R v Ahmed, 2019 SKCA 47

Court of Appeal for Saskatchewan Docket: CACR3094 Citation: R v Ahmed, 2019 SKCA 47Date: 2019-05-31 Between:Dolfikir AhmedAppellantAndHer Majesty the QueenRespondentBefore: Jackson, Barrington-Foote and Tholl JJ.A.Disposition: Appeal of conviction dismissed; sentence appeal allowed in partWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice ThollOn Appeal From: Provincial Court, SaskatoonAppeal Heard: March 4, 2019Counsel: Dolfikir Ahmed on his own behalf Wade McBride, Q.C., for the Respondent Barrington-Foote J.A. I.

Introduction [1] The appellant, Dolfikir Ahmed, was convicted in Provincial Court of possession of cocaine for the purpose of traffickingpursuant to s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], possession of methamphetamine pursuant tos. 4(1) of the CDSA, and possession of proceeds of crime under $5,000 pursuant to s. 345(1) and s. 335(

b) of the Criminal Code. The trialjudge concluded an appropriate sentence would be 32 months in jail, less remand credit of 336 days, and 1 year on probation. In the result,she sentenced Mr. Ahmed to 1 year, 8 months and 29 days in custody on the s. 5(2) charge, 6 months concurrent on each of the othercharges, and one year of probation. [2] Mr. Ahmed has appealed his conviction and sentence pursuant to s. 675(1)(

a) of the Criminal Code. It is his position heshould have been convicted only of simple possession of cocaine and methamphetamine. I would dismiss his conviction appeal and allowhis sentence appeal in part. II. Background [3] On January 2, 2017, Mr. Ahmed was stopped by the police while operating a vehicle owned by a friend. The officer, afterdetermining Mr. Ahmed’s licence was suspended, arrested him pursuant to The Traffic Safety Act, SS 2004, c T-18.1, for driving whilesuspended. The officer testified that he placed Mr.

Ahmed in handcuffs, conducted a pat down search and placed him in the back of apolice vehicle. He advised Mr. Ahmed his vehicle would be towed and searched. Mr. Ahmed said he did not consent to a search, as it wasnot his vehicle, and offered the police officer the owner’s phone number. [4] The officer did not call the owner of the vehicle. He testified that because the vehicle would be placed in a compound, he “hadto ensure that any properties … of monetary value would have to be itemized”. He accordingly conducted what he described as an“inventory search” of the vehicle.

The search was productive, resulting in the seizure of four cell phones and resealable storage bagscontaining crack cocaine and methamphetamine. The officer also found Mr. Ahmed’s wallet, which contained $365 in cash, includingseven $20 bills. He advised Mr. Ahmed he was under arrest for possession of cocaine. Mr.

Ahmed was taken to a police detention centre,where his cell phone and additional packages of powdered and crack cocaine were found in his possession, resulting in a charge ofpossession for the purpose of trafficking. [5] At trial, the Crown led evidence from the arresting officer, from a special constable, and from Constable Teichreb, a policeofficer who was broadly qualified as a cocaine expert. Constable Teichreb testified it was his opinion that Mr. Ahmed had been traffickingin hard and soft cocaine.

That opinion was based on the totality of the circumstances, including the nature, amount, value and packaging ofthe cocaine found in the car and on Mr. Ahmed’s person, the presence of cash, the use of a borrowed car, the presence of multiple cellphones and the text messages found on Mr. Ahmed’s cell phone. [6] Mr. Ahmed testified at trial. He said he did not know about the drugs in the vehicle, which he had borrowed from a friendwho was a drug user. He said the drugs on his person were for personal use.

