CITATION: R v. Walizadah, 2007 ONCA 528
DATE: 20070712
DOCKET: C39921
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
ZEKROLLAH WALIZADAH
Appellant
James Lockyer and Jennifer Budgell, for the appellant
David Finley, for the respondent
Heard: May 15 and 16, 2007
On appeal from the conviction entered on April 4, 2003 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appellant, Zekrollah Walizadah, was tried before Ewaschuk J. and a jury at the Superior Court of Justice in Toronto for the first degree murder of Mohammadulah Saighani on December 30, 1999. The trial commenced on November 19, 2002. On April 4, 2003, he was convicted as charged. The appellant appeals his conviction.
[2] The central issue at trial was the identity of the killer. There were no eyewitnesses to the murder and no forensic evidence linking the appellant to the crime. The crucial Crown evidence was the testimony of the deceased’s wife, Nafisa Saighani, that the appellant had confessed to her that he had killed the deceased. Ms. Saighani and the appellant had an extramarital affair both before and after the deceased was killed. In the spring of 2000, the police began surveillance of the appellant and Ms. Saighani. They were observed going to the Bolton Inn. Their telephone conversations were intercepted. The Crown argued that the evidence demonstrated that the appellant was passionately in love with Ms. Saighani and that he had murdered her husband to have her for himself.
[3] The appellant did not testify or call a defence. The defence position was that the surveillance and intercepted telephone conversations proved only that the appellant and Ms. Saighani were in the midst of a sexual affair. The defence suggested that Ms. Saighani was an unstable woman who lied to police about the appellant’s confession in order to prevent her family from ostracizing her for her numerous affairs.
B. FACTS
[4] On the morning of December 30, 1999, the body of Mohammadulah Saighani, a taxi driver, was discovered in a parking lot behind a warehouse at 37 Iron Street in the west end of Toronto. Mr. Saighani had suffered about fifty stab wounds. His spinal cord was severed and he was nearly decapitated. Later that day, the deceased’s Beck taxicab was found four kilometres away at the Kipling Heights Plaza. The deceased’s wife, Nafisa Saighani, told police that she had last seen her husband when he left for work at approximately 6:30 that morning.
[5] Video footage taken the morning of the homicide from a security camera located in the parking lot of the Kipling Heights Plaza depicted a minivan, presumably that of the deceased’s assailant, arriving in the parking lot at 4:50 a.m. Two hours later, at 6:56 a.m., the deceased’s taxi entered the parking lot and parked next to the minivan. Seconds later, the minivan left the parking lot. Thus, the deceased’s taxi, having been driven by his assailant back to his own van at the Kipling Heights Plaza after the murder, was left at the plaza.
[6] Ms. Saighani was the Crown’s main witness. In spite of overwhelming evidence from telephone records that she and the appellant had been having an affair for many months before the homicide, Ms. Saighani claimed that the affair began after her husband’s death. She testified that nine months after the homicide, on September 17, 2000, she and the appellant had an argument during which he confessed to murdering her husband:
Then I said, “What do you want to do for me?” He – I don’t know myself he hit me in the concrete or not, but I was like in shock. I don’t know, but that time he told me, “Nafisa, the way I kill your husband I kill you too.”
[7] In cross‑examination, Ms. Saighani’s testimony was not as certain:
Q. As I understand it, ma’am, you are not sure that Zekrollah said he killed your husband?
A. I’m not hundred percent sure….
[8] On re‑examination, Ms. Saighani was again asked about the appellant’s confession and testified that she was, after all, sure that the appellant had confessed to her.
[9] The appellant knew that he was a suspect in the homicide at least two months before he was arrested. In a statement given to the police prior to his arrest, the appellant acknowledged that he knew the deceased and his wife, who were regular customers at the Afghan grocery store where he worked, but denied that he had an affair with Ms. Saighani. After his arrest, he gave another statement in which he admitted to the affair.
[10] There are many other facts relevant to the appeal. I prefer to describe and consider them in the context of the appeal issues to which they relate.
C. ISSUES
[11] The appellant advances the following issues:
(1) Did the trial judge improperly instruct the jury about the defence opportunity to obtain forensic testing of items of evidence?
(2) Did the trial judge err by admitting intercepts of the appellant’s telephone conversations with his children?
(3) Did the trial judge misdirect the jury on the evidence of the Crown witness Denice King?
(4) With respect to the video re‑enactment evidence about the van in the plaza, did the trial judge err:
(a) by admitting it; and
(b) by permitting a police officer to provide his opinion about what it showed?
(5) Did the trial judge give the jury an inadequate caution about the testimony of Ms. Saighani?
(6) Did the trial judge deal improperly with the evidence of Javid Wali?
(7) Did the trial judge misdirect the jury concerning the appellant’s after‑the‑fact conduct?
D. ANALYSIS
(1) Forensic testing – defence opportunity
[12] There was extensive forensic testing of the deceased’s taxi; none of the tests implicated the appellant or anyone else.
