Court of Appeal
Decision Information
Transcript of the Decision on Bail Pending Appeal
Decision Content
Mohammed v R, 2021 NWTCA 3 A-1-AP-2020-000011
IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES
IN THE MATTER OF:
LIBAN MOHAMOOD MOHAMMED
-v-
HER MAJESTY THE QUEEN
________________________________________________________
Transcript of the Decision on Bail Pending Appeal delivered by the Honourable Justice L. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 8th day of January, 2021.
________________________________________________________
APPEARANCES:
B. Green: Counsel for the Crown
J. Chadi: Counsel for the Defence
--------------------------------------------------------------------------
Charges under s. 354(1)(a) of the Criminal Code and
s. 5(2) of the Controlled Drugs and Substances Act
I N D E X
PAGE
RULINGS, REASONS
Reasons for Decision 1
THE COURT: The appellant was found guilty after a trial before a judge sitting alone of charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He was sentenced on October 2, 2020 to five-and-a-half years imprisonment. He has filed appeals of his convictions and his sentence and now applies for bail pending appeal. He proposes to be released on a number of conditions including, among others, that he reside in Edmonton, that he deposit $5,000 in cash, that he be subject to residency and curfew requirements, reporting conditions and prohibition from leaving Alberta.
The charges stem from the execution of a search warrant at an apartment in Yellowknife. When the RCMP executed the search warrant, the appellant was alone in the apartment. The apartment was searched. It had a number of bedrooms, including two on an upstairs level.
In one of those bedrooms, which was locked, police found two safes. In one of the safes, two bags of cocaine and over $52,000 in cash were found. There was also a bag of cocaine on the table. Various other items were found in the bedroom.
The tenant of the apartment was also eventually arrested. He was tried jointly with the appellant and was found not guilty at the conclusion of the trial. A third individual was also charged separately in relation to these events but has not yet had his trial.
The core issue at trial was whether the Crown had proven that the accused were in possession of the drugs and money found in the safe. The Crown did not present any direct evidence on that issue. The case against both accused was entirely circumstantial.
Although the appellant appeals conviction and sentence, at the hearing of this application, counsel focused their submissions on the criteria that apply when bail pending appeal is sought in the context of a conviction appeal. I will focus on those criteria as well.
Section 679(3) of the Criminal Code provides that an appellant who applies for bail pending appeal on a conviction appeal must establish three things:
1. that the appeal is not frivolous;
2. that the appellant will surrender himself into custody in accordance with the terms of his release order; and
3. that the detention of the appellant pending the hearing of the appeal is not necessary in the public interest.
These three things must be established on a balance of probabilities.
In R. v. Oland, 2017 SCC 17, the Supreme Court of Canada provided guidance about the analysis of the public interest criterion in this test. Often, that is the most challenging one of the three to apply. The Supreme Court reaffirmed its earlier pronouncement that public interest consists of two components; public safety and preserving public confidence in the justice system. The public confidence component in turn requires a balancing of the competing interests of the reviewability of judgments and their enforceability.
Reviewability recognizes that our justice system is not infallible and that those who challenge its conclusions are entitled to a meaningful review process. Enforceability reflects the notion that judgments need to be enforced without delay if the public's confidence in the system is to be preserved. In the context of bail pending appeal, there is always a tension between these two interests.
The notion of maintaining public confidence in the justice system also arises in the context of pretrial bail when the tertiary ground for detention is invoked. In that context, Parliament has identified in section 515 of the Criminal Code specific things that should be considered. The Supreme Court said in Oland that those factors, with some nuance and adaptations, are also relevant to the public confidence analysis in bail pending appeal applications.
The seriousness of the crime and its circumstances play a role in assessing the enforceability interest. In short, the more serious the crime, the greater the enforceability interest. The strength of the grounds of appeal is a very important aspect of the reviewability component. An applicant must, of course, establish that an appeal is not frivolous as a separate prong of the test, but the strength of the appeal is also relevant when one considers public interest.
The bar to establishing that an appeal is not frivolous is very low. Of the cases that meet that low bar, some necessarily present much better chances of success than others. Therefore, in assessing whether detention is or is not necessary in the public interest, the Court must inevitably consider the strength of the appeal beyond the mere question of whether it is frivolous or not. This is done by examining the grounds of appeal, in the words of the Supreme Court of Canada, "with an eye to their general plausibility and their foundation in the record". Oland, paragraph 44.
Another factor that matters when considering the reviewability component is the anticipated delay in having the appeal decided relative to the length of the sentence. If it is apparent that all or most of the sentence will already have been served by the time the appeal can be heard, the meaningfulness of reviewability is compromised.
