RULINGS

Introduction

[1] The accused are charged with firearms offences arising from an extensive investigation by the Toronto Police in 2011, named "Project Marvel". They stand further charged that, contrary to s. 467.12, they committed these offences for the benefit of, or in association with, a criminal organization, namely, a street gang known as the Young Buck Killas ("YBK"). In addition, Mr. Hersi is charged with two narcotics related offences, which are also alleged to have been committed for the benefit of, at the direction of, or in association with, the YBK. At the outset of the trial, and later during the Crown's case, I heard a number of applications. I ruled on each in a brief oral pronouncement, indicating that I would give further reasons when time permitted; these are those reasons.

Application #1: Statement of Mohamed Hersi to the Police

[2] The accused Hersi was arrested on these offences on October 30, 2012, in Saskatoon and returned to Toronto. Upon his return, he was interviewed by an officer having carriage of the investigation. Seeking to adduce his statement before the jury, the Crown sought a ruling that it was voluntarily made. Although the accused initially contested voluntariness, midway through the voir dire, counsel on his behalf conceded that the statement was voluntary. Accordingly, I ruled the statement admissible at the instance of the prosecution.

Applications #2 & #3: Seating of Guled Mahadale and of Mohamed Hersi

[3] In separate applications, each accused sought leave of the court to sit at counsel table during their joint trial. Each application was refused. It is convenient to deal with these applications together.

[4] Before dealing with the merits of the applications, I feel obliged to comment on certain procedural aspects.

[5] Respecting Guled Mahadale, his application was not filed in accordance with the Criminal Proceedings Rules. Since Mr. Mahadale never indicated that he would seek leave to be seated at counsel table at any of the numerous pre-trials held in this matter, he was obliged to give written notice of his change of position and to arrange for a further pre-trial: Rule 28.04(11). Counsel gave written notice of the application, but did so only one day before the notice indicated that the application would be brought, thereby failing to comply with Rule 6.05(1). No effort was made to arrange a further pre-trial, as Rule 28.04(11) requires.

[6] Turning to Mr. Hersi, his counsel, Mr. Abbey, filed no notice whatsoever. Rather, when the court was about to embark on the hearing of Mr. Mahadale's application, Mr. Abbey announced, for the first time, that he, too, would be seeking leave to have his client sit at counsel table. Like his co-accused, Mr. Hersi made no effort to arrange a further pre-trial as required.

[7] Faced with a failure on the part of counsel to comply with subrule 28.04(11), a trial judge may refuse to hear an application arising from a change in position: Rule 28.04(12). Given, however, that the Crown did not oppose the applications being heard, I decided that it was necessary in the interests of justice that I hear them: Rule 2.01.

[8] I mention these procedural shortcomings to underscore what I perceive to be the ever- increasing frequency with which some members of the defence bar bring applications, while paying little or no attention to the Rules. As I indicated in R. v. Williams, [2013] O.J. No. 823, 2013 ONSC 1173, at para. 16:

[I]n relation to Charter and other related applications, the Rules are frequently honoured more in the breach than the observance. The reason for that, in my view, speaking generally for the moment, is that some counsel seem to have the attitude that compliance with the Rules is not required because judges will be reluctant in criminal matters to disadvantage an accused for the shortcomings of his counsel, if the result of refusing to permit an application to proceed is to deprive the accused of a potential defence or possible Charter relief.

[9] This tendency is predicated on what appears to me to be the widespread belief in the defence bar that, for fear of reversal on appeal, trial courts will routinely excuse or overlook the failure of defence counsel to observe the Rules, thereby making compliance with them unnecessary, for all practical purposes.

[10] Turning to the merits of the applications, the law in this area is well settled; it was recently set out succinctly by Campbell J. in R. v. Browne, [2014] O.J. No. 2099, 2014 ONSC 2519. Suffice it to say that I adopt and apply those principles on these applications.

[11] Having Mr. Mahadale at counsel table, according to Ms. Bojanowska, would greatly assist her in making full answer and defence on his behalf because she would have the benefit of his input during the playing of approximately 660 intercepted private communications that the Crown intends to put before the jury. This is critical, she says, to her ability to integrate his commentaries into her proposed cross-examination of the witnesses through whom the intercepts are introduced.