[13] Four items – a fallen hair found in the deceased hand, which was unlike either the deceased’s or the appellant’s hair, two bloodstained currency bills, two cigarette butts in the rear ashtrays, and a drinking straw with blood and hair on it from the rear passenger‑side floor – were not submitted for testing.
[14] In his closing address, defence counsel (not appellate counsel) was especially critical of the police officers in charge of the murder investigation:
[T]he two officers in charge have decided that he is their killer, and willy‑nilly they will have him. He is the girl - - the guy they have chosen to dance with. He is their killer. If the evidence doesn’t go along with him being the killer, deep six it. Do what they call in football terms, “an end run around it”, he’s the killer.
Now, yes, it is the 21st century, isn’t it. Yes, DNA, the invisible witness, is there. Yes, forensic or scientific testing of the invisible witness is there…. Am I out to lunch to submit to you that there could have been a lot more done from a forensic point of view if they haven’t had tunnel vision, if they hadn’t been myopic, if they hadn’t decided: This is the man and we couldn’t give a tinker’s curse about the rest.
[15] Crown counsel at trial objected to this component of the defence closing address. She pointed out that the defence could have requested forensic testing of the four items. The trial judge agreed and charged the jury in this fashion:
Finally, let me comment on Mr. Orr’s repeated refrain that the Crown failed to test significant items of evidence, particularly the two cigarette butts found in the rear of the public taxi. Johanne Almer and Daryl Mayers from the Centre of Forensic Sciences both testified that the Centre does testing of submissions made by defence counsel.
Had Mr. Orr really believed that the two items would have exculpated his client it was open to him to have submitted the item for scientific testing. His failure to have done so may be telling. However, it is nonetheless important to keep in mind that there is no onus on an accused whatsoever to prove his or her innocence.
[16] The appellant objects to the instruction, especially the words “His failure to have done so may be telling.” He contends that the trial judge implicitly suggested that defence counsel had not taken advantage of the opportunity to test the evidence because he did not believe in his client’s case.
[17] I disagree. In light of the strong, highly critical language used by defence counsel in his closing address, it was certainly open to the trial judge to point out to the jury that the defence could have obtained forensic testing of evidence it deemed to be relevant. Moreover, in my view the language employed by the trial judge in this component of his charge was appropriate. Crucially, he emphasized that there was no onus on the defence to seek such testing. Finally, the interpretation of the trial judge’s instruction advanced by the appellant – that the trial judge was telling the jury that defence counsel thought his client was probably guilty and that forensic testing of items found in the taxi might inculpate him – is not, in my view, a realistic one. The more likely message in the instruction was that forensic testing of the four untested items would probably yield the same results as the extensive forensic testing of many other items – nothing to incriminate anyone. Indeed, in his oral argument on this issue counsel for the appellant prefaced his legal submissions with the observation that forensic testing of the untested items would have been “pretty much a longshot”. I agree and suspect that trial counsel saw it the same way.
(2) Intercepted telephone conversations between the appellant and his children
[18] In early July 2000, six months after the homicide, the appellant left his family home and moved into an apartment above the store where he worked. He was in the midst of his affair with Ms. Saighani. On July 9 and 10, the appellant engaged in three telephone conversations with his children who begged him to return. On July 12, the police informed the appellant that he was a suspect in the murder of the deceased. On July 13, the appellant moved back into his home with his family.
[19] The defence sought to exclude the intercepts of the three telephone conversations between the appellant and his children. The trial judge ruled in favour of admission:
The accused Zekrollah Walizadah applies to exclude evidence obtained from two wiretaps Tape 67, Sides “A” and “B”.
The evidence consists of three phone calls by the accused’s children entreating him to return home. The accused rejected their entreaties.
The evidence is undoubtedly highly probative as to motive and the depth of the accused’s passion for Nafisa Saighani, the deceased’s wife. Furthermore, I am not satisfied that the accused’s rejection of his children entreaties to return home, constitutes disreputable conduct, particularly in light of the high rate of separation in Canadian families. Spousal separation from children is a common feature in Canadian society and cannot be regarded as constituting disreputable conduct. In fact, the jury has already heard that the accused prior to the three phone calls, had left his wife and children to live above his place of employment.
In the end, the intercepts will be admitted, because their probative value clearly exceeds their minimal prejudicial effect.
[20] The appellant contends that the trial judge erred in making this ruling because it constituted evidence of bad character with a prejudicial effect that outweighed its probative value, especially since the defence was prepared to admit that the appellant and Ms. Saighani were having an affair in July 2000.
[21] I disagree. The defence position throughout the trial was that the relationship between the appellant and Mr. Saighani was, in Mr. Orr’s words, “just another affair”. The Crown, on the other hand, contended that the affair was utterly consuming for the appellant who was completely obsessed with Ms. Saighani and that this obsession served as the motive for murdering her husband. In this context, the telephone conversations with his children, during which he rejected their entreaties to come home, were relevant evidence to support the Crown’s position. I agree.
