Court File and Parties
Court File No.: 2811 998 Date: August 7, 2014
Ontario Court of Justice
(Central East Region)
B E T W E E N:
Her Majesty The Queen
B. Green, Counsel for the Crown N. Trbojevic, Counsel for the Crown
- and -
Feraidon Ibrahem
F. Davoudi, Counsel for the Defendant
HEARD: July 7 and 21, 2014 – Written submissions received August 27, 2014 – Ruling delivered in the presence of the accused
Reasons on Application to Adduce Evidence Under s. 540(7) of the Criminal Code
STONE, J:
Introduction
[1] This is my ruling on a Crown application to adduce evidence on the accused's second degree murder preliminary inquiry, under s.540(7) of the Code. That subsection and ss.(8) provide:
(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.
(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.
[2] By definition, ss.(7) applies to evidence which would not otherwise be admissible in the form in which it is tendered. The content of the evidence, or the purpose for which it is tendered, must still pass the normal tests of relevance, and materiality. However, it is no objection to admissibility under this subsection that the evidence could have been given in another form, such as through testimony in open court.
[3] Next, s.540(7) was clearly intended by Parliament to be and provide a shortcut to the presentation of evidence at a preliminary inquiry. The subsection itself gives the non-exclusive example of "a statement that is made by a witness in writing or otherwise recorded," in apparent contradistinction to requiring a witness to attend and testify in person.
[4] In the right situation, the defence may apply under s.540(9) to require the attendance of the witness for examination or cross-examination.
[5] There is no issue that s.540(8) has been complied with in this case, apparently as many as three times.
[6] As the Crown argues, the real issue with respect to the evidence tendered is whether it is "credible or trustworthy" within the meaning of s.540(7). Thereafter, as the defence asserts, the section is permissive, in noting the justice "may receive as evidence" (my emphasis added). Mr. Davoudi argues that even if evidence is credible and trustworthy, the court retains a discretion, and is not obliged to admit the evidence. How I exercise this discretion is a live issue.
The Evidence Tendered for Admission Under s.540(7)
[7] Crown counsel, in their application to admit evidence under s.540(7), enumerated the proposed items as follows:
A power point presentation with the photographs of items seized, the statements of two ambulance attendants, photos of the scene, photos of the victim and the accused from July 19th and a report of after the fact conduct to be admitted as credible and trustworthy evidence;
And further, that any statements the victim Nasira Laila Fazli wrote down or made to her lawyer, her doctor and her sister be admitted for the purposes of the narrative, the context of the relationship, demonstrating her state of mind and, in part, for the truth of the contents;
And further, that any video or audio taped statements that were provided by Sharipa Fazli, Zahir Mohammed and Peter Knezy be introduced as part of their evidence in chief as credible and trustworthy evidence;
And further, that the subscriber records and the associated cell phone text messages between Nasira Laila Fazli and the accused, [and] between Nasira Laila Fazli and her family and brother-in-law be introduced by filing a book of exhibits with the captured conversations;
And further, if the Court rules that the interpreter relied on in this investigation to translate writings authored by the accused is a qualified expert, that any and all translations of the accused's writings be submitted as one package of credible and trustworthy evidence. The Crown will have some additional questions with respect to the meaning of some of the phrases;
And further, that evidence relating to the time line of the events on July 19th, 2013, including a Google map showing the distance from the victim's family home to the home she shared with her husband, evidence from a Nissan dealership and other areas excluded as stops along the way home as well as a chronology of any calls made will be introduced as credible and trustworthy evidence through Detective Steve Rhoden.
And further, that the reports prepared by the Centre of Forensic Sciences relating to the analysis of the victim's blood and a D.N.A. analysis of skin located under her fingernails be admitted as credible and trustworthy evidence without calling the expert witnesses for the purpose of cross-examination;
And further, that the report prepared by the pathologist, Dr. Rajagopalan, and his resume be introduced as credible and trustworthy evidence.
[8] Since that Application was served and filed, some events have changed the ambit of argument or the application itself. For example, the 6th component listed anticipated the evidence of Detective Rhoden, and that officer never testified. No evidence from a Nissan dealership was led. Finally, although Detective Rhoden obviously never provided evidence of the chronology of certain calls, it may be that the subscriber records and cell phone text messages mentioned in the fourth s.540(7) area above supply the information contended for.
[9] In his written submissions for the defence on this application, Mr. Davoudi specifically stated the Respondent's opposition to "the admission of the following evidence…":
"any statements the victim, Nasira Laila Fazli wrote down or made to her lawyer, and her mother Shalah Fazli."
[10] He did not specifically, in writing, agree with or consent to the admission of all the other proposed evidence under s.540(7). However, the structure of the defence written submission, in my view, sets out the existence of a set of evidence of which "[t]he Respondent opposes the admission," and then defines the content of that set in the one bullet point quoted above. Everything thereafter in his document, whether general or specific in nature, is related to the statements of the victim. And that includes the reminder to the court of its discretion to not admit even credible and trustworthy tendered evidence.
