Court File and Parties
COURT FILE NO.: CR-20-50000396-0000
DATE: 20220831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDULLAHI NURSED
Alice Bradstreet, for the Crown
Lance Beechner, for Mr. Nursed
HEARD: March 11, 2022
R.F. GOLDSTEIN J.
Reasons for Judgment
[1] On November 29, 2022 I acquitted Abdullahi Nursed of possession of a Glock 21 restricted firearm. The firearm was in a satchel. Video evidence showed someone giving the satchel to Mr. Nursed. During his trial, Mr. Nursed refused to answer questions from Crown counsel about he identity of the person who gave him the satchel. The Crown moved that Mr. Nursed be held in contempt. On April 14, 2022 I found Mr. Nursed not guilty of contempt. What follows are my reasons.
[2] Briefly, on July 9, 2018 Mr. Nursed had been in the back parking lot of 10 Martha Eaton Way in Toronto. He was there when two police officers drove into the lot. Security officers had contacted the police because a group of men, who were not residents, were hanging around the back parking lot. One of the officers saw Mr. Nursed walk away quickly from the group and toss something over a fence. Another officer retrieved the item. It was a Louis Vuitton satchel. The satchel contained the following items:
• A Glock 21 restricted firearm with the serial number defaced and loaded with nine rounds of ammunition;
• $32.25 in Canadian currency ($32.25);
• A small amount of marijuana; and,
• A silver “Smart Key” and grey key fob.
[3] Using video from the complex as well as a nearby Tim Horton’s, the police identified Mr. Nursed as the person who tossed the satchel over the fence.
[4] Surveillance video obtained by the police showed that an unidentified male had been wearing the satchel. He and Mr. Nursed moved out of the field of view of the video for a few minutes. When they moved back into the field of view Mr. Nursed was wearing the satchel. When the police appeared, Mr. Nursed turned, walked away, and threw the satchel over the fence.
[5] Mr. Nursed testified that he innocently received a satchel. He wanted to upload a photograph of himself to social media with this satchel. The satchel contained a gun – unbeknownst to him, he testified. He discovered the gun and wanted to give the satchel back to the owner. Police then appeared. Mr. Nursed said he panicked and tossed the satchel over a fence. In my reasons for judgment, I did not believe him, and I found that it was possible that he had actually purchased the gun, as theorized by the Crown. I was, however, left in a state of reasonable doubt on the second ground of the W.D. test. I found that his evidence might reasonably be true. I made that finding primarily on the basis of the key fob and the “smart key” in the satchel. The police were unable to connect those items to Mr. Nursed – his car, his apartment, or any other item known to be associated with Mr. Nursed.
[6] During the course of his cross-examination, Crown counsel asked Mr. Nursed for the name of the person who gave him the satchel. Mr. Nursed refused to answer. He testified that he was afraid of the consequences for his family. The following exchange occurred
Q: Alright, do you remember me asking you what this person’s name was?
A: Yes.
Q: All right. And so, sir, I’ll ask you again this morning, what is the name of that person?
A: If I answer the name of that person my life will be in jeopardy.
Q: Are you refusing to answer the question sir?
THE COURT: Mr. Nursed, does this mean you’re refusing to answer the question?
THE WITNESS: Sir, my life will be threatened if I say his name.
THE COURT: Okay.
THE WITNESS: Like I don’t know what to do. I don’t know what to do at this point.
THE COURT: Okay, so ---
THE WITNESS: If I say that name, I’m going to be in big problems.
[7] At that point, I did not order actually order Mr. Nursed to answer the question. I did not adjourn the trial to allow him to consult counsel. Instead, in the interests of trial management, I decided not to make an order but rather to deal with the question of contempt at the end of the criminal trial. I was concerned that I might have to judge Mr. Nursed’s credibility on a collateral issue during the course of the criminal trial, which could prejudice his overall right to a fair trial on the charges before the court.
[8] In my reasons for judgment acquitting Mr. Nursed I stated:
I suspect that Mr. Nursed was honest that there could be repercussions about naming UM 1 or UM 2, given the culture against “snitching” that exists.
[9] There are three issues to determine:
First, have the elements of the offence been proven beyond a reasonable doubt?
Second, should Mr. Nursed have been afforded the opportunity to consult counsel?
Third, was there an unequivocal order to answer the question?
