R. v. Rahimi (A.A.), 2015 SKCA 85

• Judge: Jackson, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 10, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 85;(2015), 465 Sask.R. 70 (CA)

R. v. Rahimi (A.A.) (2015), 465 Sask.R. 70 (CA);

    649 W.A.C. 70

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AU.023

Ahmad Ali Rahimi (appellant) v. Her Majesty the Queen (respondent)

(CACR2410; 2015 SKCA 85)

Indexed As: R. v. Rahimi (A.A.)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Caldwell, JJ.A.

August 4, 2015.

Summary:

The accused was found guilty of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting. He was acquitted of careless storage of a firearm, possession of a firearm without being the holder of a licence, and possession of the proceeds of crime. The accused appealed his conviction, arguing that (1) the trial judge erred in law in finding him guilty of aiding and abetting when the Crown failed to prove mens rea, knowledge, control or possession of cocaine; (2) the trial judge failed to apply the principles of R. v. D.W. (1991 SCC); (3) the finding of guilt for possession of cocaine was inconsistent with the trial judge's finding that he was not guilty of the offences related to the firearm which was located at the same premises as the cocaine; and (4) the verdict was unreasonable as it was contrary to the law, the evidence and the weight of the evidence.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - Rahimi was convicted of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting - He appealed, arguing that the trial judge erred in law in finding him guilty of aiding and abetting when the Crown failed to prove mens rea, knowledge, control or possession of cocaine - The Saskatchewan Court of Appeal dismissed the appeal - An aider or abettor did not have to share the intent of the principal offender to commit the offence - In order to have the intention to assist in the commission of the offence, the aider had to know that the principal intended to commit the crime, although he or she did not need to know precisely how the crime would be committed - The Crown did not have to show that Rahimi possessed the cocaine actually, jointly or constructively - The issue was whether Rahimi knew the conspirators' activities were illicit and whether he, by his acts which were referable to those activities, was aiding and abetting those illicit activities - See paragraphs 38 to 53.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - Rahimi was found guilty of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting - He appealed, arguing that he did not aid or abet anyone or it was not clear who he aided and abetted - The Saskatchewan Court of Appeal dismissed the appeal - Exactly who was being aided and abetted did not need to be clear as long as there was evidence of other principals committing the crime - There was substantial evidence of other people carrying on drug-related activities whom Rahimi assisted to commit the crime of drug trafficking - See paragraphs 54 to 56.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - Police observed Rahimi at a suspected stash location (Herold Terrace) on five occasions, the last being in September 2011 when Rahimi and Thai were seen removing items from the location - Police searched Herold Terrace in October 2011 and seized items consistent with drug trafficking - Police searched a second suspected stash location (Heritage Lane) in January 2012 and found evidence of drug trafficking - There were similarities between the items that Thai and Rahimi were seen removing from Herold Terrace and those seized at Heritage Lane - Rahimi was convicted of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting Thai and others - He appealed, arguing that there was no evidence of the principal offenders being involved with or committing the offence at Heritage Lane on the date set forth in the indictment (January 5, 2012) - The Saskatchewan Court of Appeal dismissed the appeal - It was a reasonable inference that the drug trafficking activities at Heritage Lane and Herold Terrace were connected - The aiding and abetting did not have to be temporally congruent with the presence of drugs at Heritage Lane in January 2012 or any knowledge by Rahimi of the presence of drugs at that location - Moreover, s. 601(4.1) of the Criminal Code, which governed discrepancies between the evidence and time, was applicable - Time was not an essential element of the offence for which Rahimi was convicted because aiding and abetting did not have to occur on the particular day that the principal offender possessed the drugs - See paragraphs 57 to 65.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - Rahimi was convicted of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting - He appealed, arguing that the trial judge erred in assessing the veracity of his testimony because he failed to mention R. v. D.W. (1991 SCC) and did not specifically say that he disbelieved Rahimi - The Saskatchewan Court of Appeal dismissed the appeal - Although the trial judge did not expressly state that he had no reasonable doubt after reviewing Rahimi's testimony and the evidence as a whole, this failure in itself was not an error of law where the trial judge stated that Rahimi "demonstrated no particular affinity to the truth. His testimony changed, even between what he testified in-chief and what he conceded in cross ... Some explanations strained credulity, and without being unkind, bordered on risible." - Based on these statements, it was a fair inference that Rahimi's testimony failed to raise a reasonable doubt - See paragraphs 80 to 84.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4399.6

Procedure - Charge or directions - Jury or judge alone - Directions re elements of offence (incl. time) - [See second Criminal Law - Topic 2744 ].

