Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240506 DOCKET: COA-23-CR-1135

MacPherson, Copeland and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Mohammed Yaqubi Appellant

Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Lisa Csele, for the respondent

Heard: May 3, 2024

On appeal from the conviction entered on July 22, 2022 by Justice Laura A. Bird of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant appeals from his conviction for trafficking cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was also found guilty of possession of cocaine for the purpose of trafficking, contrary to s. 5(2), based on the same incident. That count was conditionally stayed, pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729.

[2] The appellant argues, for the first time on appeal, a principle novel to Canadian law – that where a prosecution depends solely on police evidence of an utterance by the accused, a trial judge should be required to caution the jury about the dangers of relying on uncorroborated police evidence.

[3] The trial judge instructed the jury that the evidence of the undercover officer who interacted with the appellant should be assessed in the same manner as any other witness. Earlier in the jury charge, the trial judge provided the jury with instructions based on common model jury instructions about the types of factors they should consider in assessing the credibility of all witnesses.

[4] No objection was taken at trial to the instruction that the jury should assess the evidence of the undercover officer in the same manner as any other witness – indeed, counsel for the appellant (not counsel on the appeal) requested the instruction. No special warning about caution in assessing the credibility of the undercover officer was sought at trial.

[5] We see no error in the trial judge’s instruction to the jury that the evidence of the undercover officer should be assessed in the same manner as any other witness. The appellant got the instruction he requested at trial. And the instruction was correct. Police witnesses are not treated differently than civilian witnesses in the assessment of the credibility or reliability of their evidence. Their credibility and reliability are subject to the same assessment as other witnesses – no more or less favourable.

[6] If an accused lays an evidentiary foundation, through cross-examination or otherwise, for caution about the evidence of a particular witness – including a police officer – a trial judge may consider whether a specific cautionary instruction is appropriate. But this is a fact-specific exercise. The categorical approach advocated by the appellant is unwarranted. In this case, while the appellant challenged the undercover officer’s evidence about the conversation prior to the takedown, no attempt was made to establish an evidentiary basis to support a special caution regarding his evidence.

[7] Further, the appellant’s characterization of the prosecution as depending solely on the undercover officer’s evidence about the conversation between himself and the appellant just prior to the takedown is not accurate. A one-kilogram brick of cocaine was seized from the back seat of the appellant’s car when the takedown was called. The appellant was in the car with the cocaine at the time the takedown was called. Although the appellant and his friend Mr. Naseemuddin testified that the appellant was not aware of the cocaine in his car, whether that evidence was believed or raised a reasonable doubt was an issue for the jury. Given the quantity of cocaine seized, we do not accept the characterization that the prosecution depended solely on the alleged utterances by the appellant during the conversation with the undercover officer.

[8] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”