[10] Turning to the elements of the offence, contempt in the face of the court is a true crime requiring proof beyond a reasonable doubt of the prohibited conduct combined with the requisite intent: R. v. Devost, 2010 ONCA 459 at para. 34. In other words, I must be satisfied beyond a reasonable doubt that Mr. Nursed wilfully refused to answer the question as ordered. In Devost at para. 34 Doherty J.A. described the actus reus (the prohibited conduct):
The actus reus of contempt in the face of the court consists of conduct that seriously interferes with or obstructs the administration of justice or conduct which causes a serious risk of interference or obstruction with the administration of justice: R. v. Glasner (1994), 1994 CanLII 3444 (ON CA), 93 C.C.C. (3d) 226 (Ont. C.A.) at pp. 242-43…
[11] At para. 35 of Devost, Doherty J.A. described the mens rea of contempt in the face of the court, where he quoted Laskin J.A. in Glasner:
The crime of contempt also requires proof of mens rea. In Glasner, Laskin J.A. described the necessary mens rea in this way:
In short, the fault requirement for criminal contempt calls for deliberate or intentional conduct, or conduct which demonstrates indifference, which I take to be akin to recklessness. Nothing short of that will do.
[12] The contempt power should be used sparingly and with restraint: United Nurses of Alberta v. Alberta, 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901; Glasner at pars. 22, 23.
[13] In the circumstances of the this case a finding of contempt can only be made if I am satisfied beyond a reasonable doubt that Mr. Nursed wilfully refused to answer the question and that in doing so he intended to seriously interfere with the administration of justice. Leaving aside the question of whether there was an order compelling him to answer, I am not satisfied beyond a reasonable doubt that Mr. Nursed had the requisite state of mind. He quite consistently stated that his concern was for the safety of himself and his family. He also expressed puzzlement about what to do. In my view, that falls short of what is needed for a conviction, bearing in mind Laskin J.A.’s comments in Glasner.
[14] Given my conclusion on the first issue, it is not necessary for me to deal with the second or third. For the purposes of completeness, however, I will briefly address them.
[15] Turning to the second issue, Mr. Nursed should have been afforded the opportunity to consult counsel before being required to answer the question: R. v. K.(B.), 1995 CanLII 45 (SCC), [1995] 4 S.C.R. 186; R. v. Omar, 2017 ONSC 1833. He expressed confusion about what to do. No adjournment was granted to permit him to consult counsel regarding the consequences of a failure to answer. Even if I were satisfied that Mr. Nursed’s refusal to answer met the criminal standard, the procedure was flawed. To be clear, that was my responsibility and not the responsibility of counsel. It was my decision as part of the management of the trial, but it meant sacrificing trial efficiency to a potential contempt finding. Mr. Nursed is not required to bear the consequences of that choice.
[16] Regarding the third issue, I am satisfied that Mr. Nursed clearly understood that he was required to answer the question: R. v. Dunning (1979), 1979 CanLII 2885 (ON CA), 50 C.C.C. (2d) 296 (Ont.C.A.). I found in my reasons that the question was relevant to credibility, but that ultimately it was not necessary for me to use the refusal because there were other reasons I found Mr. Nursed not to be credible: St. Elizabeth Home Society v. Hamilton, 2008 ONCA 182. As I noted at the time, I am satisfied that it was conveyed to Mr. Nursed that he was required to answer, but that the formality of telling him to answer was pointless.
[17] Thus, Mr. Nursed was found not guilty of contempt. I will repeat my conclusion when I delivered my “bottom line” ruling on April 14, 2022:
Before I go I want to make a couple of things very clear: first, although I do not find Mr. Nursed guilty, the Crown was well within its rights to pursue this matter and did s so appropriately. Second, I want to emphasize what I said in my original reasons: I did not believe Mr. Nursed. I think Mr. Nursed should understand that if the criminal standard were one of balance of probabilities rather than beyond a reasonable doubt, I would have found him guilty. It is one of the pillars of our justice system, which is in turn an important part of our democracy, that our courts need more than a balance of probabilities to convict a person of a crime. Although it is, of course, an important expression of our democratic values it also means that occasionally a person who is probably guilty goes free. Actually, it probably happens more than just occasionally. I can say the same thing about contempt of court. Mr. Nursed, I certainly hope that you will weigh what I am saying to you very carefully and take this opportunity to stay clear of further involvement in the criminal justice system.
R.F. Goldstein J.
Released: August 31, 2022
COURT FILE NO.: CR-20-50000396-0000
DATE: 20220831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDULLAHI NURSED
REASONS FOR JUDGMENT ON CONTEMPT APPLICATION
R.F. Goldstein J.