Court File and Parties
COURT FILE NO.: CR-18-50000385-0000 DATE: 2019-06-21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – ABDIRISAQ YABAROW
Counsel: Paul Zambonini and Gus Kim, for the Crown Jennifer Penman and Tania Bariteau, for Abdirisaq Yabarow
HEARD: May 30, 2019
By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.
M. Dambrot J.:
[1] This motion concerns the right of the accused to require the Crown to lead or to himself lead in evidence an exculpatory statement made by him to an acquaintance.
Background
[2] Abdirisaq Yabarow is charged with the second degree murder of Abdinasir Hussein. He is being tried by me, with a jury. The Crown has adduced evidence that on October 3, 2017, a number of men, including the accused, were drinking in Mr. Hussein’s apartment. Following a fight involving the accused and another of the men present, everyone except the accused and the deceased left the apartment. The following morning, the deceased’s body was discovered in the apartment. The scene was very bloody, and the deceased had extensive linear and irregular haphazard sharp force injuries to his scalp, face, neck, shoulders, arms, upper back and chest. The Crown alleges that during the period of time that the accused was alone with the deceased, he murdered him.
[3] The accused was arrested and charged with the murder on October 6, 2017. There was no eyewitness to the killing of the deceased. The Crown’s case that the accused killed the deceased is in part circumstantial, and in part based on utterances made by the accused after the death of the deceased and before the arrest of the accused.
The Motion
[4] Prior to the commencement of the Crown’s case, Crown counsel provided to counsel for the accused a list of the witnesses he expected to call in the course of the Crown’s case. He was careful to reserve the right of the Crown to alter course and elect not to call any particular witness on the list. One of the witnesses on the list was Mohamed Khalinle.
[5] I am aware from an earlier motion in this case that on October 6, 2017, Mr. Khalinle provided information to the police that at between 1:30 and 2:30 a.m. on October 6, he met the accused at a coffee shop. Mr. Khalinle was aware that Mr. Hussein had been killed. The accused told him that he had stabbed a friend of his, wanted to escape and needed a place to sleep that night. He said that he had been drinking with his friend when his friend attacked him, and he defended himself by stabbing him with a knife and killing him. Mr. Khalinle refused to give the accused a place to sleep, and told him to call the police. After this conversation, Mr. Khalinle saw the accused walk down an alley adjacent to 1716 Weston Road and enter an unlocked door.
[6] Based on the information given to them by Mr. Khalinle, the police arrested the accused in a dark basement that they were able to access through the unlocked door in the alley beside 1716 Weston Road.
[7] The calling of a witness like Mr. Khalinle is always a dilemma for the Crown. If they call him, they can adduce evidence from him about his conversation with the accused on October 6. But if the Crown does so, it cannot simply lead the inculpatory part of the conversation. Where the Crown introduces a “mixed statement”, one that is partly inculpatory and partly exculpatory, then as a matter of fairness the Crown is required to adduce the entirety of the statement. As a result, if the Crown leads the evidence of Mr. Khalinle, then on the one hand it would add weight to the Crown’s position that the accused was present when the deceased was killed, and was the person who killed him. On the other hand, however, leading his evidence would also lay a foundation for a defence of self-defence without the need for the accused to lead any evidence in support of it and without the ability of the Crown to cross-examine Mr. Khalinle on this point. As the record stands, the evidence that might raise such a defence is meagre. The Crown has opted to forego leading the portion of Mr. Khalinle’s evidence that would support the position of the Crown, and has thereby avoided leading evidence that would support the position of the defence.
[8] As a result of the choice made by the Crown, the accused brought a motion for an order compelling the Crown to call Mr. Khalinle as its witness. Although counsel for the accused does not accuse the Crown of misconduct amounting to abuse of process, she characterizes the decision as an unfair tactic that is reviewable under the Court’s trial management authority. She relies in particular on the decision of Pomerance J. in superficially similar circumstances in R. v. Hillis, 2016 ONSC 451. I will return to Hillis later in these reasons, but it is necessary to record that in the course of argument, I doubted that Hillis was a helpful authority.
