R. v. Abduallhi, 2015 ONSC 2806

DATE: 20150429

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Kerry Hughes and Marco Cuda, for the Crown

• and -

AHMED ABDULLAHI and

NAIMO WARSAME

I. Louis Dallas, for A. Abdullahi

Marcus Bornfreund, for N. Warsame

Ruling #3

The Admissibility of the Osman Opinions

Trafford J.

THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

This is an application by the Crown for an order admitting into evidence the testimony of Mahamed Osman relating to the Somali language used by some people during the intercepted conversations tendered by the Crown. The Crown is tendering about 180 intercepted conversations. About 65% of them include the Somali language. These conversations are a critical component of the Crown's case.

Osman is a civilian employee of the TPS who translates such language and otherwise assists in the preparation of the transcripts of the calls. He was born and raised in Somalia to the age of 5 years, when he came to Canada with his family. He has used, and continues to use, the Somali language throughout his life, within his family of origin, during some of his education, in normal social discourse with friends and in the course of employment with the TPS. He is a member of the Somali community in Toronto. He has no formal education in the Somali language.

The Crown relies, primarily, upon Osman as an expert in the Somali language, under Mohan (S.C.C.) and, alternatively, as a witness to an issue of fact, under Hamilton (Ont. C.A.).

The defence is opposed to the admissibility of the Osman opinions. It takes the position that he is not a qualified expert and, in any event, the prejudicial effect of the opinions exceeds their probative value in this case. The interpretation of the Somali language is governed by Mohan and not Hamilton, in the submission of the defence.

The application succeeds.

Let me now give brief reasons in support of this ruling.

First, the conditions precedent to the admissibility of expert opinion, provided by Mohan, apply to this application. See Brown (S.C.J.), Chegini (S.C.J.), Bidesi (BCSC) and Chan (BCSC). The Osman translations are opinions; they are not facts. Compare Hamilton, where the Court ruled that some, but not all, evidence relating to the use of cell phones is a matter of fact and not a matter of expertise. The former would include the service provider's information pertinent to its billing of its clients. The latter would include the position of the user of a cell phone in relation to a particular cell phone tower pertinent to the case. This case is more like the latter example, in my view, considering the many complex issues impacting upon the translation of the Somali language.

Second, the live conditions precedent to the admissibility of the Osman opinion in the circumstances of this case are:

• Whether or not he is a qualified expert; and

• Whether or not the probative value of the opinion exceeds its prejudicial effect.

See Abbey (Ont. C.A.) for a review of Mohan insofar as it emphasizes the trial judge’s role as a gatekeeper determining the threshold reliability of the opinion. See also the Goudge Report insofar as it, too, describes the independence of the expert and its importance to the administration of justice, and the obligation of the trial judge as a gatekeeper.

Third, Osman is an expert by reason of his experience, as advocated by the Crown Attorney. He is Somalian by birth and has been raised in Canada since the age of five years. He is a part of the Somalian community, and has used, and continues to use, the Somali language frequently. His primary language is Somali even though as a 27 year old Somalian in Toronto he is fluent in English and uses it in his daily routine.

Fourth, the factors relied upon by the defendants in taking the position that Osman is not an expert may be marshalled by the defence in the presence of the jury on the issue of the weight to be given to the opinion. They impact upon the assessment of Osman’s credibility and the reliability of his evidence.

Fifth, those factors include:

• The nature of the hiring processes of the TPS for civilian translators, like Osman;

• The absence of in-house Somali language training by the TPS, or a requirement by the TPS of such training for its translators at an independent educational institution;

• The absence of a supervisory review of Osman’s translations by the TPS, generally or with regard for Project Traveler;

• The inability of Osman to spell Somali words without taking time to write them first;

• The absence of any experience by Osman in reading Somali books, articles or other written materials, excepting text messages;

• The admission by Osman that he did not know if a Somali dictionary existed, and further, that he does not use one in the course of translating a conversation;

• The absence of any detailed knowledge of the dialects in the Somali language, complemented by his opinion that dialects were not an issue in this case;

