



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdullahi, 2021 ONCA 82

DATE: 20210208

DOCKET: C61787

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Abdullahi

Appellant

Alexander Ostroff, for the appellant

Katie Doherty, for the respondent

Heard: September 17, 2020 by video conference

On appeal from the convictions entered
    on June 2, 2015 and from the sentence imposed on June 30, 2015 by Justice Brian
    W. Trafford of the Superior Court of Justice, sitting with a jury, with reasons
    for sentence reported at 2015 ONSC 4163, [2015] O.J. No. 3443.

BROWN J.A.:

I.        OVERVIEW

[1]

After a trial by judge and jury with his
    co-accused, Naimo Warsame, on a number of gun-related offences that resulted
    from a police investigation dubbed Project Traveller, the appellant, Ahmed
    Abdullahi, was convicted of: five counts of possession of an unauthorized
    firearm (
Criminal Code
, R.S.C. 1985, c. C-46, s. 92(1)); one count of
    possession of property obtained by crime, in respect of one of the five
    firearms (
Criminal Code
, s. 354(1)); one count of conspiracy to
    transfer firearms (
Criminal Code
, ss. 99(1) and 465(1)(c)); and one
    count of participation in the activities of a criminal organization for the
    purpose of trafficking weapons (
Criminal Code
, s. 467.11).

[2]

On June 30, 2015 the sentencing judge imposed a
    total sentence of 12 years imprisonment, less nearly three years credit for
    pretrial custody (two years, 11 months, and 24 days), calculated on the basis
    of 1.5 days for each day of custody, resulting in time to be served of nine
    years and six days.

[3]

The appellant appeals his conviction and
    sentence.

[4]

On his conviction appeal, the appellant advances
    three grounds of appeal:

(i)

The trial judge erred in admitting the opinion
    evidence of the Somali-language translator regarding portions of the
    intercepted communications;

(ii)

The trial judge failed to charge the jury
    adequately on the definition of criminal organization in s. 467.1(1) of the
Criminal
    Code
; and

(iii)

The trial judge erred in charging the jury that
    they could consider certain after-the-fact conduct, specifically the flight from
    a car, on the issue of the identity of the cars driver.

[5]

On his sentence appeal, the appellant advances
    two grounds of appeal:

(i)

The trial judge erred in finding that the
    appellant was the criminal organizations leader; and

(ii)

The trial judge erred in his consideration of
    the principles of general and specific deterrence and denunciation.

[6]

The appellant requests that his conviction be
    set aside and a new trial ordered. In the alternative, the appellant submits
    that his sentence should be reduced by an unspecified amount.

[7]

For the reasons set out below, I would dismiss
    the appellants appeal from conviction. I would allow his appeal from sentence
    and reduce the sentence from 12 years to 10 years.

II.       FACTS

[8]

The following summary of the facts is taken from
    the reasons for sentence in which the trial judge made findings about the circumstances
    of the offences, consistent with the verdict of the jury.

The investigation

[9]

In March 2013, the
    Toronto Police Service (TPS) obtained a court order authorizing the
    interception of phone conversations of several people, including the appellant,
    his co-accused Warsame, Daud Hussein (Hussein), Siyadin Abdi (Abdi),
    Mohamed Siad (Siad), Ayanle Omar (Omar), Ahmed Farah, Khadra Omer, and Hanna
    Hassan. The languages spoken on the intercepts were English, Somali, and
    Jamaican Patois.

[10]

The calls were monitored live by the TPS at a
    central facility. Many were recorded and, where necessary, interpreted by
    civilian employees, including Mahamed Osman, as to the Somali language. Transcripts
    of the conversations were prepared.

[11]

Various investigative steps were devised and
    implemented, such as the surveillance of some suspected persons by the Ontario
    Provincial Police (OPP) and the TPS. Search warrants were executed at places
    such as Warsames apartment at 370 Dixon Road, Toronto.

Events of March 31, 2013

[12]

On March 31, 2013, two OPP officers, Constables
    Fraser and DiPietro, left Windsor around 1:55 p.m. and proceeded eastbound on
    the 401 in pursuit of a vehicle in which they believed, based on intercept
    information, the appellant was transporting illegal firearms. They did not know
    the make of the car but believed it was a rental car. Fraser and DiPietro were
    both driving unmarked police vehicles.

[13]

Near Campbellville, Fraser and DiPietro observed
    a white Chrysler 200 with a Québec licence plate (the white car) with two
    black men in the front seats. DiPietro believed that one of them was the
    appellant. The trial judge found that Hussein was in the front passenger seat.
    They did not see Khadra Omer, who was in the rear seat behind the appellant.

[14]

Around the Milton area, the white car began
    driving erratically. When it exited the 401 at Dixon Road in Toronto, Fraser
    and DiPietro followed, now joined by a marked OPP cruiser with its lights and
    siren on.

[15]

At a red light, the white car suddenly turned on
    Chetta Place and drove into an apartment complex at 330 and 340 Dixon Road.
    Fraser and DiPietro lost sight of it near the buildings underground parking
    garage. They observed that the entrance door to the garage was damaged, as if
    someone had driven through it. Fraser and DiPietro found the white car inside
    the parking garage, unoccupied and with damage to the passenger side, hood, and
    windshield.

[16]

Both officers observed a black bag on the front
    passenger seat. Fraser searched the bag and found three firearms, each in a
    black sock. It was determined that two of the guns were Ruger P95
    semi-automatic pistols; the other was a .40 calibre Smith & Wesson Military
    & Police gun. One gun had a clip and all three had magazines, but none were
    loaded.

[17]

Evidence was led that an orange bag in the car
    trunk contained mail addressed to the appellant, as well as car rental records
    showing that he had rented the car. In the glovebox, the police found a rental
    package for the car and a wallet containing identification and banking cards in
    the appellants name. His fingerprint was found on the exterior of the drivers
    side door. A fingerprint on a bottle found on the front passengers side of the
    car matched that of Hussein.

[18]

Uniformed police officers arrived in the area in
    an effort to find the occupants of the white car in the apartment complex, but were
    not able to locate anyone.

[19]

The trial judge concluded that there were five
    firearms in the white car driven by the appellant on March 31, 2013: three of
    them were in the black bag and two others were taken by Khadra Omer when she
    took flight from the car. She gave them to Hussein, who sold them to someone in
    the neighbourhood. They were not recovered by the TPS.

[20]

In his sentencing reasons, at p. 6, the trial
    judge made the following additional findings regarding the events of March 31,
    2013:

Abdullahi had planned with Daud Hussein and
    Ayanle Omar to pick up the five firearms in Windsor and bring them to Toronto. [Khadra]
    Omer went with Abdullahi and Daud Hussein to courier them, by bus, to protect
    the others against a possible arrest. However, she did not take a bus because
    the schedules were reduced for the Easter weekend.



Abdullahi's motivation was purely financial in
    my view, as was Warsame's. However, both of them knew of the lethal character
    of the trafficked firearms and the risks they presented to the lives and safety
    of 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.

Events of April 9, 2013

[21]

The wiretaps continued after the events of March
    31. Intercept evidence that formed part of the Crowns case revealed that
    Warsame had transported a firearm from Windsor to Toronto on April 9, 2013 for
    Siad and Abdi.

[22]

The trial judge found that a transfer of
    firearms took place on April 9, 2013, when Abdi and Siad purchased a handgun at
    the Rack N' Roll Bar in Windsor from Lamar Porter. Siad gave the gun to
    Warsame, who brought it to Toronto.

Events of April 25, 2013

[23]

As a result of further information obtained from
    the intercepts, the police obtained and executed a search warrant of Warsames
    apartment at 370 Dixon Road on April 25, 2013. A search of Warsames bedroom
    revealed a revolver stored under her mattress. The trial judge found that it
    was the gun Warsame had brought from Windsor on April 9, 2013.

The criminal organization

[24]

In his reasons for sentence, the trial judge
    found that a criminal organization existed from March 2013 to June 2013, with
    its core members being the appellant, Hussein, Omar, Abdi, and Siad. The objective
    of the organization was to transfer firearms from Windsor to Toronto to be used
    for the benefit of the group, or one of them, in the area of the apartment
    buildings near Dixon Road and Chetta Place, to commit crimes or otherwise make
    money.

III.     FIRST ISSUE ON THE CONVICTION
    APPEAL: THE ADMISSION OF OPINION EVIDENCE FROM THE SOMALI LANGUAGE TRANSLATOR

The issue stated

[25]

Intercepted communications formed a critical
    component of the Crowns case against the appellant and Warsame. The Crown
    relied on a number of the intercepts as evidence of the appellants involvement
    in: planning the transport of guns from Windsor to Toronto; driving the white
    car on March 31; and, in the following days, trying to locate the guns that had
    been left in the white car in the underground parking garage.

[26]

Approximately 65% of the intercepted
    communications contained words spoken in the Somali language. The Crown
    tendered a TPS civilian employee, Mahamad Osman, to give opinion evidence on
    the translation into English of the Somali language portions of the intercepts.