[9] I said this because in Hillis, it was only after the trial judge ruled that the exculpatory evidence was admissible that the Crown decided not to call a witness that it had intended to call. The trial judge ruled that in cross-examining that witness, the defence could adduce certain exculpatory evidence, because it was res gestae evidence that was admissible at the instance of the Crown or the defence. I noted that here, even if I compelled Crown counsel to call Mr. Khalinle, I could not compel him to lead the accused’s statement to Mr. Khalinle in evidence. Unlike the circumstances in Hillis, counsel for the accused had not sought a ruling that she should be entitled to adduce the exculpatory statement in cross-examination. In the face of my comments, counsel chose to make such an application.
[10] As a result of my comment, counsel for the accused added to her motion a request that I rule that the accused be permitted to lead this evidence as an exception to the rule that prohibits the defence to adduce self-serving evidence. It is preferable that I consider the new motion first.
Analysis
The first motion: is the exculpatory statement of the accused admissible at his instance?
[11] It is a settled rule of evidence, and one that exists for sound reasons, that an accused is precluded from eliciting self-serving statements that he has previously made. Put another way, exculpatory statements of an accused person made outside of court are generally inadmissible, subject to certain exceptions. (See R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.).) The rationale for this rule was stated succinctly by McIntyre J. in R. v. Simpson, [1988] 1 S.C.R. 3 at para. 24 as follows:
As a general rule, the statements of an accused person made outside court -- subject to a finding of voluntariness where the statement is made to one in authority -- are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.
[12] There are, of course, exceptions to this rule. The established exceptions were all mentioned in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, [2010] S.C.C.A. No. 466:
- A statement that is relevant to the state of mind of the accused when the offence was committed – for example, a bizarre or incoherent statement made by an accused shortly after being arrested that tends to show that he was delusional, and supported a defence that he lacked the capacity to form a criminal intent as a result of cocaine intoxication;
- A prior consistent statement to rebut an allegation of recent fabrication;
- A res gestae statement; and
- The exculpatory part of a “mixed” statement – one that is part inculpatory and part exculpatory – where the Crown seeks to adduce evidence of the inculpatory portion.
[13] The Court in Edgar developed a fifth exception: spontaneous statements made by an accused when first confronted with an accusation.
[14] I will consider the applicability of each exception in this case.
A statement that is relevant to the state of mind of the accused when the offence was committed
[15] This statement clearly does not fall within this exception.
A prior consistent statement to rebut an allegation of recent fabrication
[16] An accused who testifies to his innocence is entitled to lead prior consistent statements to rebut an allegation of recent fabrication. While the allegation of recent fabrication need not necessarily be express, and may arise implicitly from the circumstances of the case, nevertheless the fact that the whole story of a witness is challenged does not, by itself, constitute an allegation of recent fabrication. The exception is not so broad as to recognize every case where the accused denies the truth of the Crown’s case as an implicit allegation that his story has been recently contrived. (See Campbell, at p. 20) There is no allegation of recent fabrication, either explicit or implicit, in this case.
A *res gestae* statement
This statement is clearly not a traditional res gestae statement.
A mixed statement
[17] Where the Crown seeks to tender an accused’s out-of-court statement that contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused (see R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111 at para. 37). The rule traces its origin to the decision of Parke J. in Rex v. Higgins (1829), 172 E.R. 565, 3 C. & P. 603, at 604. The Court stated:
Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner, as well as against him; but still, like all evidence given in any case, it is for you to say whether you believe it.
[18] This rule was adopted in Canada by Duff J., as he then was, in R. v. Eberts (1912), 47 S.C.R. 1 at 31, and again by Duff C.J.C. in R. v. Hughes, [1942] S.C.R. 517 at 521. Those decisions simply decided that when the Crown adduced a statement, it became evidence for and against the accused. They did not consider what the result would be if the Crown proffered only the inculpatory part of a statement, and held back the exculpatory part.
