Decision Content
R v Mahamud, 2021 NWTSC 7 S-1-CR-2018-000133
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
MATAR MAHAMED MAHAMUD
Appellant
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Transcript of the Reasons for Decision by the Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, delivered orally on the 25th day of January, 2021.
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APPEARANCES:
B. Wun: Counsel for the Respondent,
appearing via teleconference
No one appearing for the Appellant
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Charge under s. 267(b) of the Criminal Code
I N D E X
PAGE
RULINGS, REASONS
Reasons for Decision 2
THE COURT: Okay. Good afternoon. So we are here for the Mahamud matter, and I see we have the interpreter again?
THE INTERPRETER: Yes, here I am.
THE COURT: Good afternoon. And there is no one appearing at this moment for the Crown or for Mr. Mahamud, it appears. I will just confirm --
B. WUN: Your Honour --
THE COURT: Oh.
B. WUN: Your Honour, it's Billi Wun on the telephone for the Crown.
THE COURT: Okay. Good afternoon, Mr. Wun. Sorry, I did not see that we had a line also active. Okay. And so Mr. Mahamud, I understand, is not present, is that correct, Mr. Clerk?
THE CLERK: Yes, Your Honour.
THE COURT: Madam Clerk. Yes, and I understand that he had sent an email, I believe, requesting that this matter be adjourned as he was still out of the country, but that further attempts to find out what his travel itinerary was and whether he could connect by phone were not successful in getting a response from Mr. Mahamud.
So we are going to proceed today with the decision. A copy of the decision of the transcript will be sent to Mr. Mahamud so that he will be aware of the results. Mr. Interpreter, I am just going to ask that you remain on the line in the event that Mr. Mahamud does connect and we will require interpretation.
THE INTERPRETER: I will.
THE COURT: Okay. Thank you. All right.
So this is a summary conviction appeal by the appellant, Matar Mahamed Mahamud, following a trial held in Territorial Court on March 14th to 16th, 2018, May 24th, 2018, and October 10th, 2018. The appellant was charged with assault causing bodily harm, contrary to section 267(b) of the Criminal Code. The appellant pleaded not guilty and a trial was held.
The Crown called three witnesses at trial: Constable Terry Boutcher, Nancy Larocque and the victim, Angus Durrie. Mr. Mahamud testified in his own defence. The Territorial Court Judge found the appellant guilty and imposed a sentence of eight months imprisonment to be served conditionally and 12 months of probation.
The appellant appeals from his conviction and sentence on the following grounds, as stated in his Notice of Appeal:
1. The verdict was unreasonable and not supported by the evidence; and
2. The sentence was not reasonable in all of the circumstances.
Facts. It is undisputed that the appellant was operating a taxicab in Yellowknife on July 24th, 2017, and that the victim, Mr. Durrie, was a passenger in the appellant's taxicab and that there was a physical altercation between the two outside of the taxicab after the appellant drove Mr. Durrie to Ciara Manor here in Yellowknife.
The trial judge found that Angus Durrie was at the Kilt & Castle Pub after work on July 23rd, 2017, and consumed a number of alcoholic beverages. When he left the bar, he flagged down Mr. Mahamud's taxi. He requested to go to McDonald's and then to Ciara Manor.
After arriving at Ciara Manor, there was an argument about how to pay for the cab fare. This argument escalated into a physical confrontation. During this physical confrontation, Mr. Durrie ended up on the ground and he was punched three times in the face by Mr. Mahamud. This was observed by Nancy Larocque, who lived in an apartment in Ciara Manor. Ms. Larocque observed this from a window in her apartment.
Following the incident, Mr. Mahamud left the scene. Mr. Durrie called the police shortly after the incident and the police arrived at Ciara Manor at 12:20 a.m. on July 24th, 2017. Mr. Mahamud called the police just before 1:00 a.m. and was arrested shortly after at the Yellowknife RCMP detachment. Mr. Durrie suffered two black eyes as a result of the incident.