[27]

The defence opposed the admission of Osmans
    evidence on the basis that he was not a qualified expert and the prejudicial
    effect of his opinions exceeded their probative value.

The
voir dire

and the
    trial judges reasons

[28]

The trial judge conducted a two-day
voir
    dire
, at which Osman was the only witness. Osman stated that the Project
    Traveller wiretap transcripts were the cumulative effort of three TPS Somali-language
    translators. Osman was the third and final translator to review the intercepts.
    He employed a two-step translation process: first, he listened to the audio in
    full without stopping; second, he re-listened to the audio and translated or
    revised the existing translations. During the second stage, Osman replayed or
    slowed down the audio as many times as necessary to understand the intercepts.
    Any changes he made were tracked through a revisions chart. Osman relied on his
    own understanding of the Somali language to add or correct translations.

[29]

Osman testified that his general practice was to
    write unintelligible if he was unsure of a word or could not hear the audio
    clearly. In this case, he was never unsure. Osman understood all the Somali
    words used on the Project Traveller intercepts  they were basic
    conversations. Osman translated the intercepts verbatim, based on their
    context. He did not guess at the meaning of any slang terminology or attempt to
    interpret the meaning of the subjects conversations.

[30]

Following the
voir dire
, the trial
    judge qualified Osman as an expert to give opinion evidence translating the
    Somali language used on the tendered intercepted conversations into English:
    2015 ONSC 2806. He held that Osmans translations fell within the scope of
    expert opinion evidence, and that the live conditions precedent to the
    admissibility of the Osman opinion in the circumstances of this case were: (1)
    whether Osman was a properly qualified expert; and (2) whether the probative
    value of his opinion exceeded its prejudicial effect.

[31]

The trial judge found that Osman was an expert
    by reason of his experience, his membership in the Somali community, his
    frequent use of Somali, and his fluency in English. The factors the defence relied
    on to attack Osmans expertise could go to the jury on the issue of weight and
    his credibility and reliability. The significant probative value of Osmans
    opinions exceeded their prejudicial effect and would not impair the fairness
    of the defendants trial through patently unreliable evidence. Osmans
    evidence was not complex, was critical to the case, and could be the subject of
    cross-examination.

The errors submitted by the appellant

[32]

The appellant submits that the trial judge made
    two main errors in admitting Osmans translation opinions:

(i)

First, in determining whether the Crown had
    established that Osman was a properly qualified expert, the trial judge
    employed too low a standard. The appellant contends that the trial judge, in
    effect, applied the standard articulated in
R. v. Brown
(2002), 66
    W.C.B. (2d) 42 (Ont. S.C.) that a properly qualified expert need only possess a
    certain measure of expertise, beyond that of the average juror, to the extent
    that it will assist the trier of fact. In the appellants view, mere proficiency
    in the Somali language was not sufficient to establish Osman as a properly
    qualified expert. Instead, satisfaction of the properly qualified expert threshold
    criterion in
R. v. Mohan
, [1994] 2 S.C.R. 9 required the presence of
    anchors, or benchmarks, in the evidence that could assist the jury in assessing
    the reliability of Osmans translations or translation methodology. The
    appellant submits that the trial judge failed to give sufficient weight to the
    absence of such anchors;

(ii)

Second, the trial judge erred in exercising his
    gatekeeper function by leaving to the jurys consideration any limitations on
    Osmans expertise, credibility, or reliability that arose during
    cross-examination. The reliability concerns identified by the trial judge in
    his ruling went directly to Osmans expertise, methodology, and the reliability
    of his opinion. They should have played a key role in admissibility.

[33]

As framed by the appellant, these errors are
    inter-related and infected the trial judges analysis of both the fourth
Mohan
factor  a properly qualified expert  and his cost/benefit gatekeeping
    analysis.

The standard of appellate review

[34]

A trial judge must use a two-step framework to
    consider the admissibility of expert opinion evidence. First, the proponent of
    the evidence must establish the threshold requirements of admissibility
    summarized in
Mohan
, at p. 20: logical relevance; necessity in
    assisting the trier of fact; absence of an exclusionary rule; and a duly
    qualified expert. The second step requires the trial judge to exercise his
    discretionary gatekeeping function by assessing whether the potential benefits
    of admitting the evidence justify the risks:
White Burgess Langille Inman
    v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R.182, at para.
    24;
R. v. Abbey
, 2009 ONCA 145, 97 O.R. (3d) 330 (
Abbey (No. 1)
),
    at para. 76.

[35]

The application of the
Mohan
requirements in any proceeding is case-specific. In each case, the trial judge
    determines issues of relevance and necessity within the factual matrix of the
    trial in which he or she is presiding. The inquiry is very much a function of
    the other evidence and issues in the case being tried:
R. v. Shafia
,
    2016 ONCA 812, [2016] O.J. No. 5627, at para. 229.

[36]

Appellate courts proceed from a stance of
    deference to decisions of trial judges to admit or reject expert opinion
    evidence:
R. v. D.D.,
2000 SCC 43, [2000] 2 S.C.R. 275, at para. 13.
    As to the first step of the analysis, appellate interference with a finding of threshold
    admissibility under
Mohan
is justified where the finding is clearly
    unreasonable, contaminated by an error in principle, or reflective of a
    material misapprehension of evidence:
Shafia
, at para. 230. As to the
    second step, absent an error of law or of principle, or a material
    misapprehension of the evidence, a trial judges decision applying the cost-benefit
    analysis at the gatekeeper stage is entitled to deference on appeal:
R. v.
    Johnson
, 2019 ONCA 145, 145 O.R. (3d) 453, at para. 56.

First error: Properly qualified expert

[37]

The tapes of intercepted communications
    constitute the best evidence of the facts of the conversations sought to be
    proved:
R. v. Shayesteh
(1996), 111 C.C.C. (3d) 225 (Ont. C.A.), at pp.
    254-55. Where the communications are in a foreign language, opinion evidence in
    the form of a translation will be essential for the trier of fact, either
    through
viva voce
evidence, a transcript, or both:
Shayesteh
,
    at p. 256.

[38]

In the present case, the trial judge applied the
    principles set out in
Mohan
and
Abbey (No. 1)
. There was no
    dispute that the jury lacked the knowledge or experience to understand those
    portions of the intercepted communications in which persons spoke Somali. There
    was also no live dispute that Osman possessed knowledge that was beyond the
    ken [or understanding] of the average juror, namely the ability to translate
    conversations in the Somali language into English: David M. Paciocco, Palma Paciocco
    & Lee Stuesser,
The Law of Evidence
, 8th ed. (Toronto: Irwin Law,
    2020), at p. 259. It is well-established that a properly qualified expert may
    acquire his special knowledge through study or experience: Sidney N. Lederman,
    Alan W. Bryant & Michelle K. Fuerst,
Sopinka, Lederman & Bryant
:
The Law of Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada, 2018),
    at §12.89. The trial judge found that Osman acquired that knowledge by reason
    of his experience. He committed no legal error in so finding.

[39]

The trial judge summarized the factual basis for
    that finding in the following portion of his
voir dire
reasons:

[Osman] was born and raised in Somalia to the
    age of 5 years, when he came to Canada with his family. He has used, and
    continues to use, the Somali language throughout his life, within his family of
    origin, during some of his education, in normal social discourse with friends
    and in the course of employment with the TPS. He is a member of the Somali
    community in Toronto.

[40]

Those findings were firmly anchored in the
    evidence.

[41]

The main attack by the appellant on the trial
    judges finding that Osman was a properly qualified expert rests on the trial
    judges failure to give sufficient weight to the lack of anchors, or benchmarks,
    in the evidence that could assist the jury in assessing the reliability of
    Osmans translations or translation methodology. In the appellants view,
    Osmans evidence lacked two kinds of anchors: accreditation as a translator,
    and lack of formal training in his translation methodology.

[42]

I am not persuaded by the appellants
    submission.

[43]

First, the appellants suggestion that a
    translator of intercepted communications must possess formal accreditation in
    order to be qualified as an expert goes against the weight of authority.

[44]

Counsel referred to several Ontario and British
    Columbia cases that involved applications to admit as expert evidence
    translations made of intercepted conversations carried on in a foreign
    language:
Brown
;
R. v. Sanghera
, 2012 BCSC 995, [2012] B.C.J.
    No. 1483;
R. v. Chegini
, 2013 ONSC 1082, [2013] O.J. No. 2758;
R.
    v. Chan
, 2014 BCSC 2560, [2014] B.C.J. No. 3329;
R. v. Bidesi
,
    2015 BCSC 206, [2015] B.C.J. No. 235;
R. v. Nguyen
, 2017 BCSC 833. In
    each case, a member or civilian employee of a police force was tendered to give
    opinion evidence translating the content of intercepted conversations in a
    foreign language into English. The person tendered had listened to the tapes of
    the intercepts and then either prepared an English transcription or reviewed
    and corrected a transcription prepared by another monitor.