[11] In further understanding whether the absence of written specific objections to other evidence, is to be taken for what it seems, it can also be noted that Mr. Davoudi occasionally orally responded during live witnesses that there was no issue. So, for example, Dr. Rajagopalan was qualified as an expert in forensic pathology with the defence saying there was no issue. The coroner's Curriculum Vitae, Exhibit 12, had been tendered by the Crown under s.540(7) and can be taken as conceded. The doctor then went through his photographs of the autopsy and reports, Exhibit 13(a), (b) and (c), in detail, and fleshed out Exhibits 13(b) and (c) even further in cross-examination. Exhibits 13(b) and (c) have no need of s.540(7) to be admissible, and the components of Exhibit 13(a) either are similarly admissible without that subsection or, if not specifically referred to viva voce, would be admitted by me under s.540(7). I heard, and see, no objection to the Centre of Forensic Sciences D.N.A. reports in Exhibit 13(d) being entered under that section.
[12] Believing then, as I do, that the lack of any specific stated opposition to the admissibility of the other exhibits mentioned in the Crown's application (other than the uncalled Rhoden evidence and the deceased's statements to mother and lawyer) was intentional, and agreeing with the Crown they are credible and trustworthy, I will use my discretion to admit the following under s.540(7):
Exhibit One, including Exhibits 1(a), 1(b), 1(c), 1(d), 1(e), 1(f) and 1(g), being a power point presentation and items from it, including photographs of items seized, the statements of two ambulance attendants, photographs of the residence and scene, photographs of the victim and the accused from July 19, 2013, papers seized, and a report of after-the-fact conduct of Mr. Ibrahem;
Statements made by the victim, which Nasira Laila Fazli wrote or made to her doctor or sister, contained in Exhibit 15 and 6 respectively;
Video or audio-taped statements provided by Sharipa Fazli and Zaber Mohammed contained in Exhibits 6 and 7;
The Crown argued during the proceedings that the telephone subscriber records and texts might well be business records anyway. That may be, but without Canada Evidence Act notice under s.30(7), they would be inadmissible. However, I would use my discretion to admit them as credible and trustworthy under s.540(7). They are set out in Exhibit 11.
To the limited extent, if any, that the translations from Dari or Pashto made by Mr. Popalzai and Mr. Wahidi, contained in Exhibit 8, 8(b), 9 and 6(b), were not fully identified and adopted by these translators recognized by the Court, I would exercise my discretion to admit them under s.540(7).
The Google map entered as Exhibit 14 would have been admitted under s.540(7) if it had not been already admissible on consent or through taking judicial notice.
The Victim's Statements to Her Mother and Lawyer
[13] Issue is joined on the victim's alleged statements to her mother and lawyer.
[14] Some of these statements are hearsay and some are not. In R. v. Candir, 2009 ONCA 915, Watt, JA, for the Court, at paragraph 56 drew the distinction thus:
The prosecutor may tender explicit statements of the declarant's state of mind or statements that may give rise to an inference about the declarant's state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay and are admitted as circumstantial evidence from which the declarant's state of mind may be inferred: [citing R. v. P.(R.) (1990), 58 C.C.C. (3d) 334 (Ont.H.C.), at p.341]. Whether admitted by exception or as beyond the exclusionary reach of the hearsay rule, the statements should be contemporaneous with the state of mind of which they are evidence.
[15] It is noted that in addition to contemplating exceptions to the hearsay rule as discussed in P.(R.), Justice Watt discussed instances of principled exceptions to the hearsay rule.
[16] Mr. Davoudi, in his submissions, can be seen to accept that statements of a deceased can be admissible in a domestic homicide case. In the present case, the Crown seeks to use the statements to show the state of mind of the deceased at the time, and as narrative. Although the state of mind of the deceased is sought to be established, this can lead to inference about the animus between the couple, and thence to motive to kill and the state of mind at the time of the killing on the part of the accused. In other cases, motive might help provide the identity of the killer, but that is not in issue here. However, the issues for which state of mind and narrative can be useful establish relevance and materiality of any statement by Nasira Fazli that engages them.
The Threshold Test Under s.540(7)
[17] We can say at the outset that the test of reliability and necessity, the test in R. v. Khelawon, 2006 SCC 57, is not what is meant by, or gathered into, the threshold test of "credible or trustworthy in the circumstances of the case" in s.540(7). A relevant and material statement, even one which plainly would be excluded by the traditional hearsay rule, would presumably be admissible at trial if it passed the reliability and necessity test. Such a high test could not be the intended threshold level for an evidentiary shortcut and convenience at a preliminary inquiry, as s.540(7) represents.