The appellant's arguments are encapsulated in a one-page document which was sent to the court and states:
1. The whole trail [sic] to get me guilty was based on one witness (Nancy Larocque) which she completely told a different version of her own story about exactly what happened on the night of Sunday July 23rd, 2017;
2. The RCMP never bother to do their own further investigation by checking more witnesses in the building or even asked for surveillance and no any photos taken for the claimant at the scene. Not only that but was arrested by the RCMP even without asking me a question to get my side of the story then decide to handcuff me or not;
3. The court never bother to take into consideration my previous clean record with customers and my habit of refusing to use violence despite I had been attacked seriously by customers twice before; and
4. My life was completely shattered to pieces and I got criminal record by just one witness who decided to tell her own story.
Essentially, the issue on this appeal is: Whether the verdict was unreasonable and not supported by the evidence.
The standard of review on a summary conviction appeal is the same as stated in section 686(1) of the Criminal Code, which states:
On the hearing of an appeal against a conviction […], the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
The standard of review is whether the verdict is unreasonable, that is, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
Mr. Mahamud's claim that the verdict is unreasonable is based upon the trial judge's assessment of the evidence of the witnesses and his conclusions regarding their credibility.
When it comes to assessments of credibility, significant deference is shown to the trial judge because of their ability to observe the witnesses and assess their credibility. An appellate court is not to substitute their own views of or interfere because they disagree with the trial judge's conclusions. An appellate court should only intervene to correct a palpable and overriding error. R v Nitsiza, 2007 NWTSC 53 at paragraphs 36-37.
The trial judge in his reasons rejected Mr. Mahamud's evidence because he concluded that it did not explain Mr. Durrie's injuries; it was contradicted by the timeline established by the police; his evidence regarding why he did not use the emergency button in the taxi was contradictory; and his testimony about the incident was inconsistent with the evidence of Nancy Larocque.
The trial judge accepted the evidence of Nancy Larocque, noting that she was an independent witness who had no prior connection to the accused or complainant. He noted that she was awake and appeared to have a good vantage point to observe the interaction. The trial judge found that Ms. Larocque was honest and careful in her answers and her evidence was corroborated by other evidence on small but significant points. He noted that there was one inconsistency in her testimony which he reviewed, but he concluded that it did not cause him to doubt her reliability or veracity.
With respect to Angus Durrie, the trial judge noted that his recollection of events was clearly affected by his consumption of alcohol. The trial judge noted that Mr. Durrie appeared to be making an effort to be honest while testifying, but that given his state of intoxication and his inability to remember what he said to the RCMP, the trial judge did not consider him to be a reliable witness.
The trial judge concluded that Mr. Mahamud punched Mr. Durrie three times while Mr. Durrie was lying motionless on the ground. In coming to this conclusion he relied on the testimony of Nancy Larocque and the injuries of Angus Durrie. He acknowledged that Ms. Larocque did not see the entire interaction, but that she did see Mr. Mahamud punch Mr. Durrie three times in the face while Mr. Durrie was motionless on the ground. The trial judge concluded that the defences of consent or self-defence were not available to Mr. Mahamud at that point.
Mr. Mahamud, in oral submissions, alleged that Ms. Larocque lied and that the trial judge accepted her lies. Ultimately, he does not challenge the trial judge's conclusions, but asserts that they are based on Ms. Larocque's lies and that he did not hit Mr. Durrie three times while Mr. Durrie lay on the ground, as Ms. Larocque claimed.
This is an attempt to retry what has already been decided by the trial judge. There has already been a trial on these claims. That is not the function of an appellate court. There is no evidence that Ms. Larocque lied, told a completely different version of her story about what happened, or colluded with Mr. Durrie. These are baseless allegations.
The trial judge carefully assessed Ms. Larocque's evidence and his conclusions regarding her evidence and her credibility are reasonably supported by the evidence. There is no basis upon which to question the trial judge's conclusions regarding Ms. Larocque's evidence.
Similarly, the trial judge carefully assessed the appellant's evidence and provided several reasons for rejecting his evidence. Those reasons were explained by the trial judge and are reasonably supported by the evidence. They provide a valid basis for the trial judge to reject the appellant's evidence.
The appellant has also complained about the police investigation and the failure of the police to interview other witnesses. In oral submissions, it appears that this was based upon the evidence of Nancy Larocque where she said that she saw other people in other apartments looking at what occurred. He also complained about the police not obtaining video surveillance evidence from the apartment building.