[12] Counsel does not deny that she has had these materials for quite some time ahead of the commencement of the trial, but says that, because of practical difficulties in interviewing her client (who is in custody), she has not had an adequate opportunity to discuss the intercepts with him in the time leading up to trial. Be that as it may, the accused will have ample opportunity to hear the recordings as they are being played and make notes for his counsel.

[13] In this courtroom, there are four tables for counsel. Ms. Bojanowska is seated at one of the two rear tables and, thus, is within arm's reach of Mr. Mahadale in the dock. Thus, the accused can easily pass notes to her or, have a sotto voce conversation without disrupting the proceedings. Furthermore, counsel and the accused will have the opportunity to have discussions on breaks as well as before and/or after court on any given day.

[14] Although he placed his main reliance on another ground, Mr. Abbey adopted Ms. Bojanowska's position on this issue. Throughout the pre-trial proceedings, Mr. Abbey has been seated at the front counsel tables, some distance from his client in the dock. That situation can be easily remedied, however, by simply having him move to one of the rear tables proximate to the dock. That table is currently occupied by one of the police officers who is to assist the Crown throughout the trial, but the Crown has indicated that it is content that the officer change places with Mr. Abbey. If that were to happen, then Mr. Abbey would be in the same convenient position in relation to his client as Ms. Bojanowska is in relation to Mr. Mahadale.

[15] Turning to Mr. Abbey's main ground, he contends that there is a prejudice inherent in the accused having to sit in the prisoner's dock. Although she placed less emphasis on this point, Ms. Bojanowska proffered certain authorities in support of that proposition. I respectfully disagree. As I indicated in R. v. Zwezdaryk, [2004] O.J. No. 6137 (S.C.J.), at para. 22:

The argument proceeds from the assumption that there is a prejudice inherent in the mere fact of an accused being seated in the box. There is no evidence before me to support that proposition. Rather, there is simply the bare submission that this is so. It is, in my view, conjectural at best to assume that the jury will be influenced by the fact that the accused is in the prisoner's box: R. v. Gervais, 2001 CanLII 28428 (ON SC), [2001] O.J. No. 4942, (Ont. S.C.); R. v. Heyden, [1998] O.J. No. 6253, (Ont. Gen. Div.). In Heyden, supra, McIsaac J. stated that he was "not prepared to act upon the conjectural possibility that the jury will ignore their sworn duty to presume the innocence of the accused despite the fact that they have been charged with this offence and are seated in the dock during the trial." I agree with that approach.

See also R. v. Minoose, [2010] O.J. No. 4830, 2010 ONSC 6129; and R. v. D.S., [2010] O.J. No. 5749, 2010 ONSC 7253.

[16] Turning to security issues, dealing first with Mr. Mahadale, his criminal record includes entries for offences involving violence and weapons. He has other convictions involving the breach of court orders and the obstruction of a peace officer. In addition, while in custody awaiting trial, he has accumulated an unenviable record of institutional infractions including threatening a staff member, inciting a disturbance, disobeying an order of an officer and two findings of possessing contraband.

[17] Like his co-accused, Mr. Hersi, too, has a criminal record for offences involving violence and firearms, disobeying court orders and obstructing a peace officer. Similarly to Mr. Mahadale, while awaiting trial Mr. Hersi has accumulated a number of institutional violations for assaultive and threatening behaviour, as well as possession of contraband.

[18] Counsel argue that over the course of a lengthy preliminary inquiry and numerous appearances in this court neither accused has misbehaved. In response to that submission Crown counsel points out that in the course of the preliminary inquiry the configuration of the particular courtroom was such that each accused sat in an individual compartment. Over the many appearances in this courthouse, the accused have been at all times in the prisoner's dock. Thus, in my view, their past behaviour is a poor predictor of how they are likely to behave if seated at counsel table.

[19] Furthermore, this courtroom is peculiar in its configuration in several ways that are germane to these applications.

[20] First, there is only one door through which both the accused and the jury must enter. That means that if Mr. Hersi were to be seated at the front table presently occupied by Mr. Abbey, he would be within arm's reach of the jurors as they pass by him on their way to and from the jury box. Given the nature of the allegations, which the jury must necessarily discover, and the antecedents of the accused, with which the jury might come to be acquainted if one or both accused were to testify, that could prove an uncomfortable experience for one or more of them in my opinion.