[22] Moreover, the telephone conversations were also relevant to understand the appellant’s thinking and conduct in mid‑July when he was formally told by the police that he was a suspect. On July 10, he was so much in love with Ms. Saighani that he refused to come home. On July 13, one day after he was told that he was a suspect, he returned to his home.
[23] The appellant also contends that the trial judge erred by not providing a limiting instruction with respect to this evidence. I disagree. Defence counsel did not seek such an instruction after the ruling or object to its absence in the jury charge. Moreover, I agree with the trial judge's observation that the appellant’s conversations with his children did not really constitute disreputable conduct in the context of a society with a high rate of marital separation. Finally, even if the appellant’s words in his conversations with his children were evidence of disreputable conduct, when that conduct is relevant to the issue of the accused’s motive a limiting instruction is not required: see R. v. Merz (1999), 140 C.C.C. (3d) 259 at paras. 57‑59 (Ont. C.A.).
(3) Denice King’s evidence
[24] Denice King was an important witness called by the Crown. The deceased’s taxi was driven back to Kipling Heights Plaza (almost certainly by the killer) shortly before 7:00 a.m. on December 30, 1999. The driver (who cannot be seen on the security video) parked the taxi next to the van that had been parked there at 4:50 a.m., entered the van, and started to back out of the parking space. Ms. King, an employee at a store in the plaza, was arriving for work. She entered the parking lot and needed to brake to avoid the van. Several days later, after seeing the security video on a newscast, Ms. King went to the police.
[25] At the trial, in her examination‑in‑chief Ms. King testified as follows:
BY MS. JACEK: Q. And can you describe what the van looked like that you saw backing out and then pulling out in front of you?
A. It was just a regular GM‑style back of a minivan with the square doors, the licence plate about halfway up the doors.
Q. You say a GM‑style back of a minivan?
A. Right.
Q. Did you see what colour it was?
A. At that time of the morning, I would assume it was a dark blue.
Q. When you said you would assume it was a dark blue ‑ -
A. Well, like I said, at that time of the morning it is still dark, and it was a dark‑coloured van, so I automatically call it a dark blue.
Q. Did you take particular note of the colour at the time?
A. No.
Q. And what led you to think it was a GMC‑style minivan?
A. Just the shape of the doors, being that it was more square. It is the style of van that came to mind compared to all like the Chryslers and Fords and all those, GM is what came to mind.
[26] On December 30, 1999, the appellant was the owner of a light green Plymouth Voyager van with a round back. Accordingly, if the jury accepted Ms. King’s testimony about the square-backed van she saw in the plaza, it would have exculpated the appellant.
[27] In his jury charge, the trial judge referred to Ms. King’s evidence when he summarized the defence case:
As for Denice King, she had no motive whatsoever to have lied. She correctly identified the murderer’s van as a square‑back, dark‑blue GMC Safari with double rear doors and a licence in the middle of the door. She had worked with and knew cars. The police re‑enactments were a futile and flawed attempt to refute her evidence. In the end, her evidence withstood scrutiny and proves beyond doubt that the murderer’s vehicle was not the accused’s vehicle. Thus, the accused was not Mr. Saighani’s killer.
A third party owning a dark‑blue GMC Safari robbed and murdered Mohammadullah Saighani.
[28] In his instructions to the jury, the trial judge again referred to Ms. King’s evidence, this time under a separate heading:
DENICE KING
Denice King testified that on December 30, 1999, she was in a hurry to get to work on time. She was cutting it close. On her arrival at the Kipling Heights Plaza a van backed out in front of her forcing her to apply her brakes. At that time it was still dark and she did not pay particular attention to the vehicle.
On January 6, 2000, Ms. King heard a police broadcast or at least a broadcast asking for assistance in finding the van. She thought back about the van. Her best recollection is that it was a square‑back, dark‑blue GMC Safari with double rear doors and the licence plate in the middle of one of the doors.
Obviously, you should carefully assess the reliability of Ms. King’s evidence, having regard to the inherent frailties of identification evidence. Simply put, honest and sincere witnesses are often mistaken when it comes to later identifying persons or things of which they have only a fleeting glance. That is referred to as the “inherent frailties of identification evidence.”
The Crown submits that Ms. King is an honest and sincere witness but that her evidence is unreliable. The Crown relies on the surveillance tape itself, the re‑enactment tapes, and the still photos of the suspect van as establishing that Ms. King is mistaken. The suspect vehicle was round‑shaped at the back and light in colour.
By contrast, the accused submits that Ms. King has no reason to lie, and that her evidence is reliable because she knows cars and vans. She used to work at a lube shop. Defence counsel commends Ms. King’s evidence and submits that her evidence proves that it was not Mr. Walizadah’s round‑shaped Voyageur van at the Kipling Heights Plaza on the morning of December 30th, 1999.
[29] The appellant submits that the trial judge’s warning about “the inherent frailties of identification evidence” was misplaced and constituted a fatal undermining of the defence.
