



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdullahi, 2020 ONCA 350

DATE: 20200602

DOCKET: M51540 (C61787)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Ahmed
    Mohamed Abdullahi

Applicant

Alexander Ostroff, for the applicant

Katie Doherty, for the respondent

Heard: May 19, 2020 by videoconference

REASONS
    FOR DECISION

A.

overview

[1]

The applicant, Ahmed Mohamed Abdullahi, applies
    for bail pending his conviction and sentence appeal. On June 2, 2015, following
    a trial by judge and jury, he was convicted of participating in a criminal
    organization, conspiracy to transfer firearms, possession of property obtained
    by crime, and five counts of possession of an unauthorized firearm. On June 30,
    2015, the trial judge, Trafford J., sentenced him to 12 years in custody,
    less almost three years credit for pre-sentence custody.

[2]

The applicant has not previously applied for
    bail pending appeal. He was released on bail pending trial, but bail was
    revoked by Quigley J. on July 22, 2013 on a bail review application under s.
    521 of the
Criminal Code
, R.S.C. 1985, c. C-46. Quigley J. ruled that
    the applicants detention was necessary to maintain confidence in the
    administration of justice having regard to all the circumstances: 2013 ONSC
    4873.

[3]

The Crown opposes the present application,
    contending that the applicant has failed to establish that his detention is not
    necessary in the public interest under s. 679(3)(c) of the
Criminal Code
.

[4]

For the reasons that follow, I dismiss the
    application for bail pending appeal.

B.

Background

[5]

The essential facts giving rise to the convictions
    under appeal are largely set out in the trial judges reasons for sentence: 2015
    ONSC 4163.

[6]

The Crowns case relied heavily on search
    warrants, security videos, and intercepted phone calls of the applicant and
    others speaking in English, Somali, and Jamaican Patois. Some of the phone
    calls suggested that on March 31, 2013, the applicant was transporting illegal
    firearms from Windsor to Toronto in a rental car. The police followed the car
    as it approached Toronto. The applicant and two passengers, Khadra Omar and
    Daud Hussein, believed that they were under surveillance and drove the car to
    an apartment complex, where they abandoned it before the police arrived.

[7]

When the police arrived, they found three
    handguns inside the car. Two other handguns were taken by one of the passengers
    and later sold, though they were not recovered. Significant evidence at trial linked
    the rental car to the applicant.

[8]

Several others who were charged with participating
    in the criminal organization entered guilty pleas.

[9]

At trial, the Crown sought to adduce
    translations of the intercepted phone calls through an expert witness. The applicant
    objected to the translator being tendered as an expert, claiming that his opinions
    were unreliable because there were significant frailties in his knowledge,
    training, and expertise as a translator of Somali. The trial judge nevertheless
    qualified the translator as an expert and admitted his evidence. The trial
    judge found, among other things, that while the applicants objections might
    impact the translators credibility and reliability, they did not warrant excluding
    his evidence. The trial judge found that the probative value of the
    translators opinions was significant and outweighed any slight prejudicial
    effect. He also noted that the translators method of translating the Somali portions
    of the conversations could be duplicated in court and challenged before the
    jury: see 2015 ONSC 2806.

[10]

On June 2, 2015, the jury convicted the
    applicant of a variety of offences related to the illegal firearms and for
    participating in a criminal organization from March 2013 to June 2013. On June
    30, 2015, the trial judge sentenced him to 12 years in custody, less credit for
    pre-sentence custody, leading to an effective sentence of nine years and six
    days, with parole eligibility delayed to one-half of his sentence.