[21] Second, the various physical appurtenances in this courtroom, most notably the dais and the Registrar's table, are arranged in such a way that when the jury would be filing past the front counsel table, at which it is proposed that Mr. Hersi be seated, I would not be in a position to observe Mr. Hersi.

[22] Third, if Mr. Hersi were to be seated where his counsel proposes, certain members of the jury would not be able to see Mr. Hersi or, if they could see him at all, their vantage point would be awkward.

[23] These difficulties can, of course, be overcome if, as mentioned above, Mr. Abbey and Mr. Hersi were to be seated at one of the rear tables.

[24] Fourth, the courtroom is on the second floor of this building and the location in which Mr. Hersi would be seated is approximately two metres from the barrister's entrance to the court, which opens onto a public corridor. Mr. Mahadale would be approximately three metres from the door. Egress from that corridor to the main floor can be had by stairways at either end as well by elevators and escalators in the centre of the building. All of these are scant metres away from the aforementioned door. Thus, there is, in my view, a not insignificant risk of escape.

[25] Counsel argue that the risk can be overcome by employing additional court security officers, but that is problematic. Crown counsel asserted in the course of oral argument, and defence counsel do not quarrel with the proposition, that such an arrangement would entail the use of at least double the number of officers currently assigned to guard these two accused. The staffing in this building is already stretched to the point that often there are not enough court officers to cover all courts. Absent some compelling reason, then, I see no reason to impose a further burden on that resource. Further, as I stated in Zwezdaryk, at para. 20, the addition of court officers is not without its own potential prejudice:

On the other hand, the presence of additional security officers sufficient to overcome the risk of escape would add an air of special circumstances which, in the context of a criminal trial, could only be understood as implying dangerousness, risk of escape or a presumption of guilt respecting one or more of the accused. … To my mind, the presence of a larger number of such officers than might reasonably be expected would be more apt to have a prejudicial impact upon an accused than having him seated in the prisoner's box.

[26] Lastly, the jury can be instructed that the seating of the accused is a function of tradition and has no significance in terms of this particular trial or any trial in terms of the presumption of innocence. I am confident that such an instruction is more than capable of overcoming any potential prejudice that having the accused seated in the prisoner's box might entail

[27] Having balanced all the foregoing considerations, I refused the applications.

Application #4: Evidence of Discreditable Conduct re: Guled Mahadale

[28] The Crown seeks to adduce three voice messages retrieved from a cellular telephone seized from Mr. Mahadale when he was arrested. The Crown alleges that the voice one hears in each case is that of Mr. Mahadale. On March 27, 2011, in the midst of the Crown's case, counsel for Mr. Mahadale applied to have the court exclude the messages. On March 30, I ruled that the messages were admissible and dismissed the application for the following reasons.

[29] Although voice identification is not admitted on behalf of Mr. Mahadale, counsel candidly acknowledged that the jury is likely to find that the voice attributed to him in the many intercepted communications that have been put before the jury is, indeed, his voice. Given that, counsel argues, it is important that voice communications having little probative value and a tendency to prejudice Mr. Mahadale's fair trial interests be excluded.

[30] It is not known to whom Mr. Mahadale sent the messages, but evidently, as well as sending voice mail messages to their intended recipients, his telephone stored such messages in its memory.

The "beating"/ "ciphering" Message

[31] One of the messages, according to the Crown at least, instructed its recipient to beat up a woman with whom Mr. Mahadale was obviously displeased because she had been associating with persons he considered to be police informants or, if not informants in the strictest sense, certainly people who were, in Mr. Mahadale's opinion, overly friendly with the police. The problem with the Crown's contention is that, according to the transcript that has been produced, a portion of the alleged instruction is unintelligible.

[32] Further complicating the matter, counsel for Mr. Mahadale contends that the portion said to be unintelligible is not, in fact, unintelligible. What counsel says can be heard on the recording is not an instruction to beat up the woman, at all, but, rather, the word "cipher". In the context of the message, as Ms. Bojanowska interprets it, "cipher" means to make one's best effort in the course of performing rap music. Inasmuch as the accused and their associates are immersed in the rap music genre, this interpretation is not implausible.

