



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jimaleh, 2018 ONCA 841

DATE: 20181022

DOCKET: C64056

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guled Jimaleh

Appellant

Dirk Derstine, for the appellant

Candice Suter, for the respondent

Heard: October 3, 2018

On appeal from the conviction entered on October 6, 2016,
    by Justice N. Backhouse of the Superior Court of Ontario, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of attempted murder and a number of related
    firearm offences. The appellant argues that the verdict was unreasonable
    because no properly instructed trier of fact could reasonably conclude that
    the Appellant was the shooter beyond a reasonable doubt.

[2]

The appellant advances two main arguments. The first is that the police
    committed procedural missteps, which would not have been necessarily fatal on
    their own, but which became fatal when coupled with the second error. The
    second is that the trial judge erred by focussing on credibility, not
    reliability, in circumstances where the complainants reliability was clearly
    in doubt. This resulted in misapprehensions of key aspects of the evidence.

[3]

We reject the appellants arguments and dismiss the appeal for the
    following reasons.

The facts

[4]

We begin with the narrative of events. According to the complainant, he
    was walking toward the bus stop from his wifes apartment, when he was
    approached by two males. He recognized one of them as Gucci. It seemed to the
    complainant from their conversation that Gucci did not remember him. The
    complainant was on the cellphone with his cousin during his encounter, and told
    him he was talking to Gucci. The complainant then looked away from the two
    men to a nearby vehicle, looked back, and was shot by Gucci. He was hit four
    times in the torso and once in the face.

[5]

Some details of the conversation between the complainant and Gucci were
    recounted by the trial judge:

[W]hen [the complainant] asked
    Arent you Gucci from Jamestown and told him that he knew him from high
    school, Gucci did not deny that this was his name. Instead, he said How do you
    know me?, intimating that he was who Mr. Ali believed him to be. Mr. Ali told
    his cousin he was talking to Gucci which likely led to his being shot.

These details flow from the complainants testimony; he
    was not cross-examined on the words he exchanged with Gucci.

[6]

The complainants wife called 911 and two police officers soon arrived.
    The complainant was in pain and suffering from loss of blood. One of the
    officers asked the complainant who shot him, and he replied that Gucci had
    shot him. He described Gucci as a Somalian man wearing a blue bandana.

The complainant identifies the appellant as the shooter

[7]

The complainant identified the appellant as the shooter on two
    occasions. The first was while he was in the ambulance awaiting transportation
    to the hospital. After telling the officer that Gucci had shot him, the
    officer showed the complainant a picture of a person known to the police by the
    nickname Gucci, which had been sent by a colleague to the officers
    cellphone. The complainant confirmed that the person in the picture was the one
    who shot him.

[8]

The second was four days later when the police showed the same photo to
    the complainant when he was in the hospital. Again, he identified the man in
    the picture as the shooter.

[9]

The appellant argued that flawed police methodology compromised the
    reliability of the complainants identification from the police photo. This
    court has said: Irreversible prejudice to an accused may flow from the use of
    inappropriate police procedure and, unless adequately counterbalanced during
    the course of the judicial process, may result in a serious miscarriage of
    justice:
R. v. Miaponoose
(1996), 30 O.R. (3d) 419, [1996] O.J. No.
    3216 (C.A.), at para. 17; see also
R. v. F.A
.
(2004), 183
    C.C.C. (3d) 518, [2004] O.J. No. 1119 (C.A.), at paras. 46-47.

[10]

It would be unfair to criticise the police officers action in showing the
    complainant the photograph on the first occasion when his death seemed
    imminent. Even so, the trial judge acknowledged that showing the picture to
    Mr. Ali of the man the police believed was Gucci weakens the reliability of
    the photographic evidence. But she then explained why she nonetheless found
    the identification to be compelling:

I also take into account that Mr. Alis
    condition was deteriorating and that he had an oxygen mask over his face by the
    time Cst. Chalmers held a picture over his face. [] I bear in mind that Mr.
    Ali was not being asked to identify a picture of someone he saw for the first
    time during a traumatic incident but a person he knew who he had identified to
    the police by nickname, area of residence and cultural background. He was then
    able to answer Cst. Chalmers question about whether he had a conversation with
    the guy who shot him by accurately responding yes and then he shot me. I also
    consider it significant that the initial identification of Gucci as the
    shooter, a Somalian from Jamestown, came from Mr. Ali, not from the police and
    then confirmed by Mr. Ali.

[11]

With
    respect to the second identification of the appellant by the complainant, the
    appellant argued that the police should have presented the complainant with a
    photo line-up. The police simply showed the complainant the photograph he had
    identified in the ambulance as that of the shooter.