It was his evidence that others used his cell phone and that hehad little or no knowledge about the numerous inculpatory texts sent to and from that phone. [7] The trial judge noted that she was obliged to approach the evidence in the manner specified in R. v W.(D.), (SCC), [1991] 1 SCR 742, commenting as follows: If I believe the accused, I must acquit. If I do not believe the accused, but I am left in a reasonable doubt by it, I must acquit. If I am notleft in doubt by the evidence of the accused, I must ask myself whether I’m convinced beyond a reasonable doubt of the guilt of the

accused on the basis of the balance of evidence which I do accept. The defence has suggested that on some of the pieces of evidence there must be reasonable doubt. However, I must look at the totality ofthe evidence and when all of the credible evidence is looked at, I do not have a reasonable doubt. I did not find the evidence of the accusedto be believable and convincing. Nor did it lead me to reasonable doubt. She later confirmed her bottom line conclusion: The totality of the evidence does not leave me in reasonable doubt as to whether the accused was in possession of the drugs for thepurpose of trafficking.

The accused has endeavored to explain away all of the apparent coincidences that point to possession for thepurpose of trafficking. I find the volume of the explanations puts them beyond belief. [8] As to the charge of possession of proceeds of crime, the trial judge did not believe Mr. Ahmed’s explanation of the source ofthe money found in his wallet. She inferred, based on the presence of the money, together with the other evidence on which she based herconclusion that Mr. Ahmed was guilty of possession for the purpose of trafficking, that the money was proceeds of crime. III. Grounds of Appeal [9] Mr.

Ahmed had counsel at trial but was self-represented on this appeal. The grounds in his notice of appeal were very brief: (

a) it noted the Crown did not present the evidence of the dashboard camera found in the police car; (

b) it referred to the trial judge’s “discretion on conviction”; and (

c) it pointed out he was sentenced to a long-term sentence plus probation and was made subject to a lifetime weapons ban and anorder to provide a DNA sample. [10] At the hearing of the appeal and through a lawyer’s letter referred to at the appeal hearing, and later filed with the Court,Mr. Ahmed clarified his grounds of appeal. His conviction appeal is based primarily on factual grounds. He alleges there were errors inthe trial judge’s findings as to his credibility. He submits the trial judge erred by convicting him on the basis of an expert opinion and byrejecting his evidence.

As he put it, a conviction should be based on facts rather than on an opinion. He argued the trial judge drewinappropriate inferences. He said the judge did not consider his exculpatory evidence relating to personal drug use, which explained thepurpose of his possession. As I understand it, Mr. Ahmed submits the verdict is unreasonable both as a result of these specific factualerrors and based on the evidence as a whole. [11] As to the evidence of the dashboard camera, Mr.

Ahmed says said it would have shown he did not take 200 to 300 metres tostop his vehicle when requested by the police, which was a fact found and relied upon by the trial judge. I take this ground as assertingthat the Crown’s failure to lead relevant evidence had an impact on trial fairness and accordingly resulted in a miscarriage of justice. [12] Mr. Ahmed also argued the police search of the vehicle breached his right to be secure against unreasonable search and seizurepursuant to s. 8 of the Charter [Charter argument]. [13] As to sentence, Mr.

Ahmed argued the custodial sentence of 32 months (less remand credit) imposed by the trial judge was toolong. He noted the trial judge did not refer to the fact he was a drug user as a mitigating factor. He also submitted he should have beengiven credit for time served on remand from January 2, 2017, to July 19, 2017. The trial judge held that Mr. Ahmed was not entitled tocredit for that period, as a prior 20-month sentence for trafficking [prior sentence] had not expired when Mr. Ahmed was arrested for theseoffences, and did not expire until July 19, 2017. Mr.

Ahmed also argued the trial judge could not impose a term of probation after a 32-month sentence. [14] In the result, Mr. Ahmed’s sentence appeal alleges that there were errors in principle that affected the sentence and that thesentence is unfit. IV. Analysis A. Should the appellant be permitted to raise the s. 8 Charter argument onappeal? [15] The Charter argument was not raised at trial. As a rule, an issue not raised at trial cannot be raised for the first time on appeal.There are, however, exceptions to this rule.

