Court of Appeal for Ontario

Citation: R. v. Alshammiry, 2010 ONCA 550 Date: 2010-08-12 Docket: C50090

Before: O’Connor A.C.J.O., Rouleau and Epstein JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Mishaal Alshammiry (Appellant)

Counsel: Howard L. Krongold, for the appellant Andreea Baiasu, for the respondent

Heard: July 13, 2010

On appeal from the conviction entered by Justice J.F. Réginald Lévesque of the Ontario Court of Justice dated October 22, 2008.

ENDORSEMENT

[1] The appellant was convicted of aggravated assault by slashing the face of Mehwan Ahmed. He appeals his conviction.

[2] The sole issue at trial was the identity of Mr. Ahmed’s assailant. A central part of the Crown’s case was an unsworn audio-taped statement Mr. Ahmed gave to the police a few hours after the attack, when he was in the hospital being treated for his injuries. In the statement, Mr. Ahmed identified the appellant as the assailant.

[3] The next day, Mr. Ahmed left the country and the police have not been able to locate him. The Crown, therefore, sought to have the audio-taped statement admitted into evidence under the principled exception to the hearsay rule.

[4] The trial judge found that both requirements set out in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, namely necessity and reliability, had been met. He therefore admitted the statement. In convicting the appellant, the trial judge attached considerable weight to the statement.

[5] The appellant submits that the trial judge made a number of errors in concluding that the statement was admissible.

[6] In dealing with reliability, the trial judge first considered the circumstances in which the statement was provided to the police. He identified a number of factors that favoured admission, including the details surrounding Mr. Ahmed’s identification of the appellant as the person who slashed him with a knife. Included in these details was that although Mr. Ahmed did not see the knife, he saw the appellant go to a car and return with an object in his hand.

[7] The trial judge noted that Mr. Ahmed had concluded that the appellant had “cut him with a knife in that context considering his face being cut during the incident.” The trial judge went on to say that “[n]o amount of cross-examination would have changed the basis of his conclusions in those respects.”

[8] Leaving aside the issue of whether the details in the statement itself as to the identity of the perpetrator of the crime could be considered as indicia of reliability, we are of the view that the trial judge, on this record, erred by effectively concluding that no benefit would be served by cross-examining Mr. Ahmed.

[9] The appellant points to evidence that could provide the basis for potentially productive cross-examination of Mr. Ahmed:

(a) evidence of possible animus between Mr. Ahmed and the appellant arising out of the relationship each of them had with the same woman;

(b) evidence that Mr. Ahmed was a person of unsavoury character who was a fugitive from justice in Europe and who was possibly engaged in criminal activity in Canada; and

(c) evidence that cast suspicions about Mr. Ahmed’s departure from Canada; the haste, the secrecy, the lie about his having to travel to attend his mother’s funeral and his reticence about the police being involved.

[10] In determining whether the hearsay statement in issue exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement, one of the factors the trial judge must take into consideration is the potential benefits of cross-examination.

[11] Here, the trial judge’s error in discounting the value of cross-examination deprived the appellant of the full consideration of threshold reliability that is mandated by the jurisprudence.

[12] We are not able to say that the trial judge would have admitted the statement had he not made this error. We are also not able to say that the trial judge would have convicted the appellant had he not admitted the statement.

[13] A new trial is therefore necessary. The issue of the admissibility of the statement will be left to the trier of fact at the new trial. We have not addressed the appellant’s argument concerning necessity as the necessity analysis will be different at the new trial.

[14] We therefore allow the appeal and order a new trial.

“D. O’Connor A.C.J.O.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”