COURT FILE NO.: CR-18-50000159 DATE: 20190522 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – NAJIB AMIN
COUNSEL: P. Zambonini and S. Arnold, for the Crown J. Penman and J. Benatar, for Mr. Amin
BEFORE: S.A.Q. Akhtar J.
RULING ON UTTERANCES MADE BY THE ACCUSED TO UNDERCOVER OFFICERS
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] Najib Amin is charged with first degree murder. The Crown seeks to lead evidence of utterances made by Mr. Amin during an undercover police operation. The defence opposes admission on the basis that these utterances contravene the principles for admission set out in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544.
[2] For the following reasons, I find the utterances to be admissible.
Background Facts
[3] On 30 January 2016 Sylvia Consuelo was murdered in her apartment, Unit 813, 121 Kendleton Drive in Toronto. The apartment building was one of a complex of three linked by tunnels. Ms. Consuelo was discovered laying on the floor of her apartment, partially naked, by a group of five males who had arrived to visit and drink with her. One of the males called 911, after which the males immediately left the building.
[4] When firefighters arrived, they found Ms. Consuelo laying on the floor, naked from the waist down with vital signs absent. Unopened condoms had been scattered on and around her body. Paramedics arrived and attempted to revive Ms. Consuelo but were unsuccessful. She was pronounced dead on scene.
[5] Dr. Kristopher Cunningham conducted a post mortem examination, revealing internal chest injuries as well as facial petechial haemorrhaging. Dr. Cunningham opined that the injuries he observed were consistent with a method of suffocation called “Burking”, named after the technique used by a 19th Century grave robber, William Burke. Burking involves killing a victim by sitting on their chest and smothering them with one’s hands or another object. Dr. Cunningham felt that Ms. Consuelo’s chest injuries: including a hole in the heart, blunt force trauma to the chest, fractures of the breast bone, and a cut to the left lobe of the liver were consistent with this method.
[6] Police officers checked video footage from cameras situated at the three Kendleton buildings. Recordings from the night of the murder led them to the discovery of a partially masked individual entering the Kendleton complex and using the elevators in the basement at 121 Kendleton. Reviewing footage from 111 Kendleton which had been recorded on 24 January 2016, police observed a male wearing similar clothing to the masked individual: Najib Amin.
[7] Police invented a covert operation targeting Mr. Amin in the hope of learning whether he was involved in Ms. Consuelo’s murder. Two undercover officers, known only as “J” and “D” were deployed in the plan. “D” pretended to be a businessman who was opening up a Shisha bar in London, Ontario. D pretended that he had hired a marketing company to conduct a survey offering a $100 gift card reward to selected participants.
[8] The first meeting took place on 26 April 2016. Mr. Amin was told that he, and “J”, were the lucky recipients of “D”’s prize. Mr. Amin bought into the police plan, amazed that he had won. “D” took Mr. Amin, his girlfriend, and “J” on a shopping spree after which they went to a non-alcoholic restaurant called Shisha and smoked hookah pipes. Eventually, they went to a hotel room to watch a basketball game and drink.
[9] On 26 May 2016 “D” took Mr. Amin to Ripley’s Aquarium on the pretext that he wanted to build a shark tank at his cottage.
[10] On 27 May 2016 “J” and Mr. Amin met up again. Mr. Amin was excited about building the tank at “D”’s cottage and making money with “J”. He and “J” made plans to travel north on a boat cruise to inspect “D”’s cottage.
[11] The pair got together again on 31 May 2016 when Mr. Amin was in the company of his girlfriend.
[12] On 1 June 2016 “J” met with Mr. Amin alone. “J” played the role of a person with a troubled background who was looking for a business opportunity for a friend. At this meeting, “J” introduced the second phase of the police plan: the “Jesse Problem”. “J” told the accused about his girlfriend, Jesse, who was causing problems for him. Jesse was fictitious, an invention designed to induce Mr. Amin into confiding any involvement he had in Ms. Consuelo’s murder.
[13] “J” told Mr. Amin that he had a cousin involved in organised crime who had given him a gun for safekeeping.
