COURT OF APPEAL FOR ONTARIO DATE: 20221110 DOCKET: C66976

Doherty, Tulloch and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Mohamud Dirie Appellant

Counsel: Ariel Herscovitch and Magda Wyszomierska, for the appellant Michael Dineen, for the respondent

Heard: May 2, 2022

On appeal from the conviction entered on June 8, 2018, by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.

Favreau J.A.:

A. Overview

[1] The appellant, Mohamud Dirie, was found guilty by a jury of first-degree murder. He was tried jointly with Ayub Ali, who was found guilty of manslaughter.

[2] The deceased was Kabil Abdulkhadir. He was shot early in the morning of August 9, 2015, in Toronto, on Bay Street in front of the Eaton Centre Marriott Hotel.

[3] While there was evidence that Mr. Dirie and Mr. Ali were nearby when Mr. Abdulkhadir was shot, and there was evidence of animus between Mr. Dirie and Mr. Abdulkhadir, there was no direct evidence linking Mr. Dirie to the shooting of Mr. Abdulkhadir.

[4] Prior to trial, the Crown sought to admit various statements Mr. Abdulkhadir made to his mother, Fouzia Hassan, and his cousin, Koos Abshir. The Crown sought to have the statements admitted to show Mr. Abdulkhadir’s fear of Mr. Dirie in the years preceding the shooting. Mr. Dirie argued that the evidence should not be admitted because it was unreliable and highly prejudicial. The trial judge admitted some of the statements, including statements Mr. Abdulkhadir made to his mother and cousin that if he died it would be Mr. Dirie’s fault, and statements about an incident five years prior to the shooting in which he claimed that Mr. Dirie and his brother beat him up. The trial judge also admitted evidence to show that Mr. Dirie had been in custody for approximately four years between the older incident and the shooting.

[5] At trial, there was a range of circumstantial evidence advanced to link Mr. Dirie to the shooting. One piece of evidence was a video showing Mr. Abdulkhadir standing behind one of two cars stopped side by side on Bay Street at the time of the shooting. Immediately after the shooting, both cars left the site, and a third car can be seen seconds later driving in the same direction and being shot at by a person across the street. In order for Mr. Dirie to have been involved in the shooting, the Crown’s theory of the case required that the third car was also stopped at the site of the shooting, although not visible in the video at the time of the shooting. Two eyewitnesses to the shooting said that there were only two cars at the site, but their evidence is inconsistent and not entirely consistent with the video footage.

[6] Mr. Dirie argues that the trial judge erred in admitting some of the ante mortem hearsay statements. He also argues that the charge to the jury was unbalanced, especially in suggesting that the two eyewitnesses’ recollections were unreliable.

[7] For the reasons below, I would dismiss the appeal. I see no reversible errors in the trial judge’s pre-trial rulings or in his charge to the jury.

[8] I start by addressing the pre-trial rulings and then address the jury instruction. Each of these sections includes additional facts for the purpose of addressing the grounds of appeal.

B. Pre-trial Evidentiary Rulings

[9] The Crown’s case against Mr. Dirie included evidence of a longstanding conflict between Mr. Dirie and Mr. Abdulkhadir, which the Crown relied on as evidence of motive. This evidence consisted primarily of hearsay statements made by Mr. Abdulkhadir to Ms. Hassan and Ms. Abshir in which he recounted encounters with Mr. Dirie and expressed his fear of Mr. Dirie.

[10] Ms. Hassan and Ms. Abshir’s evidence was that Mr. Dirie and Mr. Abdulkhadir had been childhood friends, but that the friendship ended in 2009 after an incident referred to as the “car incident”. They both claimed that Mr. Abdulkhadir told them that Mr. Dirie, his brother and others had beat him up and damaged his mother’s car in 2009 when Mr. Abdulkhadir had gone to Mr. Dirie’s house. Ms. Abshir said that she saw bruises on Mr. Abdulkhadir when he came to her house and told her about the incident.

[11] In 2010, there was another violent incident involving both men. Mr. Dirie, his brother and Mr. Abdulkhadir were placed together in a holding cell at Finch Court. Mr. Dirie and his brother beat Mr. Abdulkhadir up. In this case, there was evidence from a police officer who witnessed the beating. Mr. Abdulkhadir also told his mother about the incident, reporting that Mr. Dirie and his brother called him a “snitch”.

[12] Ms. Hassan and Ms. Abshir’s evidence was that, as of 2009, after the “car incident”, Mr. Abdulkhadir was afraid of Mr. Dirie. He moved out of the neighbourhood where they both lived. He also often said to them that if he died it would be Mr. Dirie’s fault.

[13] The Crown’s proposed evidence also included statements Mr. Abdulkhadir made to Ms. Abshir shortly before the shooting. That night, Ms. Abshir went to a nightclub where both Mr. Abdulkhadir and Mr. Dirie were present. As he was leaving, Mr. Abdulkhadir told Ms. Abshir that he had spoken to Mr. Dirie to try to put an end to their conflict and express sympathy about the recent death of Mr. Dirie’s brother. Mr. Abdulkhadir told Ms. Abshir that Mr. Dirie seemed to reject this overture.

