R. v. Abdullahi

R. v. Abdullahi Collection Decisions of the Court of Appeal Date 2020-06-04 Neutral citation 2020 ONCA 350 Docket numbers C61787, M51540 Judges Jamal, Mahmud Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Abdullahi, 2020 ONCA 350 DATE: 20200602 DOCKET: M51540 (C61787) Jamal J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and Ahmed Mohamed Abdullahi Applicant Alexander Ostroff, for the applicant Katie Doherty, for the respondent Heard: May 19, 2020 by videoconference REASONS FOR DECISION A. overview [1] The applicant, Ahmed Mohamed Abdullahi, applies for bail pending his conviction and sentence appeal. On June 2, 2015, following a trial by judge and jury, he was convicted of participating in a criminal organization, conspiracy to transfer firearms, possession of property obtained by crime, and five counts of possession of an unauthorized firearm. On June 30, 2015, the trial judge, Trafford J., sentenced him to 12 years in custody, less almost three years’ credit for pre-sentence custody. [2] The applicant has not previously applied for bail pending appeal. He was released on bail pending trial, but bail was revoked by Quigley J. on July 22, 2013 on a bail review application under s. 521 of the Criminal Code, R.S.C. 1985, c. C-46. Quigley J. ruled that the applicant’s detention was necessary to maintain confidence in the administration of justice having regard to all the circumstances: 2013 ONSC 4873. [3] The Crown opposes the present application, contending that the applicant has failed to establish that his detention is not necessary in the public interest under s. 679(3)(c) of the Criminal Code. [4] For the reasons that follow, I dismiss the application for bail pending appeal. B. Background [5] The essential facts giving rise to the convictions under appeal are largely set out in the trial judge’s reasons for sentence: 2015 ONSC 4163. [6] The Crown’s case relied heavily on search warrants, security videos, and intercepted phone calls of the applicant and others speaking in English, Somali, and Jamaican Patois. Some of the phone calls suggested that on March 31, 2013, the applicant was transporting illegal firearms from Windsor to Toronto in a rental car. The police followed the car as it approached Toronto. The applicant and two passengers, Khadra Omar and Daud Hussein, believed that they were under surveillance and drove the car to an apartment complex, where they abandoned it before the police arrived. [7] When the police arrived, they found three handguns inside the car. Two other handguns were taken by one of the passengers and later sold, though they were not recovered. Significant evidence at trial linked the rental car to the applicant. [8] Several others who were charged with participating in the criminal organization entered guilty pleas. [9] At trial, the Crown sought to adduce translations of the intercepted phone calls through an expert witness. The applicant objected to the translator being tendered as an expert, claiming that his opinions were unreliable because there were significant frailties in his knowledge, training, and expertise as a translator of Somali. The trial judge nevertheless qualified the translator as an expert and admitted his evidence. The trial judge found, among other things, that while the applicant’s objections might impact the translator’s credibility and reliability, they did not warrant excluding his evidence. The trial judge found that the probative value of the translator’s opinions was significant and outweighed any slight prejudicial effect. He also noted that the translator’s method of translating the Somali portions of the conversations could be duplicated in court and challenged before the jury: see 2015 ONSC 2806. [10] On June 2, 2015, the jury convicted the applicant of a variety of offences related to the illegal firearms and for participating in a criminal organization from March 2013 to June 2013. On June 30, 2015, the trial judge sentenced him to 12 years in custody, less credit for pre-sentence custody, leading to an effective sentence of nine years and six days, with parole eligibility delayed to one-half of his sentence. [11] In his sentencing reasons, the trial judge made the following findings about the applicant’s motivations and the scope of his gun trafficking: Omar’s motivation was to sell the firearms to some people in Toronto so they could seek revenge for the murder of one of Omar’s friends. Abdullahi’s motivation was purely financial in my view, as was Warsame’s [i.e., the applicant’s co-accused, who was also found to be part of the criminal organization]. However, both of them knew of the lethal character of trafficked firearms and the risks they presented to the lives and safety of the people in the Toronto area once they were in the hands of the ultimate users of the firearms. This was high risk crime to facilitate more high risk crime. Abdullahi expressed in one intercepted conversation an intention to kill the people who had custody of the two missing firearms if he discovered their identity and if they did not return them. This was not a group that was randomly formed to commit one crime. Rather, it was a continuing group involved in the transfer of firearms on several other occasions … On the evidence, about 10-15 firearms were the subject of the organization’s efforts during the wiretap project. Four of them have been recovered. The rest of them are in the hands of persons who are prepared to use them, somehow, to commit other crimes. Those firearms are not instrumentalities of peaceful co-existence in Toronto. [Emphasis added.] [12] The trial judge also observed that a “criminal organization” existed from March 2013 to June 2013; he found that the applicant “was one of its principal