[33] I listened to the message twice in open court with my unaided ear. The first time I could not make out anything intelligible at that point in the recording. On the second occasion, I heard something that sounded somewhat like the word "cipher" but I could not say with any certainty that that is the word that was spoken.

[34] On the one hand, if one takes the view that the portion of the recording said to be unintelligible is, indeed, unintelligible, then, in my view, given that one cannot know with any certainty what word(s) Mr. Mahadale spoke during the supposedly unintelligible portion of the recording, the message is not capable of supporting the inference argued for by the Crown, namely, that Mr. Mahadale was instructing the intended recipient of the message to beat up a woman. Unlike Ms. Bojanowska, who offers a competing version of what she says is there to be heard, Crown counsel does not even offer a suggestion as to what was said that, were it intelligible, would support the contention that Mr. Mahadale was telling the recipient to beat the woman. That said, to ask the jury to conclude, in the absence of such an understanding, that Mr. Mahadale was telling the recipient to beat the woman would be inviting them to speculate: R. v. Ferris, 1994 CanLII 31 (SCC), [1994] S.C.J. No. 97, 34 C.R. (4th) 26.

[35] On the other hand, if one were to reject the proposition that the portion of the recording in issue is not unintelligible and accept, instead, that one can hear what Ms. Bojanowska contends can be heard then the message says something that is not only dramatically different than what the Crown contends it says, but quite innocuous, at least in terms of that portion of the message.

[36] If it were simply a choice between, on the one hand, an innocuous interpretation of the portion of the message in question or no interpretation at all, then, relying on Ferris, I would exclude the message as not being relevant in terms of anything the Crown must establish. That is not the case, however. Rather, the message goes on to instruct the intended recipient to make plain to others, when he is doing whatever it is that he has been instructed to do in the unintelligible (or "cipher") portion of the message, that he is doing it for the YBK. This evidence is highly probative in my opinion.

[37] After all, the Crown must establish not only that Mr. Mahadale committed the firearms offences he is alleged to have committed, but that he did so for the benefit of, at the direction of, or in association with, the YBK. How better to do that than to demonstrate that, at a time proximate to the alleged commission of the offences with which he stands charged, he was encouraging someone else to do something for the benefit of, at the direction of, or in association with the YBK. In my opinion, whatever it was that the applicant was encouraging the recipient of the message to do, the mere fact that he was urging him to do something on behalf of the YBK advances the Crown's case on this issue. It is of equal, if not greater, importance in this behalf, in my view, that Mr. Mahadale was telling the recipient to make it plain to others that he was doing what he was doing on behalf of the YBK.

[38] As for potential prejudice, Crown counsel suggested that the disputed portion of the message could simply be redacted. I would be reluctant to do that because to do so could skew the message in such a way as to deprive the accused of a potentially innocuous interpretation of the message, at least for those jurors who might hear what Ms. Bojanowska contends can be heard. The only potential for prejudice arises, it seems to me, and, as I understood her submissions, Ms. Bojanowska agrees, if the Crown were to be permitted to argue that the accused was instructing the recipient to beat up a woman.

[39] As I indicated during oral argument, in the absence of any understanding of what Mr. Mahadale said at the critical juncture, at least on the Crown's contention, I will not permit the Crown to suggest to the jury that the import of the message is that Mr. Mahadale was ordering the recipient to beat up the woman in question. Without that, there is no prejudice, but some significant probative value.

[40] The message is therefore admissible.

[41] It was also suggested by Crown counsel that, to the extent that the defence takes strenuous issue with the correctness of the transcript in the particular, that, in keeping with R. v. Rowbotham, it would be open to the defence to put before the jury an alternate version of the transcript, which would substitute the word "cipher" for what the current transcript transcribes as being unintelligible: 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 48. That is certainly feasible. The only query that arises in my mind is whether, since R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, 111 C.C.C. (3d) 403, it is any longer necessary for defence counsel to call an actual witness to attest to what is there to be heard on the tape.

The Robbery Messages

[42] The other two messages at issue on this application were sent only scant minutes apart and, on any reasonable interpretation, are clearly related to one another.