The Supreme Court also noted in Oland that public safety risks that would not alone justify detention may still play a part in the public confidence analysis. Similarly, residual flight risks that may not alone have justified detention are relevant to the public confidence analysis. Oland, paragraph 39.
Finally, overall when considering the issue of public confidence as part of the public interest branch of the test, the public whose confidence the Court must be concerned with is the same public as in the context of pretrial bail: persons who are thoughtful, dispassionate and informed of the circumstances of the case and respectful of society's values, as was outlined in R. v. St-Cloud, 2015 SCC 27.
With these principles in mind, I turn to the application that is before me. The first question is whether the appellant has established that his appeal is not frivolous. The appellant argues that the trial judge erred in her application of the standard of proof beyond a reasonable doubt to circumstantial evidence, that she misapprehended the evidence, that she made findings of fact that were not supported by the evidence, and that her verdict cannot be supported by the evidence.
The appellant also challenges the trial judge's use of an aspect of the expert evidence, arguing that a factual foundation for the opinion expressed was not in evidence. That aspect of the expert evidence, however, had to do with the expert's opinion as to the appellant's role in the drug trafficking organization. It had nothing to do with the core issue of knowledge and control. The appellant's criticism, even if justified, would be relevant to the sentence appeal, not the conviction appeal.
The trial judge correctly identified the legal principles that govern the assessment of circumstantial evidence in relation to the standard of proof beyond a reasonable doubt. She also correctly identified the legal principles that govern what constitutes possession.
In attempting to prove that the appellant occupied the upstairs bedroom and had knowledge and control of what was in the safe, the Crown relied on a variety of items of evidence, including documents and other things that were found in the suitcase and in the room. Other evidence was obtained during the investigation through production orders. This evidence included bank records and phone records of various people. In combination, these various elements of evidence established links between the appellant, various other people, and the bedroom where the drugs and money were found.
I will not go into all the details of this evidence here, but in her reasons for judgment from pages 32 to 37, the trial judge outlined the various elements of evidence that she found tied the appellant to the bedroom. R. v. Gattie and Mohammed, 2020 NWTSC 11. The appellant has not pointed to any errors in those findings.
The trial judge also recognized that there were certain gaps in the evidence such as the fact that the key to the bedroom in question was never found, that the appellant did not have a key to the apartment in his possession upon arrest. She explained why she did not find these gaps significant. She also declined to attach any weight to some of the evidence that the Crown was relying on.
For example, the appellant gave the officers a false name upon arrest. At trial, the Crown argued that this was post-offence conduct that showed a guilty state of mind. The trial judge noted that there was another explanation for this behaviour, namely, that the appellant was on parole and was not supposed to be in Yellowknife. She concluded that his giving a false name to the officers was of no assistance in deciding whether the appellant was in possession of the drugs and money found in the room.
The appellant argues that in spite of the trial judge's thorough analysis of the evidence, there were key elements of it that were significant and were missed at trial. In particular, he places great emphasis on an issue regarding the absence of evidence about certain clothing.
During the surveillance, the appellant was seen entering the apartment building and coming out shortly thereafter wearing different clothes. There was no evidence of the first set of clothing being found when the apartment and the upstairs bedroom were searched.
The appellant argues and proposes to argue on the appeal that this is key because it detracts from the conclusion that he was the occupant of that upstairs bedroom and suggests he may well have been visiting or occupying another apartment altogether. Counsel on the application candidly acknowledged that this was not raised by anyone at trial, including the appellant's trial counsel, who was a different lawyer.
My understanding based on the record before me is that a suitcase was found in the bedroom in question and that it had some clothing in it. However, while some items were seized from the suitcase, there was not a full inventory made of its content.
I agree that the fact that there is no evidence of anyone finding the clothes that the appellant had been wearing earlier that day does leave a gap in the evidence. But in a circumstantial case, as in any case, not all gaps are fatal to the Crown meeting its burden. I would add that relying heavily on this type of argument on appeal is somewhat perilous when the issue was not raised at trial.
The second aspect that counsel emphasized was the trial judge's conclusion that the appellant was able to access the apartment on his own, even though he did not have any key on him when he was arrested. Counsel points out that there was a second entranceway to the apartment building and there was no evidence that it was under surveillance at the relevant time. The implication is that another person could have entered and exited the building through that other entrance, so someone else could have let the appellant, into the apartment, as opposed to him being able to enter on his own as was found by the trial judge.
Assessing circumstantial evidence, the gaps and the overall effect of the evidence, is an exercise in balancing and weighing that must be carefully carried out. The appellant will argue on appeal that the trial judge made errors in this weighing and appreciation of the evidence and that, ultimately, there were reasonable explanations aside from guilt for the evidence and that the Crown had not met its burden.