members; he was its leader, and was regarded as such by the other participants”; and found that he “established the group, selected its members and maintained its cohesion despite its frequent disputes.” [13] The trial judge also found that the applicant “knew of the risks of bodily harm or death to people who would be confronted by the ultimate users of the firearms to further their own crimes. Nevertheless, he continued to operate the criminal organization.” C. Analysis [14] To obtain bail pending appeal under s. 679(3) of the Criminal Code, the applicant must establish that: (1) the appeal is “not frivolous” (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)). [15] The applicant has met his onus under the first two grounds in s. 679(3). There is no dispute that the appeal meets the “very low bar” for being “not frivolous” under s. 679(3)(a): R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. Nor does the Crown dispute that the applicant will surrender into custody in compliance with a bail order under s. 679(3)(b). [16] The Crown opposes bail only on the third ground, s. 679(3)(c). The Crown submits that the applicant has failed to establish that his detention is not necessary in the public interest. [17] The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland, paras. 23, 26. [18] I will first address public safety. Public safety [19] Public safety considerations under s. 679(3)(c) relate to the protection and safety of the public: Oland, at para. 24. To be denied bail for public safety considerations, (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18. [20] Public safety considerations alone can justify refusing bail in the public interest. And even where an applicant meets the public safety threshold, residual public safety concerns or the absence of any public safety concerns should still be considered as part of the public confidence analysis: Oland, at para. 27. [21] The applicant submits that public safety concerns do not justify his continued detention pending appeal. He says that he has put forward a strong plan for his supervision during bail, including strict house arrest with four sureties (his mother, two sisters, and father) providing 24-hour supervision, which fully addresses any public safety concerns. He claims that the ability of his sureties to monitor and maintain the proposed 24-hour supervision plan is, if anything, strengthened during the current COVID-19 pandemic, because his family members are all at home and several of them will remain so even after the Province fully lifts current restrictions. [22] In response, the Crown contends that the applicant’s release would pose significant public safety concerns. It submits that the applicant was convicted of very serious offences, including as being the leader of a gun-trafficking organization. The Crown also notes that in May 2019, while in custody, the applicant was charged with violent criminal conduct against another inmate — assault with a weapon, possession of a weapon for a dangerous purpose, and assault causing bodily harm. The evidence before me indicates that no trial date has yet been set for these additional charges. [23] I agree with the Crown that the applicant’s release would pose substantial public safety concerns. I further conclude that, in this case, those public safety concerns rise to the level that bail pending appeal should be denied. In reaching this conclusion, I do not doubt the sincerity of the applicant’s sureties in offering to supervise the applicant. The trial judge observed during his sentencing reasons that the applicant’s parents are law-abiding and have provided him with loving support. I also acknowledge that the applicant had no criminal record before committing these offences. Even so, the applicant’s leadership of a criminal organization involved in substantial gun trafficking and his stated desire to kill those who stole two of the trafficked handguns raise a substantial likelihood that he would commit a criminal offence if released, and that this would endanger the protection and safety of the public. I also conclude that the applicant’s continued detention is necessary for public safety. [24] In my view, therefore, public safety considerations alone justify the applicant’s detention in the public interest. This conclusion is fortified by the public confidence component of s. 697(3)(c), which I will consider next. Public confidence [25] The public confidence component involves a weighing of two competing interests: enforceability and reviewability. Enforceability concerns the need to respect the general rule of the immediate enforceability of all judgments. Reviewability concerns the need to provide for a meaningful review process, one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26. (i) The enforceability interest [26] In assessing the enforceability interest, the seriousness of the crime has an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at para. 37. At the same time, the absence of flight or public safety risks will attenuate the enforceability interest. Other factors should also be considered where appropriate: Oland, at para. 39. [27] Here, the seriousness of the applicant’s crimes leads to a very significant enforceability interest. Releasing a convicted gun trafficker and the head of a criminal organization pending appeal would pose a significant risk of undermining public confidence in the administration of justice. While the applicant takes issue with the trial judge’s finding in his sentencing reasons that the applicant was the head of a criminal organization, for the purposes of this motion I accept that finding. I also agree with the following remarks that Quigley J. made when he revoked the applicant’s bail pending trial: This is a very