



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Farah, 2022 ONCA 243

DATE: 20220324

DOCKET: C64140

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Farah

Appellant

Breana Vandebeek, for the appellant

Kevin Rawluk, for the respondent

Heard: January 6, 2022 by video conference

On appeal from the convictions entered
on April 30, 2016, and the sentence imposed on August 5, 2016, by Justice Kenneth
L. Campbell of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

[1]

A wiretap investigation led police investigators
to the conclusion that someone using the alias Hurdaye was engaged in
firearms trafficking for the benefit of the Dixon City Bloods street gang. Circumstantial
evidence pointed them to the appellant. Following a trial, a jury concluded
that the Crown proved beyond a reasonable doubt that the appellant was the
person overheard in the intercepted communications and known as Hurdaye. The
appellant was convicted of multiple firearms offences, including trafficking
firearms for the benefit of a criminal organization. He received a custodial sentence
of 12 years.

[2]

At trial, the main issue was identification. On
appeal, he made two arguments: (1) that the trial judge erred in admitting
Leaney
identification evidence provided by police officers relating to photos on the
appellants phone; and (2) that the jury returned an unreasonable verdict. The
appellant abandoned a third ground  that the trial judge erred in failing to
instruct the jury with respect to the appellants exculpatory post-offence
conduct  at the outset of the oral hearing. With respect to sentence, the
appellant argues the trial judge erred by failing to give credit for harsh
remand conditions.

[3]

For the reasons that follow, I would dismiss the
appeals against conviction and sentence.

Background

[4]

The Crowns case rested on six links between the
appellant and the person known as Hurdaye:

1.

Two text messages were sent from the
appellants cell phone in which the sender identified himself as Hurdaye;

2.

In one of those text messages, the sender who
identified as Hurdaye revealed his birthday. The appellants birthday is the
same day;

3.

In an intercepted phone call, Hurdaye described
how he escaped two police officers during a chase on foot. Two police officers
testified at trial that the appellant  who they identified visually  escaped
from them after a chase through the parking lot of the appellants building on
April 6, 2013;

4.

One of the officers who chased the appellant noted
the appellants droopy eyelids, which gave him a sleepy appearance. Hurdai
means sleepy in Somali, suggesting the inference that Hurdaye was so-called
because of droopy eyelids;

5.

A day after the police chase in the parking
lot, a police wiretap of Hurdaye recorded Hurdaye giving a woman named Mengistu
an account of how he had escaped on foot from police. The appellant had a
connection to a woman named Mengistu  the day of the police chase, the police had
observed the appellant sitting in a car registered to Mengistu;

6.

Photographs admitted into evidence at trial included
images of individuals said to be associates of Hurdaye, together with someone
the jury was invited to conclude was the appellant. Six of these images were
found on the appellants phone.

[5]

The defence opposed the Crowns application to allow
Det. Cst. Hockaday to testify as to the identity of the men in the photographs.
The bases of the objection were threefold: (1) he did not know the men to be
identified sufficiently well to identify them; (2) the identification would be
hearsay, since it depended on statements made by the men to Det. Cst. Hockaday about
their identities; and (3) the prejudicial effect of the identification
evidence would outweigh its probative value.

[6]

Following a
voir dire
, the trial judge granted
the application and permitted the testimony. The trial judge reasoned that the police
officer had met most of the men in the photographs multiple times and was, per
R.
v. Leaney
, [1989] 2 S.C.R. 393, in a better position than the trier of
fact to identify them.

[7]

The trial judge rejected the argument that Det.
Cst. Hockadays testimony would constitute hearsay. He provided two reasons:
(1) self-identification is an exception to hearsay, and the police officer
would be relaying the mens own identification of themselves at trial; and (2) the
evidence could be used to establish that the men had made the assertions about
their identity, rather than for the truth of the statements. The trial judge
found the prejudice to be minimal, since the officer would not be identifying
the accused, only third parties, and defence counsel would have the opportunity
to cross-examine him.

Issues

[8]

The appellant raised the following issues on
appeal:

1.

Did the trial judge err by admitting the
identification evidence from Det. Cst. Hockaday?

2.

Did the jury return an unreasonable verdict?

3.

Did the trial judge err by not providing the appellant
with 1.5 to 1 credit for each day spent in pre-trial incarceration?

Analysis

(1)

The identification evidence

[9]

As explained below, I am not persuaded that the
trial judge erred in admitting the identification evidence.

[10]

The appellant advances three arguments: first,
that the trial judge erred in concluding that the identification evidence was
not, at least in part, hearsay; second, that the trial judge erred in not finding
that the identification evidence was inadmissible because Det. Cst. Hockaday was
not sufficiently familiar with the photographed individuals to make a reliable
identification; and third, the trial judge erred in finding that the probative
value of the evidence outweighed its prejudicial effect.