[14] Jesse had taken the gun without asking and “J” was very worried that once his cousin found out, he would become extremely angry. “J” told Mr. Amin that he was very stressed and looking for ways to recover the gun. Mr. Amin suggested alternative ways to solve the problem: tell Jesse that he loved her, “sweet talk” her, or pay her to return the gun.
Utterance 1: The Method of Killing Jesse
[15] As they were driving to Albion mall in Toronto, “J” continued to express his concerns about Jesse and his inability to retrieve the gun. Mr. Amin told “J” that he would kill Jesse for him. When asked how he would do it, Mr. Amin said that he would jump on top of Jesse and strangle her. He told “J” that “you could just, just go like this over their mouth…” When he said this, Mr. Amin motioned to put his hands over the fictitious victim’s nose and mouth area. He told “J” that he would leave his hands there until Jesse stopped moving and after she stopped, he would keep them there for another two minutes to ensure she was not faking death. Mr. Amin also said he might drown Jesse in a bathtub and if she was kicking and screaming, they could knock her unconscious.
Utterance 2: The Details of Ms. Consuelo’s Death
[16] As they continued to drive around the area, Mr. Amin pointed out a building where “all the crackheads, all the prostitutes” lived. He recounted events in which a woman had died in January of that year. Mr. Amin described how that woman was beaten up and brutally raped. He said that the woman was killed because she had AIDS and was having sex with men telling them not to wear a condom thereby spreading the disease. Mr. Amin said that one of his friends, a man by the name of “Jums”, (Jumar Lennon), had contracted AIDS by having unprotected sex with the woman. He added that “Jums” had also passed the disease on. Mr. Amin went on to say that the killing remained unsolved.
Utterance 3: The Cameras and Gloves
[17] Mr. Amin and “J” would meet on 2 and 8 June 2016.
[18] On 8 June 2016 Jesse’s killing was again discussed. Mr. Amin offered advice on how to avoid detection. He told “J” that he had to be aware of surveillance cameras and cover his face. He also suggested that “J” would have to wear a hat and gloves as well as wipe down everything that he touched.
Utterance 4: Mr. Amin Puts Himself in the Building
[19] On 27 June 2016 Mr. Amin met “J” in his car. By this point, it was clear that Mr. Amin wanted to form a business partnership with “J”.
[20] The police moved into the next phase of the operation: “J” told Mr. Amin that he had killed Jesse, showing him pictures from a fake murder scene that the police had staged the previous day. “J” indicated that he was going to call “D” to clean up the murder scene and dispose of the evidence.
[21] When “D” arrived, he, “J”, and Mr. Amin got into his car where “J” and “D” discussed “Jesse’s murder”. “D” offered “J” his assistance in disposing of incriminating evidence, an offer that included “D” flying a potential eyewitness to the United States.
[22] The discussion regarding Jesse’s murder concluded and “D” turned to Mr. Amin producing a fictitious police homicide bulletin displaying a picture of Mr. Amin taken from 24 January 2016 at the Kendleton complex alongside a picture of the masked man seen at 121 Kendleton on the night of the murder. The implication was that Mr. Amin was a person of interest in Ms. Consuelo’s murder investigation.
[23] On seeing this material, Mr. Amin became silent and teary eyed. When “D” asked Mr. Amin about the events of 30 January 2016, Mr. Amin replied that “everything was a blur”, that he was “shit faced” and could not remember anything. When “D” told Mr. Amin that he could only provide assistance if given all the facts, Mr. Amin responded by saying that he had blacked out and was unable to remember what had happened.
[24] However, Mr. Amin informed “D” that there were four other people who could help him find out what had transpired that night. Mr. Amin repeated his account that the murder victim had AIDS and spread it to others. Mr. Amin said that there were four people present and admitted that he was in the building. However, he continued to insist that everything was a blur.
[25] After “D” departed, “J” and Mr. Amin continued to discuss Ms. Consuelo’s murder. Mr. Amin maintained that he was uncertain about what had occurred and would have to ask the others who were in the building. However, Mr. Amin also appeared to confirm that he was the masked man depicted in the homicide bulletin. When “J”, referring to the picture, pointed out that Mr. Amin chose to be “masked up” and that the “shits on your face and everything”, Mr. Amin replied that “those times were winter, you know. It’s cold outside, you know. You’re still freezing when you come inside and shit, right until you warm up.”
