Court of Appeal for Ontario
Between:
Her Majesty the Queen Appellant
and
Rutal Hankey & Waheb Almaktari and Walid Almaktari Respondents
Before: Moldaver, Sharpe and LaForme JJ.A.
Counsel: Tracy Stapleton for the appellant Christopher Hicks for the respondents
Heard: September 25, 2007
On appeal from the order of Justice Tamarin Dunnet of the Superior Court of Justice dated June 4, 2007.
Endorsement
1The Crown appeals an order quashing a subpoena requiring the respondent to testify at the preliminary inquiry of Rutal Hankey and the respondent’s brother, Waheb Almaktari, both accused of first-degree murder. The respondent is separately charged with respect to the same murder.
2The application judge applied the two-part test enunciated by the Supreme Court of Canada in S(R.J.) v. The Queen (1995), 96 C.C.C. (3d) 1 and British Columbia Securities Commission v. Branch (1995), 97 C.C.C. (3d) 505. The application judge found that there was no reason to believe that the respondent’s evidence would assist in the prosecution of the other two accused and that she was satisfied that the predominant purpose of the Crown was to obtain incriminating evidence against the respondent. She also found that being forced to testify would prejudice the fair trial rights of the respondent.
3In our view, the motion judge’s finding regarding the Crown’s predominant purpose cannot be sustained on this record.
4The respondent gave the police a lengthy out-of-court video-tape statement in which he placed both Hankey and his brother at the scene of the murder and identified Hankey as the shooter. This evidence plainly inculpated the two accused and provided the Crown with a legitimate basis for subpoenaing the respondent at the preliminary inquiry. The application to quash the subpoena was brought after the respondent began his evidence-in-chief at the preliminary inquiry during which he backed away from his video-tape statement, testifying that he barely knew Hankey and downplaying his brother’s involvement on the night in question. The application judge reasoned that this demonstrated that the respondent was unlikely to remain true to his statement and that it followed that the only purpose for continuing to have him testify was “to probe and explore the case against the [respondent]”.
5With respect, this reasoning fails to take into account the significance of the respondent’s out-of-court statement in relation to Hankey and Waheb. Even if the respondent now disavows that statement, the Crown may be entitled to have it admitted against Hankey and Waheb as a KGB statement. That, however, would, among other things, require examining the respondent in order to establish necessity. In our view, it follows on this basis alone that there remained a legitimate purpose for continuing to examine the respondent despite disavowal of his out-of-court statement. Moreover, even if the Crown’s primary theory is that the respondent was the shooter, the respondent’s evidence placed Hankey and Waheb at the scene and the Crown was entitled to probe the respondent on the extent of their involvement in the death of the victim.
6As we have concluded that the application judge erred in finding that the Crown’s predominant purpose was to incriminate the respondent, we need not consider the second branch of the test relating to prejudice.
7For these reasons the appeal is allowed and the order quashing the subpoena is set aside.
“M.J. Moldaver J.A.”
“Robert J. Sharpe J.A.”
“H.S. LaForme J.A.”