[14] Immediately after, Mr. Abdulkhadir and Ms. Abshir made arrangements to go to an after party at the Eaton Centre Marriot. Mr. Abdulkhadir went in his own car and Ms. Abshir got a ride in a limousine arranged by Mr. Abdulkhadir. As detailed in the section below, Mr. Dirie and Mr. Ali also drove to the Eaton Centre Marriot.

[15] Prior to trial, the Crown sought rulings from the trial judge on the admissibility of many of the ante mortem statements Mr. Abdulkhadir made to Ms. Hassan and Ms. Abshir. The statements at issue included (1) the statements about the 2009 “car incident”, (2) the statements Mr. Abdulkhadir made that if he died it would be Mr. Dirie’s fault, (3) the statements Mr. Abdulkhadir made to Ms. Hassan about being beat up and called a “snitch” by Mr. Dirie and his brother while they were all in custody in 2010, and (4) the statements made by Mr. Abdulkhadir to Ms. Abshir on the evening before the shooting about the encounter Mr. Abdulkhadir had with Mr. Dirie at the nightclub.

[16] In his ruling, the trial judge found that these statements were admissible, but he also ruled that many other statements the Crown sought to rely on should not be admitted. The trial judge found that the statements he admitted were relevant because they showed Mr. Abdulkhadir’s state of mind in the years prior to the shooting, specifically the animus between the two men and Mr. Abdulkhadir’s fear of Mr. Dirie. The trial judge considered the specific circumstances under which each statement was made and found that they were reliable. Finally, he found that the probative value of the statements outweighed their prejudicial effect.

[17] On the voir dire, the Crown also sought to introduce evidence of a period of approximately four years when Mr. Dirie was in custody. The Crown sought to introduce this evidence to provide an explanation for the gap between the violent incidents in 2009 and 2010 and the 2015 shooting. The trial judge ruled that the jury could be informed of the period of time during which Mr. Dirie was in custody between the car incident and the shooting.

[18] In his pre-trial ruling, the trial judge also rejected an argument by the defence that he should find all of Ms. Hassan’s evidence inadmissible based on the exception in R. v. Humaid (2006), 81 O.R. (3d) 456, leave to appeal refused, [2006] S.C.C.A. No. 232. In that context, he explained why he had not permitted Ms. Hassan to be cross-examined viva voce on the voir dire.

[19] On appeal, Mr. Dirie challenges the trial judge’s pre-trial ruling that the following evidence should be admitted:

a. The admissibility of statements made by Mr. Abdulkhadir to Ms. Hassan and Ms. Abshir about the “car incident”; b. The admissibility of statements by Mr. Abdulkhadir to Ms. Hassan and Ms. Abshir that if he died, it would be Mr. Dirie’s fault; c. The admissibility of the time period during which Mr. Dirie was in custody prior to Mr. Abdulkhadir’s death; and d. The admissibility of all of Ms. Hassan’s evidence on the basis that the defence should have been permitted to cross-examine her viva voce on the voir dire.

[20] As set out below, in my view, the trial judge committed no reversible errors in admitting the evidence at issue. He applied the correct legal principles and did not err in concluding that Mr. Abdulkhadir’s statements to Ms. Hassan and Ms. Abshir could be admitted as exceptions to the hearsay rule.

(1) The trial judge did not err in admitting the evidence of Ms. Hassan and Ms. Abshir about the “car incident”

[21] At the preliminary inquiry, Ms. Hassan and Ms. Abshir gave evidence about the 2009 “car incident”.

[22] Ms. Hassan said that in the summer of 2009, while she was travelling, she spoke to Mr. Abdulkhadir on the telephone. He told her that he went to see Mr. Dirie and his brother after getting a call from them. After Mr. Abdulkhadir spoke to the brothers inside, he went outside and was told by someone else that the brothers had “broken” his mother’s car. Mr. Abdulkhadir then spoke to Mr. Dirie, who told him that he had “started tribalism and tried to stop them from getting their work or their job done”, after which Mr. Dirie and his brother beat him up. Ms. Hassan said that Mr. Abdulkhadir had repeated this story to her several times after she returned from her travels.

[23] Ms. Abshir said that Mr. Abdulkhadir told her about the incident shortly after it occurred in 2009. She said that Mr. Abdulkhadir told her that Mr. Dirie and his brother “rushed” him, turned their backs on him, stole from him and beat him up. She said that she observed a bruised eye and a couple of bruises on Mr. Abdulkhadir and that Mr. Abdulkhadir appeared to be in shock, confused, worried and scared when he told her about the incident.

