(2) Unreasonable verdict

[21] The test for an unreasonable verdict, as posited in s. 686(1)(a)(i) of the Criminal Code, is whether the verdict is one that “a properly instructed jury, acting judicially, could reasonably have rendered”: R. v. Chacon-Perez, 2022 ONCA 3, at para. 74. In making the claim that a jury rendered an unreasonable verdict, the appellant is not arguing that the trial judge erred by giving faulty instructions or erred in evidentiary rulings, or erred in any respect other than accepting the verdict.

[22] The role of an appellate court, in assessing an unreasonable verdict argument, is to “review the entirety of the evidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier-of-fact properly instructed and acting judicially could have convicted”: R. v. Mars (2006), 206 O.A.C. 387 (C.A.), at para. 3.

[23] Where the Crown’s case was, as in this case, circumstantial, the question to be answered is “could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence?”: Mars, at para. 4.

[24] The appellant’s argument on appeal is that there was insufficient evidence to prove identity beyond a reasonable doubt. The cornerstone of the Crown’s case was the substantial wiretap evidence, which did not refer to the appellant by name. The only evidence connecting the appellant to the wiretaps – apart from the evidence supporting the inference that he was Hurdaye – was that he was in possession of a phone that was used to make these communications. Counsel for the appellant notes that there was an absence of any evidence that the appellant used the name Hurdaye, or that his voice matched the voice on the wiretaps. Further, there was no evidence that the appellant was seen in possession of a firearm, and the identity evidence was insufficient.

[25] The appellant’s argument is undercut by the position taken by defence counsel at trial. The appellant’s co-accused, Khattak, brought a directed verdict application. In dismissing that application, the trial judge noted, with respect to the appellant, “Defence counsel for the co-accused, Ahmed Farah, did not bring a similar motion, effectively conceding that there was sufficient evidence in relation to each count of the indictment to be considered by the jury.”

[26] In any event, the body of circumstantial evidence adduced at trial was sufficient to support the jury’s identification of the appellant as Hurdaye. That evidence included the following:

• Two text messages were sent from the appellant’s phone identifying the sender as “Hurdaye”.
• The appellant was born on May 7, 1983. In several telephone intercepts, Hurdaye references an upcoming birthday on which he will turn 30, including a call on May 4, 2013, in which he says his birthday is “this Tuesday”, which would be May 7.
• Hurdaye was intercepted on April 6, 2013, talking about attending a gun deal and “bringing the things”. On April 6, 2013, two police officers witnessed a gun deal, and chased one of the participants into the parking garage for residences at 320, 330, and 340 Dixon Road. Both officers identified the appellant as the man they chased.
• Later that month, Hurdaye was intercepted recounting how he was chased by two police officers “running with a big 4-4 … all the way down to three forty” and that he “lost them … when I got to the basement in three-twenty”.
• The appellant was described as having “droopy eyes” that make him “look sleepy”. Hurdai is the Somali word for “sleepy”.

[27] This circumstantial evidence, taken together, made a strong case that the appellant was the person who identified himself on the intercepted calls, and was identified by others, as Hurdaye. The jury was entitled to conclude that this was the only reasonable inference it could draw.

(3) The sentence appeal

[28] The appellant was sentenced to 12 years’ imprisonment, and given enhanced credit at a rate of 1.25 to 1 for time spent in pre-trial custody. The defence had sought credit on the basis of 1.5 to 1, while the Crown had argued that due to the appellant’s misconduct in jail prior to sentence, he was not entitled to any enhanced credit. The trial judge referred to the appellant’s serious institutional misconduct, which included two serious assaults on other inmates, one which consisted of “a severe and extended physical beating” that required the intervention of a dozen correctional officers, and another in which the appellant slashed a fellow inmate with an improvised knife, requiring hospitalization. The trial judge nevertheless provided some credit to ameliorate the harsh lockdown conditions the appellant had experienced prior to sentence. This was a reasoned exercise of the trial judge’s discretion, and I would not interfere with it.

[29] In any event, this aspect of the appeal is largely, if not entirely, moot as a result of the appellant having been released on parole more than 6 months ago, and now being past his statutory release date.

[30] I would dismiss the appeal against sentence.

Disposition

[31] For the reasons given above, I would dismiss the appeal against conviction, grant leave to appeal sentence, and dismiss the appeal against sentence.

Released: March 24, 2022 B.W. Miller J.A.

I agree. B. Zarnett J.A.

I agree. Coroza J.A.