The decision as to whether to entertain a new argument on appeal is discretionary and is “to beguided by the balancing of the interests of justice as they affect all parties” (Kaiman v Graham, 2009 ONCA 77 at para 18, 245 OAC130): see also R v Reid, 2016 ONCA 524 at para 44, 338 CCC (3d) 47 [Reid] (leave to appeal to the SCC denied ). In Rv Gill, 2018 BCCA 144, 26 MVR (7th) 138, Fitch J.A. usefully summarized the issue as follows: [12] In Quan v. Cusson, 2009 SCC 62 at paras. 36–38, the majority of the Court laid out a framework for determining whether to permit aparty to raise a new issue on appeal.

The first question is whether the issue is new. If so, the second question is whether the evidentiaryrecord and the interests of justice support granting an exception to the general rule against raising new issues on appeal. In determiningwhether the interests of justice warrant an exception to the general rule, it is appropriate to consider whether entertaining the issue for the

first time on appeal might lead to a different ultimate outcome for the parties: L.S. v. G.S. at para. 112. As Binnie J. said in PerformanceIndustries Ltd. v.

Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 33, a court may hear a new issue on appeal if refusing leavewould risk an injustice. [16] There is authority for the proposition that a failure to raise the proposed new issue at trial for tactical reasons should weighheavily in the interests of justice analysis, against the party who seeks to change course on appeal: R v Brown, (SCC),[1993] 2 SCR 918 at 927 per L’Heureux (Dubé J. dissenting, but not on this point); Reid at para 43; R v Dignard, 2017 MBCA 123 atpara 7; and R v Downey, 2015 NBCA 25 at para 12, 435 NBR (2d) 315. [17] In this case, I am not satisfied the evidentiary record is sufficient or that there would be a miscarriage of justice if this ground ofappeal were not considered.

Mr. Ahmed was arrested for driving while his licence was suspended. Even if the vehicle had not beensearched at the roadside, he may have been subject to a further search at the detention centre, which would have resulted in the discoveryof the drugs in his personal possession and in his arrest for possession. That, in turn, would likely have resulted in a lawful search of thevehicle as an incident to that arrest. Evidence relating to that possibility would be relevant to the impact of the alleged Charter breach onMr.

Ahmed’s Charter-protected interests, being the second element of the s. 24(2) analysis pursuant to R v Grant, 2009 SCC 32, [2009] 2SCR 353, and thus on the admissibility of the evidence of the search. [18] Further, Mr. Ahmed was represented by experienced counsel at trial. He did not explain why counsel did not raise this Charterargument at trial. Absent such an explanation, I conclude trial counsel likely took that course for tactical reasons.

This conclusion makessense in light of the state of the law as to whether conducting this search or tendering this evidence would constitute a breach of s. 8 of theCharter. Mr. Ahmed had possession of the vehicle with the permission of the owner. As such, he had a reasonable expectation of privacyin the vehicle: R v Belnavis (1996), (ON CA), 91 OAC 3 (CA) at para 33.

Although the police may have been entitledto inventory the contents of the vehicle before it was impounded, there is authority for the proposition the Crown could not tender thefruits of that search, as it would not be a search authorized by law: R v Nolet, 2010 SCC 24 at para 53, [2010] 1 SCR 851, and R vCaslake, (SCC), [1998] 1 SCR 51 at para 30. [19] There is, however, also authority for the proposition that a statutory power to impound a vehicle justifies an inventory searchand that the fruits of that search are admissible: R v Russell, 2018 BCCA 330, 365 CCC (3d) 481; R v Nicolosi (1998), (ON CA), 110 OAC 189 (CA); and R v Wint, 2009 ONCA 52, 244 OAC 324 (leave to appeal to the SCC denied ).