The threshold to establish that an appeal is not frivolous is very low. I find that because this case relied exclusively on circumstantial evidence, it is difficult to label this appeal as outright frivolous because of that low threshold. But on the whole of the record before me, with respect, it does not appear to me that the grounds of appeal are compelling. I do find, however, that the appellant has established that the appeal is not frivolous.
The second thing the appellant has to establish is that he will turn himself into custody in accordance to the release order. The strongest evidence in support of the appellant's argument that he will do so is that in this case he complied with his pretrial release order, including a condition to turn himself in. He was at large prior to trial after his conviction and for a time, as I understand, after sentencing submissions were made, and he knew what sentence the Crown was asking for.
The situation at this point is a little different in that he has been sentenced and knows the sentence he is facing, but I accept that his compliance on this case suggests that he would comply with terms of a release order. There are some residual flight concerns, however, which must be considered and which I will address in examining the third branch of the test.
That third branch is whether the appellant's detention is necessary in the public interest. The primary aspect of public interest that is engaged in this case, in my view, is the public confidence component. That said, there are a few residual concerns about public safety that are worthy of note.
The appellant has a recent related criminal record for another very serious drug offence. He was still on parole for that offence when he was arrested on the present matter. He was supposed to be living in Edmonton at the time of these events and was not supposed to be in the Northwest Territories. In addition, as reflected in the Reasons for Sentence on his earlier charge, when on release on that earlier charge, he did breach the terms of his release. R. v. Mohammed, 2015 NWTSC 38 at pages 3 and 6.
With respect to the public confidence aspect and dealing first with reviewability, a major consideration, as I said, is the strength of the appeal. Although it will obviously be for a panel of this Court to decide, it seems to me that the grounds of appeal mostly amount to an attempt to re-argue the case and do not have a strong chance of success.
The second element that is important from the point of view of reviewability is the expected delay in having this appeal heard. Obviously, it will not be heard at the next sittings of the Court of Appeal which are in just a few weeks. There are other sittings of the Court scheduled in April, June and October. There is no reason why this appeal could not be perfected in time to be heard without much further delay.
As far as the enforceability component, as I noted, the more serious the crime, the more significant the enforceability interest. These offences were very serious. The role that the trial judge found that the appellant was playing was significant. Drug trafficking is a serious problem in this jurisdiction and one that causes great harm. That is definitely relevant to the analysis of whether the appellant's detention is necessary in the public interest.
I have already mentioned some residual public safety concerns. Those can be taken into account when considering the issue of public confidence in the justice system. There are also residual concerns about flight risks. The appellant travelled to the Northwest Territories using a false name. The use of an alias, especially under circumstances where he was not supposed to travel to the Northwest Territories, raises concerns.
Although he turned himself into custody knowing what sentence the Crown was seeking, there remained at that time some uncertainty about the sentence that would actually be imposed. Now the sentence, much closer to what the Crown was seeking than what the defence was suggesting, has been imposed and there may be a greater incentive to flee.
There are also residual public safety concerns arising from the criminal record. The fact that the appellant was in the Northwest Territories in breach of his parole and that he breached his process while awaiting trial on his earlier matter, all this raises some concern about whether the terms of a release order could be sufficient to deter him from engaging in further activities that could be harmful to the public.
In summary, the appellant was found guilty of two very serious offences. He has a recent criminal record for a similar offence. He was on parole and effectively unlawfully in the Northwest Territories when he was arrested for these offences. He used an alias to travel to the Northwest Territories. His appeal, while not frivolous within the meaning of section 679(3)(a) of the Criminal Code, does not appear to me to be a strong one, and there is no reason to expect any particular delay in having it heard.
In my view, granting the appellant bail pending appeal under these circumstances would be detrimental to the confidence that reasonable and well-informed members of the public place in the administration of justice. I am not satisfied that the appellant has established that his detention is not necessary in the public interest. For those reasons, his application is dismissed.
This matter will remain on the pending list of appeals to be scheduled once it is perfected. Although this information is, I believe, on the Court's website, for counsel's information, the pending list of appeals will next be called on March 5 to determine which matters will be scheduled at the April 20 sittings of the Court of Appeal and the list will be called again on April 30 to determine which matters will be scheduled for the June 15 sittings.
So with that in mind, there are options to have this matter heard relatively quickly, and I trust that counsel will take the necessary steps to have the appeal perfected as soon as possible so that that can happen. At this point, I do not see any need for me to make any orders expediting the appeal. I am sure that counsel have it well in hand.
(PROCEEDINGS CONCLUDED)
CERTIFICATE OF TRANSCRIPT
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 27th day of January, 2021.
____________________________________
Kim Neeson
Principal