[26] Subsequently, communications between “J” and Mr. Amin broke down and their contact became intermittent. Police planned to take Mr. Amin on a business trip to London. There, “J” was to inform Mr. Amin that search warrants were about to be executed at his residences. At that point “J” was to offer help. However, this plan was never executed. The next time “J” saw Mr. Amin was at the beginning of November when he was arrested.
LEGAL PRINCIPLES
[27] In Hart, the Supreme Court of Canada tackled the controversial topic of statements obtained during a “Mr. Big” operation. Typically, these types of investigations would involve encouraging an accused to describe acts of prior wrongdoing in order to impress a fictitious underworld boss with the aim of joining his or her criminal enterprise. The obvious risk in these kinds of investigations is that the accused has every incentive to invent and/or exaggerate criminal acts in order to impress the head of a criminal organisation that they wish to join.
[28] Accordingly, any utterances made by an accused in the “Mr. Big” context are inherently suspect and must be carefully scrutinised for reliability.
[29] The Court, in Hart, at paras. 85-86, created a two pronged test to determine admissibility:
- Any statements made to an undercover officer in a “Mr. Big” style investigation were presumptively inadmissible and could only be adduced by the Crown if it could show, on a balance of probabilities, that the probative value of the statement outweighed any prejudicial effect;
- The defence may apply to exclude the statement if the police conduct amounted to an abuse of process irrespective of its probative value.
[30] Mr. Amin was not subject to a “Mr. Big” style investigation. However, in R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at para. 85, the court indicated that the Hart factors provided a useful framework for determining whether statements obtained through the use of undercover operations would be admissible under the probative versus prejudicial microscope.
The Hart Analysis Applied to Mr. Amin
[31] The Hart analysis does not sit easily with the facts of this case. There was no “Mr. Big”, no membership into a criminal enterprise, and no confession obtained. However, the factors Moldaver J. set out in Hart provide guidance in assessing the utterances’ reliability and their probative value in this case. Probative in the Hart sense means more than logically relevant and requires a limited weighing of the evidence to assess its value in proving an issue in dispute (at para. 95).
[32] At paras. 100-105 of Hart, Moldaver J. listed the following non-exhaustive factors to consider when evaluating statements made by an accused in a “Mr. Big” operation:
- The nature of the relationship between the undercover officer and the accused;
- The length of the operation and number of interactions between the undercover officer and the accused;
- The nature of any inducements offered;
- The presence of threats and the conduct of the interrogation; and
- The personality of the accused including their age, sophistication, and mental health.
[33] These factors are not to be applied in a mechanical fashion. Their use simply reflects the need to examine the circumstances leading up to and surrounding the making of the statements.
[34] Moldaver J. also spoke of the great value provided by confirmatory evidence and the existence of details of the crime that only the accused might have known as the offender when evaluating a statement’s reliability. Although confirmatory evidence is not a mandatory requirement “where it exists, it can provide a powerful guarantee of reliability”: Hart, at para. 105.
[35] The undercover operation lasted from 26 April to 3 November 2016. The officers met with Mr. Amin, who was 27 years old at the time, on 11 different occasions. The utterances which the Crown seeks to lead all occurred between April and June 2016. All of the utterances sought to be led were audio recorded. Mr. Amin and the officers spent a total of approximately 45 hours together.
[36] The nature of the relationship, particularly between Mr. Amin and “J” was built to foster trust and loyalty. “J” was not an imposing figure in the mould of a “Mr. Big” undercover officer but an everyman who equated in social status to Mr. Amin. “D” and other officers played the roles of businessmen and did emit the aura of people involved in violent crime. There were no threats or abusive interrogation that would make Mr. Amin’s utterances unreliable. Indeed, some of his utterances arose without prompting or questioning such as the 1 June 2016 comments describing how and why the woman in the Kendleton complex was killed.
[37] As noted, developing trust and loyalty was the undercover officers’ goal. Not only did that preclude threatening or coercing Mr. Amin it promoted a sense of candour and honesty. This goes a long way to demonstrating that Mr. Amin was not overstating or falsifying any facts revealed to “J” and “D”.
