



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dirie, 2016 ONCA 502

DATE: 20160627

DOCKET: C57661  C57902

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamud Dirie and Mohamud Omar

Appellant

Ariel Herscovitch, for the appellant Dirie

Mark Halfyard and Breana Vandebeek, for the appellant
    Omar

Brock Jones, for the respondent

Heard:  June 15, 2016

On appeal from the conviction entered on January 3, 2013
    and the sentence imposed on April 12, 2013 by Justice A.L. Harvison Young of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellants were both convicted of possession
    of a weapon for a purpose dangerous to the public peace, carrying an unlicensed
    concealed weapon, possession of a loaded unlicensed firearm, and possession of
    a firearm knowing that it was unlicensed. The appellant Mohamud Dirie was also
    convicted of breaching a probation order to keep the peace and possession of a
    firearm while prohibited from doing so pursuant to an order made under s.109 of
    the
Criminal Code
. Both appellants were
    acquitted of discharging a firearm and using a firearm in a careless manner
    without lawful excuse.

[2]

The convictions relate to events that occurred in
    the vicinity of an apartment building in northwest Toronto. The primary issue
    at trial was identity.

[3]

The evidence included video surveillance footage
    from the buildings security system. That footage showed two men entering the
    building holding objects that the Crown alleged to be firearms. It also showed
    the same two men in front of the building apparently arguing with someone in an
    apartment that was out of the cameras sight.

[4]

The trial judge found beyond a reasonable doubt
    that the two men in the video footage were the appellants.  She based her
    conclusion on her comparison of her observation of the men in court and her
    review of the security footage. In finding the appellant guilty, the trial
    judge also gave some weight to the evidence of Officer Hockaday, who had
    encountered Mr. Dirie on many occasions and who testified that he recognized
    Mr. Dirie in the video. Among other features, Officer Hockady highlighted the posture
    of the man in the video and the way he spoke out of the side of his mouth.

[5]

The appellants submit that the trial judge erred
    in the following ways. First, she made an unreasonable finding of fact that the
    appellants were the individuals depicted in the video. According to the
    appellants, the quality of the video footage and the limited view offered by
    the video were insufficient to support a finding that the appellants were the
    perpetrators. Mr. Dirie also argues that the trial judge erred in considering
    the features highlighted by Officer Hockaday. Second, the appellant Mohamed
    Omar submits that she erred in ignoring the absence of evidence resulting from
    the execution of a search warrant at his home. That search did not turn up any
    clothing depicted in the video. Third, Mr. Omar argues that the trial
    judge improperly scrutinized and rejected the exculpatory evidence of his
    mother. Fourth, the appellants argue that the trial judge made an unreasonable
    finding of fact that the objects held by the individuals in the video were
    loaded restricted firearms.

[6]

We would not give effect to these grounds of
    appeal.

[7]

First, it is clear from her reasons that the
    trial judge was alive to the risks inherent in identification evidence. In
    reviewing the video evidence, she properly instructed herself in accordance
    with the principles in
R. v. Nikolovski
,
    [1996] 3 S.C.R. 1197. She found that the video was of sufficient clarity and
    quality for comparison purposes. She carefully reviewed the video multiple
    times and compared the images to the appellants. In so doing, she was entitled
    to take into account the evidence given by Officer Hockaday regarding Mr.
    Diries posture and the way he spoke. Having reviewed the video, we are
    satisfied that it was of sufficient quality to permit the trial judge to make
    an identification. There is no basis for appellate interference with this
    finding.

[8]

Second, we are not satisfied that the trial
    judge ignored the evidence related to the execution of the search warrant.
    Indeed, in her reasons she expressly averted to the fact that the search did
    not assist the Crowns case. The trial judges subsequent comment that the only
    evidence of any value was the video footage was simply a recognition of the
    significance of the video to the Crowns case.

[9]

Third, the trial judge did not improperly
    scrutinize and reject the evidence given by Mr. Omars mother. The trial judge
    found that the witness was not credible and cited specific examples in support
    of her conclusion. There was no undue reliance on the witnesss demeanour or
    her relationship with Mr. Omar. The trial judges assessment of credibility is
    entitled to deference by this court.

[10]

Fourth, there was ample evidence to support the
    trial judges finding that the appellants were carrying loaded restricted
    weapons, including the aggressive brandishing of the objects and a third partys
    reaction to seeing the objects, captured on video, as well as the evidence that
    shots were fired from at least two different guns. The trial judge found that
    it was clear that the appellants arrived with some sort of altercation in mind,
    and that there were two general groups involved. We agree with her observation
    that it defies credulity to think that the appellants would have arrived with
    some sort of altercation with this group clearly contemplated, knowing as they 
    must have known others could or would be armed, without real or loaded
    weapons.

[11]

The appeals are dismissed.

Alexandra
    Hoy A.C.J.O.

John Laskin J.A.

C. W. Hourigan J.A.