[11]

In his sentencing reasons, the trial judge made the
    following findings about the applicants motivations and the scope of his gun trafficking:

Omars motivation was to sell the firearms to
    some people in Toronto so they could seek revenge for the murder of one of
    Omars friends.
Abdullahis motivation was purely financial in my view
,
    as was Warsames [i.e., the applicants co-accused, who was also found to be part
    of the criminal organization]. However, both of them
knew of the lethal
    character of trafficked firearms and the risks they presented to the lives and
    safety of the people in the Toronto area once they were in the hands of the
    ultimate users of the firearms. This was high risk crime to facilitate more
    high risk crime. Abdullahi expressed in one intercepted conversation an
    intention to kill the people who had custody of the two missing firearms if he
    discovered their identity and if they did not return them
. This was not a
    group that was randomly formed to commit one crime. Rather,
it was a continuing
    group involved in the transfer of firearms on several other occasions  On the
    evidence, about 10-15 firearms were the subject of the organizations efforts
    during the wiretap project. Four of them have been recovered. The rest of them
    are in the hands of persons who are prepared to use them, somehow, to commit
    other crimes. Those firearms are not instrumentalities of peaceful co-existence
    in Toronto
. [Emphasis added.]

[12]

The trial judge also observed that a criminal
    organization existed from March 2013 to June 2013; he found that the applicant
    was one of its principal members; he was its leader, and was regarded as such
    by the other participants; and found that he established the group, selected
    its members and maintained its cohesion despite its frequent disputes.

[13]

The trial judge also found that the applicant knew
    of the risks of bodily harm or death to people who would be confronted by the
    ultimate users of the firearms to further their own crimes. Nevertheless, he
    continued to operate the criminal organization.

C.

Analysis

[14]

To obtain bail pending appeal under s. 679(3) of
    the
Criminal Code
, the applicant must establish that: (1) the appeal
    is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in
    accordance with the terms of the order (s. 679(3)(b)); and (3) his
    detention is not necessary in the public interest (s. 679(3)(c)).

[15]

The applicant has met his onus under the first
    two grounds in s. 679(3). There is no dispute that the appeal meets the very
    low bar for being not frivolous under s. 679(3)(a):
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. Nor does the Crown dispute that
    the applicant will surrender into custody in compliance with a bail order under
    s. 679(3)(b).

[16]

The Crown opposes bail only on the third ground,
    s. 679(3)(c). The Crown submits that the applicant has failed to establish that
    his detention is not necessary in the public interest.

[17]

The public interest criterion under s.
    679(3)(c) has two elements: public safety and public confidence in the
    administration of justice:
Oland
, paras. 23, 26.

[18]

I will first address public safety.

Public safety

[19]

Public safety considerations under s. 679(3)(c)
    relate to the protection and safety of the public:
Oland
, at para. 24.
    To be denied bail for public safety considerations, (i) an individual must pose
    a substantial likelihood of committing an offence or interfering with the
    administration of justice; (ii) the substantial likelihood must endanger the
    protection or safety of the public; and (iii) the individuals detention must
    be necessary for public safety:
R. v. Morales
, [1992] 3 S.C.R. 711,
    at p. 737;
R. v. Stojanovski
, 2020 ONCA 285, at para. 18.

[20]

Public safety considerations alone can justify
    refusing bail in the public interest. And even where an applicant meets the
    public safety threshold, residual public safety concerns or the absence of any
    public safety concerns should still be considered as part of the public
    confidence analysis:
Oland
, at para. 27.

[21]

The applicant submits that public safety
    concerns do not justify his continued detention pending appeal. He says that he
    has put forward a strong plan for his supervision during bail, including strict
    house arrest with four sureties (his mother, two sisters, and father) providing
    24-hour supervision, which fully addresses any public safety concerns. He
    claims that the ability of his sureties to monitor and maintain the proposed
    24-hour supervision plan is, if anything, strengthened during the current
    COVID-19 pandemic, because his family members are all at home and several of
    them will remain so even after the Province fully lifts current restrictions.

[22]

In response, the Crown contends that the
    applicants release would pose significant public safety concerns. It submits that
    the applicant was convicted of very serious offences, including as being the
    leader of a gun-trafficking organization. The Crown also notes that in May 2019,
    while in custody, the applicant was charged with violent criminal conduct against
    another inmate 
assault with
    a weapon, possession of a weapon for a dangerous purpose, and assault causing
    bodily harm. The evidence before me indicates that no trial date has yet been
    set for these additional charges.