[19] That issue apparently first arose in R. v. Allison (1991), 68 C.C.C. (3d) 375 (B.C.C.A). While the issue arose somewhat indirectly, and the comment of the Court might be said to be obiter, nonetheless in Allison McEachern C.J.B.C. stated, at p. 6:
I tend to agree with Mr. Goldberg that, as a matter of fairness, the Crown ought not to be allowed to put into evidence only a part of an explanation which the officer said the accused gave him at the time of arrest. The Crown should tender the entire explanation, if so advised and if tested for admissibility on a voir dire, or none of it.
[20] This was adopted as a correct statement of the law in R. v. Ziegler, 2010 BCCA 504, at para. 12, where the Court stated:
Once a portion of a statement by an accused is led by the Crown, the accused has the right to elicit other parts of the statement that were not adduced by the Crown, so long as they are all part of the same statement: see R. v. Allison (1991), 68 C.C.C. (3d) 375 (B.C.C.A.).
[21] I note that in Ziegler, the Court did not say that the Crown had to proffer the exculpatory part of the statement, only that the accused could elicit it in cross-examination. However the two approaches effectively amount to the same thing.
[22] Finally, in Rojas, the Supreme Court adopted this addition to the rule in Higgins. Charron J. stated, at para. 37:
Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevant here – the mixed statement exception. Just as in England, it has long been established that where the Crown seeks to tender an accused’s out-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused …
[23] Rojas also explains the twin rationale for the rule: fairness to the accused and the fact that it is frequently difficult to determine which parts of a statement are inculpatory and which parts are exculpatory. I would add that when courts speak of fairness to the accused in this context, they do not mean that if the Crown gets to adduce inculpatory evidence, it is only fair that the defence gets to introduce exculpatory evidence. That would defeat the rule against self-serving evidence. Instead, what I understand the courts to mean by fairness is simply this. If the Crown is permitted to adduce only the part of a statement that favours the prosecution, it risks unfairly distorting the overall meaning of the statement. We insist that the entirety of the statement is led to ensure that the trier of fact is best positioned to understand the meaning and significance of the statement, and to give effect to it fairly.
[24] In this case, counsel for the accused submits that the mixed statement rule should be extended further. She argues that where the Crown adduces an inculpatory statement of the accused, but does not tender a separate, mixed statement also made by the accused, the accused should be entitled to put the mixed statement before the jury. The foundation of this argument requires some explanation.
[25] After the killing of Mr. Hussein, the accused communicated with at least three people in an effort to obtain assistance in hiding out or fleeing the country. In two instances, he communicated by cell phone. He had an app on his cell phone that recorded these communications. These were discovered by the police in their examination of his cell phone, and tendered in evidence at trial. In each case, the person that the accused communicated with testified at trial and confirmed the authenticity of the recording.
[26] Yakoob Ali Mohamed testified that on October 5, 2017, at 4:15 p.m., the accused called him and asked for his help in running away from the country. Then at 5:28 p.m., they had a further communication. In the course of their conversation, the accused said that he was going to run away as soon as possible.
[27] Mohammad Ali-Omar testified that on October 5, 2017, the accused called him and told him he had to get out of the country “tonight, tomorrow or tomorrow night”. He said that he had a confrontation with a man, they had “hand to hand”, “he even did cause a problem to me – and I injured the man, he died for the injury.”
[28] It will be recalled that Mr. Khalinle told the police that the accused met him at a coffee shop on October 6, 2017, between 1:30 and 2:30 a.m. The accused told him that he had stabbed a friend of his, wanted to escape and needed a place to sleep that night. He said that he had been drinking with his friend when his friend attacked him, and he defended himself by stabbing him with a knife and killing him.
[29] Counsel for the accused argued that the three statements are analogous to a mixed statement, and the mixed statement rule can be extended to apply. If the Crown adduces the Ali Mohamed and Ali-Omar statements, then either the Crown should be required to adduce the Khalinle statement as well, or the defence should be entitled to introduce it in its case. Counsel for the accused bases her argument on the fact that the statements all deal with the same subject matter – the efforts of the deceased to flee the country after the homicide but before the accused’s arrest, and that as a matter of fairness the jury should have not only his communications with Mr. Ali Mohamed and Mr. Ali-Omar, but also the explanation for wanting to flee that he gave to Mr. Khalinle.