[38] Further, the inducements offered in this case were not, as in Hart, those that encouraged Mr. Amin to boast or exaggerate about any wrongdoing. Any inducements were business related, with Mr. Amin being asked to provide marketing material, procuring Shisha product, and building a shark tank for “D”. None of these incentives would cause Mr. Amin to make incriminating statements.
[39] Moreover, the officers went out of their way to evaluate Mr. Amin’s vulnerability as a target. They were fully aware of Mr. Amin’s mental health issues and never, at any stage, sought to exploit them. Even though Mr. Amin drank alcohol during his interactions with the officers, there was no evidence of any kind of intoxication. Nor did the officers encourage Mr. Amin to drink or supply him directly with alcoholic beverages. The audio conversations show that Mr. Amin was lucid and understanding during the conversations in which he partook. There was no conduct constituting an abuse of process in this case.
[40] The only form of “pressure” placed on Mr. Amin was when “D” confronted him with the falsified police materials on 27 June 2016. As described, “D” offered to assist Mr. Amin if the police were correct in their suspicions that he was Ms. Consuelo’s killer. “D” urged Mr. Amin to tell him everything if he needed help.
[41] Even though “D” forcefully advanced his offers to help, this was not the type of conduct or inducement that would provide a reason for Mr. Amin to invent a story that would falsely incriminate himself. “D”’s offer was only of value if Mr. Amin had committed the murder - there was no reason in this situation for Mr. Amin to falsely admit that he was responsible. Indeed, when confronted with the homicide bulletin, and “D”’s representations, Mr. Amin told the undercover officers that he had no recollection of the night of the murder and later denied even being at 121 Kendleton Drive.
[42] It is telling that even when offered assistance to escape liability, Mr. Amin did not admit to committing the offence. In many ways this is a similar case to that of Zvolensky, where the court found, at para. 89, that the accused was “not in the thrall” of the police to the point where he could not consider his own best interests. Mr. Amin went on to deny the offence to “J” after his conversation with “D” demonstrating his lack of vulnerability or susceptibility when he made the utterances.
[43] Nor is this the type of evidence that would constitute an abuse of process.
[44] I find nothing in the circumstances leading up to and including the making of the utterances to cause me concern about the utterances’ reliability.
[45] Turning to the potential prejudicial effect of the utterances, I repeat that this was not a “Mr. Big” style operation. There was no attempt to induce admissions of unrelated criminal activity. There is very little potential for the jury to misuse the evidence, if admitted. Two of the utterances which the Crown seeks to lead are related directly to Ms. Consuelo’s murder. The other two were pieces of “advice” given to “J”. I deal with each utterance separately below.
The Utterances
[46] As set out previously, the utterances fall into four distinct blocks:
- Utterances relating to how Mr. Amin would kill Jesse;
- Mr. Amin’s description of Ms. Consuelo’s death;
- Mr. Amin’s advice on how to avoid detection; and
- Mr. Amin’s utterances when confronted by “D” with fictitious police material.
Utterances Relating to How Mr. Amin Would Kill Jesse
[47] On 1 June 2016 “J” asked Mr. Amin for advice on how to deal with the “Jesse Problem”. Initially, Mr. Amin told “J” to “sweet talk” Jesse or even pay her to recover his cousin’s gun. Finally, Mr. Amin offered to kill Jesse. When asked how he would do so, Mr. Amin told “J” that he would jump on top of Jesse and smother her with his hands. He added that he and “J” could also drown her in a bathtub and knock her unconscious if she resisted.
[48] There is no doubt that these utterances are highly probative in that Mr. Amin’s proposed method of killing Jesse bears a conspicuous similarity to Dr. Cunningham’s opinion that Ms. Consuelo’s injuries were consistent with the Burking method of sitting atop a victim and smothering their face to suffocate them. This is not propensity type evidence which the Crown would use to show that Mr. Amin was the type of person who would commit such crimes in this fashion. Rather, this evidence goes to knowledge: Mr. Amin advises “J” of a unique method to kill Jesse because he had used that method with Ms. Consuelo.