[23]

I agree with the Crown that the applicants
    release would pose substantial public safety concerns. I further conclude that,
    in this case, those public safety concerns rise to the level that bail pending
    appeal should be denied. In reaching this conclusion, I do not doubt the
    sincerity of the applicants sureties in offering to supervise the applicant.
    The trial judge observed during his sentencing reasons that the applicants
    parents are law-abiding and have provided him with loving support. I also
    acknowledge that the applicant had no criminal record before committing these
    offences. Even so, the applicants leadership of a criminal organization
    involved in substantial gun trafficking and his stated desire to kill those who
    stole two of the trafficked handguns raise a substantial likelihood that he
    would commit a criminal offence if released, and that this would endanger the
    protection and safety of the public. I also conclude that the applicants continued
    detention is necessary for public safety.

[24]

In my view, therefore, public safety
    considerations alone justify the applicants detention in the public interest. This
    conclusion is fortified by the public confidence component of s. 697(3)(c),
    which I will consider next.

Public confidence

[25]

The public confidence component involves a
    weighing of two competing interests: enforceability and reviewability.
    Enforceability concerns the need to respect the general rule of the immediate
    enforceability of all judgments. Reviewability concerns the need to provide for
    a meaningful review process, one that does not require persons convicted of
    offences to serve all or a significant part of their sentence only to have
    their conviction overturned on appeal:
Oland
, at paras. 24-26.

(i)

The enforceability interest

[26]

In assessing the enforceability interest, the
    seriousness of the crime has an important role. The more serious the crime, the
    greater the risk that public confidence in the administration of justice will be
    undermined if the person convicted is released on bail pending appeal:
Oland
,
    at para. 37. At the same time, the absence of flight or public safety risks
    will attenuate the enforceability interest. Other factors should also be
    considered where appropriate:
Oland
, at para. 39.

[27]

Here, the seriousness of the applicants crimes leads
    to a very significant enforceability interest. Releasing a convicted gun
    trafficker and the head of a criminal organization pending appeal would pose a
    significant risk of undermining public confidence in the administration of justice.
    While the applicant takes issue with the trial judges finding in his
    sentencing reasons that the applicant was the head of a criminal organization,
    for the purposes of this motion I accept that finding. I also agree with the
    following remarks that Quigley J. made when he revoked the applicants bail
    pending trial:

This is a very serious gun case. It includes
    very serious allegations of criminality. In the minds of reasonable members of
    the community, considering the seriousness of those alleged crimes, permitting
    people who supply firearms to be free on bail pending trial may more seriously
    undermine confidence in the administration of justice than to release
    individuals who have purchased those guns, or who possess them, or who use
    them. If the suppliers were not present, neither would there be a supply of guns.

[28]

These concerns about releasing the suppliers of
    guns apply even more so today, because the applicant has now been convicted of
    these serious crimes.

[29]

I therefore find a very significant interest in enforceability
    in this case.

[30]

I now turn to consider the reviewability
    interest.

(ii)

The reviewability interest

[31]

In assessing the reviewability interest, the
    strength of the appeal plays a central role:
Oland
, at para. 40. A
    preliminary assessment of the strength of the appeal is made by reviewing the
    grounds in the notice of appeal for their general legal plausibility and
    foundation in the record, to determine whether those grounds clearly surpass
    the not frivolous criterion:
Oland
, at para. 44. A broader public
    interest in reviewability transcends an individuals interest in any given
    case:
Oland
, at para. 45. The remedy sought on appeal may also inform
    the reviewability interest:
Oland
, at para. 46.

[32]

Here, the applicants appeal raises four grounds
    of appeal, three grounds from conviction and one ground from sentence. He says
    that these grounds of appeal clearly surpass the not frivolous criterion, and
    that in the circumstances the public interest in reviewability overshadows the
    enforceability interest.

[33]

As I will explain, my preliminary assessment is that
    one ground of appeal may clearly surpass the not frivolous criterion, but the
    other grounds appear weaker.

[34]

I will say just a few words about each ground of
    appeal.