[45]

In most of the cases, the court accepted the
    tendered person as qualified to give opinion evidence about the translation of
    the foreign language on the intercept tape into English. The courts regarded
    the proffered witness as possessing special knowledge and expertise going
    beyond that of the trier of fact:
R. v. Béland
, [1987] 2 S.C.R. 398,
    at p. 415. The courts reached that conclusion based in large part on: (i) the
    witnesss experience as a native speaker of the language, in which the witness
    remained fluent, and which the witness continued to use frequently in family or
    professional activities; and (ii) the witnesss experience in listening to
    intercepted communications and preparing or reviewing translations of them. Although
    in
Chan
the witness also had a certificate in community services
    interpretation, those qualified in all the other cases did not have any formal
    language or interpretation certification.

[46]

The one case in which the court regarded the
    absence of formal certification as an obstacle to qualification as an expert
    was
Sanghera
, a 2012 decision of the British Columbia Supreme Court.
    Subsequent B.C.S.C. decisions have, for a variety of reasons, distinguished
Sanghera
and declined to follow it:
Chan
, at paras. 22-24;
Bidesi
, at
    para. 21; and
Nguyen
, at paras. 22-24.
Chan
declined to
    follow
Sangheras
approach on the basis that the court in
Sanghera
had not distinguished the skills required for real-time in-court interpretation
    from those required for the translation of intercepts, the latter affording
    time to review and proofread the translation: at paras. 22-23.

[47]

Second, I am not persuaded by the appellants
    argument that there was inadequate evidence regarding Osmans formal training
    to permit the trial judge to accept him as a properly qualified expert. Prior
    to testifying, Osman had worked as a TPS intercept translator for a year, and
    he had been accepted as a reliable translator of intercepts from Somali to
    English in two provincial court proceedings involving Project Traveller. On the
voir dire
, Osman testified in some detail about the process the TPS
    used in hiring him, the method he used to translate the intercepts into
    English, the internal TPS limits placed on the method that he used, and the
    lack of review of his final work product. The trial judge concluded that the
    defence could marshal those factors on the issue of the weight to be given to
    Osmans opinion.

[48]

In the circumstances of the case, I do not see
    that as a clearly unreasonable conclusion.

[49]

Third, although neither the appellant nor his
    co-accused testified at the trial, the trial proceeded on the basis that both
    spoke Somali. The Crown disclosed the intercept tapes and Osmans translations to
    the defence well in advance of trial. The defence therefore had ample time to
    assess the accuracy and reliability of those translations ahead of trial. On
    the
voir dire
, the defence did not call any evidence to contradict or
    undermine the accuracy of Osmans translations. (Nor did the defence call any such
    evidence before the jury.)

[50]

The defence cross-examined Osman for the better
    part of a day at the
voir dire
. Most of the cross-examinations focused
    on the limited nature of the testing Osman was subjected to on his hiring by
    TPS; his lack of formal education in the Somali language or as a court
    interpreter; his limited knowledge of Somali dialects and the use of dialects
    in intercepted communications; his experience speaking Somali in Somalia, Yemen,
    and Canada; errors by Osman in spelling English and Somali words; and the use
    of slang in Somali.

[51]

Very little of the cross-examinations concerned the
    actual corrections Osman made to transcripts prepared by other translators. The
    questions that were asked about corrections related to peripheral matters: whether
    the proper translation was this man is fishy rather than a man is fishy, or
    he only brought three rather than he only brought me three. Assertions by
    the defence in cross-examination that a word translated by Osman bore some
    other meaning (for example, whether habid meant gun or stick) ultimately came
    down to whether Osmans understanding of the word was based on a dictionary
    definition or its use in everyday conversation, such as the way it was used on the
    Somali TV programs that he watched.

[52]

Given the limited attack on the reliability of
    Osmans actual translations and the nature of the attack that was made, it was
    not unreasonable for the trial judge to conclude that the critiques of the
    reliability of Osmans opinion asserted by the defence went to the issue of the
    weight the jury assigned to the opinion.

[53]

For those reasons, I see no error in the trial
    judges finding that Osman was a properly qualified expert based on his
    experience.

Second error: Exercising the gate-keeping
    function

[54]

When considering the potential probative value
    of opinion evidence as part of his or her gate-keeping function, a trial judge
    must consider the reliability of the evidence:
Abbey (No. 1)
, at para.
    87;
R. v. Abbey (No. 2)
, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 54.
    The appellant submits that the trial judge erred by considering reliability
    only implicitly as part of probative value, thereby failing to give sufficient
    weight to reliability.

[55]

I am not persuaded by this submission.

[56]

The trial judge gave concise, but comprehensive,
    reasons for his conclusion that the probative value of Osmans opinions
    exceeded their prejudicial effect, with the result that the trial judge
    declined to exercise his discretion to exclude the opinions. Regarding the
    probative value of the proffered evidence, the trial judge wrote:

Seventh, the probative value of the opinions
    is significant. The affected intercepted conversations are reliably proven
    through the audiorecording. Osmans method of translating the Somali parts of
    the conversations may be duplicated in court, in the presence of the jury, with
    full cross-examination by the defence on the Somali words used by the speakers
    and his translation of them. The Somali dictionary is also available to the
    defence if it is helpful.
The various factors marshalled
    by the defence against the expertise of Osman may also be marshalled on the
    issue of the probative value of the opinions, as advocated by the defence.
    While they tend against their probative value, they do not, individually or
    collectively, reduce their probative value significantly in my view. The jury
    is well situated to reliably interpret conversations, through the submissions
    of counsel, in the context of the evidence as a whole, including the Osman
    opinions and any contrary opinions called by the defence
. [Emphasis
    added.]

[57]

As indicated by the highlighted portions of the
    trial judges reasons, he took into account the reliability of the proffered
    evidence in the course of exercising his gate-keeping discretion. I see no error
    of principle or material misapprehension of the evidence in the trial judges
    gate-keeper analysis. His reasons disclose that he focused on the factors that were
    fundamental to the reliability of Osmans opinion and responsive to the
    specific dangers posed by expert opinion evidence:
Abbey (No. 1)
, at
    para. 142. At the same time, the trial judge clearly kept in mind that the
    assessment he was required to perform was not the same as the jury's ultimate
    assessment of the evidence: a trial judge decides only whether the evidence is
    worthy of being heard by the jury and not the ultimate question of whether the
    evidence should be accepted and acted upon:
Abbey (No. 1)
, at para.
    89.

Conclusion

[58]

For the reasons set out above, I conclude that
    the trial judge did not err in admitting the opinion evidence of Osman
    translating the Somali language used on the intercepts into English.

IV.     SECOND ISSUE ON THE CONVICTION APPEAL: THE JURY CHARGE ON
    CRIMINAL ORGANIZATION

A.      The issue
    stated

[59]

Count 1 of the indictment charged the appellant
    and his co-accused with participating in the activities of a criminal
    organization for the purpose of enhancing the organizations ability to commit
    the indictable offence of weapons trafficking, contrary to s. 99(1) of the
Criminal
    Code
, thereby committing an offence contrary to s. 467.11.

[60]

The appellant submits that the trial judges
    charge on this court contained two errors that merit appellate intervention:

(i)

it failed to instruct the jury that central to
    the definition of a criminal organization is the presence of some structure and
    continuity, which differentiates a criminal organization from other groups of
    offenders who sometimes act in concert:
R. v. Venneri
, 2012 SCC 33, [2012]
    2 S.C.R. 211, at para. 27;

(ii)

it failed to relate the evidence to those core
    elements. The appellant submits that in the present case there was little or no
    evidence of an organization with structure and continuity, any hierarchy or
    leader from whom others took direction, and no clear division of labour or
    consistent roles.

B.      Analysis

[61]

The basic principles governing appellate review
    of a trial judges jury instructions were summarized in
R. v. Araya
,
    2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39:

(i)

The alleged error must be examined in the context
    of the entire charge and of the trial as a whole;

(ii)

Trial judges are afforded some flexibility in
    crafting the language of jury instructions;

(iii)

While trial judges must seek to ensure that
    their instructions adequately prepare the jury for deliberation, the standard
    for jury instructions is not perfection. Appellate review of jury instructions
    is meant to ensure that juries are properly  not perfectly  instructed;

(iv)

The charge should not be endlessly dissected and
    subjected to minute scrutiny and criticism. Instead, what matters is the
    general sense which the words used must have conveyed, in all probability, to
    the mind of the jury, and not whether a particular formula was recited by the
    judge. The particular words used, or the sequence followed, is a matter within
    the discretion of the trial judge and will depend on the particular
    circumstances of the case; and

(v)

Appellate courts should not examine minute
    details of a jury instruction in isolation, as it is the overall effect of the
    charge that matters.

[62]

When the trial judges charge on the definition
    of a criminal organization in s. 467.1(1) is examined in light of those
    principles, I am not persuaded that it suffers from the errors asserted by the
    appellant.