[43] Ms. Bojanowska does not disagree with the Crown's contention that the content of the messages makes quite apparent the fact that, at the time they were sent, Mr. Mahadale and someone he refers to as "Weegie" were endeavouring to join the person to whom Mr. Mahadale sent the messages for the purpose of jointly robbing someone. Further, despite Mr. Mahadale having spoken in guarded language, the messages also make plain that he and Weegie were bringing guns. It has been admitted in this trial that "Weegie" is a nickname for one Mohamed Abdirashid. Although there is no admission that Abdirashid is a member of the YBK, intercepts already in evidence capture Abdirashid's private communications with Mr. Hersi, and with persons admitted to be members of the gang, such as Abshir Abdirashid and Chermar Gardner.

[44] Both accused have admitted that a street gang known as the YBK exists, that it is a criminal organization within the meaning of the Criminal Code, and that one of its principal aims is the commission of armed robberies. It is not admitted, however, that either accused is a member of the YBK or that he associates with any members of it.

[45] Against that backdrop, the Crown contends that the robbery messages tend to show that Mr. Mahadale was willing, if not eager, to partake in the one of the YBK's activities. Proof of that fact could, in turn, render more probable the inference the Crown seeks to have the jury draw, namely, that, when he committed the firearms offences he is alleged to have committed, Mr. Mahadale was acting, as further alleged, for the benefit of, at the direction of, or in association with, the YBK.

[46] On behalf of Mr. Mahadale, Ms. Bojanowska contends that the messages are of trifling probative value and gravely prejudicial. That is so, she argues, because there is an abundance of other evidence on the basis of which the Crown can ask the jury to conclude that Mr. Mahadale committed the alleged firearms offences for the benefit of, at the direction of, or in association with, the YBK. I disagree with her analysis.

[47] As I indicated in R. v. Williams, 2013 ONSC 3100, 300 C.C.C. (3d) 240, at para. 104:

[O]ne cannot discern with any exactitude just how much evidence is necessary to prove a particular point to a jury. Indeed, it is quite conceivable that, with any particular jury, one member may require more proof than another to be convinced of the same proposition. That said, it is easy, from a defence perspective, to opine on how much evidence is enough. It is quite another matter, however, to decide in a given case just how much evidence will suffice to make a particular point to the satisfaction of the jury. This point was made in Cerda,[^1] where the court held, at p. 23, "The prosecution had the burden of proof on the charges and the special circumstance. It is not required to limit its case by presenting only enough evidence to be legally sufficient to meet that burden of proof" (emphasis added; citations omitted). Those remarks are apposite in the case at bar. The equivalent in this case of the "special circumstance" in California's gang statute is, of course, the Crown's obligation respecting Mills to establish the additional element required by s. 231(6.1) of the Code in order to prove first degree murder.

Like Williams, the case at bar is one in which the Crown must prove not only a predicate offence, but a further offence, namely, that the predicate offence was committed for the benefit of, at the direction of, or in association with, a criminal organization.

[48] Where, as here, the impugned evidence is admitted in addition to other gang-related evidence, I adopt the opinion expressed in Cerda, at p. 25, that "[i]n such circumstances, the challenged evidence [is], at worst, cumulative," and "[a]ny additional prejudice...from the challenged evidence beyond the prejudice from other unchallenged, properly admitted evidence [will be] minimal"

[49] Ms. Bojanowska also argues that the evidence is not probative because there is no proof that Mohamed Abdirashid was a member of the YBK and, further, because there is no proof that the proposed robbery to which the messages relate ever took place.

[50] Dealing with the first point, on the one hand, I appreciate that, even where someone is a member of a criminal organization, not every crime that person commits is necessarily committed for the benefit of, at the direction of, or in association with, that organization. It is, perhaps, more likely to be the case that a crime is not committed for the benefit of, at the direction of, or in association with, a criminal organization, when one commits it in league someone who is not a member of the criminal organization. On the other hand, to be found guilty of a s. 467.12 offence, persons who commit a predicate crime need not be members of that organization. Thus, the mere fact that the person with whom Mr. Mahadale appears to have been intent on committing a robbery on the occasion in question has not been proven to be a member of the YBK, does not render irrelevant the fact that Mr. Mahadale appears to have been eager to do one of the very acts it has been admitted the YBK exists to carry out. Further, as I have indicated above, although there is no proof that Weegie is a member of the YBK, his communications reveal that he communicates with persons who are admitted to be members.

