R. v. Abdullahi 2015 ONSC 3562

DATE: 20150602

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. Loui Dallas, for A. Abdullahi

Marcus Bornfreund, for N. Warsame

Ruling No. 4

Challenge for Cause

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.

Introduction

This is an application by the defendants for an order permitting them to challenge prospective jurors for cause on the basis of the pretrial publicity of an investigation by the TPS into the suspected existence of a gang known as the Dixon City Bloods ("DCB") and, further, the suspected involvement of the gang in the movement of handguns from the Windsor area for the purposes of committing some other crimes. Those other crimes included trafficking in firearms, trafficking in cocaine and homicides, both within the gang and with its rival gangs. The investigation was called Project Traveller by the TPS. It included a wiretap project under the Code. The affidavit used to obtain the authorization was released by the Court in November 2013; its contents were widely published in the media and through the internet, largely because of the suspected link between one of the gang's members and the then Mayor of Toronto. That coverage was extensive and intensive in Toronto, as well the rest of Ontario, Canada and, to some lesser extent, throughout the world. The applicants also seek permission to challenge the prospective jurors for cause on the basis of the Somalian ancestry of the defendants.

The application succeeds.

The prospective jurors may be asked the questions attached as Appendix "A" to these reasons.

The Circumstances of the Case

Let me begin with a review of the circumstances of the case, as described in the Application Record. The Crown did not call any evidence. This is a summary of the material aspects of the Record.

Project Traveller was a joint project between the TPS, the WPS, the OPP, the CBSA, the PRPS, the HRPS, the YRPS, the DRPS, the EPS and some enforcement units. It began in 2012 as a result of the investigation of the murder of two young Somalian men connected to a dispute between some older and younger members of the Dixon City Bloods. As was reported in the Globe and Mail on May 17, 2014:

The bloodshed in Toronto's Somali diaspora had reached alarming levels by 2012, when Project Traveller was launched. The Somali-Canadian community was rattled, urging police and politicians to do more to stop the violence that was decimating too many families. In the past decade alone, about 50 young Somali-Canadian men have been killed in Ontario and Alberta.

In the Dixon gang, Toronto police believe they've found answers to some of the violence plaguing the Somali diaspora. The Project Traveller affidavits chronicle a pattern of cocaine and heroin dealing, regular trips to Windsor to buy illegal guns smuggled into Canada from the United States, and multiple stabbings and shootings that have wounded and killed young men in the Dixon neighbourhood and elsewhere.

This project was increased in its scope because of the scandal in Toronto arising from the discovery of a videorecording of the then Mayor smoking crack cocaine. As was reported in the Globe and Mail of May 17, 2014:

In many ways, Project Traveller has unfolded in the shadow of the Rob Ford crack scandal and the ongoing police investigation into potential criminality in the mayor's office. The Dixon City Bloods were practically unknown to the public until a year ago, when reports emerged that an accused gang member, Mohamed Siad, was trying to sell a video that allegedly showed Mr. Ford smoking crack cocaine at a bungalow near the Dixon towers.

The gang's interactions with the mayor appeared to be fairly frequent, according to previously released wiretaps. In intercepted conversations, some gang members boasted about possessing numerous photos of Mr. Ford using illegal drugs.

All of this information, and much more about these suspected circumstances, was reported in reliance upon the affidavits under Part VI.I of the Code. They were released to the public in November 2013 and extensively reported through April 2015, from time-to-time. Some of the other reported information related to:

• the suspected involvement of Mohamed Siad with the DCB, and its trafficking in cocaine and firearms;

• the use of coded language in conversations about powder cocaine, such as "software" and "white girl", "coffee" for heroin, "spinner" for revolvers and "teeth" for ammunition;

• the violence of the DCB including three homicides, one attempted murder, five shootings and at least four seized handguns;

• the existence of the supplier of the DCB handguns in Windsor, who obtained such guns from the USA and transported them to Toronto by female couriers complicit with him;

• the related wiretap project, Project Brazen 2, that focused on the Mayor and one of his friends, Alessandro Lisi, which included some calls between gang members and another friend of the Mayor. She allegedly purchased cocaine from the gang for use at parties in her home that, at times, were frequented by the Mayor and some gang members, or their associates. Some of those associates were persons of interest in some of the unsolved homicides in Toronto;