The trial judges charge

[63]

The trial judge structured the case-specific
    portions of his charge in the following way. First, he reviewed the expert
    evidence. Next, he dealt with the issue of the identification of the parties
    heard on the intercepted conversations. Then, he reviewed the counts contained
    in the indictment. To do so, the trial judge divided the counts into three
    categories: those that related to the events of March 31, 2013; those that
    related to the events of April 9 and 25, 2013; and, finally, those that related
    to the events from the middle of March 2013 until the middle of June 2013,
    focusing on the alleged participation in the activities of a criminal
    organization by the appellant and Warsame. For each category, the trial judge
    provided detailed overviews of the positions of each party, extensively reviewed
    the evidence, and identified the issues for determination by the jury. During
    this discussion, the trial judge reviewed the applicable legal principles.

[64]

The charge did not treat the three categories as
    water-tight compartments. As I will discuss later, throughout his review of the
    evidence the trial judge linked particular pieces of evidence to various counts
    in the indictment, with the review of evidence for the first two categories
    containing some references to the criminal organization count.

[65]

The trial judges charge on the criminal
    organization count covered 19 transcript pages. He commenced this part of the
    charge by providing the definition of the offence of participating in the
    activities of a criminal organization:
Criminal Code
, s. 467.11(1). He
    told the jury that, aside from the issue of identity, the offence contains
    three elements: (i) the existence of a criminal organization; (ii) the knowing
    participation in or contribution to any activity of the criminal organization
    by the accused; (iii) for the purpose of enhancing the ability of the criminal
    organization to facilitate or commit an indictable offence. He then provided
    instructions regarding each element.

[66]

For the first element, the existence of a criminal
    organization, the trial judge stated, in part:

A requirement of a group
    of three or more persons is not met if the group of three or more persons was
    formed randomly for the immediate commission of a single offence. The formation
    must not be random. The formation must not be for the purpose of committing an
    offence
. The Crown is not required to prove that
    a Defendant knew the identity of the persons who are in the group. The Crown
    is, however, required to prove the Defendant knew of the existence of the group
    and its essential character or purpose.

The requirement of the purpose of the group
    relates to its essential objective, that is, to facilitate or to commit at
    least one serious offence such as transferring illegal guns. The only other
    qualification to the purpose is that the serious offence will likely lead to a
    material benefit, such as a financial benefit, for at least one of the group.
    This is a requirement of purpose. It is not a requirement of facilitation or
    commission. The Crown need not prove the group, as defined, actually
    facilitated or committed such an offence or received benefit. [Emphasis added.]

First error: Definition of criminal
    organization

[67]

The appellant acknowledges that this portion of
    the trial judges charge accurately set out the statutory definition of a
    criminal organization. Section 467.1 (1) of the
Criminal Code
defines criminal organization as:

[A] group, however organized, that

(a) is composed of
    three or more persons in or outside Canada; and

(b) has as one of
    its main purposes or main activities the facilitation or commission of one or
    more serious offences that, if committed, would likely result in the direct or
    indirect receipt of a material benefit, including a financial benefit, by the
    group or by any of the persons who constitute the group.

It does not include a group of persons that
    forms randomly for the immediate commission of a single offence.

[68]

However, the appellant submits that the rest of
    the charge did not adequately equip the jury to decide the issue in the
    circumstances of the case because it did not provide appropriate or fulsome guidance
    on the requisite degree of structure and continuity to constitute a criminal
    organization. The appellant points out that his trial counsel provided the
    trial judge with a summary of the defences theory for use in the charge that
    specifically referenced the elements of structure and continuity mentioned in
Venneri
,
    yet the trial judge did not include that in his charge.

[69]

To assess the appellants submission, it is
    worth recalling this courts comments in
R. v. Beauchamp
, 2015 ONCA
    260, 326 C.C.C. (3d) 280 and
R. v. Saikaley
, 2017 ONCA 374, 135 O.R.
    (3d) 641 about whether a targeted group is a criminal organization. The
    determination must be done on a flexible basis, not on the basis of
    pre-conceived notions about what organized crime may look like:
Beauchamp
,
    at para. 152. Courts must take a flexible approach, appreciating that criminal
    organizations have no incentive to conform to any formal structure:
Saikaley
,
    at para. 120.

[70]

The
Venneri
decision struck a balance
    between flexibility and overreach, in part, by
highlighting
    the need for some form of structure and degree of continuity and
    coordination,
as a means of distinguishing between a criminal organization
    and other forms of illegal group activity, such as conspiracies:
Beauchamp
,
    at para. 153. While the group therefore must have some form of structure and
    degree of continuity, even a minimal amount may suffice:
Beauchamp
,
    at para. 155. The guiding question in assessing whether a group of individuals
    forms a criminal organization is whether, as put in
Venneri
, the group
    poses an elevated threat to society due to the ongoing and organized
    association of their members:
Saikaley
, at para. 119.

[71]

One must also recall the Supreme Courts caution
    in
Venneri
, at para. 41:

Courts must not limit the scope of the
    provision to the stereotypical model of organized crime ― that is, to the
    highly sophisticated, hierarchical and monopolistic model. Some criminal
    entities that do not fit the conventional paradigm of organized crime may
    nonetheless,
on account of their cohesiveness and
    endurance,
pose the type of heightened threat contemplated by the
    legislative scheme. [Emphasis added.]

[72]

While the charge stated that the formation of a
    criminal organization must not be random, the appellant contends that it was
    defective by failing to highlight the need for some form of structure, degree
    of continuity, and coordination. When that portion of the charge is assessed in
    the context of the trial as a whole, I am not persuaded that it contains the
    deficiency alleged by the appellant.

[73]

First, portions of the evidence the jury heard
    concerned the issues of structure, continuity, and coordination. The Crown
    called Detective Constable Kerr as an expert on the existence of urban street
    gangs in Toronto. He testified about the nature, customs, culture,
    characteristics, identifiers, terminology, behaviour, and activities of urban
    street gangs. The trial judge reviewed his evidence at some length in his
    charge, relating it to photographs of the appellant that showed certain indicia
    of gang membership  wearing clothing of a certain colour and making hand signs
     as well as certain words used in the intercepted calls. After reviewing the evidence
    of Detective Constable Kerr, the trial judge explained to the jury the
    relevance of the evidence to the issues in dispute:

Now, members of the jury, the defence did not
    contest the expertise of Detective Constable Kerr nor did it challenge much of
    the substance of his opinion. Rather, the contest in this trial relates to the application
    of the opinion to the circumstances of the case.
Has the
    Crown proven the existence of an urban street gang in the area of the apartment
    buildings on Dixon Road in the spring of 2013 and implicated Abdullahi and
    Warsame in its affairs?
More will be said about this factual issue in connection
    with the definition of a criminal organization later in the Charge. This
    opinion, if accepted, may be helpful in your determination of this issue.
    [Emphasis added]

[74]

The other piece of evidence concerned the place
    of the appellant in the structure of the alleged criminal organization. In some
    intercepted calls, the person whom the Crown alleged was the appellant was
    referred to as H, HNI, or HNIC by the other speaker. The Crown contended
    that those designations referred to the appellant as standing at the head of
    the gangs hierarchy as the head, head n***** or head n***** in Canada.

[75]

Second, the trial judges charge must be read in
    light of the closing submissions by counsel for the parties.

[76]

In its closing, the Crown advanced the position
    that there was a criminal organization consisting of seven core members, one of
    whom was the appellant, whose objective was to traffic arms from Windsor to
    Toronto. The Crown ascribed certain roles to certain people: Warsame and Abdi
    were couriers, or runners, of guns between Windsor and Toronto, while Siad
    arranged transportation for the couriers. The Crown contended that the
    intercepts were evidence of an urban street gang that constituted a criminal
    organization:

The intercepts evidence the membership, the
    hierarchy, the territory, the activities, and even the language of the gang.
    This gang's activities included the possession of and trafficking in firearms.
    The most important thing about this gang is not their name. It's their
    neighbourhood. Their turf. Their territory. Their hood. That turf is the
    buildings in the 300 block of Dixon Road.

[77]

The Crown referred the jury to evidence demonstrating
    the cohesiveness of this gang and that it was a continuous enterprise. The
    Crown told the jury that the group had a cohesiveness that is characteristic
    of urban street gangs.

[78]

In his closing, appellants trial counsel took
    strong exception to the Crowns submission, arguing that the evidence did not
    disclose a group of people who displayed the characteristics of a criminal
    organization. Appellants counsel stressed that the
Codes
definition
    of a criminal organization:

[D]oes not include a group of persons that
    forms randomly for the immediate commission of a single offence. And I want to
    read that to you again. Criminal organization does not include a group of
    persons that forms randomly for the immediate commission of a single offence.
    The law tells us that to substantiate a criminal org charge you need some form
    of structure and a degree of continuity to the group, structure and continuity.
    So, I put this to you, members of the jury;
where is the
    structure and continuity to this group that's alleged to be a criminal
    organization?
You have a number of people on the wires talking about
    bringing shekos, stories, which the Crown alleges to be guns, to Toronto, from
    Windsor, on Easter weekend, which is March 30 to 31st, 2013. There is no
    organizational structure ever discussed on the wires. In fact, I submit to you
    that this totally seems like a group of people forming randomly for the
    immediate commission of a single offence.