[12]

The
    trial judge recognized that the actions of the police on this second occasion
    were not helpful. She noted that [h]aving been previously shown the accuseds
    picture and identified it, of course, may have predisposed Mr. Ali to reconfirm
    his previous identification. She took this into account, and concluded:

Nevertheless, it must be
    remembered that Gucci was someone that Mr. Ali knew from seeing at regular
    intervals for a year in a small specialty school and who he recognized
    immediately when he was approached by the 2 males. He confirmed when he was not
in extremis
from gunshot wounds that that was Gucci in the picture,
    the man who had shot him. It is apparent from looking at Exhibit 4 that it is a
    picture of the accused.

[13]

The
    appellant accepted that the trial judge rightly cautioned herself that [m]istaken
    eyewitness identification is the overwhelming factor leading to wrongful
    convictions, and that in cases of eye witness identification including
    recognition identification, the evidence has to be treated with caution. The
    trial judge covered the factors relevant to the evaluation of the complainants
    identification evidence, particularly the useful list in
R. v. Virk
,
2015 BCSC 981, at para. 117, which the
    court distilled from other cases.

[14]

The
    trial judge found, considering the
Virk
reliability factors, that the
    complainant was in a position to recognize Gucci as the shooter because the
    incident occurred in broad daylight and nothing impeded his view of the
    shooter. The complainant was not impaired or intoxicated. He recognized Gucci
    from the small high school they attended and knew some details about him (he
    was from Jamestown), even though he did not know his real name. The trial judge
    made these findings:

I accept Mr. Alis evidence that
    he knew Gucci from attending the same small speciality school, catering
    mainly to Somalian students. While he did not know him well enough to know his
    real name or to call him a friend, he saw Gucci three times a week during a
    year, knew his nickname, that he was Somalian and that he was from Jamestown.
    Mr. Ali may have been incorrect that they had an English class in common,
    although the student timetables for the accused and Mr. Ali which were entered
    into evidence during cross-examination were for different years. The timetable
    for the accused shows Gucci as having a Jamestown address at that time. The 4
    years since Mr. Ali had seen Gucci was not such a long period that one would
    expect him to no longer be able to recognize him. I find that Mr. Ali was
    capable of recognizing Gucci and was in a position to accurately observe the
    assailant who he recognized during the minute or so conversation with him which
    preceded the shooting.

[15]

In
    support of the argument that the trial judge focused on credibility at the
    expense of reliability, the appellant points out that the reasons have a
    Credibility heading but none for reliability. Counsel noted several problems
    with the accuracy of the complainants recall. He targeted particularly the
    complainants assertion that he knew Gucci because they had attended the same
    English class every other day. However, in cross-examination, on being shown
    timetables for two different years, the complainant admitted he was mistaken
    about the English class. The appellant argued that this rendered unreliable the
    complainants identification of the appellant as the one who shot him, from the
    photograph.

[16]

The
    trial judge agreed that there were reasons to be cautious about Mr. Alis
    identification evidence because there is no physical evidence, because of the
    way the photo was put to him and because of the instances of his unreliability
    and lack of credibility. The trial judge found the complainant to be generally
    a credible witness, even though his memory was unreliable in some respects but
    not on material points. He also admitted he lied on two occasions, but she did
    not find these lies to be material. However, she concluded that there are
    other overriding factors present in this case which have persuaded me that it
    is safe to rely upon Mr. Alis evidence. She listed those in succeeding
    paragraphs of her reasons. It is plain that she was conducting a reliability
    assessment.

[17]

The
    appellant argued

that the trial judge erred by implicitly accepting that
    the appellant was nicknamed Gucci in the absence of evidence; this amounted
    to a misapprehension. However, the trial judges treatment of the evidence is
    more nuanced. She made two links. The first was between the photograph and the
    appellant; she noted from her personal observation that the photograph is a
    picture of the accused. The second was that the complainant had recognized the
    appellant as the shooter. The trial judge recited the evidence at some length,
    and concluded:

There was nothing to support that
    Mr. Ali might have been fabricating his evidence that he recognized Gucci. I
    am satisfied beyond a reasonable doubt that Mr. Ali was being truthful and was
    reliable about recognizing Gucci from school and the picture of the accused
    as the person he knew as Gucci who shot him and I accept this evidence.

The trial judge plainly knew that this was not a case
    about who Gucci was, but about whether the appellant was the shooter.

[18]

While
    we agree with the appellant that the appeal turns on whether the evidence of
    the appellants identity as the shooter was sufficiently reliable to sustain
    the conviction, we find there to be no merit to the appellants argument that
    the trial judge focussed on credibility at the expense of reliability in her
    careful reasons. In effect, the appellant asks this court to retry the case on
    the same arguments heard and rejected by the trial judge. The appellant is
    unable to point to an error in principle made by the trial judge, or to a
    palpable and overriding error of fact. We reject the appellants argument that
    the trial judge allowed credibility to overcome reliability.

[19]

The
    appeal is dismissed.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.


