



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hersi, 2018 ONCA 1082

DATE: 20181224

DOCKET: C61690 & C62005

Juriansz, Benotto and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Hersi and Guled Mahadale

Appellants

Catriona Verner, for the appellant Hersi

R. Craig Bottomley, for the appellant Mahadale

Elise Nakelsky, for the respondent

Heard: December 20, 2018

On appeal from the convictions entered on May 1, 2015, and
    the sentence imposed on Mohamed Hersi on September 4, 2015, by Justice Robert
    A. Clark of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellants were charged with gang-related criminal offences,
    including trafficking in firearms and drugs. They were both members of a
    criminal organization known as YBK (Young Buck Killers). The gang was based in
    Toronto, but their activities extended to the western provinces.

[2]

Hersi was convicted of trafficking a firearm, possession of a firearm,
    trafficking drugs, conspiracy to traffic drugs, all in connection with a
    criminal organization. Mahadale was convicted of trafficking of a firearm for
    the benefit or in association with a criminal organization. They both challenge
    their convictions. Hersi also seeks leave to appeal his sentence.

Trafficking a Firearm

[3]

Both appellants argue that the trial judge erred in his instructions to
    the jury on the trafficking charges. Section 99 of the
Criminal Code
creates
    the following offence:

99. (1)
Every person commits an offence who

(a)
manufactures or
    transfers, whether or not for consideration, or

(b)
offers to do anything
    referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm..

[4]

In
R. v. Murdock
(2003), 176 C.C.C. (3d) 232 (Ont. C.A.), trafficking
    by offer was discussed in the context of drug offences. Doherty J.A. said, at
    p. 238, that the offence of trafficking by offer is made out if the accused
    intends to make an offer that will be taken as a genuine offer by the
    recipient.  He further stated, at p. 236: Provincial appellate courts have
    repeatedly held that where an accused is charged with trafficking by offer, the
    Crown is not required to prove that the accused actually intended to go through
    with the offer and sell or otherwise provide the thing that is offered. This
    definition of trafficking by offer was applied in the context of s. 99 of the
Criminal
    Code
in
R. v. Duncan
, 2015 ONCA 928, 332 C.C.C. (3d) 347, at
    para. 92.

[5]

Neither appellant argues that the verdicts are unreasonable. Instead,
    they argue that the jury was misdirected. We disagree.

[6]

Mahadale argues that the trial judge improperly told the jury that, in
    his testimony, he admitted to offering to transfer a firearm, essentially inviting
    the jury to convict. In our view, the trial judge merely summarized Mahadales
    evidence. Mahadale had acknowledged that he uttered the words captured by the
    wiretaps but testified that he never intended to provide a firearm to the
    person with whom he was communicating. In his closing address, his trial
    counsel (not Mr. Bottomley) repeated this evidence and submitted that it was
    never her clients intent to go through with the transaction. As noted above,
    an intention to follow through with an offer is not an element of the offence,
    and the denial of such an intention is not, in itself, exculpatory. Given the
    state of the record, the jury was left to determine whether Mahadale intended
    his words to be taken as a genuine offer. It was open to the jury to find that
    he did. The function of the jury was not usurped by the trial judges
    instructions.

[7]

Hersi also argues that the trial judge erred in his instructions to the
    jury on trafficking. Hersi concedes he made an offer and that it was genuine,
    but says that at the time he made the offer he was not able to transfer a
    firearm. He submits that his intercepted communications showed that he first
    needed to acquire a firearm in order to make the transfer.

[8]

The submission fails because actual access to a firearm is not an
    element of the offence under s. 99. The intercepts show that the other party to
    the discussion, Gardner, wanted Hersi to acquire the gun. He said words like,
    Yeah deal with that and Yeah co-all him pleaseI need something right now.

[9]

Again, counsel does not assert that the jurys verdict was unreasonable.
    We would dismiss this ground of appeal.

Territorial Jurisdiction

[10]

Hersi
    argues that the trial judge erred by failing to instruct the jury that they
    could only consider offences that were committed in Ontario, thereby running
    afoul of s. 478 of the
Criminal Code
, which provides: Subject to this
    Act, a court in a province shall not try an offence committed entirely in
    another province.

[11]

We
    do not accept this argument. In this case, none of the offences for which Hersi
    was convicted was committed entirely in another province; they were truly
    interprovincial nature, each with a connection to Ontario. They involved concerted
    criminal activity by YBK, a Toronto-based gang, that was branching out to the
    western provinces. With each of the counts, there was a meaningful link to
    Ontario.

[12]

This
    ground of appeal is dismissed.

The Co-Conspirators Exception to the Hearsay Rule

[13]

Hersi
    argues that the trial judges instructions on this hearsay exception were
    deficient because he failed to provide the jury with examples of how the
    exception applied.

[14]

We
    note that no objection is taken to the substantive content of the trial judges
    instructions on this issue, which were given more than once. The trial judge
    illustrated this hearsay exception in a general way during his discussion of
    voice identification. Considered as a whole, the instructions properly equipped
    the jury to deal with this body of evidence.

Inadmissible Hearsay

[15]

Hersi
    argues that the trial judge erred in admitting hearsay evidence in an intercept
    in which an individual referred to Hersi as H. His counsel argued that this
    utterance made the critical link in the wiretaps between the use of H and
    Hersi.

[16]

The
    trial judge admitted the evidence on the basis that it would not be used for
    its truth, but only to establish the state of mind of the declarant. We see no
    error in this analysis. We also observe that the link between H and Hersi is
    found elsewhere in the record. Consequently, even if the evidence was wrongly
    admitted, the impact was inconsequential: s. 686(1)(b)(iii).

Sentence

[17]

Hersi
    was sentenced to a total term of 13 years imprisonment. At the time of the
    offences, he was 22 years old. He had prior findings of guilt as a youth and convictions
    as an adult for offences of violence. After the offences in this case, he was
    sentenced in Saskatchewan to a four-year penitentiary term for drug offences in
    connection with YBK, which he completed before the imposition of the 13-year
    sentence.

[18]

Hersis
    counsel submits that the trial judge erred by sentencing him for offences
    committed outside of Ontario. For the reasons stated above on the issue of
    territorial jurisdiction, we do not accept this argument.

[19]

Nor
    do we accept the submission that the trial judge failed to take into account
    the principle of totality in relation to the Saskatchewan sentence. In his
    reasons, the sentencing judge specifically referred to the totality principle
    and declined to impose a shorter sentence because the Saskatchewan sentence
    arose out of an entirely separate proceeding. In our view, he was correct to
    do so. That sentence had already been served, months before the sentencing in
    this case. The sentence imposed was proportionate to Hersis moral culpability;
    it was also necessary to deter and denounce the extremely serious offences
    committed in the name of a violent criminal organization.

Disposition

[20]

The
    appeals against conviction are dismissed.

[21]

Hersis
    application for leave to appeal sentence is granted, but the appeal is
    dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

Gary T. Trotter J.A.


