R v Abdullahi

In 2012, two young Somali men were murdered in what was perceived by Police and the media to be street level gang violence.  Toronto Police led a joint forces operation, “Project Traveller”, which resulted in 55 arrests, mostly in Toronto’s northwest.  The Appellant would eventually be convicted by a jury on firearms and criminal organization charges.

At trial, the Crown led translations of wiretaps through an expert witness. The Appellant objected to the translator being tendered as an expert, claiming that his opinions were unreliable because there were significant frailties in his knowledge, training, and expertise as a Somali translator. The trial judge nevertheless qualified the translator as an expert and admitted his evidence.  This would become significant, not just for the admissibility question of arguably dubious evidence, but also because the wiretaps were crucial to the criminal organization charge. While the wiretaps were arguably laden with details about the nature of the gang being prosecuted, they were based on conversations of people that did not include the appellant nor his co-accused.  This included reference to coded language, hierarchies, and what the Crown would characterize as evidence of “cohesiveness and continuity.”  

The defence urged the jury to find that it was a rag tag disorganized group that formed for the purpose of committing the isolated crime of moving guns from Windsor to Toronto.  (A singular offence being specifically statutorily excluded from the definition of criminal organization in the Code.)

Since the wires contained utterances by non-accused people that arguably contained boastful or conjectural statements, a complete and legally correct charge to the jury was critical to the accused persons receiving a fair trial.   

The Court of Appeal for Ontario unanimously dismissed the Appellant’s appeal relating to the Somali translations.  The Appellant also complained that the instructions to the jury on the definition of “criminal organization” were inadequate.  This ground was likewise dismissed by the majority, but held sway by Paciocco, J.A.  In dissent, he found fault with the trial judge’s failure to develop in his charge “the requirement that the organization have structure and continuity.” 

Leave was sought but denied on the translation issue. Thus, the case appears before the Supreme Court of Canada as an appeal as of right based on the dissent by Paciocco, J.A. on the question of law relating to the definition of a criminal organization.