There is no evidence that other witnesses would have observed anything which would have changed the trial judge's assessment of the evidence. It is speculative to assume that the other evidence might have led to another conclusion. The issue on appeal is the trial judge's conclusions regarding the evidence which was led at trial, not on other potential evidence which might have affected the trial judge's conclusions.
The appellant also complained that he told his lawyer about two other witnesses whom he asked to be called and that the lawyer did not do so. Upon questioning the appellant regarding his knowledge of the two other witnesses, it appears he was referring to witnesses that the victim said observed what occurred and that Ms. Larocque had also said that other people were looking at what occurred, so they are not two specific individuals that Mr. Mahamud was able to identify.
There has been no waiver of solicitor/client privilege, so I am not aware of the specific discussions between the appellant and his lawyer and I do not have the lawyer's version of any discussions that may have occurred between he and the appellant. There is no evidence regarding any efforts of the lawyer to pursue this evidence. There is no evidence either way.
I would note that counsel for Mr. Mahamud in his final submissions before the trial judge raised the issues of the lack of surveillance video and also that there were potentially other witnesses that the police did not question, so these issues were raised before the trial judge.
But, in any event, this appears to relate to the previous issue, that there were other potential witnesses who could have been located and called at trial. Again, it is speculative what these other witnesses' evidence might have been and it is not apparent that this potential evidence might have affected the trial judge's conclusions.
In my view, there was sufficient evidence to support the trial judge's conclusions. The trial judge assessed the evidence and the credibility of the witnesses and the conclusions that he came to were reasonably supported by the evidence. There is no evidence that Nancy Larocque lied or colluded with the victim in this case.
My function is not to reweigh the evidence or retry the issues, but to determine whether the trial judge's conclusions are reasonably supported by the evidence, and I find that they were. Therefore, I am dismissing the appeal from conviction.
Turning to the sentence appeal, the appellant made no submissions regarding the sentence. The only indications of a ground of appeal are in the Notice of Appeal in which he claims the sentence is unreasonable, and in his written letter, where he refers to the trial judge not taking into account his previous clean record.
The standard of review on a sentence appeal is highly deferential. Sentencing judges have a broad discretion to impose sentences that they consider appropriate in the circumstances of each case. Absent an error in principle, the failure to consider a relevant factor, or the overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence imposed at trial if it is demonstrably unfit. R v Lacasse, 2015 SCC 64.
Mr. Mahamud was sentenced to an eight‑month conditional sentence order, followed by 12 months of probation. A DNA order was also imposed. On sentencing, the Crown sought a sentence of a one‑year conditional sentence order, following by 12 months of probation. The defence sought a suspended sentence and an 18-month probation order.
In his reasons, the sentencing judge explained the principles of sentencing. He also reviewed the personal circumstances of the appellant, noted that he had no prior criminal record and had been a victim of a previous robbery. The sentencing judge was aware that a conviction would mean that the appellant could no longer drive a taxi in Yellowknife and he took this into account on sentence.
The sentencing judge noted that the victim was vulnerable because he was heavily intoxicated and unable to defend himself. He also noted that Mr. Mahamud, as a taxi driver, had a duty to provide a safe ride for his passengers, and he also noted that there was no reason for the appellant to attack the victim.
The sentencing judge considered deterrence, denunciation and rehabilitation in concluding that an eight-month conditional sentence order and 12 months of probation was an appropriate sentence. In reviewing the sentencing judge's decision, there is no basis upon which to conclude that the sentence is demonstrably unfit or that the sentencing judge committed an error in principle, failed to consider a relevant factor, or overemphasized an appropriate factor. Therefore, the sentence appeal is dismissed.
So, Mr. Wun, is there anything that I have overlooked?
B. WUN: No, thank you, Your Honour.
THE COURT: Okay. All right. Well, as I said, a copy of the transcript will be ordered and a copy will be provided to Mr. Mahamud so that he can review that. And I think that will conclude everything. So thank you, Mr. Interpreter, for your attendance today.
THE INTERPRETER: You're very welcome.
THE COURT: Thank you. And thank you, Mr. Wun, for your submissions and your materials that you filed on this case.
B. WUN: Thank you, Your Honour.
THE COURT: All right. We will adjourn. Thank you.
(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 15th day of February, 2021.
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Kim Neeson
Principal