[51] As for Ms. Bojanowska's second point, the fact that it has not been proven that a robbery actually occurred does not, in my opinion, greatly reduce the probative value of the fact that the applicant was apparently ready, willing and, indeed, eager to commit one. Proof that, as opposed to merely talking about committing a robbery, the applicant actually participated in the robbery being discussed would, it seems to me, strengthen the inference the Crown seeks to have the jury draw from these messages. That is not to say, however, that the lack of proof that he actually committed the robbery significantly diminishes the probative value of this evidence. It is, after all, Mr. Mahadale's state of mind, or attitude toward the YBK that the jury will be asked to discern. His attitude on an occasion within the same time frame cannot help but be significantly probative, in my opinion, even in the absence of proof that the contemplated offence was actually committed.

[52] Turning to the potential prejudice of admitting these messages, Ms. Bojanowska contends that, because they make plain to the jury that Mr. Mahadale was intending to commit a serious criminal offence not charged on this indictment, the prejudice will outstrip any probative value the messages might have.

[53] It is trite to observe that evidence of bad character is inadmissible where it shows nothing more than that the accused is the type of person likely to have committed the offence: R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 63. However, as Cory J. went on to observe, there are exceptions to that general prohibition, including "where the evidence is relevant to an issue in the case." (Citations omitted).

[54] At paragraphs 64-65 of S.G.G., Cory J. further noted:

Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means: see R. v. Davison (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para. 135. Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821.

Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect: B. (F.F.), supra, at p. 731.

[55] It must be remembered that the Crown must prove in this case not only that Mr. Mahadale committed the predicate firearms offences with which he is charged. To succeed on the counts charging offences contrary to s. 467.12, the Crown must also prove a further ulterior purpose, namely, that he committed the predicate offences for the benefit of, at the direction of, or in association with, a criminal organization. That said, it is no answer to contend that the evidence is inadmissible simply because it reflects bad character on the part of Mr. Mahadale in relation to a matter not encompassed on this indictment. Rather, the court must balance the probative value of the evidence against its potential for prejudice.

[56] Turning, then, to that balancing exercise, as I have said, the fact that Mr. Mahadale was willing to engage in armed robbery on the occasion in question might strengthen considerably the inference the Crown would have the jury draw, namely, that, when he committed the firearms offences he is alleged to have committed, he did so for the benefit of, at the direction of, or in association with, the YBK. On the other hand, although the messages reflect negatively on his character, they relate to an isolated incident. Further, as Ms. Bojanowska stresses, there is no proof he actually carried out a robbery, so the prejudice is less than it would be were there proof that he actually robbed someone. When the intention to carry out a robbery is viewed against the totality of the other evidence already before the jury that reflects negatively on Mr. Mahadale, I am satisfied that the probative value of the messages considerably surpasses the potential prejudice. Any potential prejudice can be overcome by an instruction concerning the limited use the jury may make of evidence of bad character.

[57] For the foregoing reasons I held the robbery messages to be admissible.

Application #5

[58] Voice identification for each accused is contested. Of the many intercepts by means of which the Crown hopes to establish voice identification for Mr. Hersi, his counsel seeks to have the Court rule three of them inadmissible. In the intercepts in which Mr. Hersi is alleged to have been a party or in which, though he was not a party, he was referred to by others, he is never referred to by his proper name. The Crown contends that, although Mr. Hersi is known by several nicknames, including "the Bald One" and "the Bald Eagle", most commonly he refers to himself, and is referred to by others, simply as "H". Defence counsel contests the admissibility of three voice intercepts by means of which the Crown hopes to establish that the person referred to throughout the hundreds of intercepts before the jury as "H" is in fact the accused, Mr. Hersi.

The "I can't be with H" Intercept

[59] One of the contested intercepts is a September 5, 2011, phone call between Mohamed Abdirashid and Mr. Hersi's younger brother, Yasin Hersi, that the Crown contends, and counsel for Mr. Hersi does not dispute, relates to one of the conditions of Abdirashid's then extant parole on a sentence he was then serving in federal custody. The transcript of the relevant portion of the intercept reads as follows:

Abdirashid: Because, yow the thing is, I can't be rolling with anyone with charges right? And they tell me I can't roll with Her... H right? You know what I mean?