[30] I disagree. In my view, the trial judge’s instruction on this issue was fair and balanced. He described her testimony accurately – she thought she saw “a square‑back, dark‑blue GMC Safari with double rear doors”. He then reviewed in an even‑handed fashion the factors supporting and calling into question the reliability of this testimony. Against this background, and bearing in mind that Ms. King went to the police about a week after the murder, that it was dark when she saw the van, that she saw it only briefly, and that there was no reason at the time for her to concentrate on the model and colour of the van, there was nothing wrong with the trial judge giving the jury what I would call a common sense caution about the frailties of identification evidence.
[31] In that vein, I do not accept that there is a difference between problems associated with the identification of people and problems arising out of the description of inanimate objects such as vehicles. The frailties of identifying a person’s facial features, hair colour or style of clothing apply as well in the context of identifying the shape and colour of a vehicle.
(4) Video re‑enactment evidence
[32] On the morning of December 30, 1999 – the day the victim was killed – video surveillance at the Kipling Heights Plaza captured what was believed to be the killer’s van entering and exiting the plaza’s parking lot. The surveillance tape also captured the brief encounter between Ms. King’s vehicle and the van, although the picture was not clear enough to identify the van.
[33] The police created two re-enactment videos to determine how vans of different shades and shapes appeared on the surveillance video system. On March 23, 2000, four different dark-coloured vans were used: a maroon Plymouth Voyager, a black Ford Aerostar, a dark blue GMC Safari, and a royal blue Ford Windstar. Each van was parked where the van was seen parked in the surveillance video. Another vehicle was then driven back and forth in the parking lot to emulate Ms. King’s vehicle. The police recorded this re-enactment using the surveillance cameras of the Kipling Heights Plaza.
[34] A second re-enactment was carried out on April 12, 2000, this time using a light green Plymouth Voyager van similar to the van driven by the appellant. This exercise was also filmed using the surveillance cameras at the plaza.
[35] The Crown sought to introduce the surveillance video from December 30, 1999 and the two re-enactment videos into evidence with a view to undermining or calling into question the reliability of Ms. King’s evidence. The Crown also wished to have Detective Sergeant Sanson testify as to what he saw on the videos. The defence objected to the admission of the re-enactments primarily due to the videos’ inaccuracies. The defence also took the position that Detective Sergeant Sanson’s testimony would be impermissible opinion evidence.
[36] The trial judge ruled that the two re-enactment videos were admissible. The matter was re-argued later in the trial and the trial judge again held that the videos were admissible. The trial judge also ruled that Detective Sergeant Sanson would be permitted to give his lay opinion as to what he saw on the surveillance video and on the two re-enactment videos. The trial judge did limit the extent of the opinion that Detective Sergeant Sanson could give. Specifically, he would not be able to testify that the vans depicted in the videos were similar to the van driven by the appellant.
[37] On appeal, the appellant challenges the trial judge’s ruling relating to the admission of the two video re‑enactments and Detective Sergeant Sanson’s opinion testimony. He does not contest the ruling with respect to the admission of the original surveillance video.
(a) Admission of video re‑enactment evidence
[38] The test for the admissibility of video re-enactment evidence was set out by this court in R. v. MacDonald (2000), 146 C.C.C. (3d) 525 at para. 42:
In our view, the preferable approach recognizes the dangers of video re-enactments but adopts a case-by-case analysis. As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re-enactment, trial judges should at least consider the video’s relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath. [Citation omitted.] Other considerations may be material depending on the case. And as with rulings on admissibility of other kinds of evidence, the trial judge’s decision to admit or exclude a video re-enactment is entitled to deference on appeal.
[39] Ultimately, the court in MacDonald held that the trial judge erred in admitting the video re-enactment in question. First, the video lacked probative value due to its many inaccuracies. The re-enactment entailed recreating a failed ‘takedown’ of the accused. The re-enactment was shot at a different time of day and year, at a different location (the takedown occurred at a city intersection, but the video was filmed at a deserted sand quarry), at a different speed and used a different vehicle.
[40] Second, the video in MacDonald was highly prejudicial because it portrayed only the police officers’ version of events. The court stated at para. 48: “Courts must be sensitive to how a video re-enactment that depicts only the Crown’s version of disputed facts may distort the jury’s decision-making and thus prejudice an accused’s right to a fair trial.”
[41] A slightly different situation presented itself before this court in R. v. Collins (2001), 160 C.C.C. (3d) 85. In that case, the police conducted an experiment to determine if a target would be hit when shots were fired in a way described by a witness in the case. A video was made of the experiment and played for the jury. In addition, the sergeant responsible for the experiment testified at the trial. The appeal concerned the admissibility of experiment evidence. Charron J.A. said at para. 21:
In a nutshell, experiment evidence, if it is relevant to an issue in the case, should generally be admitted, subject to the trial judge’s residuary discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs its value.
[42] Further, at para. 22, Charron J.A. stated that “[i]n most cases, the relevance of the experiment evidence will depend on the degree of similarity between the replication and the original event.”
[43] In Collins, the court held that the evidence of the experiment was admissible. It was relevant and material and no prejudice had been demonstrated.
