



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murtaza, 2018 ONCA 579

DATE: 20180625

DOCKET: C57288

Sharpe, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Murtaza

Appellant

Anil K. Kapoor and Dana Achtemichuk, for the appellant

Marie Comiskey and Sébastien Lafrance, for the
    respondent

Heard:  June 21, 2018

On appeal from the conviction entered on June 24, 2013 by
    Justice J.M. Fragomeni of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The
    appellant appeals from his convictions following his jury trial for the
    importation and possession of over 100 kilograms of heroin, and possession of
    some $650,000 as proceeds of crime.

[2]

An
    RCMP controlled delivery on July 14, 2009 of about 8.45 kilograms of heroin,
    discovered during a random customs search, led the police to the appellants
    house. The appellant had paid for and directed that a courier deliver this
    shipment to his house. His wife and co-accused, Nazma Murtaza, accepted some of
    the shipment at their home and also picked up the balance of the shipment at
    the couriers warehouse
.

[3]

During
    a subsequent authorized search, the police seized about 108 kilograms of heroin
    from one of the storage units rented by the appellant for which he had the
    entrance code. Another authorized search of a second storage unit rented by the
    appellant yielded about $650,000 in cash.

[4]

At
    trial, the appellant denied any knowledge of the heroin shipments and
    maintained the monies represented casino winnings.

[5]

The
    jury convicted the appellant on all counts and the trial judge sentenced him to
    life imprisonment on the importation charges, 15 years concurrent imprisonment
    on the heroin possession charges, and 10 years concurrent imprisonment on the
    proceeds of crime charges.

[6]

The
    appellants submissions on appeal can be summarized as follows:

i.

The
    jury instructions were inadequate regarding the identification evidence given
    by Jude Joseph, a courier who had delivered shipments to one of the appellants
    storage units.

ii.

Sergeant
    Pat Marten, of the RCMP Integrated Unit Proceeds of Crime team, was not
    qualified to give expert evidence regarding FINTRAC reports concerning the
    appellants casino winnings.

iii.

The
    trial judge incorrectly curtailed the cross-examination of the appellants wife
    and co-accused, Nazma Murtaza, concerning the identity of a third person on the
    July 21, 2009 telephone call with them, following the delivery of the
    controlled shipment to the appellants home, during which Ms. Murtaza was
    directed not to call the police by the appellant and the third person.

[7]

We are
    not persuaded by these submissions.

[8]

It is
    important to put them into context. The Crown presented an overwhelming case.
    It did not significantly depend on the identification evidence, the FINTRAC
    reports or the July 21, 2009 telephone call. There was important,
    uncontroverted evidence tying the appellant to the delivery of the heroin to
    his home and to the storage units where large quantities of heroin and cash
    were found. In any event, we find no error with the trial judges treatment of
    these issues.

[9]

We
    start first with the identification evidence. Mr. Joseph was a legitimate,
    commercial courier who identified the appellant as the person to whom he had
    made two deliveries at the appellants rented storage unit from which the
    police seized approximately 108 kilograms of heroin. Mr. Joseph had identified
    the appellant from a photograph during a photo-pack line-up process and at
    trial.

[10]

In his charge, the trial
    judge enumerated the various deficiencies in the photo-pack line-up process
    that fell short of the Sophonow Inquiry recommendations and that were highlighted
    by the defence expert. While flawed, the process was not so deficient that its
    results were inadmissible. The trial judge properly left the weight to be given
    to this evidence to the jury. He also clearly warned the jury about the
    frailties of eyewitness identification evidence. While he did not specifically
    address the potential problems with in court identification, this caused no
    harm because the main focus of the jurys consideration was on the photo-pack
    line up identification. We are satisfied that when read as a whole in the
    context of this record, the trial judges charge was fair and balanced.

[11]

Turning next to the issue
    of Sergeant Martens evidence, we agree with the trial judges determination
    that Sergeant Martens evidence concerning the FINTRAC reports was not expert
    evidence but factual evidence that he could give as a result of his experience
    dealing with these reports. He testified about basic information in the reports
    including the meaning of common abbreviations and the different treatment of
    casino winnings and purchases in the reports.  Sergeant Martin was not required
    to interpret competing meanings in the reports based on his expertise but was
    able to explain the structure of the reports in much the same way that a
    computer user could explain the keyboard structure.

[12]

Finally, we do not agree
    that there was any unfairness caused to the appellant by the trial judges
    refusal to allow his counsel to cross-examine Ms. Murtaza about the identity of
    the other person on the July 21, 2009 telephone call. The appellant submits
    that he was prejudiced because he was unable to elicit from his wife
    corroborative evidence of his fear of danger to his family by others involved
    in the heroin importation which had been canvassed during his testimony.

[13]

We do not agree there was
    any unfairness to the appellant.

[14]

The issue faced by the
    trial judge came up towards the end of a lengthy and hard-fought trial involving
    multiple accused persons. The problem arose because counsel for Ms. Murtaza
    decided to pursue a line of questioning that was related to an area that all
    other counsel agreed not to broach, at Ms. Murtazas counsels request. The
    request was related to a potential conflict of interest.

[15]

Ms. Murtazas counsel
    opened the door by asking the appellant about the call and whether he knew
    the third person. However, the appellant testified that he did not know who it
    was, although the name of the person whom appellants trial counsel wished to
    suggest to Ms. Murtaza as the third person on the call was well known to the
    appellant and Ms. Murtaza. The call and the identity of the third person were
    not pursued with the appellant during his re-examination. Rather, appellants
    trial counsel waited until his cross-examination of Ms. Murtaza to continue
    this line of inquiry.

[16]

In her evidence, Ms.
    Murtaza said there was someone else who spoke in the background of the call
    but did not identify who it was. While precluded from pursuing the identity of
    the third person, there was nothing precluding appellants counsel from
    exploring Ms. Murtazas fear of danger to her and her family, if any, during
    the period prior to the charges, as it was for the period post charges.

[17]

Faced with a dispute that
    really pitted the fair trial interests of one accused against the other, the
    trial judge decided trial fairness required that he put an end to this matter
    and restore the trial to its previous path. This was a reasonable exercise of
    his discretion. There is no basis to interfere with it.

[18]

For these reasons, the
    appeal is dismissed.

Robert J. Sharpe J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.