• the efforts by the DCB to sell the video of the Mayor smoking cocaine;

• the details of the suspected homicides of, or by, DCB members or associates including the names of such people;

• the identification of Siad as the person who videorecorded the Mayor, using cocaine;

• the substance of a videorecording of events in a bar in Windsor where Siad as allegedly attempting to buy some illegal guns from a named person;

• the alleged use by Siad of the defendant, Naimo Warsame, to transport such guns to the Toronto area;

• the transcripts of some alleged conversations between Siad and Warsame relating to such transportation of such guns;

• the seizure of some illegal guns from Warsame's apartment on Dixon Road;

• the association of Siad and other named persons, including Ahmed, "HNIC-Head Nigger in Charge", Abdullahi, Daud Hussein and Warsame, in the affairs of the DCB; and

• the summary of some alleged conversations between Liban Siyad and others about the use of cocaine by the Mayor at the home of his female friends, and the conversations in which Lisi is allegedly attempting to locate the video and the Mayor's lost cell phone.

These themes were all reported in considerable detail, frequently, and discussed at length in the media and during normal social discourse in Toronto.

On June 13, 2013 the TPS and the WPS arrested about 55 people under Project Traveller. The arrestees included the defendants and Siad. The then Mayor of Toronto was never arrested or charged by the TPS. A major media conference was held by the TPS where it announced it seized about $3M worth of drugs, 40 firearms and $572,000 in cash. The publicity attendant to Project Traveller, and the related Project Brazen 2, is unprecedented.

These, then, are the circumstances of the case, as a summary of the Application Record.

The Procedure on the Application

Neither of the Applicants filed with the Court a draft of the questions they wanted to ask in a challenge for cause. There had been some, but little, dialogue between the defence and the Crown on the substance of any such questions. The Crown Attorney tendered as an exhibit a copy of some questions she thought may be sufficient. They were as follows:

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the accused persons are black Somalians?

Have you heard or read anything in the media about Naimo Warsame? [If yes go to next question]

Would what you have heard or read about Naimo Warsame in the media affect your ability to judge this case in a fair and impartial manner based solely on the evidence led in court?

I advised counsel that, in my view, a challenge for cause should include a recital of circumstances that places the otherwise permitted questions in a context. Partiality, if any, exists in a context, whether it be partiality arising from some publicity of the case or racism. To facilitate further submissions, I drafted such a recital together with some possible questions, and provided the draft to counsel for their consideration. That draft is Appendix "B" to these reasons. Counsel made further submissions. The defence was more-or-less content with the draft. The Crown Attorney took strong exception to most of it, on the basis of what she said was contrary to binding legal principle, and submitted another alternative. That alternative is attached to these reasons as Appendix "C". Some of the Crown Attorneys submissions found favor with me. The permitted challenged for cause is attached as Appendix "A".

The Legal Analysis of the Case

Let me, now, give my reasons for this order, which will include a review of the governing legal principles and my application of them to this case. Some comments are made on some of the Crown's submissions that I have rejected.

First, the defendants are entitled to fair trial by an impartial jury, at common law and under s. 11(d) of the Charter. See R. v. Hubbert (1975), 29 C.C.C. (2d) 75 (Ont. C.A.), R. v. Sherratt (1991), 1991 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.), R. v. Williams (1998), 124 C.C.C. (3d) 487 (S.C.C.), R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.), R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 (S.C.C.). This is the foundation for an application like this one.

Second, there is a presumption of juror impartiality upon the administration of the oath or affirmation. See Hubbert at 289, Williams at para. 57, Find at para. 26 and Spence at paras. 1 and 21.

Third, where there is a realistic potential for partiality in the panel of prospective jurors summoned for a trial, attitudinally and behaviourally, the trial judge may permit a challenge for cause. See Williams at paras. 2 and 14, Find at para. 25 and Spence at para. 23.

Fourth, in exercising the discretion to permit a challenge for cause, the trial judge is to consider, amongst other factors:

• the cleansing effect of the trial process, including the juror's oath or affirmation of office, the possible directions of the trial judge to ensure the impartiality of the jury and the fairness of the trial, the pertinent dialogue between the jurors during their deliberations, the requirement of juror unanimity and the adversarial nature of the trial. See Find and Williams;

• the need to protect the privacy of the prospective jurors. See Sherratt at 209-210;

• the challenge for cause is not to be used to obtain a favorably disposed jury. See Hubbert at 289-90 and Sherratt at 209-210.