• The error made by Osman in identifying the Somali dialect that he speaks, as he admitted in cross-examination, with his discovery of the error occurring as a result of a conversation he initiated with his mother while he was under cross-examination by the defence;

• The absence of any formal education in the Somali language relating to, for example, grammar and dialects;

• The absence of any certification of qualifications as a Somali translator or linguist;

• The methodology used by Osman in translating the Somali language in the conversations, and, in particular, the failure to note the Somali words used by the speakers as an intermediate step to the translation;

• The lack of an equivalent English word for a Somali word used by a speaker in the conversation, if any;

• The trends in the Somali language, including the use of slang by the speakers, and the ability of Osman to keep current with it;

• The protocols of the TPS governing its civilian translators, especially insofar as they prohibit consultation with other qualified persons and the use of a Somali dictionary;

• The exposure of Osman to information about Project Traveller in the media and, its effect, if any, on the objectivity of his translations of the Somali language used during the intercepted conversations.

There were some other perspectives on the reliability of Osman’s opinion tendered by the defence on the application. They, too, may be tendered by the defence to the jury, on the issue of the weight to be given to it, subject to my discretion to exclude defence evidence under Seaboyer (SCC). Osman’s credibility and the reliability of his opinions will be assessed by the jury, in the context of the evidence as a whole, the presumption of innocence and the onus on the Crown to prove its case beyond a reasonable doubt.

Sixth, the probative value of the opinions exceeds their prejudicial effect. Therefore, I decline to exercise my discretion to exclude the opinions.

Seventh, the probative value of the opinions is significant. The affected intercepted conversations are reliably proven through the audiorecording. Osman’s method of translating the Somali parts of the conversations may be duplicated in court, in the presence of the jury, with full cross-examination by the defence on the Somali words used by the speakers and his translation of them. The Somali dictionary is also available to the defence if it is helpful. The various factors marshalled by the defence against the expertise of Osman may also be marshalled on the issue of the probative value of the opinions, as advocated by the defence. While they tend against their probative value, they do not, individually or collectively, reduce their probative value significantly in my view. The jury is well situated to reliably interpret conversations, through the submissions of counsel, in the context of the evidence as a whole, including the Osman opinions and any contrary opinions called by the defence.

Eighth, the prejudicial effect of the opinions is slight. The tendering of the opinions in-chief is not complex and will not unduly consume court time, given that the affected intercepted conversations and Osman’s opinions are of critical significance to the case. They are the core of the Crown’s case on several counts before the Court. The defence has received the audiorecording of the conversations, the related transcripts and the pertinent Osman translations. It is well situated to conduct a focused cross-examination under Browne v. Dunn and call any contrary expert opinion if so advised. This evidence will not lead to a proliferation of legal and factual issues, or impair the fairness of the defendants’ trial through patently unreliable evidence.

Ninth, the process of tendering the intercepted conversations is within the discretion of the trial judge. See Shayesteh (Ont. C.A.) at paras. 90 and 93-100, especially paras. 99-100. Regard should be paid by the trial judge to the positions of the Crown and the defence when this discretion is exercised, in order to ensure the fairness of the trial and its orderliness, from the perspective of both of them.

Thus, in this case that process will be as follows:

• The call will be played in its entirety;

• The audiorecording is the evidence of the call. It will be entered as an exhibit;

• The transcripts of the calls will be provided to the jurors, before the call is played;

• The transcripts will be used by the jurors as notes of the English parts of the calls. They may agree or disagree with the transcript as they see fit. It is the responsibility of the jury to interpret the conversations;

• Osman will testify about all of the Somali parts of the conversations, one by one, translating those parts into English and, in effect, expressing his opinion about them;

• The transcripts will also be used by the jurors as notes of Osman’s translation of the Somali parts of the conversations. The evidence of Osman’s opinions is his viva voce testimony. They will accept or reject it as they see fit.

That process, in my view, is a fundamentally fair one for the Crown and the defence, having regard for their positions relating to Osman’s opinions.

Those are my reasons for admitting the Osman opinions into evidence in the circumstances of this case.

April 29, 2015 Trafford J.

THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.