[44] This court had a further opportunity to consider experiment and re-enactment evidence in R. v. Nikitin (2003), 176 C.C.C. (3d) 225. In that case, the accused failed to stop for a school bus and a young boy was killed. The police tried to re-enact the scenario to determine when the school bus would have been perceptible and a video of the re-enactment was played for the jury. Relying on Collins, the court held that the evidence was admissible despite some differences between the actual event and the re-enactment. The court said, at para. 14, that the differences did not render the evidence sufficiently unreliable to be inadmissible: “It is impossible for a pre-trial experiment to replicate the original event perfectly.” An important factor for the court in that case was that the “trial judge was comprehensive and scrupulous in his charge to the jury on this issue. He identified all of the factors that the defence suggested should diminish the weight to be given to the experiment evidence” (para. 15).
[45] In Nikitin, the court noted, at para. 11, that the evidence in question was at once a re-enactment and an experiment:
I begin with the observation that the words “re-enactment” and “experiment” are both apt descriptors of the police evidence. “Re-enactment” is accurate because the police sought to replicate the conditions (location, vehicles, time of day, weather) and some, but not all, of the relevant events (driving until the bus was seen, but not to the point of impact). “Experiment” is also accurate because the purpose of the partial re-enactment was to identify the potential “point of first perception” of the school bus by a driver.
[46] In my view, this accurately describes the evidence in the present appeal. On the one hand, the videos were replications of the point when Ms. King’s vehicle passed the van. On the other hand, the videos were an experiment to determine how vans of different shades and shapes would appear when illuminated by another vehicle. Therefore, the principles enunciated in both MacDonald (concerning video re-enactments) and Collins (concerning experiment evidence) are relevant to the present case.
[47] The overriding principle from both MacDonald and Collins is that, as with all evidence, re-enactment and experiment evidence should not be admissible where the prejudicial effect outweighs its probative value. While the parties referred the trial judge to these cases in their submissions, the trial judge did not expressly advert to this balancing process in his brief rulings on the admissibility of the videos in this case. Nevertheless, when this balancing process is conducted, it becomes apparent that the trial judge did not err in admitting the re-enactment videos.
[48] First, the videos were relevant and material to the issue of the reliability of Ms. King’s identification of the van. The evidence was led to establish that Ms. King mistakenly identified the van as a dark GMC Safari, as opposed to a light, round-backed minivan.
[49] Second, the re-enactments were fairly accurate. The appellant points to a number of discrepancies between the original surveillance video and the re-enactments, including differences in film quality and lighting. The trial judge was alive to these issues and fairly held that the differences were not so great so as to diminish the probative value of the evidence. It is clear from the jurisprudence that a standard of perfection is not expected in the creation of video re-enactments. In this case, the police shot the re-enactments from the same view as the original tape and with the same camera, the same location was used, and they tried to emulate the darkness of the original tape.
[50] Third, unlike MacDonald, the videos in this case did not portray a one-sided account of disputed facts. Rather, the videos presented several different scenarios in order to allow the jury to draw their own conclusions about what actually occurred in the surveillance footage.
[51] In sum, it is my view that the trial judge did not err in admitting the two video re-enactments. While there were some differences between the original surveillance video and the re-enactments, the differences were not so great so as to deprive the evidence of its probative value. The appellant has not established that the prejudicial effect of the evidence outweighed its probative value.
(b) Detective Sergeant Sanson’s opinion testimony
[52] The trial judge permitted Detective Sergeant Sanson, the officer in charge of preparing the video re-enactment evidence, to give his opinion about what he saw on the two re-enactment videos and on the original plaza surveillance video. His ruling on this issue was:
It is my conclusion that the witness will be permitted to testify as to what he purportedly sees on the films. In other words, he will be permitted, for example, to say whether the particular vehicle in question appears to be round or square in shape, and whether the particular vehicle appears to be light or dark in colour. However, the witness will not be permitted to say that the van on the surveillance film appears to be similar to that driven by the accused….
[53] Pursuant to this ruling, Detective Sergeant Sanson testified about both the original plaza surveillance video and the two re-enactment videos. He said that the suspect vehicle in the surveillance video of December 30, 1999 appeared “very light in colour” when it was lit up by Ms. King’s vehicle. He was then asked about the four vans that appeared in the March 23, 2000 re-enactment. He testified that the first Plymouth Voyager, which was maroon, remained dark in colour when the second vehicle illuminated the area. Regarding the black Ford Aerostar, Detective Sergeant Sanson stated: “This one, as well as the first one, despite all the light that hit it, still seems to me as represented by being dark on the video.” Similarly, Detective Sergeant Sanson testified that the GMC Safari “remained dark [in] colour” and that “more defined edging” could be seen. The Crown then asked him to compare the GMC Safari to the van shown in the surveillance video of December 30, 1999. Detective Sergeant Sanson stated that the van had “a rounded back to it, which is about all you can see.” He further stated, “I can see it is a light colour, in my opinion.” Next, the detective testified that the dark blue Ford Windstar remained dark when it was illuminated by other vehicles. Finally, Detective Sergeant Sanson provided testimony regarding the second re-enactment video of April 12, 2000. He stated that like the van in the original surveillance video, the light green Plymouth Voyager used in the second re-enactment “seem[ed] to light up” when the other vehicle illuminated it.