[35]

First, the applicant asserts that the Somali
    translators evidence should not have been admitted. The applicant claims that the
    trial judge erred in finding that the many significant concerns raised by the
    applicant about the reliability of the translators opinions would be assessed
    by the jury, in the context of the evidence as a whole. The applicant says
    that this approach involved an error of law, because the Supreme Court of
    Canada clarified in its subsequently released decision in
White Burgess
that reliability is one of the factors to be considered by the trial judge when
    exercising his or her gatekeeping exclusionary discretion at the second stage
    of the expert evidence admissibility inquiry:
White Burgess Langille Inman
    v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para.
    54;
R. v. Abbey
, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48.
    Accordingly, the applicant says that the trial judge should have considered
    issues with the reliability of the Somali translators evidence as part of his
    discretionary gatekeeper role, rather than deferring those reliability issues
    to the jury to consider.

[36]

In response, the Crown asserts that [m]ere
    disagreement with the trial judges ultimate assessment and exercise of his
    discretionary role does not disclose reversible error.

[37]

In my view, the Crowns assertion does not appear
    to meet the applicants objection. The applicants objection is not about the
    exercise of discretion. His objection is that the trial judge deferred to the
    jury a matter that he should have decided himself as part of his discretionary
    gatekeeper role. Whether this argument succeeds will be for the panel hearing
    the appeal to decide, with the benefit of the Crowns factum and after full
    argument of the appeal. At this point, I conclude that this argument clearly
    surpasses the not frivolous criterion.

[38]

Second, the applicant asserts that the trial
    judge failed to instruct the jury adequately on the elements for a criminal
    organization, and in particular, failed to adequately instruct the jury on
    structure and continuity with respect to the existence of a criminal
    organization. The applicant says that the trial judges instruction
    effectively amounted to quoting the statutory definition [for a criminal
    organization] set out in s. 467.1(1) of the
Criminal Code
. He accepts
    that the trial judges charge is accurate, but claims that it did not
    adequately equip the jury to decide the issue in the circumstances of this
    case.

[39]

In response, the Crown claims that [t]he trial
    judges jury instructions on the criminal organization charge  provided the
    jury with the tools they needed to assess the evidence and disclose[s] no
    error.

[40]

In my view, this ground of appeal, while
    arguable, is weak, given the stringent standard for appellate review for claimed
    misdirection in a jury charge. An appeal court must review the charge as a
    whole from a functional perspective, asking whether the jury was properly, not
    perfectly, equipped to decide the case, keeping in mind that it is the
    substance of the charge, not adherence to a set formula, that matters:
R.
    v. Barton
, 2019 SCC 33, 435 D.L.R. (4th), at para. 54. It will be
    difficult for the applicant to establish that the jury charge failed to meet
    this standard.

[41]

Third, the applicant argues that the trial judge
    erred in his jury charge on after-the-fact conduct by instructing the jury that
    if the applicant fled from the scene when he abandoned his rental car, this was
    circumstantial evidence of guilt. The applicant contends that this instruction
    would have been appropriate only if the jury first concluded that the applicant
    was the driver of the car.

[42]

In response, the Crown again asserts that the
    jury charge provided the jury with the tools it needed to assess the evidence
    and discloses no error.

[43]

I conclude that this ground of appeal is also weak.
    The trial judge instructed the jury that the Crown had the onus of proving beyond
    a reasonable doubt that the applicant was the driver of the rental car. He also
    instructed the jury to consider the issue of flight only after first
    considering the rest of the evidence tending to identify the applicant as the
    driver of that car. Reading the charge in context, therefore, it appears that the
    trial judge instructed jury to consider the after-the-fact conduct only after
    it first concluded that the applicant was the driver.

[44]

Lastly, on the sentence appeal, the applicant
    contends that the trial judge erred by stating that [c]rimes involving the use
    of firearms that are committed by people of racial minorities, such as the
    defendants, may lead to stereotypical or other racist attitudes against the
    minority group at large. The applicant asserts that the trial judges comment
    rests on the implicit logic that crimes committed by marginalized communities
    that align with stereotypes or other prejudicial beliefs about their community
    are necessarily more serious and merit greater denunciation because they can
    reinforce bigoted attitudes. He claims that, however well-intentioned, the
    trial judges comment applied a unique aggravating factor to members of
    minority groups. The applicant also asserts that the trial judge made an
    unreasonable finding that the applicant was the criminal organizations leader,
    as this factor was not proven beyond a reasonable doubt.