(a)

Was the evidence admissible for a non-hearsay
purpose?

[11]

As discussed below, the trial judge concluded
that the identification evidence came within a traditional exception to the
rule against the admission of hearsay and was admissible on that basis. But he
also determined that the evidence was admissible for a non-hearsay purpose,
as circumstantial evidence that supports the identification from the photos,
and so its admission did not depend on the hearsay analysis. The trial judge
reasoned that the officers evidence

that the photographed individuals had previously identified
themselves to him using particular names

was simply evidence that they had so identified themselves to the
officer, and this is how he knew them and was able to identify them in
photographs. The evidence need not be tendered for the truth of the statements,
as the cogency of the evidence would not depend on whether the individuals had given
false names to the officer.

[12]

The appellant argues that this conclusion was an
error because the identification evidence was nevertheless partly hearsay  a
mix between hearsay and opinion.  Reporting statements made by others is
hearsay, and the officer made use of these statements to support his
identification of the individuals in the photos.

[13]

I do not agree that the trial judge made any
error. The trial judge well understood  and well articulated  the distinction
between the use of the utterances as circumstantial evidence, and the use of
the utterances for the truth of their content.

(b)

Was the evidence admissible as hearsay?

[14]

As this court held in
R. v. Berhe
, 2012
ONCA 716, 113 O.R. (3d) 137, and
R. v. Hudson
, 2020 ONCA 507, 391
C.C.C. (3d) 208, at paras. 30-32, with respect to the threshold requirement for
admissibility of identification evidence, the focus is on the level of
familiarity the witness has with the person to be identified, to be assessed by
considering the nature of the relationship, which includes the frequency and
intensity of past interactions. The case law flowing from
R. v. Leaney
has been developed in the context of identification of an accused, rather than
third parties. In the appellants case, Det. Cst. Hockaday identified third
parties who were not called as witnesses, and so were not available to the
trier of fact to make its own determination of whether the individuals bore a
resemblance to the images in the photos.

[15]

On appeal, as at first instance, the appellant chronicles
all of the interactions in evidence between the police witness and the
individuals in question and invites the court to conclude that because many of
these interactions were brief and innocuous or otherwise dated and
unmemorable, Det. Cst. Hockaday was not sufficiently familiar with the
individuals to make a reliable identification.

[16]

This argument was before the trial judge, who
considered the evidence of the interactions, together with Det. Cst. Hockadays
role as an officer embedded in the community in which the individuals lived.
After reviewing the evidence at length in his ruling, the trial judge concluded
that the interactions were not transitory or brief, but were significant, memorable
investigative events.

[17]

The appellants argument on appeal is that the
trial judge erred in characterizing the encounters this way. Counsel invites
this court to make a wholesale review of the evidence and substitute our
conclusion about its significance for that of the trial judge. But absent some
palpable and overriding factual error, which the appellant has not identified,
the trial judges findings are entitled to deference and I would not disturb
them.

(c)

Does the prejudice outweigh the probative value?

[18]

The appellants third argument is that the trial
judge erred in concluding that the probative value of the identification evidence
exceeded the prejudice it caused to the appellant. The prejudicial effect of
the evidence, on the appellants submission, is that because all of Det. Cst.
Hockadays interactions with the individuals were in the context of policing, evidence
of these interactions would suggest to the jury that the appellant, by his
association with them, must have been involved in criminal activity himself, and
in particular, must have been participating in a criminal organization.

[19]

Again, there is no suggestion that the trial
judge made an error of law or misapprehended any of the evidence. The quarrel is
with the trial judges assessment of the relative degree of prejudice and how
it compared to probative value. Again, this is an area in which the trial
judges assessment is entitled to deference. It is telling that defence counsel
at trial did not seek any instruction to the jury as to the proper use of the
identification evidence to mitigate any perceived prejudice to the accused,
notwithstanding the trial judge inviting such a submission.

[20]

The evidence had probative value. It was one
piece of circumstantial evidence in the case against the appellant: wiretap
evidence supported the conclusion that Hurdaye had communications with certain
named individuals. Det. Cst. Hockadays testimony allowed for the
conclusion that the photos in evidence  including photos found on the
appellants phone  showed the appellant together with the individuals who were
intercepted communicating with Hurdaye. All of this evidence together supported
the conclusion that the appellant was the person known as Hurdaye.