Criminal Law - Topic 4438

Procedure - Verdicts - Discharges and dismissals - Inconsistent verdicts - Rahimi was found guilty of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting - He was acquitted of careless storage of a firearm, possession of a firearm without being the holder of a licence, and possession of the proceeds of crime - On appeal, Rahimi argued that the finding of guilt for possession of cocaine was inconsistent with the trial judge's finding that he was not guilty of the offences related to the firearm which was located at the same premises as the cocaine - The Saskatchewan Court of Appeal dismissed the appeal - The verdicts were reconcilable on the basis that the underlying elements leading to a conviction for each were different and they depended on different evidence - It was not necessary for Rahimi to be in actual or constructive possession of the drugs to be convicted of aiding and abetting the drug offence - The firearm offences were not prosecuted on the basis of aiding and abetting but rather on the basis that Rahimi was in actual or constructive possession of the firearm - See paragraphs 85 to 93.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - [See second Criminal Law - Topic 2744 ].

Criminal Law - Topic 4863

Appeals - Indictable offences - Grounds of appeal - Failure to determine issue - [See Criminal Law - Topic 5310 ].

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See Criminal Law - Topic 5310 ].

Criminal Law - Topic 5244.1

Evidence and witnesses - Identification - Voice identification - Rahimi was convicted of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting - The trial judge found as a fact that Rahimi's voice was identified on wiretap conversations containing coded talk about drug trafficking - Rahimi appealed, arguing that the trial judge should have rejected the Crown's voice identification evidence because it was not expert evidence - The Saskatchewan Court of Appeal dismissed the appeal - An expert was not needed for voice identification - A trial judge could accept fact evidence regarding voice identification with the appropriate evidentiary foundation - A police officer's evidence which identified Rahimi as the speaker in the relevant conversations fell into this category - See paragraphs 66 to 71.

Criminal Law - Topic 5310

Evidence and witnesses - Admissibility of private communications - Practice - Admission of admissible interceptions - General - Police were investigating Rahimi, Tse and Huber for drug trafficking - They intercepted a communication in which Huber phoned Rahimi - Before Rahimi answered the phone, Huber had a 14 second background conversation with Tse which was purportedly about drugs - Rahimi's counsel argued that the 14 second segment was inadmissible - The trial judge found that the wiretap warrant was very broad and "would cover somebody talking before the connection" - Rahimi was convicted of possession of cocaine for the purpose of trafficking on the basis of aiding and abetting - He appealed, arguing that the trial judge erred by failing to rule on the admissibility of the 14 second segment - The Saskatchewan Court of Appeal agreed - However, it had already been established that Tse and Huber were involved in drug trafficking activities and had been convicted for it - The words in the segment were redundant - It did not matter whether the trial judge dealt with them - Moreover, there was no specific mention of the segment in the trial judge's decision - He indicated that the segment was not pivotal to his analysis - Even if the trial judge could be said to have relied on it, the segment was not crucial or pivotal in determining Rahimi's involvement in drug trafficking given the other evidence - See paragraphs 72 to 78.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See Criminal Law - Topic 5244.1 ].

Narcotic Control - Topic 505

Offences - General principles - Parties to offences - [See Criminal Law - Topic 2742 and both Criminal Law - Topic 2744 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 36].

R. v. Huard (S.G.) (2013), 311 O.A.C. 181; 302 C.C.C.(3d) 469; 2013 ONCA 650, refd to. [para. 41].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 42].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 249 C.C.C.(3d) 449; 2009 ONCA 910, refd to. [para. 43].

R. v. Preston, [1949] S.C.R. 156; 93 C.C.C. 81, refd to. [para. 45].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, refd to. [para. 46].

R. v. Barreau (1991), 9 B.C.A.C. 290; 19 W.A.C. 290 (C.A.), refd to. [para. 47].

R. v. Roan, Brown and Sande (1985), 57 A.R. 296; 17 C.C.C.(3d) 534 (C.A.), refd to. [para. 48].

R. v. Will (J.B.E.) (2015), 451 Sask.R. 244; 628 W.A.C. 244; 2015 SKCA 11, refd to. [para. 51].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 52].

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 55].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 55].

R. v. Thatcher (1986), 46 Sask.R. 241 (C.A.), affd. [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 55].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 62].

R. v. Pinch (G.), [2011] O.T.C. Uned. 5484; 2011 ONSC 5484, refd to. [para. 67].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 82].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [para. 82].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 82].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [para. 87].

R. v. Catton (A.) et al. (2015), 329 O.A.C. 354; 319 C.C.C.(3d) 99; 2015 ONCA 13, refd to. [para. 88].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 94].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 95].

R. v. Monaghan (R.S.), [2013] Man.R.(2d) Uned. 50; 2013 MBCA 87, refd to. [para. 96].

R. v. Stewart, [1977] 2 S.C.R. 748; 12 N.R. 201; 1 A.R. 455, refd to. [para. 97].

Cote v. The King (1941), 77 C.C.C. 75, refd to. [para. 97].

R. v. McLachlan (B.) (2012), 399 Sask.R. 77; 552 W.A.C. 77; 2012 SKCA 74, refd to. [para. 98].

Counsel:

Morris Bodnar, Q.C., for the appellant;

Wade McBride, for the respondent.

This appeal was heard on February 10, 2015, before Jackson, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. Ottenbreit, J.A., delivered the following judgment for the court on August 4, 2015.