[54] There is no doubt that Detective Sergeant Sanson’s testimony was a combination of fact and opinion. Indeed, counsel for the respondent acknowledged, fairly, this point in his oral argument. The question then becomes: was the officer’s opinion evidence admissible?
[55] The leading case dealing with admission of non‑expert opinion evidence is R. v. Graat (1982), 2 C.C.C. (3d) 365 (S.C.C.). In that case, Dickson J. said at p. 378:
To resolve the question before the court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of law or policy.
[56] Detective Sergeant Sanson’s non‑expert opinion evidence was clearly relevant and potentially probative on two central and related issues at the trial – what type of van did the plaza’s surveillance video show and was Ms. King’s testimony about the van she saw reliable?
[57] In Graat, Dickson J. identified a number of policy considerations that might outweigh probative value – the danger of confusing the issues or misleading the jury, unfair surprise, and undue consumption of time (p. 378). None of these policy considerations arises in this case.
[58] Justice Dickson also noted another important consideration, namely, “there may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses” (p. 381). The appellant submits that this is the danger or prejudice here, that the jury might have attached too much weight to Detective Sergeant Sanson’s opinion and used it improperly to reject or diminish Ms. King’s testimony.
[59] I disagree. The especially important point here, in my view, is that Ms. King’s testimony and Detective Sergeant Sanson’s testimony, although clearly significant, were not the most important evidence before the jury concerning the van parked in the plaza. The key evidence before the jury was the plaza’s surveillance video. Crucially, this is precisely what the trial judge told the jury, both in his mid‑trial instruction before the officer testified and in his jury charge.
[60] In his mid‑trial instruction, the trial judge said:
Insofar as Detective Sergeant Sanson’s evidence is concerned, ultimately it will be for you to decide what is shown on the films. It is your duty and your responsibility to determine, if you can, the shape of the van on the surveillance film and whether it is light or dark in colour.
[61] In his jury charge the trial judge instructed: “It is your duty to make your own independent findings from the films and photos.”
[62] In Graat, Dickson J. observed, at p. 381, that “in every case, in determining whether an opinion is admissible, the trial judge must necessarily exercise a large measure of discretion.” I cannot say that the trial judge in this case erred by admitting the non‑expert opinion of Detective Sergeant Sanson. In his ruling, he set out the relevant case law and assessed the competing arguments before reaching his decision. In his mid‑trial instruction and his jury charge, he properly focussed the jury’s attention on their independent assessment of the crucial piece of evidence on this issue – the plaza’s surveillance video.
(5) Caution re Ms. Saighani’s testimony
[63] There is no doubt that the most important component of the Crown case was the appellant’s alleged confession to Ms. Saighani. In pre‑charge submissions, the appellant sought a Vetrovec[^1] warning with respect to Ms. Saighani’s testimony. The trial judge refused to do so on the basis that she was not an unsavoury witness. However, he indicated that he would give a strong caution about Ms. Saighani’s evidence.
[64] In his jury charge, the trial judge said this about Ms. Saighani:
NAFISA SAIGHANI
Nafisa Saighani, the deceased’s wife and the accused’s lover, testified initially during cross‑examination by Crown counsel that the accused Zekrollah Walizadah threatened to kill her the way he had killed her husband. This alleged confession by the outrage accused followed his discovery of Mrs. Saighani with her new boyfriend, Flash Daoud.
However, during cross‑examination by defence counsel, Mrs. Saighani conceded that she was not sure that the accused had admitted to her that he had killed her husband. She conceded that he might not have said that. Yet, during recross‑examination by Crown counsel, Mrs. Saighani burst into tears and testified that she was indeed sure that the accused had told her that he had killed her husband.
Obviously, the witness Nafisa Saighani has given contradictory versions of the alleged confession under oath. Either she is sure that the accused confessed to her or she is not sure. Given Mrs. Saighani’s inconsistency under oath on this most material matter, I warn you to be most circumspect in assessing her evidence as to the alleged confession. Also keep in mind that she likely lied under oath in her denials of having sex with the accused and Ajay Sharma before her husband’s death.
In the end, it is open to you to find that the accused had indeed confessed to her that he had killed her husband, though you may do so only after keeping in mind the need for extreme caution, and only after assessing her evidence on this matter in the context of all of the other evidence including the accused’s alleged confession to Javid Wali on the same day, that is September 17th, the year 2000.
You should carefully assess the evidence of Ramin Saighani, Flash Daoud, and particularly Javid Wali. You must decide whether their evidence, particularly as to the accused’s emotional condition, and his statements tends to confirm Mrs. Saighani’s evidence as to the accused’s threat to her and his alleged confession. Please look for confirmatory evidence before you feel it is safe to accept her evidence as to the alleged confession. However, in the end it is open to you to find as fact after keeping in mind the need for caution, and even in the absence of confirmatory evidence that the accused indeed had confessed to her that he had killed her husband.