• the desire to avoid unduly lengthening the trial and the importance of making any such challenge a summary process. See Williams at paras. 53 and 55; and

• the value of a challenge for cause as a means of sensitizing the jurors to important aspects of the fairness of the trial, such as the need to avoid racist attitudes or stereotypical thinking about the defendant, a witness or the case itself. See Williams at para. 50.

Better judicial practice is to permit a challenge for cause in a close case – the trial judge should err, if at all, on the side of caution. See Williams at para. 22. However, the discretion to permit a challenge for cause is to be exercised with regard for the rights and freedoms in s. 11(d) and s. 15 of the Charter, and the values at their foundation. See Williams at para. 44-50. A challenge for cause is required where there is a realistic potential for partiality. See Sherratt at 212 and Find at paras. 25 and 31.

Fifth, all counsel in this case acknowledge that, in the circumstances as summarized above, there is a realistic potential for partiality. They differ as to the scope of the challenge, and the nature of the questions.

The Crown Attorney objected to the drafted questions relating to the defendants Somalian ancestry. She did so on the basis that one question, as in R. v. Parks (1993), 1993 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.) and in R. v. Barnes, 1999 3782 (ON CA), [1999] O.J. No. 3296 (C.A.), relating to race, crime and nationality, would be sufficient, as opposed to the three in the draft. She further took the position that the use of three questions rather than one, with the incremental inclusion of the circumstances of the use of firearms and the participation in a gang were, in effect, an offence-based challenge that is prohibited by Find at paras. 6, 36, 38, 43, 71, 88 and 97-108.

Respectfully, I disagree.

The incremental circumstances included in the second and third race-based questions probe the prospective jurors for racist attitudes or impermissible stereotypical thinking in two other contexts. Some people are against all black people all of the time – this is the first question. Some people are not, but are where black people are associated with handguns -- this is the second question. Some other people are not, but are when black people are associated with handguns in connection with gang activities -- this is the third question. Moreover, in my view, using three questions rather than one may improve the reliability of the fact-finding processes of the challenges for cause because some people may give what appears to be inconsistent answers to the questions. A simple question -- "Are you opposed to black people?" -- may lead to a negative answer by a person who, after honestly considering the second and third questions, realizes he/she has racist attitudes in those contexts. Putting all of those circumstances in one question, as in Parks and Barnes, may lead to confusion on the part of the prospective juror and an unreliable answer. Such attitudes may or may not lead to a successful challenge for cause or, if need be, a peremptory challenge. For these reasons I reject that submission by the Crown Attorney.

The Crown Attorney also objected to the drafted recital to the proposed questions. She did not appear to oppose such a recital as a matter of principle. Rather, she took exception to some of its detail including its reference to the DCB, the crimes committed by the DCB and what she regarded as its implied bias against the TPS.

Respectfully, I disagree.

The problem in this case arises because of the extensive media coverage of the information in the affidavits to obtain the authorizations. It is information untested at trial. It is hearsay or worse that nevertheless was sufficient to grant the authorizations. Such hearsay, opinion or belief is not admissible at trial. But, it is prominently in the public domain of Toronto, untested by the adversarial process of a trial. Much of its substance, even in an admissible form, is not part of the Crown's case. For example, none of the information relating to the former Mayor of Toronto will be tendered by the Crown or the defence. None of the reported homicides in the DCB affairs will be proven here. Indeed, the Crown does not intend to prove the criminal organization offence allegedly committed by the defendants through evidence that names the DCB as the gang. That, however, is the crux of the problem, not an answer to it. Some of what will be evidence for the Crown has been reported by the media. There is a realistic potential that a prospective juror will recall some of the other reported information, to such an extent as to significantly undermine his/her partiality. Thus, in my view, it is necessary to include in the recital some details sufficient to jog the memory of a prospective juror at the outset of the trial rather than to run the risk that the evidence at the trial will jog his/her memory as a juror and undermine what otherwise would have been an impartial contribution by the juror to the deliberations. Thus, I included in the recital explicit references to the DCB, the homicides and the association between some of its members and the then Mayor, or his friends. To do so is not to contaminate the deliberations of the jury with the very information I want to remove from this trial. To do so facilitates prudent challenges for cause. The result of such challenges, complemented by the use of peremptory challenges and some of the cleansing aspects of the trial will preserve the rights of the defendants to a fair and impartial trial, recognized at common law and under the Charter. This is a cautious, but warranted, approach in this case.

