



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmaddy, 2018 ONCA 496

DATE: 20180530

DOCKET: C63676

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nasir Ahmaddy

Appellant

Faisal Mirza, for the appellant

James D.M. Clarke, for the respondent

Heard: May 28, 2018

On appeal from the conviction entered on November 17,
    2017 by Justice Harvey P. Brownstone of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of a single count of trafficking cocaine,
    contrary to s. 5(3)(a) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c 19.

[2]

In brief compass, the facts are as follows. The appellant was alleged to have sold nine ounces of cocaine to a drug dealer named Mohammad Nassimi, who in turn sold drugs to an undercover officer. Nassimi was observed getting into the appellant's car and then leaving with a bag. The trial judge found that, shortly afterwards, Nassimi gave the same bag to an undercover officer. Nassimi was arrested, along with his girlfriend. In the meantime, the police had the appellant's vehicle under surveillance. After Nassimi and his girlfriend were arrested, so was the appellant.

[3]

Nassimi testified at the appellants trial, claiming that he had
    purchased the cocaine from the appellant. Nassimis credibility was challenged
    by the defence. The appellant did not testify. The trial judge accepted
    Nassimis evidence and was satisfied beyond a reasonable doubt that the appellant
    sold cocaine to Nassimi that evening. The trial judge also found that the
    appellants guilt could be independently established on the basis of the police
    surveillance evidence.

[4]

The appellant advances several grounds of appeal, focusing on how the
    trial judge dealt with Nassimis evidence. We are not persuaded that any of
    them should succeed. The trial judge was entitled to accept Nassimis evidence.

[5]

The trial judge did not improperly rely on Nassimis demeanour in
    finding him to be a credible witness. The trial judge carefully scrutinized
    Nassimis evidence, whom he characterized as an admittedly problematic
    witness. Nassimi was very uncomfortable testifying against the appellant. He
    had already pled guilty and been sentenced. Having accepted responsibility for
    his part, Nassimi thought the appellant should have as well.

[6]

The appellant takes issue with the trial judges observation that, when
    Nassimi expressed these sentiments, he was looking directly at [the appellant]
    when he was saying that. This was the only direct reference to Nassimis
    demeanour. Triers of fact are entitled to consider demeanour, as long as it is
    not given undue consideration. In this case, the trial judge did not make this
    mistake.

[7]

The appellant advances an assortment of other arguments concerning the
    trial judges treatment of Nassimis evidence. These include Nassimis desire
    to shield his girlfriend from criminal liability, as well as the massive
    benefit Nassimi received when he pled guilty and received a sentence of 18
    months imprisonment.

[8]

We see no error in the manner in which the trial judge treated Nassimis
    evidence. He looked at all of the factors that were relevant to the assessment
    of his credibility. There was no misapprehension of the evidence. Presumed to know
    the law, the trial judge was not required to specifically instruct himself on
    the dangers of relying on the evidence of an unsavoury witness: see
R. v.
    Snyder
, 2011 ONCA 2635, at para. 24. Nevertheless, the trial judge did
    look for evidence that confirmed Nassimis account. This evidence was
    plentiful. As noted above, the trial judge would have found the appellant
    guilty on the basis of the surveillance evidence alone.

[9]

For these reasons, the appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