serious gun case. It includes very serious allegations of criminality. In the minds of reasonable members of the community, considering the seriousness of those alleged crimes, permitting people who supply firearms to be free on bail pending trial may more seriously undermine confidence in the administration of justice than to release individuals who have purchased those guns, or who possess them, or who use them. If the suppliers were not present, neither would there be a supply of guns. [28] These concerns about releasing the suppliers of guns apply even more so today, because the applicant has now been convicted of these serious crimes. [29] I therefore find a very significant interest in enforceability in this case. [30] I now turn to consider the reviewability interest. (ii) The reviewability interest [31] In assessing the reviewability interest, the strength of the appeal plays a central role: Oland, at para. 40. A preliminary assessment of the strength of the appeal is made by reviewing the grounds in the notice of appeal for their general legal plausibility and foundation in the record, to determine whether those grounds clearly surpass the “not frivolous” criterion: Oland, at para. 44. A broader public interest in reviewability transcends an individual’s interest in any given case: Oland, at para. 45. The remedy sought on appeal may also inform the reviewability interest: Oland, at para. 46. [32] Here, the applicant’s appeal raises four grounds of appeal, three grounds from conviction and one ground from sentence. He says that these grounds of appeal clearly surpass the “not frivolous” criterion, and that in the circumstances the public interest in reviewability overshadows the enforceability interest. [33] As I will explain, my preliminary assessment is that one ground of appeal may clearly surpass the “not frivolous” criterion, but the other grounds appear weaker. [34] I will say just a few words about each ground of appeal. [35] First, the applicant asserts that the Somali translator’s evidence should not have been admitted. The applicant claims that the trial judge erred in finding that the many significant concerns raised by the applicant about the reliability of the translator’s opinions would “be assessed by the jury, in the context of the evidence as a whole”. The applicant says that this approach involved an error of law, because the Supreme Court of Canada clarified in its subsequently released decision in White Burgess that reliability is one of the factors to be considered by the trial judge when exercising his or her gatekeeping exclusionary discretion at the second stage of the expert evidence admissibility inquiry: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 54; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. Accordingly, the applicant says that the trial judge should have considered issues with the reliability of the Somali translator’s evidence as part of his discretionary gatekeeper role, rather than deferring those reliability issues to the jury to consider. [36] In response, the Crown asserts that “[m]ere disagreement with the trial judge’s ultimate assessment and exercise of his discretionary role does not disclose reversible error.” [37] In my view, the Crown’s assertion does not appear to meet the applicant’s objection. The applicant’s objection is not about the exercise of discretion. His objection is that the trial judge deferred to the jury a matter that he should have decided himself as part of his discretionary gatekeeper role. Whether this argument succeeds will be for the panel hearing the appeal to decide, with the benefit of the Crown’s factum and after full argument of the appeal. At this point, I conclude that this argument clearly surpasses the “not frivolous” criterion. [38] Second, the applicant asserts that the trial judge failed to instruct the jury adequately on the elements for a “criminal organization”, and in particular, failed “to adequately instruct the jury on structure and continuity with respect to the existence of a criminal organization”. The applicant says that the trial judge’s instruction “effectively amounted to quoting the statutory definition [for a criminal organization] set out in s. 467.1(1) of the Criminal Code.” He accepts that the trial judge’s charge “is accurate”, but claims that “it did not adequately equip the jury to decide the issue in the circumstances of this case.” [39] In response, the Crown claims that “[t]he trial judge’s jury instructions on the criminal organization charge … provided the jury with the tools they needed to assess the evidence and disclose[s] no error.” [40] In my view, this ground of appeal, while arguable, is weak, given the stringent standard for appellate review for claimed misdirection in a jury charge. An appeal court must “review the charge as a whole from a functional perspective, asking whether the jury was properly, not perfectly, equipped to decide the case, keeping in mind that it is the substance of the charge, not adherence to a set formula, that matters”: R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th), at para. 54. It will be difficult for the applicant to establish that the jury charge failed to meet this standard. [41] Third, the applicant argues that the trial judge erred in his jury charge on after-the-fact conduct by instructing the jury that if the applicant fled from the scene when he abandoned his rental car, this was circumstantial evidence of guilt. The applicant contends that this instruction would have been appropriate only if the jury first concluded that the applicant was the driver of the car. [42] In response, the Crown again asserts that the jury charge provided the jury with the tools it needed to assess the evidence and discloses no