To the extent that the draft recital and questions are said by the Crown Attorney to reflect a bias against the TPS, I also disagree. The language used in connection with my observations about speculation, belief and opinion was drafted to convey the idea that any such information, as may be recalled by the prospective jurors, has not been tested in court. However, it is important that there be no possible appearances of bias against the TPS. Thus, in the permitted challenge for cause, I have adopted the proposal by the Crown Attorney to use the phrase "…based on their investigations…" when I describe the work of the TPS. Neither the draft nor the permitted questions are contrary to cases that disapproved of questions asking whether or not a prospective juror would prefer the testimony of a police officer over the testimony of a citizen on the same point, as the Crown Attorney advocated in this application.

The Crown Attorney also objected to the draft questions on the basis that they unduly intruded upon the prospective jurors' privacy.

Respectfully, I disagree.

None of the questions require a prospective juror to disclose an opinion or belief about this case. Rather, they require disclosure of the existence of such an opinion or belief, and their opinion about its effect on their ability to deliberate impartiality. My approach is not akin to the selection of a jury in the USA. It is consistent with the Canadian legal framework for challenges for cause, much like the decision by Bauman J. (as he then was) in R. v. Ellard [2005] B.C.J. 2979 (S.C.B.C.) at para. 34.

The Crown Attorney also took exception to the recital and the draft questions on the basis that it would unduly increase the length of the jury selections and, possibly, confuse the jurors.

Respectfully, I disagree.

The draft will increase the length of the jury selection. But, the increase in time is, in my view, well spent. I will help any prospective juror who is confused by the questions. This process will reduce to insignificance the possibility of a partial juror arising from the media coverage of Project Traveller and its related events. The cleansing effect of the trial will further care for the legitimate demands of the defendants to be tried by an impartial jury, in an otherwise fair trial. It will also satisfy the public that this trial is not tarnished by the reported information about the former Mayor. Those circumstances, whatever they were, have nothing to do with this case. In any event, the selection of the jury in my view will likely take less than two days, a small price to pay for the importance of impartiality in the administration of criminal justice in Canada.

Conclusion

For these reasons, the Application succeeds.

Counsel for the defendants, and the Crown Attorney, if she wishes to do so, may challenge the prospective jurors in compliance with Appendix "A".

June 2, 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.

APPENDIX "A"

The Questions on the Challenge for Cause

In March 2013 and April 2013 the Toronto Police Service ("TPS") seized some handguns at, or near, some apartments on Dixon Road in Toronto. They were seized during the investigation of the suspected existence of a gang in the area known as the Dixon City Bloods and, further, the suspected involvement of the gang in the movement of handguns from the Windsor area for the purpose of committing some other crimes. Phone communications were intercepted under a Court order. Those interceptions included the conversations of several persons, allegedly including Ahmed Abdullahi and Naimo Warsame. The wiretap project was referred to by the TPS as Project Traveller.

Beginning in November 2013, there was a considerable amount of media and internet coverage of Project Traveller. The coverage summarized the suspicions and beliefs of the TPS based on their investigations that led to the Court order. It included the names of some people the TPS linked to the gang or its affairs, and some of the crimes the TPS suspected were committed by the gang. The media reporting also included some speculation that one of the gang's members sold cocaine to the Mayor of Toronto at the time. The coverage continued, from time-to-time, through April 2015.

The suspicions or beliefs of the TPS based upon their investigations, the speculation by the media and the reliability of the reported summaries have not been proven true in a Court.

Question No. 1

Have you heard about, read or seen any of that media or internet coverage?

Question No. 2

In particular, have you heard about, read or seen, any of the media or internet coverage of some intercepted conversations of a person said to be Naimo Warsame?

Question No. 3

In particular, have you heard about, read or seen, any of the media or internet coverage of some intercepted conversations of a person said to be Ahmed Abdullahi?

Question No. 4

Have you formed an opinion about the guilt or innocence of anyone implicated by the media or internet coverage in the activities of the Dixon City Bloods?

Question No. 5

Would your ability to judge the evidence in in this case without bias, prejudice or partiality be affected by any of the media or internet coverage about this case, or others arising from Project Traveller?