Inthis case, the police had the authority to impound the vehicle driven by Mr. Ahmed pursuant to s. 160(2) of The Traffic Safety Act. Assuch, counsel might have concluded that he would not pursue the Charter argument because the search was likely authorized by law. [20] In the result, and having considered the interests of justice as they affect both parties, I would not permit Mr. Ahmed to raisethis Charter argument on appeal. B. Were the verdicts for possession for the purpose of trafficking andpossession of proceeds of crime unreasonable? [21] The central theme of Mr.

Ahmed’s submission on this ground of appeal is that the trial judge erred by relying on the opinionevidence of Constable Teichreb and in concluding Mr. Ahmed was not a credible witness and failing to accept his exculpatory evidence.As noted above, I understand that Mr.

Ahmed submits the verdict is unreasonable both as a result of these specific factual errors and basedon the evidence as a whole. [22] Where an appellant asserts that the verdict is unreasonable, this Court must determine whether the verdict is one a properlyinstructed jury could reasonably have rendered: R v Yebes, (SCC), [1987] 2 SCR 168, and R v Biniaris, 2000 SCC 15 atpara 36, [2000] 1 SCR 381.

This Court cannot interfere with a trial judge’s findings of fact – including his or her assessment of credibility– unless those findings cannot be supported on any reasonable view of the evidence: R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746.As Cameron J.A. said in R v Baxter, 2013 SKCA 52, 414 Sask R 184 (leave to appeal to the SCC refused, (2013) 451 Sask R 320 (note)),when deciding if a verdict is unreasonable or unsupported by the evidence, [45] … we must not merely substitute our view for that of the trial judge but must re-examine the evidence, and to some extent reweighand consider its effect, with a view to deciding whether the trial judge could reasonably have reached the conclusions upon which theverdict is based. [46] More particularly, as this power applies to findings of credibility it falls to be exercised on the premise such findings are to be treatedon appeal with great deference, bearing in mind the very real advantage enjoyed by trial judges in seeing and hearing the witnesses andcapturing the atmosphere at trial – an advantage denied appellate judges: [citation omitted]. [23] Constable Teichreb was qualified as an expert and gave opinion evidence within the scope of his expertise.

The trial judge wasentitled to decide what weight she would give his opinion. She relied on that opinion in the course of meeting her obligation – which sheexpressly recognized – to consider “the totality of the evidence”. As noted above, that evidence included the quantity, nature andpackaging of the cocaine found on Mr. Ahmed’s person and in the vehicle, the cash found in Mr. Ahmed’s wallet, the numerous entries onMr. Ahmed’s cell phone evidencing drug transactions, and the presence of four other cell phones. She also took account of the fact thatMr.

Ahmed was slow to stop and refused to permit a search of the vehicle.

[24] The trial judge explained why she did not believe Mr. Ahmed. She referred to what she found to be internal inconsistencies inhis evidence and inconsistencies with other evidence she found to be credible and reliable. Her conclusion as to Mr. Ahmed’s credibility isentitled to deference. [25] Mr. Ahmed submits the trial judge did not consider his evidence relating to his personal drug use when considering otherevidence, including the evidence of two missing portions of cocaine and the nature, quantity and packaging of the drugs in his possession.With respect, I disagree.

The potentially exculpatory evidence relating to the cocaine purchase and his cocaine use was addressed incounsel’s submissions. The trial judge specifically referred to Mr. Ahmed’s evidence of his drug use and preferences. It is clear from thejudgment as a whole that she was fully alive to the significance of that evidence. She did not ignore it.

She found that evidence wasunbelievable and that the evidence she did believe left her without a reasonable doubt. [26] Based on the applicable standard of review, I have no difficulty finding the trial judge could reasonably reach the conclusionson which these verdicts were based, including her conclusions as to Mr. Ahmed’s credibility. The verdict was one a properly instructedjury could reasonably render. There is, accordingly, no basis for this Court to intervene on this ground. C.