You have one event, Easter weekend 2013. You
    have the following allegations. My client and another male are allegedly in a
    car on the highway travelling from Windsor to Toronto. The police follow them.
    The car crashes. Three guns are left behind. Efforts are made to locate the
    people. The police are investigating. I submit to you these allegations do not
    meet the threshold of a criminal organization. [Emphasis added.]

[79]

From the closing submissions it was clear that
    there was no dispute between the parties that to constitute a criminal
    organization the group of people had to have a cohesiveness (the Crown) or
    structure (defence counsel) and continuity of enterprise, as put by the Crown.

[80]

No doubt that common ground between the parties
    underlay the lack of objection by counsel for both accused to the portions of
    the charge concerning the criminal organization count. The trial judge provided
    counsel with a draft of the charge and sought their comments in a two-day
    pre-charge conference. During that conference, Crown counsel sought changes to
    the portion of the charge dealing with the factors set out in s. 467.11(3) of
    the
Criminal Code
, which the trial judge ultimately declined to make. Appellants
    trial counsel made no submissions on the criminal organization part of the
    charge; counsel for Warsame stated that the impugned part of the charge was
    balanced. After further Crown submissions on the charge, appellants counsel
    advised he did not have any submissions on the matter; counsel for the
    co-accused made a few submissions, but none on the instructions concerning the
    criminal organization count.

[81]

While defence counsels failure to object to a
    jury charge is not determinative of a ground of appeal based on jury charge
    misdirection, it can indicate something about the overall accuracy of the jury
    instructions and the seriousness of the alleged misdirection:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at paras. 37-38. In the present case, I
    regard the lack of objection by defence trial counsel as indicative of the
    legal adequacy of the trial judges instructions on the definition of criminal
    organization given the evidence heard by the jury and the positions taken by
    the parties in their closing submissions.

Second error: Relating the evidence to the
    elements of the offence

[82]

The appellant further submits that the trial
    judge failed to relate the evidence to the elements of the criminal
    organization offence, in particular the definition of a criminal organization.
    When the charge is read as a whole, I see no such defect.

[83]

Each member of the jury was given a copy of the
    charge to use during the deliberations. As mentioned, the trial judge organized
    his review of the evidence by providing an initial detailed overview of the
    positions of each party, and then identifying the issues for the jury to
    determine in each of the three categories into which he had grouped the counts.
    Although his third category specifically focused on count one, which contained
    the criminal organization allegation, in the course of his overview of the
    positions of each party and his review of the other two categories, the trial
    judge would point out evidence, or the absence of evidence, that a party
    contended also related to count one.

[84]

For example, when initially summarizing the
    Crowns position, the trial judge pointed out the evidence the Crown regarded
    as relevant to the existence of a criminal organization, its membership, and
    its objective. The trial judge spent about 20 transcript pages identifying and
    reviewing some of the intercepted conversations that the Crown was relying upon
    to prove its case on count one. He completed his overview of the Crowns case
    on count one by stating:

That completes my case of the Crown as it
    relates to the alleged participation in the activities of a criminal
    organization by Abdullahi. This is not a group that was randomly founded to
    commit one crime. Rather, it was a continuing group that was involved in the
    transfer of and the negotiations for the transfer of some illegal firearms with
    Bihi on March 30, 2013  Ayanle Omar on March 28, 2013  [and] Abdi and Porter
    on April 9, 2013.

[85]

The trial judge followed a similar structure
    when he reviewed the evidence relating to the appellants position, including
    pointing out for the jury what the defence contended were weaknesses with some
    of the intercepted conversations. The trial judge concluded his overview of the
    appellants position by stating:

Count number one alleges that Abdullahi
    participated in the activities of a criminal organization. This offence does
    not include a group randomly formed for the commission of one offence. The
    organizational structure of the alleged group was not discussed in any of the
    conversations. The events of March 31, 2013 are, if proven beyond a reasonable
    doubt, one crime committed by two people. This does not meet the definition of
    criminal organization. You should reject the position of the Crown on the issue
    of criminal organization in the submission of the defence. Return a verdict of
    not guilty on count one.

To the extent that the Crown is attempting to
    augment its position on the issues of criminal organization through the opinion
    of Detective Constable Kerr about the existence of an urban street gang in the
    area of the apartments on Dixon Road, reject it.

[86]

So, by the time the trial judge came to instruct
    the jury on the legal issues involved with the third category  the criminal
    organization count  he had already reviewed a considerable body of evidence
    that the Crown and the appellant contended related to count one. After going
    over the three elements of the criminal organization offence, the trial judge
    recalled for the jury the earlier overviews he had given of the positions of
    the Crown and the appellant. In recalling the evidence relating to the first
    element of the criminal organization offence, the trial judge stated:

Recall the overview of the case for the Crown
    especially insofar as it relates to the participation and the activities of the
    criminal organization. Recall as well the overview of the case for Abdullahi
    especially insofar as it relates to the frailty of the Crowns case concerning
    the identity of the driver of the white car. On the evidence, the most the
    Crown has proven against Abdullahi is that he was part of a group randomly
    formed for the commission of one crime on March 31, 2013. Such a group is not a
    criminal organization. The opinion of Detective Constable Kerr about the
    existence of urban street gangs especially insofar as it relates to the colour
    red and the Bloods gang and the photograph of Abdullahi wearing red and
    displaying the Bloods hand sign should be given no weight. Some young people
    do foolish things. Do not interpret the circumstances of this case through a
    lens that is clouded by ethnocentric or classist attitudes. Return a verdict of
    not guilty in favour of Abdullahi on count one.

[87]

The trial judge then continued by recalling
    evidence relating to the other two elements of the criminal organization
    offence.

[88]

Consequently, when the charge is read as a
    whole, I am satisfied that the trial judge adequately highlighted for the jury
    what evidence related to the first element of the criminal organization
    offence, namely the existence of a criminal organization.

C.      Conclusion

[89]

For these reasons, I am not persuaded that the
    trial judge made any reversible error in charging the jury on count one, the
    criminal organization offence.

V.      THIRD ISSUE ON THE CONVICTION APPEAL: THE JURY CHARGE ON THE
    FLIGHT FROM THE WHITE CAR

The issue stated

[90]

Early in his charge, after concluding his
    preliminary instructions to the jury, the trial judge dealt with the issue of
    the appellants alleged actions and words on March 31, 2013. The trial judge
    stated that the alleged actions and words included:

[T]he evasive driving on the 401, the driving
    through a red light at the intersection of Chetta Place and Dixon Road where a
    marked OPP cruiser with its flashing lights and siren on joined the pursuit of
    the white car by Constable Fraser and Constable Dipietro, the driving through
    the door to the underground parking area of one of the apartment buildings in
    the complex near that intersection,
the flight from the
    white car
, abandoning it and its contents and the false reports to Hertz
    that the white car was stolen on March 30, 2013, the day before the pursuit of
    the [Police Support Unit]. [Emphasis added.]

[91]

If the jury accepted that evidence as conduct by
    the appellant, the trial judge told them that it was circumstantial evidence
    they could use to determine two issues: (i) the identity of the driver of the
    white car; and (ii) the drivers knowledge of the presence of the illegal guns
    in the black bag found on the front passenger seat of the white car after it
    was abandoned.

[92]

After explaining to the jury some of the
    frailties of circumstantial evidence, the trial judge continued:

Approach the evidence allegedly related to
    Abdullahis conduct on March 31, 2013, as summarized, in three steps. First,
    consider the rest of the evidence that tends to identify Abdullahi as the
    driver of the white car. The rest of the evidence includes the evidence tending
    to identify his voice on the many pertinent intercepted conversations, the presence
    of Abdullahis fingerprint on the outside of the drivers door of the white
    car, and the presence in the white car of the drivers license with the
    photograph of the Defendant, Abdullahi, on it.

Second, if, after considering the rest of the
    evidence as a whole, you are satisfied that Abdullahi was one of the persons in
    those conversations,
consider the evidence of flight and
    the evidence of false reports of theft to Hertz in deciding whether or not the
    count is proven beyond a reasonable doubt that Abdullahi was the driver of the
    white car. And further, that Abdullahi knew the black bag had three illegal
    firearms in it
.
You may only use the evidence of the report of
    the theft of the white car as a false report only if you are satisfied by the
    other evidence that it was false.

Third, assuming you are satisfied Abdullahi
    was a party to those conversations, in determining the weight to be given to
    this evidence, decide whether there may have been an innocent reason for such
    flight and such false reports. Sometimes people who are entirely innocent do
    such things as a result of panic, of fear of being improperly apprehended as
    the guilty party, a distrust of the police or someone unwilling to get involved
    in a case at all for reasons personal to them. Other reasons may be apparent to
    you.

[93]

The appellants trial counsel did not object to
    this part of the charge.