[49] There is some risk of prejudice in this utterance. The statement sought to be adduced - the methods by which Mr. Amin would kill Jesse - follows Mr. Amin’s declaration that he would actually commit her murder. This prejudice, however, can be alleviated: “J” is not allowed to testify that Mr. Amin offered to kill Jesse. The utterance must be elicited in another way: by “J” asking a hypothetical question of Mr. Amin and seeking his advice. No reference shall be made to Mr. Amin’s agreement to participate in Jesse’s killing. The defence will, of course, be allowed to lead the evidence showing that Mr. Amin’s initial advice, given on several occasions, was that “J” maintain friendly relations with Jesse, tell her that he loved her, and pay her to return the gun.
[50] I find that this utterance’s probative value outweighs its prejudicial effect: it is admissible.
Mr. Amin’s Description of Ms. Consuelo’s Death
[51] Mr. Amin also told “J” about a woman that had died in the Kendleton complex of buildings pointing out the complex when they drove past it. Mr. Amin told “J” that the victim got strangled to death, beat up, and brutally raped because she had AIDS and was “spreading the disease”. He told “J” that his friend, Jumar Lennon, had contracted the disease from Ms. Consuelo.
[52] This utterance, completely voluntary, has significant probative value. It shows that Mr. Amin had knowledge of the details of Ms. Consuelo’s death. It also provides a motive for her murder.
[53] Even though neither Ms. Consuelo nor Mr. Lennon had AIDS, Mr. Amin, appeared to believe that they did. Mr. Amin told Mr. Lennon that Ms. Consuelo had HIV. When Mr. Lennon informed Mr. Amin that he had contracted an STD from Ms. Consuelo, Mr. Amin walked away “pissed off”.
[54] Moreover, there is some corroboration that Ms. Consuelo was killed for a reason relating to her sexual activity and unprotected sex. The firefighters who responded to the 911 call found unopened condoms scattered on and around her body. This detail was never made public. Moreover, Mr. Amin’s description of method of death, injuries, and sexual assault match Dr. Cunningham’s findings.
[55] I find there is no risk of prejudice: this utterance is admissible.
Mr. Amin’s Reactions on Seeing the Police Bulletin
[56] Mr. Amin’s utterances made on 27 June 2016, after being shown the fake homicide bulletin, are also of considerable probative value in light of the fact that this case centres on the issue of identity. The Crown’s case is that the masked man seen on 30 January 2016 is Mr. Amin and that he enters 121 Kendleton Drive obscuring his face to conceal his identity as he intends to kill Ms. Consuelo.
[57] In these utterances, Mr. Amin admits to being at the Kendleton complex on the night of the murder. He also indicates that four other people were there which may be a reference to the men that found Ms. Consuelo. When confronted with the material, Mr. Amin does not deny complicity in Ms. Consuelo’s murder but says he cannot recall. Finally, when questioned by “J”, Mr. Amin appears to concede that he is the masked man shown in the police bulletin.
[58] This evidence is highly probative as it places Mr. Amin at the murder location and constitutes an admission that he is the masked man.
[59] There is corroboration for these points: a comparison of the clothing worn by Mr. Amin on 24 January 2016 and the masked man on 30 January 2016 reveals that both men wore almost identical clothing. This clothing includes distinctive markings such as an albatross shaped marking on the rear of the jeans, apparently identical grey Nike sneakers, and the same top with distinctive stripes. In addition, the scarf worn by the masked man on 30 January to cover the lower part of his face appears to match the scarf worn by the female captured accompanying Mr. Amin on 24 January 2016.
[60] There is no prejudicial evidence to be found in these utterances: they are admissible.
Mr. Amin’s Advice on How to Avoid Detection
[61] The utterances on 8 June 2016 where Mr. Amin advises “J” on how to avoid being seen by cameras have two probative aspects.
[62] First, the utterances are linked to the 27 June 2016 conversation because after “D” has gone, “J” points out that the picture in the police material shows Mr. Amin doing exactly what he had told “J” to do on 8 June 2016. This forms part of the context for the 27 June 2016 conversation.
[63] Secondly, when asking the jury to find Mr. Amin is the killer, the Crown may use this evidence to show that Mr. Amin did exactly what he advised “J” to do when he told him to wear a mask to conceal his identity from any surveillance cameras.
[64] I find very little prejudice in these utterances given their obvious probative value: they are admissible.
Conclusion
[65] For the foregoing reasons, I find all of the utterances sought to be led by the Crown to be admissible.
S.A.Q. Akhtar J.