error. [43] I conclude that this ground of appeal is also weak. The trial judge instructed the jury that the Crown had the onus of proving beyond a reasonable doubt that the applicant was the driver of the rental car. He also instructed the jury to consider the issue of flight only after first considering the rest of the evidence tending to identify the applicant as the driver of that car. Reading the charge in context, therefore, it appears that the trial judge instructed jury to consider the after-the-fact conduct only after it first concluded that the applicant was the driver. [44] Lastly, on the sentence appeal, the applicant contends that the trial judge erred by stating that “[c]rimes involving the use of firearms that are committed by people of racial minorities, such as the defendants, may lead to stereotypical or other racist attitudes against the minority group at large.” The applicant asserts that the trial judge’s comment rests on the implicit logic that “crimes committed by marginalized communities that align with stereotypes or other prejudicial beliefs about their community are necessarily more serious and merit greater denunciation because they can reinforce bigoted attitudes.” He claims that, however well-intentioned, the trial judge’s comment applied “a unique aggravating factor to members of minority groups”. The applicant also asserts that the trial judge made an unreasonable finding that the applicant was the criminal organization’s leader, as this factor was not proven beyond a reasonable doubt. [45] In response, the Crown asserts that the applicant’s sentence “reflects no error in principle and is not manifestly unfit in light of the predominate need to denounce and deter the [applicant’s] criminal conduct that showed complete disregard for the safety of our community.” [46] In my view, given the high threshold for appellate intervention with a sentence, the sentence appeal faces significant obstacles. An appellate court can interfere with a sentence in only two situations: (1) where the sentence imposed by the sentencing judge is “demonstrably unfit”; or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error impacts the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R 1089, at paras. 11, 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24. It will likely be extremely difficult for the applicant to meet either threshold. [47] In conclusion, therefore, only one ground of appeal clearly surpasses the “not frivolous” threshold – though admittedly it is a significant ground on the conviction appeal. The remaining grounds appear to face significant obstacles. Balancing the public interest in enforceability and reviewability [48] In conducting a final balancing of the enforceability and reviewability interests, public confidence is measured through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47. Anticipated delay in deciding an appeal, relative to the length of the sentence, is also a consideration, to ensure that the reviewability interest remains meaningful: Oland, at para. 48. [49] This court has also accepted that the COVID-19 pandemic is a factor that may be considered as part of the public interest criterion, though the weight to be given to it depends on the particular circumstances of each case: see e.g. R. v. Kazman, 2020 ONCA 251, at paras. 17-21; R. v. Omitiran, 2020 ONCA 261, at para. 26; and R. v. Jesso, 2020 ONCA 280, at para. 36. [50] Here, the applicant does not assert that he is a member of a group that is particularly vulnerable to COVID-19. Instead, he claims that the pandemic may delay the hearing of his appeal, which had been scheduled for September 17, 2020, and has already delayed his otherwise approved transfer from a maximum-security facility in Saskatchewan to a medium-security facility in Québec. He also notes that he became eligible for parole in January 2020 and that his statutory release date is July 4, 2021, and so he could be just months away from this date by the time his appeal is decided. This, he says, strengthens the significance of bail pending appeal under the reviewability interest. He notes that he has appealed expeditiously, and that the perfection of his appeal was delayed partly because of delays in obtaining transcripts of translations of the wiretaps, which were not filed as exhibits at trial. [51] Because the applicant raised these concerns about potential delay impacting the reviewability interest, I have confirmed that the applicant’s appeal remains scheduled to proceed on September 17, 2020. The reviewability interest therefore remains meaningful. [52] The applicant’s delayed transfer to a medium-security facility because of COVID-19 remains a factor, and I have therefore given it some weight. [53] This leads me to consider the final balancing of the public interest in enforceability and reviewability. I have found that the enforceability interest is especially strong, bearing in mind the seriousness of the applicant’s offences and the significant public safety concerns they raise. I have also found that the reviewability interest is significant, in that one ground of appeal clearly surpasses the “not frivolous” criterion. In the end, however, I do not see the potential merits of the applicant’s appeal, coupled with the COVID-19 pandemic delaying the applicant’s transfer, as outweighing the very substantial risks to public safety that I have identified. [54] I therefore conclude that the applicant has failed to establish that his detention is not necessary in the public interest, measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society’s fundamental values. D. Disposition [55] For these reasons, despite Mr. Ostroff’s able submissions, I dismiss the application for bail pending appeal. “M. Jamal J.A.”