[94]

On appeal, the appellant submits that although
    it was open to the jury to use the evidence of flight by the cars driver to
    find that he knew there were guns in the black bag, the evidence of flight had
    no probative value on the issue of whether the appellant was the driver of the
    car. As a result, the trial judge erred in so instructing the jury.

Analysis

[95]

After-the-fact conduct may constitute
    circumstantial evidence of guilt. Whether such evidence is admissible is simply
    a matter of relevance. As with all other evidence, the relevance and probative
    value of post-offence conduct must be assessed on a case-by-case basis:
R.
    v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 22. As the Supreme
    Court noted in
White
, at para. 39, in some cases flight
per se
may be relevant in determining the identity of the perpetrator of the offence.

[96]

The appellant contends that this is not such a
    case. I accept the appellants submission that in the circumstances the
    evidence of flight offered no probative value on the issue of whether the
    driver was the appellant. While the evidence of flight could be probative on
    the issue of knowledge of the presence of guns in the car, it is not apparent
    how it could assist on the issue of who was driving the car, particularly where
    all the cars occupants fled before the police arrived.

[97]

That said, I regard this error by the trial
    judge as one of no consequence given the significant evidence of the
    appellants connection to the white car available for the jury to consider,
    such as: the presence of the appellants fingerprint on the exterior of the
    drivers side door; a rental car agreement in the appellants name; and a
    wallet in the glove compartment that contained identification and banking cards
    in the appellants name. Moreover, the impugned direction invited the jury to
    treat flight as evidence of identity; it did not require the jury to do so. The
    jury was therefore left to reason for itself. Given that there is no logical
    connection between flight and the identification of the driver, it is not
    probable that this misdirection would have led the jury into error in any
    event.

[98]

Accordingly, I would not give effect to this
    ground of appeal.

Conclusion on conviction appeal

[99]

For the reasons set out above, I would dismiss
    the appellants appeal from conviction.

VI.     SENTENCE APPEAL

[100]

The Crown sought a sentence of 12-13 years; appellants trial
    counsel sought a sentence of six to eight years. The trial judge imposed a
    global sentence of 12 years (less pre-sentence custody credit), apportioned as
    follows:

·

Count 1: participation in the activities of a
    criminal organization, three years consecutive;

·

Counts 2-6: possession of an unauthorized
    firearm (one for each of the five firearms), four years concurrent on each
    possession count, consecutive to the other counts;

·

Count 7: possession of property obtained by
    crime, one year consecutive; and

·

Count 8: conspiracy to traffic illegal firearms,
    four years consecutive.

[101]

The appellant submits that the trial judges sentencing reasons disclose
    two errors that should attract appellate intervention and result in the
    reduction of his sentence by some amount. First, the trial judges finding that
    the appellant was the leader of the criminal organization was unreasonable on
    the evidence. Second, the trial judge improperly applied, in effect, a unique
    aggravating factor to members of minority groups.

VII.    FIRST ISSUE ON THE SENTENCE APPEAL: FINDING
    THE APPELLANT WAS THE LEADER OF THE CRIMINAL ORGANIZATION

The issue stated

[102]

During the course of her sentencing submissions, Crown counsel
    stated:

Despite that Mr. Abdullahi is a first
    offender, the offences that he is involved in and his position, level of trust
    and the influence that he seems to have is evidence that he is not a neophyte
    within the criminal organization. He gets to say what the plan is to Ayanle
    Omar. He gets to change the plans when he changes the car he is driving on
    March 30 and then tells Daud Hussein what is going to happen on March 31. Even
    his name reflects his position in the group. HNIC stands for Head N-word in
    Charge.

Prior to March 31 he seemed well on his way to
    becoming one of the heads of the Bloods operating in the Dixon area. He was one
    of the first people to be called if other members of the group had guns to sell
    or wanted to purchase firearms. He made the plans and arrangements along with
    Daud Hussein for the shipment of guns from Ayanle Omar in Windsor to Toronto to
    distribute amongst the gang members in the Dixon neighborhood on March 31.



In terms of the aggravating factors for Mr.
    Abdullahi, it would be the Crowns position that he was one of the leaders well
    on his way to being a person who would give direction and get financial
    benefit. He makes arrangements. He makes changes in plans. He tells others how to
    plan and what to do.

[103]

The trial judge obviously was persuaded by those submissions. He found,
    at p. 9 of his sentencing reasons, that the appellant was a principal member
    and leader of the criminal organization:

A criminal organization existed from March
    2013 to June 2013. Its core members were Ahmed Abdullahi, Daud Hussein, Ayanle
    Omar,
Siyadin Abdi
and Mohamed Siad. Abdullahi was
    one of its principal members; he was its leader, and was regarded as such by
    the other participants. He was trusted and respected by the others.



Third, Abdullahi was one of the principal
    members of the group. He was its leader, and was regarded as such by the others
    in the group.
They
referred
    to him as H.N.I.C. (Head N[*****] in Canada), HN or H
. He was trusted and
    respected. He planned much of its activities, the buying and selling of
    firearms. The area around the apartment buildings on Dixon Road was the group's
    area. It had safe houses to store the firearms, and lookouts to undermine the
    policing of crime in the area. Abdullahi directed the method of payment for
    some sales of firearms He established the group, selected its members and
    maintained its cohesion despite its frequent disputes. His primary motivation
    was a financial one He 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.

[104]

The appellant submits that those were unreasonable findings by the
    trial judge, especially given the circumstantial nature of the evidence. The
    Crown contends that the findings were reasonable and supported by the evidence.

Analysis

[105]

I accept the Crowns submission. The intercept evidence disclosed
    that the appellant was addressed as the Head, HNIC, HNI, or H by principal
    members of the organization (Ayanle Omar and Siyadin Abdi) and a person with
    whom the appellant arranged to sell firearms (Abdulkadir Bihi).
[1]
The intercept evidence also supported the trial judges finding
    that the appellant planned activities of the organization, such as the buying
    and selling of firearms.
[2]

[106]

The appellant submits that in finding he was the leader of the
    criminal organization the trial judge went further than the Crowns
    submissions. In closing to the jury, the Crown described the appellant as one
    of the leaders of the criminal organization. Given the use the trial judge
    made of the appellants position in the organization, I do not regard that as a
    material difference. The trial judge considered the appellants position in the
    criminal organization relative to other Project Traveller accused in order to
    fashion a sentence for the appellant that satisfied the parity principle:
Criminal
    Code
, s. 718.2(b).

[107]

The trial judge was sentencing both the appellant and Warsame. As
    part of the sentencing process, the trial judge requested counsel to inform him
    about the dispositions for other Project Traveller accused who had been
    sentenced and whose names were part of the case before him. He was informed
    that Siyadin Abdi had entered guilty pleas in respect of charges relating to
    the April 9, 2013 events and received a global sentence of six years. And, as
    set out at p. 22 of his sentencing reasons, the trial judge was told that Daud
    Hussein  who was a passenger in the car Abdullahi had driven from Windsor to
    Toronto on March 31, 2013  had pleaded guilty to charges relating to the March
    31, 2013 events and received a global sentence of eight years.

[108]

The trial judge concluded that Hussein played a more significant
    role in the organization than Warsame, who had acted as a courier and custodian
    of firearms.

[109]

However, he found that Husseins role was of less significance
    than Abdullahis, given the latters leadership role in the group. As well, the
    trial judge noted that Hussein had expressed remorse through the plea of
    guilty and his other remarks to the sentencing court: at p. 22. Those were
    factors that led the trial judge to impose a higher sentence on Abdullahi than
    Hussein had received.

[110]

Accordingly, I do not regard the trial judges finding about the
    appellants relative position in the criminal organization as unreasonable or
    the use he made of that finding as erroneous.

VIII.   SECOND ISSUE ON THE SENTENCE APPEAL:
    APPLYING THE PRINCIPLES OF DENUNCIATION AND DETERRENCE

The issue stated

[111]

The appellant is a black man. In considering the fit sentence for
    the appellant, the trial judge wrote the following as part of his discussion of
    the need to apply the principles of denunciation and deterrence for offences
    involving the trafficking of firearms:

Crimes 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.

[112]

The appellant submits that this comment was an improper basis for
    increased emphasis on principles of deterrence and denunciation over
    rehabilitation or mitigating factors. In his factum, the appellant submits:

The implicit logic of this statement is that
    crimes committed by members of 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. Although the intent of this consideration may be well-meaning and
    motivated by a desire to reduce prejudice, its result is to apply a unique
    aggravating factor to members of minority groups, and convey that marginalized
    offenders are responsible for bigotry directed against their communities.
    Effectively, this would require longer sentences for offenders from
    marginalized backgrounds whenever they commit crimes that bigots believe their
    community is more prone to committing, as a punishment for reflecting poorly on
    their community. This was improper.