Yasin Hersi: Oh no.

Abdirashid: I can't be with H at all. You know what I mean? They're saying his name for sure. But any... I don't know, you...you know I'm... he's your bro right? You know what I mean?

Yasin Hersi: Yeah.

[60] The Crown also intends to adduce the parole order. The order, if admitted, would establish that Abdirashid was forbidden to have any association with a number of persons, including Mohamed Hersi. Among the numerous people with whom Abdirashid is forbidden to associate, no one else has either a first or a last name that begins with the letter "H".

[61] Defence counsel asserts that Abdirashid's utterance is hearsay because the inference the Crown would have the jury draw (that the person referred to as "H" and Mr. Hersi are one and the same person) depends for its validity on the jury accepting Abdirashid's utterance ("I can't be with H at all.") for its truth. I disagree.

[62] The parole order is capable of proving, independently altogether from Abdirashid's utterance, that Abdirashid is not permitted by law to associate with Mr. Hersi. There is no need to prove that again through the mouth of Abdirashid.

[63] It is not uncommon for people to be known by nicknames that incorporate one or more letters. Those letters are, generally speaking, the first letters of words, which words are, for the most part, although not invariably, the person's given name(s) and/or surname. As noted above, of all the persons the parole order forbids Abdirashid to associate with, Mohamed Hersi is the only with a first or last name starting with the letter "H".

[64] The import of Abdirashid's utterance is not that it proves he is not permitted to associate with Mr. Hersi; that, as I have said, can be independently proven by the parole order itself. Rather, what is important is Abdirashid's state of mind. That state of mind, as reflected by his utterance, is some circumstantial evidence that he believes that he cannot associate with someone named H. The fact (known from the parole order, not Abdirashid's utterance) that Abdirashid is not permitted to associate with Mohamed Hersi and the further fact (also known from the order, not Mr. Abdirashid's utterance) that Mohamed Hersi is the only person named in the order whose first or last name starts with H, permits a reasonable inference that Abdirashid is speaking of Mr. Hersi. The inference does not depend on the truth of anything Abdirashid said.[^2]

[65] That inference is reinforced by the fact that immediately before Abdirashid mentions "H' he says what has been transcribed as "Her..."[^3] To my mind, this utterance reflects that Abdirashid started to refer to Mohamed Hersi by his surname, but changed his mind and used the nickname H instead. He did so, in my opinion, for one or both of the following reasons:

(i) he realized, in mid-sentence, that, since he was speaking to Yasin Hersi, it would sound odd to use his [Yasin Hersi's] surname to refer to his brother, Mohamed Hersi, and stopped himself, substituting Mohamed Hersi's nickname, "H" instead; and/or

(ii) being conscious that the police might be intercepting his telephone communications, he realized that it would be indiscreet to use Mr. Hersi's actual surname.

[66] The utterance is also admissible for another reason. Inasmuch as, when speaking to Yasin Hersi, Abdirashid speaks of "H" in the third person, that is some circumstantial evidence that Yasin Hersi is not known as "H". Given the manner in which several witnesses in this trial have been cross-examined by counsel for Mr. Hersi, it is not unreasonable to suppose that part of Mr. Hersi's defence may well be that, when people are referring to "H", they are referring, not to Mohamed Hersi, but, rather, his brother, Yasin Hersi. By virtue of these cross-examinations, the Crown is sufficiently on notice of this line of defence (S.G.G., at para. 39) that, in my view, it is entitled to attempt to dispel this proposition in its case in chief, which this utterance tends to do.

[67] Having found that Mr. Abdirashid's utterance is not being adduced for a hearsay purpose, I need not consider the arguments advanced for and against admitting the utterance pursuant to the principled exception to the rule against hearsay.

The "H got me really drunk yesterday" Intercepts

[68] The Crown also seeks to adduce two utterances by one Alisha Patterson in two telephone calls to one Chermar Gardner on November 5, 2011. In each call, Patterson asserts that "H got me really drunk yesterday". Defence counsel objects that the calls are hearsay.