The defendants are black people with Somalian ancestry. Many Somalians live in the area of Dixon Road. The alleged offences include the possession of illegal guns to further the criminal activity of a gang in that area.

Question No. 6

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry?

Question No. 7

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry who are alleged to be involved with illegal handguns?

Question No. 8

Would your ability to judge the evidence in in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry who are alleged to be involved with illegal handguns for the purpose of helping a gang on Dixon Road in its criminal activity?

Trafford J.

17 April 2015

APPENDIX "B"

The Draft Challenge for Cause

In March 2013 and April 2013 the TPS seized some handguns at, or near, some apartments on Dixon Road in Toronto. They were seized during the investigation of the suspected existence of a gang known as the Dixon City Bloods and, further, the suspected involvement of the gang in the movement of handguns from the Windsor area for the purpose of committing some other crimes. The investigation included the interception of some conversations of several persons, allegedly including Ahmed Abdullahi and Naimo Warsame. They were done under a Court order. The wiretap project was referred to by the TPS as Project Traveller.

Subsequently, in November 2013, there was a considerable amount of media and internet coverage of Project Traveller. The coverage summarized the suspicions and beliefs of the TPS that led to the Court order. It included the names of some people the TPS linked to the gang or its affairs, and some of the crimes the TPS suspected were committed by the gang. The media reporting also included some speculation that one of the gang's members sold cocaine to the Mayor of Toronto at the time. The coverage continued, from time-to-time, through April 2015.

The suspicions or beliefs of the TPS, the speculation by the media and the reliability of the reported summaries have not been proven true in a Court.

Question No. 1

Have you heard about, read or seen any of that media or internet coverage?

Question No. 2

In particular, have you heard about, read or seen any of the media or internet coverage of some intercepted conversations of a person said to be Naimo Warsame?

Question No. 3

Have you formed an opinion about the guilt or innocence of anyone implicated by the media or internet coverage in the activities of the Dixon City Bloods?

Question No. 4

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by any of the media or internet coverage about this case, or others arising from Project Traveller?

The defendants are black people with Somalian ancestry. Many Somalians live in the area of Dixon Road. The alleged offences include the possession of illegal guns to further the criminal activity of a gang in that area.

Question No. 5

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry?

Question No. 6

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry who are alleged to be involved with illegal handguns?

Question No. 7

Would your ability to judge the evidence in in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry who are alleged to be involved with illegal handguns for the purpose of helping a gang on Dixon Road in its criminal activity?

Trafford J.

16 April 2015

APPENDIX "C"

Draft Challenge for Cause

In March 2013 and April 2013 the Toronto Police Service (TPS) seized some handguns at, or near, some apartments on Dixon Road in Toronto. They were seized during the investigation of the suspected existence of a gang operating in the 300 block of Dixon Road and, further, the suspected involvement of the gang in the movement of handguns from the Windsor area to the Toronto area.

Phone communications were intercepted under a Court order. Those interceptions included the conversations of several persons, allegedly including Ahmed Abdullahi and Naimo Warsame. The wiretap project was referred to by the TPS as Project Traveller.

Subsequently, in November 2013, there was a considerable amount of media and internet coverage of Project Traveller. The coverage summarized the suspicions and beliefs of the TPS based on their investigation which led to the Court order. It included the names of some people the TPS linked to the gang or its affairs, and some of the crimes the TPS suspected were committed by the gang.

The media also included some speculation that there was a connection between the former Mayor of Toronto and this gang.

The coverage continued, from time-to-time, through April 2015.

The suspicions or beliefs of the TPS based on their investigation(s), the speculation by the media and the reliability of the summaries have not been proven in a Court.

Question No. 1

Have you heard about, read or seen any of that media or internet coverage? [If No or Yes- go to next question?]

Question No. 2

In particular, have you heard about, read or seen, any media or internet coverage of some intercepted conversations of a person said to be Naimo Warsame? If YES - would your ability to judge this case without bias, prejudice or partiality be affected by what you have read, seen or heard in the media or on the internet about Naimo Warsame?

Question No. 3

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by any of the media or internet coverage about the activities of a gang operating in the 300 Block of Dixon Road.

Question No. 4

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by any of the media or internet coverage about Project Traveller?

Question No. 5

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the defendants are black people with Somalian ancestry?