[30] While the accused provided no case law to support this argument, I have found three cases in which similar arguments have been made. In each case, the argument failed.
[31] The argument was first made in R. v. Phillips (1999), 138 C.C.C. (3d) 297 (Ont. C.A.). In Phillips, the Crown introduced two comments made by the accused in a police cruiser while being driven to a police detachment after being arrested. The trial judge refused to permit the accused to introduce a statement he made one hour later, after speaking to a lawyer, to two different police officers after arriving at the detachment. The trial judge found that the second statement was not “an amplification, qualification or explanation” of the earlier comments. The Court of Appeal agreed that the evidence supported a finding that “there was not a sufficient nexus between the statement and the earlier comments to render the statement admissible.”
[32] In R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), the Crown adduced evidence that the accused Pennett, while being pursued by the police, said, “shoot me, shoot me.” The accused argued that the admission of this statement opened the door to the admission in evidence of an exculpatory statement he made about six minutes after he was arrested, and a second statement he made when he was taken to the police station. He contended that they were closely connected to the pre-arrest statement, qualified the meaning to be given to the earlier statement and should be regarded as part of that statement. The trial judge did not agree. He concluded that the post-arrest statements were not closely connected to the pre-arrest utterance and did not qualify or explain it. Accordingly, it was subject to the rule that prohibits an accused from introducing self-serving exculpatory statements.
[33] On appeal, Doherty J.A., for the Court, said that he agreed with the trial judge’s ruling. He stated, at para. 182:
I agree with his ruling. The post-arrest comments were not part of the same narrative as the pre-arrest utterances. In fact, there was no narrative at all. Each statement was an isolated comment made under very different circumstances by Pennett. The post-arrest statements were blatantly self-serving and had no probative value unless accepted for the truth of their contents. That is the exact use which the general exclusionary rule referable to self-serving evidence is designed to prevent: R. v. Simpson (1988), 38 C.C.C. (3d) 481 at 496 (S.C.C.); R. v. Phillips (1999), 138 C.C.C. (3d) 297 at 301 (Ont. C.A.).
[34] Finally, a similar argument was made in R. v. Moir, 2017 BCSC 1006. In Moir, the police recorded a conversation between the accused and a co-accused while they were being transported to court in a sheriff’s van three days after their arrest. The accused applied to introduce a recording of a telephone call between the accused and his mother that occurred just over a day before the conversation in the van. The basis for the application, insofar as is relevant here, was that it would permit the jury to fully appreciate the nature of the conversation in the van.
[35] The trial judge gave consideration to the applicability of the mixed statement rule. He concluded that it did not apply. He stated, at paras. 45-46:
I have considered whether this situation could be considered analogous to the mixed-statement exception to admissibility of prior statements. That exception requires as a matter of trial fairness that an entire prior statement of an accused be admitted when it contains both inculpatory and exculpatory statements. However, I have concluded the facts of this telephone call, preceding the sheriff van ride over a day later, are not analogous to a mixed statement. The circumstances of Mr. Moir’s telephone call to his mother were separate and different than the circumstances of the sheriff van ride with his father. They were not one continuous event and involved changing circumstances and potentially changing motives.
[36] Upon considering these cases, it seems plain to me that the mixed statement rule has no application in the circumstances here. All that can be said in its favour is that in the course of the same day, the accused spoke to three separate people, explained his plight to each of them and sought their help in escaping. The fact that he elaborated on his purported defence more fully to one of them than to the other two does not advance his position. He was not elaborating to any one of them anything previously said to that person. He may have had good reason to think he needed to say more to one of them than to the others about his purported innocence to gain their support. His relationship to each of them might have been quite different. He had ample time to consider what he would say to each of them to best serve his own interests.
[37] Having regard to what was said in the three cases I have referred to, I find that the Khalinle statement was not in any way an amplification, qualification or explanation of the other two statements. The three statements were not part of the same narrative. Each statement was separate, and was made in separate circumstances. There was not a sufficient nexus or connection between the Khalinle statement and the other two statements to render the Khalinle statement admissible at the instance of the accused.