[45]

In response, the Crown asserts that the
    applicants sentence reflects no error in principle and is not manifestly
    unfit in light of the predominate need to denounce and deter the [applicants]
    criminal conduct that showed complete disregard for the safety of our community.

[46]

In my view, given the high threshold for
    appellate intervention with a sentence, the sentence appeal faces significant
    obstacles. An appellate court can interfere with a sentence in only two
    situations: (1) where the sentence imposed by the sentencing judge is
    demonstrably unfit; or (2) where the sentencing judge commits an error in
    principle, fails to consider a relevant factor, or erroneously considers an
    aggravating or mitigating factor,
and
such an error impacts the sentence
    imposed:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R 1089, at paras.
    11, 44;
R. v. Suter
, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24. It
    will likely be extremely difficult for the applicant to meet either threshold.

[47]

In conclusion, therefore, only one ground of
    appeal clearly surpasses the not frivolous threshold  though admittedly it
    is a significant ground on the conviction appeal. The remaining grounds appear
    to face significant obstacles.

Balancing the public interest in
    enforceability and reviewability

[48]

In conducting a final balancing of the
    enforceability and reviewability interests, public confidence is measured
    through the eyes of a reasonable member of the public, someone who is
    thoughtful, dispassionate, informed of the circumstances of the case and
    respectful of societys fundamental values:
Oland
, at para. 47.
    Anticipated delay in deciding an appeal, relative to the length of the
    sentence, is also a consideration, to ensure that the reviewability interest
    remains meaningful:
Oland
, at para. 48.

[49]

This court has also accepted that the COVID-19
    pandemic is a factor that may be considered as part of the public interest
    criterion, though the weight to be given to it depends on the particular
    circumstances of each case: see e.g.
R. v. Kazman
, 2020 ONCA 251, at
    paras. 17-21;
R. v. Omitiran
, 2020 ONCA 261, at para. 26; and
R.
    v. Jesso
, 2020 ONCA 280, at para. 36.

[50]

Here, the applicant does not assert that he is a
    member of a group that is particularly vulnerable to COVID-19. Instead, he claims
    that the pandemic may delay the hearing of his appeal, which had been scheduled
    for September 17, 2020, and has already delayed his otherwise approved transfer
    from a maximum-security facility in Saskatchewan to a medium-security facility
    in Qu
é
bec. He also notes that
    he became eligible for parole in January 2020 and that his statutory release
    date is July 4, 2021, and so he could be just months away from this date by the
    time his appeal is decided. This, he says, strengthens the significance of bail
    pending appeal under the reviewability interest. He notes that he has appealed
    expeditiously, and that the perfection of his appeal was delayed partly because
    of delays in obtaining transcripts of translations of the wiretaps, which were
    not filed as exhibits at trial.

[51]

Because the applicant raised these concerns
    about potential delay impacting the reviewability interest, I have confirmed
    that the applicants appeal remains scheduled to proceed on September 17, 2020.
    The reviewability interest therefore remains meaningful.

[52]

The applicants delayed transfer to a
    medium-security facility because of COVID-19 remains a factor, and I have
    therefore given it some weight.

[53]

This leads me to consider the final balancing of
    the public interest in enforceability and reviewability. I have found that the
    enforceability interest is especially strong, bearing in mind the seriousness
    of the applicants offences and the significant public safety concerns they
    raise. I have also found that the reviewability interest is significant, in that
    one ground of appeal clearly surpasses the not frivolous criterion. In the end,
    however, I do not see the potential merits of the applicants appeal, coupled
    with the COVID-19 pandemic delaying the applicants transfer, as outweighing
    the very substantial risks to public safety that I have identified.

[54]

I therefore conclude that the applicant has failed
    to establish that his detention is not necessary in the public interest,
    measured through the eyes of a reasonable member of the public who is thoughtful,
    dispassionate, informed of the circumstances of the case, and respectful of
    societys fundamental values.

D.

Disposition

[55]

For these reasons, despite Mr. Ostroffs able
    submissions, I dismiss the application for bail pending appeal.

M.
    Jamal J.A.