(2)

Unreasonable verdict

[21]

The test for an unreasonable verdict, as posited
in s. 686(1)(a)(i) of the
Criminal Code
, is whether the verdict is one
that a properly instructed jury, acting judicially, could reasonably have rendered:
R. v. Chacon-Perez
, 2022 ONCA 3, at para. 74. In making the claim that
a jury rendered an unreasonable verdict, the appellant is not arguing that the
trial judge erred by giving faulty instructions or erred in evidentiary
rulings, or erred in any respect other than accepting the verdict.

[22]

The role of an appellate court, in assessing an
unreasonable verdict argument, is to review the entirety of the evidence using
its accumulated training and experience to determine not whether the appellate
court would have convicted the appellant, but whether a reasonable
trier-of-fact properly instructed and acting judicially could have convicted:
R.
v. Mars
(2006), 206 O.A.C. 387 (C.A.), at para. 3.

[23]

Where the Crowns case was, as in this case,
circumstantial, the question to be answered is could a trier-of-fact acting
judicially be satisfied that the accuseds guilt was the only reasonable
conclusion available on the totality of the evidence?:
Mars
, at para.
4.

[24]

The appellants argument on appeal is that there
was insufficient evidence to prove identity beyond a reasonable doubt. The cornerstone
of the Crowns case was the substantial wiretap evidence, which did not refer
to the appellant by name. The only evidence connecting the appellant to the
wiretaps  apart from the evidence supporting the inference that he was Hurdaye
 was that he was in possession of a phone that was used to make these
communications. Counsel for the appellant notes that there was an absence of any
evidence that the appellant used the name Hurdaye, or that his voice matched
the voice on the wiretaps. Further, there was no evidence that the appellant
was seen in possession of a firearm, and the identity evidence was insufficient.

[25]

The appellants argument is undercut by the position
taken by defence counsel at trial. The appellants co-accused, Khattak, brought
a directed verdict application. In dismissing that application, the trial judge
noted, with respect to the appellant, Defence counsel for the co-accused,
Ahmed Farah, did not bring a similar motion, effectively conceding that there
was sufficient evidence in relation to each count of the indictment to be
considered by the jury.

[26]

In any event, the body of circumstantial evidence
adduced at trial was sufficient to support the jurys identification of the
appellant as Hurdaye. That evidence included the following:

·

Two text messages were sent from the appellants
phone identifying the sender as Hurdaye.

·

The appellant was born on May 7, 1983. In several
telephone intercepts, Hurdaye references an upcoming birthday on which he will
turn 30, including a call on May 4, 2013, in which he says his birthday is
this Tuesday, which would be May 7.

·

Hurdaye was intercepted on April 6, 2013,
talking about attending a gun deal and bringing the things. On April 6, 2013,
two police officers witnessed a gun deal, and chased one of the participants
into the parking garage for residences at 320, 330, and 340 Dixon Road. Both
officers identified the appellant as the man they chased.

·

Later that month, Hurdaye was intercepted
recounting how he was chased by two police officers running with a big 4-4 
all the way down to three forty and that he lost them  when I got to the
basement in three-twenty.

·

The appellant was described as having droopy
eyes that make him look sleepy. Hurdai is the Somali word for sleepy.

[27]

This
circumstantial evidence, taken together, made a strong case that the appellant
was the person who identified himself on the intercepted calls, and was
identified by others, as Hurdaye. The jury was entitled to conclude that this
was the only reasonable inference it could draw.

(3)

The sentence appeal

[28]

The appellant was sentenced to 12 years imprisonment,
and given enhanced credit at a rate of 1.25 to 1 for time spent in pre-trial
custody. The defence had sought credit on the basis of 1.5 to 1, while the
Crown had argued that due to the appellants misconduct in jail prior to
sentence, he was not entitled to any enhanced credit. The trial judge referred
to the appellants serious institutional misconduct, which included two serious
assaults on other inmates, one which consisted of a severe and extended physical
beating that required the intervention of a dozen correctional officers, and another
in which the appellant slashed a fellow inmate with an improvised knife,
requiring hospitalization. The trial judge nevertheless provided some credit to
ameliorate the harsh lockdown conditions the appellant had experienced prior to
sentence. This was a reasoned exercise of the trial judges discretion, and I
would not interfere with it.

[29]

In any event, this aspect of the appeal is
largely, if not entirely, moot as a result of the appellant having been released
on parole more than 6 months ago, and now being past his statutory release
date.

[30]

I would dismiss the appeal against sentence.

DISPOSITION

[31]

For the reasons given above, I would dismiss the
appeal against conviction, grant leave to appeal sentence, and dismiss the
appeal against sentence.

Released: B.W.M. March 24, 2022



B.W.
Miller J.A.

I
agree. B. Zarnett J.A.

I
agree. Coroza J.A.