Did the Crown’s failure to lead the evidence of the dashboard camera videoresult in a miscarriage of justice? [27] The unfairness alleged by Mr. Ahmed – and thus the potential miscarriage of justice – relates to the role of the prosecutor. Iwill address this aspect of the appeal assuming, without deciding, that a prosecutor’s actions at trial could give rise to a miscarriage ofjustice, thereby requiring a new trial. [28] The function of the prosecutor is not to secure a conviction, but to “ensure justice is done” (R v Stinchcombe, (SCC), [1991] 3 SCR 326 at 333 [Stinchcombe]).

The Crown must bring forward evidence it considers credible that relates to the materialfacts. That said, the Crown has the discretion to decide which witnesses will be called, and a court will not interfere with that discretionunless the Crown is influenced by some oblique motive: R v Harris, 2009 SKCA 96 at paras 38–40, 331 Sask R 283 [Harris].

Further, theduty to bring forward evidence may be satisfied by disclosing the material to the defence: Stinchcombe at 338, Harris at para 42, and R vJ.V. (1994), (QC CA), 91 CCC (3d) 284 (WL) (Que CA) at para 8. [29] In this case, defence counsel was aware there was a dashboard camera in the police vehicle that stopped Mr. Ahmed. On thisappeal, Mr. Ahmed did not complain of a lack of disclosure. Rather, he is concerned with the conduct of the trial. Disclosure of the videowould fully satisfy the Crown’s obligations.

In any event, there is nothing to suggest that the Crown failed to lead this evidence as a resultof some oblique motive. Indeed, there is nothing to suggest this issue was of concern to the defence. Defence counsel asked the policeofficer if there was a dashboard camera video, but did not press the issue of the time it took Mr. Ahmed to stop. Nor did he lead evidencefrom Mr. Ahmed to contradict the evidence of the police officer as to the stopping time. [30] In the result, the Crown’s decision not to lead the dashboard camera video evidence did not result in a miscarriage of justice. D.

Was the sentence unfit or did the trial judge err in principle? [31] The prior sentence of 20 months in custody was imposed on Mr. Ahmed on November 19, 2015. He served that sentence untilDecember 29, 2016, when he was released from custody. He was arrested on January 2, 2017, for the offences now before the Court. Hewas sentenced for the current offences on February 28, 2018. [32] At the sentencing hearing, Mr. Ahmed submitted he should receive credit for pre-sentence custody from January 2, 2017, toJuly 19, 2017.

He argued that the prior sentence was complete when he was released, based on time served and the remission he earnedwhile in custody serving that sentence. The trial judge disagreed, finding that “Mr. Ahmed is not entitled to remand credit for time spent incustody prior to the warrant on his previous sentence expiring”. [33] Mr. Ahmed submitted that the trial judge erred. On April 11, 2019, the Crown – in response to a request for furthersubmissions by this Court – advised that it agreed that if Mr.

Ahmed served his prior sentence until December 29, 2016, and had notforfeited remission as a result of a breach of prison rules, he was deemed to have served the entire prior sentence as of that date. This Courtagrees. Accordingly, this Court issued a fiat on April 11, 2019, which concluded as follows: [3] This appeal was heard March 4, 2019. The Crown has today conceded – in my view, correctly – that Mr. Ahmed should have receivedcredit for the 198 days he spent in custody from January 2, 2017, to July 19, 2017. Mr.

Ahmed should have received credit at a rate of 1.5days for each day served, or an additional 297 days of credit for time served on remand. Further, I would reduce his sentence by the 5 daysimposed in lieu of the victim surcharge. [34] This conclusion is based on s. 99 of The Correctional Services Act, 2012, SS 2012, c C-39.2, which provides that a provincialinmate “may obtain remission of the inmate’s sentence” as provided in the Prisons and Reformatories Act, RSC 1985, c P-20. Mr. Ahmedwas a provincial inmate.