[69] The significance of the calls is that there is evidence already before the court that Mr. Hersi was at a birthday party at the home of three York University students on November 4, 2011. One of those students, Chandail Brandis, testified in this trial. Ms. Brandis was shown a video recording extracted from a cellular telephone seized from one Osarumen Osemwengie upon his arrest on charges arising from the Marvel investigation. The video shows portions of the party. In the presence of the jury, Ms. Brandis identified in the video Alisha Patterson, Chermar Gardner, whom Ms. Brandis referred to as "Bundog", Guled Mahadale, whom she referred to as "Gully", and Mr. Hersi, whom she referred to as "H". She picked both accused out in court and confirmed that they were the two men she was referring to in the video as Gully and H.

[70] Obviously, these utterances involve an assertion, namely, that H got Ms. Patterson drunk. Just as obviously, that is not the importance of the utterances. Rather, what the Crown hopes to show is that Ms. Patterson is yet another person who refers to Mr. Hersi as H, inviting the conclusion that Mr. Hersi is the H on the intercepts.

[71] The problem, however, is that Ms. Patterson does not say where she was when the person she calls "H" got her drunk. All she says is that H got her drunk yesterday. So, to draw the inference that the Crown would have them draw, the jury must find as a fact that, when Ms. Patterson was speaking of H, she was referring to the same person Ms. Brandis referred to as H. Only then does it follow that Mr. Hersi is known to Ms. Patterson as H. But, although it is somewhat unlikely, perhaps, Ms. Patterson could have been speaking of another time and place and a different person than Mr. Hersi.

[72] Although she was on the Crown's witness list, Crown counsel has since indicated that she does not intend to call Ms. Patterson as a witness. Absent an explanation as to why she is not being called, I see no reason why the jury should be asked to draw the inference the Crown seeks to have them draw on the unsupported assumption that Ms. Patterson was speaking of the same man Ms. Brandis referred to as H.

[73] These two intercepts will not be admitted.

R. A. Clark J.

Released: April 1, 2015

CITATION: R. v. Hersi et al., 2015 ONSC 2039

COURT FILE NO.: 15-50000699-0000

DATE: 20150401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMED HERSI and GULED MAHADALE

Defendants

RULING

R. A. CLARK J.

Released: April 1, 2015

[^1]: People v. Cerda, 2008 Cal. App. Unpub. LEXIS 7219 (C.A.)

[^2]: An example may assist. A man named Jones reads in the local newspaper that someone named John Smith, age 22, has won a prestigious academic award. Jones works with someone named Smith. Although he does not know Smith particularly well, he does know that he has a son named John, who is in his early twenties and a university student. However, because the name "John Smith" is so common, Jones is unsure whether the newspaper article is about his colleague's son or some other John Smith. The next day at work, Jones asks Smith whether the newspaper article was about his son. Smith says, "Yes. Jack studied really hard to win that prize, but he is happy now that he won." Smith's utterance is hearsay in terms of the truth of his assertions: (i) that his son won the prize (but Jones knows that independently from the newspaper article), (ii) how hard his son studied to win and (iii) how his son feels about having won. The fact that Smith called his son "Jack" is not hearsay, however. It is a fact of which Jones has direct knowledge; he heard it himself. Further, from the fact that it was said, one can infer that Smith calls his son John by the nickname "Jack".

[^3]: I appreciate that the capitalization of the letter "H" in "Her..." reflects an editorial choice on the part of the transcriber of the call, who, presumably, interpreted what he heard as Abdirashid starting to speak Hersi's surname, but changing his mind in mid-utterance. I recognize, of course, that transcription is just an interpretation of sound and that the sound in this case is the same sound one uses to speak the common English third person female possessive pronoun. In other words, if transcribed without the capitalization, the word would have been "her". However, given the context in which "Her..." is stated, including the fact that Abdirashid immediately goes on to mention "H" and the further fact that he uses the male pronoun "him" in the very next sentence to describe the person with whom he cannot associate, the choice is entirely fair, in my opinion.

R. v. Hersi et al., 2015 ONSC 2039

Case Summary

RULINGS

Introduction

Application #1: Statement of Mohamed Hersi to the Police

Applications #2 & #3: Seating of Guled Mahadale and of Mohamed Hersi

Application #4: Evidence of Discreditable Conduct re: Guled Mahadale

The "beating"/ "ciphering" Message

The Robbery Messages

Application #5

The "I can't be with H" Intercept

The "H got me really drunk yesterday" Intercepts

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1