[38] Far from being admissible as a matter of fairness, as counsel for the accused has argued, in my view, as was the case in Suzack, the statement to Mr. Khalinle is blatantly self-serving. It has no probative value unless accepted for the truth of its contents, which is the exact use that the general exclusionary rule referable to self-serving evidence is designed to prevent. It is not admissible as a part of a mixed statement.
A spontaneous statement made by an accused when first confronted with an accusation
[39] The spontaneous statement exception to the rule against self-serving evidence was recognized in R. v. Edgar. Sharpe J. A. summarized the rule at para. 72, as follows:
I conclude, therefore, that it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.
[40] It is apparent that this test is not met in this case. The exculpatory statement made to Mr. Khalinle was not spontaneous in any sense. It certainly was not made upon the accused’s arrest or when he was first confronted with an accusation. Instead, it was made after ample time for consideration, and in circumstances where the accused might well have chosen to minimize his culpability in order to secure the assistance of Mr. Khalinle in hiding out to avoid arrest.
[41] The Edgar exception could only apply here if it were significantly expanded. However the Court of Appeal has resisted arguments to expand Edgar.
[42] In R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, the Court of Appeal considered the admissibility of an exculpatory statement at the instance of the accused that the trial judge had excluded prior to the decision in Edgar. The Court emphasized the importance of spontaneity in the analysis. Moldaver J.A., as he then was, stated, at paras. 21-22:
That brings me to the statement of the appellant. Whatever else may be said about it, it can hardly be characterized as spontaneous. The appellant had five hours to consider his position and “think things out” before going to the police station. He also had the opportunity to speak to his friends after the accident, either directly or by cell phone, before speaking to the police.
In these circumstances, if the trial judge had had the benefit of Edgar, I believe he would likely have excluded the appellant's statement for lack of spontaneity. But even if the statement had been admitted, in my view, its probative value would have been minimal due to its lack of spontaneity. The appellant's reaction upon being confronted with an accusation that he knew was coming and that he had had five hours to think about was not likely to be of much value to the jury.
[43] Similarly, in R. v. Kailayapillai, 2013 ONCA 248, 115 O.R. (3d) 363, the Court considered the admissibility of an exculpatory statement at the instance of the accused that the trial judge had excluded prior to the decision in Edgar. The Court emphasized that the exception to the rule of inadmissibility turns on it being an accused’s “reaction” when confronted with an allegation. The Court explained, at para. 58:
As a matter of common sense and human experience, one's reaction to an allegation may assist in determining the truth of that allegation. Similarly, where one’s reaction takes the form of a statement, the consistency between that statement and one's trial testimony can enhance the credibility of the trial testimony.
[44] The Court went on to explain that not all reactions to allegations have probative value. The Court stated, at paras. 60-61:
The probative value of the accused’s prior consistent statement under the Edgar analysis lies in its ability to truly reflect the individual's honest and genuine reaction to the allegation. Statements made in circumstances where it cannot be said that the statement reflects an honest reaction do not have probative value. The circumstances surrounding the making of the statement are crucial to the determination of admissibility under the Edgar analysis.
Statements made by an accused long after he or she has had the opportunity to reflect on the situation and consider his or her response to an allegation do not provide the kind of spontaneous response capable of giving a true reflection of the accused's reaction to the allegation.
[45] In this case, the accused’s exculpatory assertion is not spontaneous at all. It is not a reaction to an allegation. He was not confronted with an accusation. Instead he volunteered information about the deceased’s demise in order to secure assistance from Mr. Khalinle in effecting an escape.
Conclusion on the first motion
[46] I am not satisfied that the accused’s exculpatory statement made to Mr. Khalinle falls into any of the exceptions to the rule that self-serving statements are presumptively inadmissible. Therefore, I find that the exculpatory statement is inadmissible at the instance of the accused.
The second motion: should the Crown be required to adduce the accused’s statement to Mr. Khalinle?