Section 6 of the Prisons and Reformatories Act provides for remission to be credited at a rate of one day forevery two days served with good behavior. It also deals with forfeiture of and the effect of remission. The key provisions are follows: Remission

6(1) Subject to subsection (7.2), every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with 15 days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned. … Forfeiture

(4) Every prisoner who, having been credited with earned remission, commits any breach of the prison rules is, at the discretion of the person who determines that the breach has been committed, liable to forfeit, in whole or in part, the earned remission that stands to the credit of the prisoner and that accrued to the prisoner after July 1, 1978. … Effect of remission

(5) Where remission is credited against a sentence being served by a prisoner, other than a prisoner to whom subsection 127(1) of the Corrections and Conditional Release Act applies, the prisoner is entitled to be released from imprisonment before the expiration of the sentence. [ 35 ] In this case, Mr. Ahmed had been credited with the maximum available remission pursuant to s. 6(1). There was no evidence of a breach or forfeiture within the meaning of s. 6(4). Accordingly, Mr. Ahmed was entitled to be and was released on December 29, 2016, which was his earned remission date.

The prior sentence was fully served as of that date. The warrant of committal for that custodial sentence was spent and Mr. Ahmed was no longer subject to any conditions arising from that sentence. As such, when he was arrested for the current offences, and held in custody, he was no longer serving time on the prior sentence. [ 36 ] I note that different considerations apply to an inmate on a temporary absence, work release or statutory release or on day parole or full parole. Inmates of that kind remain subject to conditions and their sentences continue.

It is possible that, in this case, the sentencing judge incorrectly believed – based on the limited and inconsistent submissions by counsel – that Mr. Ahmed was on statutory release. I also note that different rules apply to federal inmates. [ 37 ] Mr. Ahmed also submitted that the trial judge could not grant a probation order, as he was sentenced to a custodial term of 32 months. Mr. Ahmed was not sentenced to 32 months. Pre-sentence custody is not part of the sentence (see R v Mathieu , 2008 SCC 21 at para 17 , [2008] 1 SCR 723).

It is time the sentencing judge may take into account in determining the sentence to be imposed, as provided by s. 719(3) of the Criminal Code . The custodial sentence is the sentence that would have been imposed, less credit for pre-sentence custody. That is apparent from s. 719: Determination of sentence 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence … . … Record of proceedings

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. [ 38 ] In the result, Mr.

Ahmed was – taking the time credited for remand into account – sentenced to a term of imprisonment of two years or less, and the sentencing judge had the authority to order probation pursuant s. 731 of the Criminal Code . [ 39 ] Finally, I am not persuaded that the sentencing judge made any other errors in principle that had an impact on the sentence, or that the sentence was unfit having regard to Mr. Ahmed’s lengthy criminal record, which includes six prior drug offences. In particular, I do not agree that she failed to consider Mr. Ahmed’s drug use as a mitigating factor. V.

Conclusion [ 40 ] For these reasons, I would dismiss Mr. Ahmed’s appeal of his convictions and, in part, allow his sentence appeal. The April 11, 2019, fiat granted Mr. Ahmed credit for an additional 297 days for pre-sentence custody. Further, Mr. Ahmed was initially sentenced to 5 days in custody in lieu of a victim impact surcharge. The April 11, 2019, fiat also set aside that portion of the sentence, as the mandatory victim surcharge was held to be unconstitutional after Mr. Ahmed’s sentence was imposed: R v Boudreault , 2018 SCC 58 , 429 DLR (4th) 583. [ 41 ] In the result, the custodial portion of Mr.

Ahmed’s sentence is reduced by a total of 302 days. Mr. Ahmed should have received a total of 638 days of remand credit. His sentence is reduced to 11 months in custody on the s. 5(2) charge, 6 months concurrent on each of

the other charges, and one year of probation. As such, his probation should end one year after the date he would have been released if he had been sentenced to that term, taking account of the remission that he earned. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Tholl J.A.” Tholl J.A.