Analysis

[113]

I accept the appellants submission about the implicit logic of the
    trial judges comment and the risk that it applies a unique aggravating factor
    to members of minority groups. While I have no doubt that the trial judge made
    the comment in furtherance of the fundamental purpose of sentencing to protect
    society and to contribute to respect for the law and the maintenance of a just,
    peaceful, and safe society, his apparent imposition of a unique aggravating
    factor on members of minority groups has no place in Canadian sentencing
    principles. It was an error for the trial judge to have made that statement.

[114]

Did that error have an impact on the sentence imposed, thereby
    permitting appellate variation of the sentence, as articulated in
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11 and 44? On my
    reading of the sentencing reasons, I am persuaded that it did.

[115]

There is no doubt that at several places in his sentencing reasons
    the trial judge drew on permissible sources
[3]
and principles to emphasize the role of deterrence and denunciation for
    offences involving the trafficking of firearms: at pp. 17, 18, 23, and 27.
    Given those appropriate references, there was no need for the trial judge to
    resort to his erroneous comment. That he did signifies that he must have seen
    that erroneous factor as adding to the gravity of the appellants offences.

[116]

In those circumstances, I would reduce the appellants sentence by
    two years to reflect the impact on the sentence of the trial judges erroneous
    comments. I would apply that reduction to the four-year sentence imposed by the
    trial judge for Count 8, conspiracy to traffic illegal firearms. I would reduce
    the sentence on Count 8 to two years consecutive.

Conclusion on sentence appeal

[117]

For these reasons, I would allow
the
    appellants appeal from sentence and reduce the sentence on Count 8 to two
    years consecutive
.

IX.     DISPOSITION

[118]

For the reasons set out above, I would
    dismiss the appellants appeal from conviction. I would allow his appeal
from sentence and reduce the sentence on Count 8 to two years
    consecutive, which reduces the global sentence from 12 years to 10 years.

David
    Brown J.A.

I
    agree. Gary Trotter J.A.


Paciocco J.A. (dissenting in part)

OVERVIEW

[119]

I agree with my colleagues disposition of the conviction appeal,
    save on one ground. For reasons that follow, I would find that the trial judge
    erred by failing to adequately charge the jury on the definition of criminal
    organization in s. 467.1(1) of the
Criminal Code
, R.S.C. 1985, c.
    C-46. I would therefore set aside the appellants conviction, on count 1, of
    participating in the activities of a criminal organization for the purpose of
    trafficking weapons, contrary to s. 467.11 of the
Criminal Code
, and
    order a new trial on that charge.

[120]

I also agree with my colleagues disposition of the sentence appeal
    but, given that I would set aside the s. 467.11 conviction, I would also set
    aside the accompanying three-year consecutive sentence.

[121]

In my view, the jury charge on the s. 467.11 offence was not
    functionally adequate. For this offence to occur, there must be a criminal
    organization. As I will explain, as a matter of law, a criminal organization
    must have structure and continuity. The absence of structure and continuity in
    the group that the appellant was alleged to be part of was central to the
    appellants defence on this count. Yet, there is nothing in the trial judges
    charge to the jury, when examined as a whole and in the context of the entire
    case, that would in all probability have conveyed these elements of the
    offence to the jury:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at
    para. 30.

[122]

This was not an imperfection in the jury charge. It was a
    non-direction on a key and material element of the criminal allegation, an
    element that the jury was obliged to consider.

[123]

At the end of the day, the overriding question is whether the jury
    was properly equipped:
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301,
    at para. 9. I am persuaded that the jury was not properly equipped to resolve
    the s. 467.11 charge.

THE STRUCTURE AND CONTINUITY REQUIREMENTS

[124]

I will begin with the need for a charge on structure and continuity.

[125]

The requirement that a criminal organization have structure and
    continuity is not expressed in the definition of criminal organization in
    s. 467.1(1). However, it is not uncommon for additional unexpressed
    elements to be read into
Criminal Code
provisions that define criminal
    offences, based on a purposive and principled reading of those provisions. This
    is the case with the structure and continuity requirements in the definition of
    criminal organization in s. 467.1(1).

[126]

In
R. v. Venneri,
2012 SCC 33, [2012] 2 S.C.R. 211, at
    paras. 25-41, Fish J. explained that the requirements of structure and
    continuity are inherent in the concept of an organization in s. 467.1(1), and
    are needed to set criminal organization offences apart from conspiracies,
    aiding and abetting, and common intention crimes. Structure and continuity
    give rise to the criminal advantages that criminal organizations enjoy.
    Structure and continuity therefore play an important role in justifying [t]he
    increased penalties and stigma associated with the organized crime regime:
Venneri
,
    at para. 36. Simply put, structure and continuity are not incidental to
    criminal organization offences. They are central attributes that a criminal
    organization must have.

[127]

My colleague correctly notes that the determination of whether a
    criminal organization exists must be flexible, and that even a minimal level of
    organization suffices. I do not understand him to say, however, that the
    determination is flexible enough, or the required level of organization so
    minimal, that the requirements of structure and continuity can be disregarded.
    Such an interpretation of
Venneri
would be mistaken.

[128]

Fish J. made two material points. First, whether there is a criminal
    organization is not determined based on the typical attributes of particular
    kinds of organization:
Venneri
, at paras. 37-41. Instead, the question
    is whether, on all the relevant evidence, there is a group of three or more
    persons that [poses] an elevated threat to society due to the ongoing and
    organized association of [its] members:
Venneri
, at para. 40. Second,
    a group that has even a minimal degree of organization over a period of time
    may meet this description:
Venneri
, at para. 36.

[129]

It follows that when structure or continuity are live, material
    issues in a case, to correctly charge a jury on an alleged criminal
    organization offence, the trial judge must successfully communicate these requirements
    to the jury. This need not be done using particular words or in a prescribed
    sequence, but it must be done. Where a trial judge fails to do so, there is a
    non-direction amounting to a misdirection that can only be saved, if at all,
    under the curative proviso.

THE NON-DIRECTION

[130]

Here, structure and continuity were live, material issues. The trial
    judge requested that the parties provide their theories of the case, in
    writing, to assist him in preparing the charge. Defence counsel cited
Venneri
,
    posed the rhetorical question, Where is the structure and continuity to this
    group that is alleged to be a crim org?, and made related submissions over the
    course of almost a page in his six-page summary addressing the eight charges
    that his client faced. He also made submissions in his jury address about
    structure and continuity.

[131]

Yet, nowhere in his charge does the trial judge communicate to the
    jury that structure and continuity are essential to the s. 467.11 offence.

[132]

As he began to canvas the elements of that offence, the trial judge
    told the jury, [t]he definitions of these elements are important. You must
    understand them. His message was clear: he was about to direct the jury on
    what they would have to find in order to convict the appellant under s. 467.11.

[133]

Describing the elements of s. 467.11, he said:

The first element is the existence of a
    criminal organization. A criminal organization is

(a) a group, however organized, that is
    composed of three or more persons in or outside Canada; and that

(b) has, as one of its main purposes or
    activities, the facilitation or commission of one or more serious offences
    that, if committed, would likely result in the direct or indirect receipt of a
    material benefit including a financial benefit by the group or any one of the
    persons who constitute the group.

[134]

This definition, which faithfully captures the language of s.
    467.1(1), does not communicate the need for structure and continuity. It
    communicates three things about the required composition of the group: (1) that
    it must be a group, however organized; (2) that it must be composed of three or
    more persons; and (3) that one of its main purposes must be the commission of
    one or more criminal offences for the material benefit of the group or one of
    its members.

[135]

The latter two requirements relate to number and purpose, and say
    nothing about structure or continuity. While structure and continuity may be
    suggested by the phrase, a group, however organized, it is evident that this
    phrase does not, in itself, communicate the need for structure and continuity.
    After all, before discussing these requirements extensively in
Venneri
,
    Fish J. noted that, erroneously, [s]ome trial courts have found that very
    little or no organization is required before a group of individuals are
    potentially captured by the regime:
Venneri
, at para. 27. Clearly,
    the
Criminal

Code
definition of criminal organization did not
    alert these trial courts to the need for structure and continuity.

[136]

After communicating elements (a) and (b) from s. 467.1(1), quoted
    above, the trial judge said, It is necessary to elaborate upon each of the
    components of that definition, no doubt causing jurors to conclude that he was
    about to provide a complete description of the elements of the offence.

[137]

Critically, in his elaboration, the trial judge did not mention the
    requirement that the organization have structure and continuity. Nor did he
    mention the need for structure or continuity during the balance of his 19-page
    charge on the criminal organization count. He did tell the jury that the
    requirement of a group of three or more persons is not met if the group was
    formed randomly for the immediate commission of a single offence, but this
    direction relates not to the structure and continuity of a group, but to how it
    must come together.

THE CONTEXT OF THE CASE

[138]

My colleague offers three points, each arising from the context of
    the case, in rejecting the appellants submission that the charge was
    defective: (1) portions of the evidence concerned structure and continuity, (2)
    the charge must be read in light of the closing submissions by counsel for the
    parties, and (3) trial counsel did not object to the charge. I will explain
    why, respectfully, I cannot agree that these considerations ameliorate the
    trial judges non-direction on the essential elements of structure and
    continuity.