[65] The appellant contends that this caution was inadequate because Ms. Saighani’s evidence was fraught with inconsistencies and blatant lies.
[66] The Crown concedes that something akin to a Vetrovec warning was required, but submits that the warning set out above falls four‑square into this category. I agree.
[67] I begin with the observation that there is a good deal of discretion in the formulation of a Vetrovec warning and that a trial judge’s formulation is entitled to substantial deference from an appellate court. As expressed by Moldaver and LaForme JJ.A. in R. v. Zebedee (2006), 211 C.C.C. (3d) 199 (Ont. C.A.) at paras. 83 and 84:
Hence, in a case like this, where the issue on appeal is not whether a Vetrovec instruction should have been given, but whether the instruction given was adequate, appellate courts will not test the adequacy of the instruction against some pre-formulated format or prescribed terminology, but will decide whether the instruction, read in the context of the case and the rest of the charge, serves the purpose intended by a Vetrovec caution. If the instruction meets that criterion, there is no misdirection. Trial judges are owed considerable deference in determining how best to frame the Vetrovec caution. They are much better situated than appellate courts to determine how to provide a particular jury with an effective and balanced Vetrovec caution tailored to the circumstances of the particular case.
In sum, where a Vetrovec warning has been given, appellate intervention will be justified only where the appellant can show that in all of the circumstances, the warning as framed clearly failed to convey to the jury the appropriate degree of caution required for the particular witness or witnesses to whom the caution was addressed. [Footnotes omitted.]
[68] In R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada refused January 6, 2005), the court identified four characteristics of a proper Vetrovec warning, at para. 82:
(1) the evidence of certain witnesses is identified as requiring special scrutiny;
(2) the characteristics of the witness that bring his or her evidence into serious question are identified;
(3) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and
(4) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.
[69] In my view, the trial judge's warning in this case complied with all four of these points. Ms. Saighani was singled out as requiring special scrutiny; reasons for this special scrutiny were explicitly identified – her inconsistent accounts under oath of the appellant’s confession and her lies under oath about not having sex with other men, including the appellant, before her husband’s murder; the jury was warned to be “most circumspect” and reminded of the need for “extreme caution” in assessing her evidence; and the jury was cautioned to look for independent confirmatory evidence, of which the trial judge gave possible examples.
[70] In short, although the trial judge said that he was not going to give a Vetrovec warning with respect to Ms. Saighani, in the end his instruction amounted to a sufficient Vetrovec charge.
(6) Comment re Javid Wali’s evidence
[71] The appellant contends that the trial judge committed two errors in his treatment of the evidence of Javid Wali, Ms. Saighani’s estranged son‑in‑law. Mr. Wali testified that on September 17, 2000, the same day Ms. Saighani testified that the appellant confessed to her, the appellant said to him, referring to Flash Daoud, another man with whom Ms. Saighani had an affair: “If she had sex with that guy she is the killer of her husband. If she did not have sex with that guy, they can catch me.”
[72] The trial judge charged the jury:
The statement is not absolutely clear in meaning. However, assuming you find as fact that the accused made this statement, it would be open to you, though you need not so infer, that the accused was stating implicitly that he had killed Mr. Saighani.
I repeat: You need not infer that the statement constitutes a confession as opposed to false braggadocio, though it is open to you to do so. Please assess the statement in the context of the accused’s outrage at finding Mrs. Saighani with Flash Daoud. In the end, you must be satisfied that the words constitute an unequivocal confession before you may use them in that fashion against the accused.
[73] The appellant submits that the statement made to Mr. Wali was, at best, ambiguous and, in reality, devoid of meaning and therefore could not amount to an explicit or implicit confession.
[74] I disagree. The position of the defence at trial was not that the statement was devoid of meaning, but rather that Mr. Wali had fabricated it. Moreover, for the trial judge to tell the jury that the statement was meaningless would have amounted to an improper interference with the fact‑finding of the jury. Finally, the trial judge’s charge on this issue struck a strong and appropriate note of caution.
[75] The appellant’s second submission on this issue is that the trial judge made an improper comment in his charge about Mr. Wali’s evidence. Near the end of his charge, the trial judge corrected a small number of statements made very vigorously (if not in an inflammatory fashion) by defence counsel in his closing address. One of the corrections related to the testimony of Mr. Wali:
Mr. Orr submitted that Javid Wali is not to be believed as to the accused’s implicit confession. In other words, he fabricated that statement.
Please ask yourselves the following question: Why would the witness Javid Wali fabricate the accused’s words in such oblique language? Would not have Mr. Wali testified that the accused expressly told him that he had killed Dr. Saighani had the witness really wanted to fabricate a false confession against the accused?
In that regard, you may compare the words attributed to the accused by Javid Wali with the words used by the accused during a wiretap and probe interceptions. Is the language similar to its figurative, oblique, and indirect style of speaking in the Dari language?