[18] Similarly, "credible or trustworthy" must not have been intended by Parliament to require a justice conducting a preliminary inquiry, (who can virtually never assess credibility as part of the limited weighing required in R. v. Arcuri, 2001 SCC 54) to usurp the trial judge's function and make the definitive ruling on credibility. The binding decision of Ratushny, J., in R. v. Francis, at paragraph 27 instructs me to look for evidence with "at least a prima facie air of reliability to allow it to be admitted on the preliminary inquiry toward a consideration as to whether there is some evidence for a jury to properly consider at trial."
[19] Francis, I say respectfully, overruled comments and approaches in a number of Ontario Court of Justice decisions that pre-dated it, and in the learned work of D.M. Pacciocco, as he then was, in "A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry" (2003) 48 C.L.Q. 151 at 176, cited by Mr. Davoudi. I would also draw attention to paragraphs 22 and 28 in Francis, where Her Honour opined that Bignell, J in R. v. Alton, 2005 ONCJ 208, in seeming to have sought something 'akin to the standard of "circumstantial guarantees of trustworthiness",' had used a higher standard than necessary with respect to trustworthiness. She, that is Bignell J., had effectively used a trial standard. Ratushny, J continued, still at paragraph 28:
The consideration of whether tendered information is "credible or trustworthy" remains only a threshold question of admissibility in the context of the screening function of a preliminary inquiry, meant to protect the accused from having to deal with information that would not amount to being considered as any evidence at all upon which a reasonable trier of fact properly instructed could convict.
[20] At paragraph 29 of Francis, the learned jurist provided brief examples of the sort of frivolous evidence or evidence that could not have any weight, that could fail the s.540(7) threshold test.
[21] In R. v. Vasarhelyi, 2011 ONCA 397, the Ontario Court of Appeal commented on s.540(7) while discussing the entire section 540 and pre-enquettes. See paragraphs 41 to 48, and particularly paragraphs 44 and 46. I consider that the Court's comments were supportive of my view of the purpose of s.540(7) and that it in no way casts doubt on Francis.
Application to the Victim's Statements
[22] The utterances attributed to the deceased by her mother and by her lawyer are relevant and material to live issues before the court. While I risk straying into seeking circumstantial guarantees of trustworthiness, I note that the accused's own statements, made in writing in his own notes or journals, provide mirror-image evidence of some of the same stressors, issues and individual disputes within the marriage. The residential history of this family corresponds with changes around support, use of space in the residence, and potential property interests and disputes in case of separation. There is no basis for me to suspect, let alone strongly suspect or conclude, that the deceased was making up false declarations to poison the minds of her listeners against Mr. Ibrahem or for any other reason.
[23] The other key approach in the Respondent's materials on this application is the unreliability of the witnesses. The lawyer, Peter Knezy, was alleged to be a racist in a question as he testified. In the written submissions I am asked to be very skeptical of the objectivity of the witness. Further, the fact no notes were made of the June 25, 2013 meeting, by a lawyer with a busy practice, should throw the reliability and accuracy of his memory into great doubt.
[24] In the context of the purchase Mr. Knezy had handled for Ms. Fazli, the two were not strangers. They had a recent business relationship. The content of the questions Ms. Fazli allegedly asked make sense for a new property owner, and relatively new spouse, having marital difficulties. I did not see any reasonable threshold had been met as Mr. Davoudi cross-examined Mr. Knezy, to let Mr. Knezy be abused by his questioner, and I see no basis for saying Knezy's evidence was not entitled to weight. The time gap from June 25 to July 23 was not large. In the circumstances of this case, counsel Mr. Knezy's evidence easily passes the threshold of reliable or trustworthy. I would exercise my discretion to admit his evidence under s.540(7) of what he was told and asked by Nasira Fazli, to the extent that section is needed.
[25] Shahla Fazli, Nasira's mother was sometimes difficult to keep focused on the questions she was being asked. She wanted justice for her daughter, and wanted her daughter to be seen as the person, the human being she was. Justice for her daughter clearly had negative implications for Mr. Ibrahem, as she saw it. Despite saying she loved Mr. Ibrahem at first as an adult son, now she sees him as her daughter's killer.
[26] But once again, there were signs this witness was careful to be correct, as she saw the facts. She was carefully cross-examined by Mr. Davoudi. As the Crown points out in their submissions, some of the points she testified to were themes in the accused's writings, and his comments heard on the audiotape, Exhibit 6. She did not make these themes up. Her evidence is not deserving of no weight and it has an air of reality and reliability; indeed at trial she may be found fully credible and reliable, notwithstanding her animus. That is for the trier of fact to decide. Once I have found the threshold level of credibility or trustworthiness in the circumstances of the case, and have an audiotape including Mr. Ibrahem's apparent voice to prove a conversation occurred, I cannot excise the most damaging alleged comment from before the tape was turned on. That would entail usurping the trier of fact's jurisdiction.
[27] I find the threshold test in s.540(7) to have been met with respect to the deceased's utterances to and in the presence of her mother Mrs. Fazli, and I exercise my discretion to admit that evidence.
Ruling accordingly.
D.M. Stone Justice