(1)

Portions of the evidence concerned structure and
    continuity

[139]

I recognize that [a]llegations of non-direction amounting to
    misdirection must be assessed contextually, in line with the facts and circumstances
    of the particular case:
Calnen
, at para. 11.

[140]

Such an assessment may reveal that the charge, as a whole,
    adequately addressed the issues in the case. For example, in
Calnen
,
    the trial judge failed to direct the jury not to draw the prohibited inference
    from evidence of extrinsic misconduct. However, after examining the extrinsic
    misconduct evidence, the majority was satisfied that its proper use had been
    adequately explained to the jury in the balance of the charge:
Calnen
,
    at paras. 26-31.

[141]

An assessment of the facts could also lead to a determination that
    the missing direction was not required. For example, in
R. v. Ellard
,
    2009 SCC 27, [2009] 2 S.C.R. 19, a review of the material evidence showed that
    the prior consistent statements at issue offered neither assistance to the
    Crown nor harm to the defence, making a direction on the permitted uses of
    prior consistent statements unnecessary.

[142]

In both of these illustrations, which are not exhaustive, the facts
    and circumstances of the case shed light on the sufficiency of the charge.
    Here, however, the fact that evidence on the record could be related to
    structure and continuity does not support the sufficiency of the charge. No
    solace can be taken from its existence, as that evidence could not have alerted
    the jury that they could not convict on the criminal organization offence
    without finding that the group had structure and continuity. If anything, the
    existence of that evidence reinforces that structure and continuity were live
    issues that the trial judge was obliged to equip the jury to grapple with.

(2)

The charge must be read in light of the closing
    submissions by counsel for the parties

[143]

I also accept that the closing submissions of the parties may be
    relevant to the sufficiency of the charge. For example, in
R. v. Niemi,
2017 ONCA 720, 355 C.C.C. (3d) 344, at para. 103, leave to appeal refused,
    [2019] S.C.C.A. No. 117, the trial judges summary of counsels submissions,
    given as part of the jury charge, supported the finding that the jury would not
    have taken the trial judges description of the need for a temporal connection
    as a direction that only a temporal connection was required. Neither counsel
    focused on temporal connection in their submissions and the balance of the
    trial judges charge reinforced that a connection must be more than merely
    temporal to suffice.

[144]

Alternatively, counsels submissions may be relevant to the
    sufficiency of the charge because they illustrate that an issue is material
    enough to require a direction. Here, defence counsels closing submissions
    highlighted that structure and continuity were live issues on which the jury
    required direction.

[145]

The obligation to direct the jury, however, rests with the trial
    judge, not counsel. Only a judge can direct or instruct a jury. In my view, it
    is only in rare circumstances, if ever, that counsels words can compensate for
    a trial judges non-direction. While defence counsel told the jury that the law
    requires structure and continuity, his statements cannot compensate for the
    trial judges non-direction, for three reasons.

[146]

First, the jury were told different things by counsel about the
    meaning of criminal organization. Defence counsel said that the law requires
    structure and continuity, but Crown counsel did not. Crown counsel described a
    criminal organization as a group composed of three or more people whose main
    purpose is to facilitate or commit serious offences such as firearms trafficking,
    to benefit the group financially or otherwise, and said nothing about the need
    for structure and continuity. Which counsel, if any, did the jury listen to?

[147]

Second, the jury was told to take the law from the trial judge, not
    counsel. Crown counsel gave submissions first. Before describing a criminal
    organization to the jury, Crown counsel said, His Honour will give you the
    definition of what a criminal organization is, so I wont dwell on it here.
    Immediately before telling the jury that structure and continuity are required,
    defence counsel said, His Honour will elaborate on this for you. It cannot be
    assumed, in these circumstances, that the jury would have relied on what either
    lawyer said about the law. They would have attended to what the trial judge
    said.

[148]

Third, of course, is the effect of what the trial judge did and did
    not say about the law. As I have described, after alerting the jury that he was
    going to tell them about the important definitions of the elements of a
    criminal organization that they must understand, the trial judge said nothing
    about structure or continuity. As a result, the trial judge not only gave a
    non-direction on an essential element of the offence, but invalidated defence
    counsels claim that the law requires structure and continuity.

[149]

For these reasons, if it is ever appropriate to overlook a judicial
    non-direction because counsel has furnished the legal information, this is not
    such a case.

(3)

Trial counsel did not object to the charge

[150]

The failure to object can be an important factor in appellate
    review:
R. v. Adan
, 2019 ONCA 709, at para. 63. However, [t]he
    failure to object is not decisive and does not make whole what is otherwise
    an error:
Adan
, at para. 63. Given the variable impact of such
    failures, the relevance of a failure to object requires close consideration. A
    failure to object will generally be significant in two circumstances.

[151]

First, the failure to object can impede an appeal where it appears
    to have been tactical:
Calnen
, at para. 67. Essentially, a party
    cannot strategically withhold an objection at trial and then make it on appeal.

[152]

Alternatively, [a] failure to object to an instruction later
    advanced as erroneous before a reviewing court may say something about the
    overall accuracy of the instructions, the fairness of the charge, and the
    seriousness of the alleged misdirection:
Adan
, at para. 63 (citations
    omitted).

[153]

My colleague does not suggest that defence counsels failure to
    object in this case was tactical. There was no good reason to choose not to
    object, a point I will return to below. Instead, he concludes that the common
    ground between the parties, that structure and continuity had to be proved,
    underlay the lack of objection.

[154]

With respect, I cannot join in this conclusion. First, it is not
    clear that the parties agreed that structure and continuity are required
    elements of a criminal organization. I have already noted that when Crown
    counsel defined criminal organization for the jury, she did not include
    structure or continuity as requirements. In summarizing her theory of the case,
    Crown counsel referred to the cohesiveness of the group. In her jury address,
    she spoke of cohesiveness and continuity. No mention was made of structure.
    In my view, it cannot be inferred with any degree of confidence that defence
    counsel concluded, from what Crown counsel had said, that they were in
    agreement that structure and continuity were elements that the Crown had to
    prove to gain a conviction in a criminal organization offence.

[155]

The inference that defence counsel did not object to the
    non-direction because the parties were on the same page requires closer
    scrutiny for other reasons. Ultimately, the significance of the failure to
    object must be determined in the totality of the circumstances. In this case,
    those circumstances include that structure and continuity are essential
    components of the charged offence, and that the appellant was defending the
    charged offence, in large measure, on the theory that the Crown had not proved
    these essential components. With respect, I cannot accept that, in the
    circumstances, defence counsel would have refrained from asking the trial judge
    to instruct the jury on the need to prove structure and continuity because he
    believed that the Crown also saw these elements as essential. I cannot see why
    he would be concerned with what the Crown understood. His concern, had he
    considered it, would have been with what the jury understood.

[156]

The fact remains, of course, that defence counsel did not object to
    the trial judges non-direction on this crucial point. No doubt he should have
    done so. But the trial judges non-direction furnished the appellant with no
    tactical benefit. Defence counsels failure to object to the non-direction
    could not have helped his client. It could only have hurt his client by
    obscuring a key plank in his defence. More importantly, the non-direction left
    the jury unequipped to understand the legal implications of a failure by the
    Crown to prove structure and continuity. This was a significant omission. In these
    circumstances, defence counsels lack of objection says nothing, in my view,
    about the overall accuracy of the instruction, the fairness of the charge, or
    the seriousness of the non-direction. The only reasonable inference is that,
    like the trial judge, defence counsel failed to notice the non-direction.

[157]

In this regard, defence counsel failed in his obligation to assist
    the trial judge in preparing the charge. So, too, did Crown counsel, a
    quasi-judicial officer obliged to ensure that the accused gets the benefit of
    the law. Ultimately, though, the trial judge is responsible for charging the
    jury on the law. The failure to fulfil this obligation should not be overlooked
    because counsel failed to provide the expected assistance by objecting. The
    appellant was entitled to a properly charged jury and he did not get one.

CONCLUSION

[158]

I would reject all other grounds of conviction appeal advanced by
    the appellant but, for the reasons just offered, would allow the conviction
    appeal on count 1, the s. 467.11 offence. I would set aside the conviction on
    that charge and order a new trial.

[159]

I would join my colleague in allowing the appellants appeal from
    sentence and reducing the global sentence by 2 years. However, having set aside
    the conviction on count 1, I would also set aside the 3-year consecutive
    sentence imposed on that count.

Released: DB FEB 08 2021

David
    M. Paciocco J.A.





[1]
Intercept sessions 16, 1970, 2051, 4048, 4207, 7505 and 16192.



[2]
Intercept sessions 1092, 1966, 1970, 6455, 7505, 7514 and 7521.



[3]

The
    trial judge cited the decision of this court in
R. v. Danvers
(2005),
    199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78, and the decision of Kelly J. in
R.
    v. Lambert
, 2011 ONSC 3906, [2011] O.J. No. 3389, at para. 48.