[76] The appellant submits that this instruction further compounded the trial judge’s error relating to Mr. Wali’s evidence about the appellant’s alleged confession.
[77] I disagree. In light of defence counsel’s strong attack on Mr. Wali’s testimony, the very real ambiguity in the appellant’s reported statement to Mr. Wali, and the acknowledged right of the trial judge to comment on the evidence, I cannot conclude that the trial judge’s comment amounted to an error. In short, it did not cross the line into the realm of impermissible comment.
(7) After‑the‑fact conduct
[78] The trial judge instructed the jury that they could rely on four false statements by the appellant as evidence of after‑the‑fact conduct: (1) the appellant told the police that he drove a Toyota Corolla, but did not mention that he had a Plymouth Voyager van; (2) in his first videotaped statement, the appellant said that he was not having an affair with Ms. Saighani; (3) the appellant claimed that he had not seen Ms. Saighani in Pakistan; and (4) the appellant called Detective Sergeant Bockus, after he had seen men following him, to report that he had taken Ms. Saighani to the Bolton Inn just to talk.
[79] There is no doubt that these four statements were lies and that the trial judge was entitled to instruct the jury about them, as he did, in the category of after‑the‑fact conduct. However, the appellant contends that the trial judge’s charge erred in two respects.
[80] First, the trial judge said that the appellant’s after‑the‑fact conduct “may give rise to consciousness or awareness of fault.” The appellant submits that “consciousness of fault” is a loaded term that is no better than the phrase “consciousness of guilt” which the Supreme Court of Canada and this court have said should be avoided: see R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.) and R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.).
[81] I agree with the appellant’s submission on this point. It is surprising and regrettable that an experienced trial judge would think that it is appropriate to use the phrase “consciousness of fault” in place of “consciousness of guilt.”
[82] The same trial judge used the same phrase in another criminal trial. In the appeal reasons in that case, R. v. Babinski (2005), 193 C.C.C. (3d) 172 (Ont.C.A.), which, in fairness, were released after the trial in the present case, Doherty J.A. said at paras. 55 and 56:
I see no value or purpose in using either phrase.
The phrase “consciousness of fault” does not add to a jury’s understanding of the potential value of this evidence and is consequently best avoided. Its use here, however, did not amount to an error of law and did not occasion any unfairness to the appellant.
[83] In my view, both components of Doherty J.A.’s analysis are equally applicable in this appeal – the trial judge should not have used the phrase “consciousness of fault”; however, its use did not amount to an error in principle.
[84] The appellant’s second submission is that the trial judge did not adequately explain that there were innocent explanations for the appellant’s statements and conduct.
[85] I disagree. In White, supra, Major J. stated at para. 57:
[T]here is a risk that juries might jump too quickly from evidence of post‑offence conduct to an inference of guilt. However, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of jury should be left to draw whatever inferences they choose from the evidence at the end of the day.
[86] In my view, the trial judge’s charge complied with this mandate. He instructed the jury both to consider other explanations for the appellant’s conduct and to assess the conduct in the context of all the evidence:
I should caution you that no one item of this type of post‑offence conduct establishes guilt. It or they only constitute an item or items of evidence, which, when weighed together with all the other evidence, may establish guilt.
Furthermore, you may act on the particular item of after‑the‑fact circumstantial or indirect evidence only if you reject as untrue or invalid any reasonable explanation supporting the explanation for the accused’s conduct.
[87] It is true that in this section of his charge, the trial judge did not set out the possible innocent explanations for the conduct. However, he did this elsewhere, specifically in his review of the defence position. He pointed out that the appellant continued to openly drive his van after the murder (relevant to item 1 of after‑the‑fact conduct): “Assuming that the accused was the killer, it is also bizarre that the accused would continue his affair with the deceased’s wife and drive the van he used shortly before and shortly after the killing”. He also mentioned the obvious reason for the appellant’s lie about his affair with Ms. Saighani (relevant to items 2 to 4): “That lie does not, however, prove that he was the killer. No one brags about having sex with a married woman. No, they hide it.” As well, the trial judge mentioned other aspects of the appellant’s conduct which, arguably, were not consistent with his having committed the murder. For example, the trial judge said: “On July 10th, 2000, the accused voluntarily consented to giving the police his hairs and blood. The accused did not fear the police. He acted with an innocent mind. At that time, the accused had not yet retained a lawyer for legal advice.” Finally, I note that, after the jury had been deliberating for several hours, the trial judge offered to expand his charge on after‑the‑fact conduct, including a re‑emphasis of the non‑incriminating explanation component of the issue. Defence counsel requested that the trial judge not do this. The trial judge accepted the request.
[88] In summary, I am not persuaded that the trial judge’s charge on the appellant’s after‑the‑fact conduct warrants this court’s interference.
E. DISPOSITION
[89] I would dismiss the appeal.
RELEASED: July 12, 2007 (“JL”)
“J. C. MacPherson J.A.”
“I agree John Laskin J.A.”
“I agree H. S. LaForme J.A.”
[^1]: R. v. Vetrovec, [1982] 1 S.C.R. 811.