[47] Although I have ruled that it is not open to the accused to adduce his exculpatory statement to Mr. Khalinle, as I have explained, it remains open to the Crown to adduce the statement. The Crown has chosen not to do so. Counsel for the accused labels the Crown’s opposition to the admission of the statement as unfair, and urges me to compel the Crown to call Mr. Khalinle as a witness, and require the Crown to adduce the statement, relying on Hillis. She says that the Crown is refraining from calling this evidence on the basis that it could help the accused, in violation of the Crown’s obligation to be a quasi-minister of justice, and custodian of the public interest. In my view, this is many steps too far.
[48] As I see it, all that the Crown is doing here is standing on the settled rule of evidence that an accused is precluded from eliciting self-serving statements that he has previously made, and for the very reason that the rule exists. The reason that Crown counsel has chosen not to lead the evidence of Mr. Khalinle, far from being in violation of his obligation to be a quasi-minister of justice and custodian of the public interest, is precisely aligned with the rule against self-serving statements endorsed by the Supreme Court of Canada: an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination. As Sharpe J.A. put it in Edgar, at para. 30, “… an accused person should not be permitted to advance his or her own evidence of a defence through out-of-court statements and avoid cross-examination.”
[49] The reliance of the accused on Hillis seems to me to be misconceived. It is worthwhile examining that decision in some detail. In Hillis, the Crown provided its witness list to the defence. The list included certain civilian witnesses, and certain police officers. The Crown made clear that it had not yet determined exactly which of these witnesses would be called by the Crown.
[50] The trial judge heard a number of pre-trial motions brought by the accused. She ruled, amongst other things, that the defence could elicit certain exculpatory res gestae statements of the accused overheard by a civilian witness and certain exculpatory actions of the accused observed by a police officer. Both of these persons were on the Crown’s witness list. The Crown opposed the admissibility of this evidence, but never suggested during the motions that it would not be calling these two witnesses.
[51] The witness who heard the res gestae statements testified that at the time of the victim’s death, he overheard the accused say, “I didn’t mean it”; “call an ambulance”; “call the police”; and “I’m sorry. I didn’t mean it”. The police officer testified that he arrived at the scene minutes after the 911 call was placed and saw the accused kneeling over the victim with his hands on his neck as though he was trying to apply pressure to the wound. The trial judge ruled that all of this evidence was admissible.
[52] As a result, Hillis was not about the right of the accused to place exculpatory evidence before the jury. It was simply about whether the accused would be able to adduce this evidence in the cross-examination of witnesses called by the Crown, or would have to call the Crown witnesses as defence witnesses, and as a result lose the right to cross-examine them and lose the right to address the jury last. It was in this context and for this reason that the Crown decided not to call the witnesses. And it was that decision made for that reason that the trial judge characterized as unfair, and made the order that the Crown had to call the witnesses.
[53] I note, for completeness, that Hillis has been followed in R. v. Flynn, 2017 ONSC 4034, without any analysis of the issue, but has been criticized in two cases: R. v. Vader, 2016 ABQB 405, and R. v. Cheveldayoff, 2018 ONSC 4329. In Cheveldayoff, at para. 31, Akhtar J. observed that Hillis appears to conflict with the decisions in the Supreme Court of Canada in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 and R. v. Cook, [1997] 1 S.C.R. 1113, which both held that the Crown is under no obligation to assist the defence by calling a witness it deems unnecessary to its case but might be helpful to the accused. I see no need for me to enter the debate since my decision does not turn on the correctness of the decision in Hillis.
[54] In the end, even if I had ruled that the accused could adduce the evidence of his statement to Mr. Khalinle, I see no basis whatsoever for me to compel the Crown to call Mr. Khalinle as a witness, far less to adduce the accused’s statement to him.
Disposition
[55] Accordingly, the application is refused.
M. DAMBROT J.
RELEASED: June 21, 2019
COURT FILE NO.: CR-18-50000385-0000 DATE: 2019-06-21
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – ABDIRISAQ YABAROW
REASONS FOR DECISION DAMBROT J.