[24] The Crown sought to have Ms. Hassan and Ms. Abshir’s hearsay evidence about the “car incident” admitted at trial. The trial judge ruled that the evidence should be admitted on the basis of the principled exception to the hearsay rule which, in accordance with R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, required him to consider whether:

a. The evidence was relevant; b. The evidence was necessary and reliable; and c. Even if the evidence was necessary and reliable, whether it should be excluded because its prejudicial impact outweighed its probative value.

[25] In his ruling, the trial judge considered the relevance of all the ante mortem statements the Crown sought to admit together. Relying in part on the Supreme Court of Canada’s decision in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, the trial judge found that the statements were relevant because they showed Mr. Abdulkhadir’s state of mind, namely his fear of Mr. Dirie, which was a piece of circumstantial evidence going to motive.

[26] The trial judge also found that the evidence was necessary given Mr. Abdulkhadir’s death.

[27] In addition, the trial judge found that the statements were reliable. With respect to the statements as reported by Ms. Hassan, the trial judge found that Mr. Abdulkhadir had no motive to lie to his mother about the incident, the statements were made in intimate circumstances and the statements were quite detailed. With respect to the statements made to Ms. Abshir, the trial judge found that there were sufficient indicia of trustworthiness because they were made soon after the event, to a close family member and at a time when Mr. Abdulkhadir was in distress. He also found that the statements were corroborated by the bruises Ms. Abshir saw on Mr. Abdulkhadir’s face.

[28] Finally, the trial judge found that the prejudicial effect of the evidence did not outweigh its probative value. While he found that some of the evidence the Crown sought to admit was highly prejudicial, he found that the evidence of the “car incident”, and specifically the evidence that Mr. Dirie beat Mr. Abdulkhadir up, was not discreditable enough to lead to a significant risk of reasoning prejudice. In making this finding, he also considered the evidence of the 2010 beating in custody, holding as follows:

The evidence of inflicting two beatings, while discreditable, is not particularly serious. There is nothing in this evidence that suggests that Mr. Dirie is the kind of person that would commit what amounts to an assassination. The evidence does not confuse the issues, and Mr. Dirie can readily respond to it. The prejudicial effect is slight in this case, and will be the subject of a caution to the jury.

[29] Ultimately, in his jury charge, the trial judge gave a fairly lengthy caution to the jury about not using evidence of other misconduct by Mr. Dirie as evidence that he was the type of person who would have committed the offence with which he was charged. This caution included the following:

First, you cannot use other misconduct simply to conclude that he, Mr. Dirie, is a bad person who should be convicted. Second, once again, you must not use other misconduct to conclude that he is the kind of person who would be capable of committing this offence and so is more likely to have committed it. And, third, you cannot use other misconduct as a reason to punish him for that conduct by finding him guilty of an offence in this case.

[30] Mr. Dirie argues that the evidence should not have been admitted because it was not reliable and because it was highly prejudicial.

[31] With respect to the issue of reliability, Mr. Dirie argues that the trial judge erred in finding that Ms. Hassan and Ms. Abshir’s evidence of the “car incident” met the requirements for finding substantive reliability in accordance with the Supreme Court’s decision in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. In Bradshaw, at para. 31, the Court described substantive reliability as follows:

While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (*Khelawon*, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (*Khelawon*, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (*Khelawon*, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (*Khelawon*, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[32] Here, Mr. Dirie argues that the evidence did not meet the high standard for substantive reliability, and since there were no indicia of procedural reliability, the requirement of threshold reliability was not met. For example, there were significant discrepancies between the evidence of Ms. Abshir and Ms. Hassan. In addition, given that the incident implicated Ms. Hassan’s car, it was inaccurate for the trial judge to have found that Mr. Abdulkhadir had no motive for lying.

[33] Appellate courts should be deferential to trial judges’ findings on threshold reliability. This court has found that “[a]bsent a demonstrated error, decisions regarding whether the circumstances support threshold reliability and necessity, and the balance between probative value and prejudicial effect, are owed deference”: R. v. Bridgman, 2017 ONCA 940, 138 O.R. (3d) 721, at para. 38; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 112, leave to appeal refused, [2014] S.C.C.A. No. 193.

[34] In my view, the trial judge did not make a reviewable error in finding that Ms. Hassan and Ms. Abshir’s evidence about the “car incident” was reliable. As pointed out by the Crown, the significance of the evidence is that it shows the beginning of the animus between Mr. Dirie and Mr. Abdulkhadir. The fact that Mr. Abdulkhadir may have given a more detailed account to Ms. Hassan is of no moment. There was evidence corroborating the incident, including the fact that Ms. Abshir saw injuries on Mr. Abdulkhadir when he recounted the incident and that Mr. Abdulkhadir moved out of the neighbourhood where Mr. Dirie and his brother lived soon after the incident.

[35] Mr. Dirie also argues that the prejudicial effect of the evidence greatly outweighs its probative value. I do not agree with this argument. The trial judge explained that evidence of the beating in 2009 posed a low risk of reasoning prejudice, especially if it was accompanied by a proper cautionary instruction, which it was. The trial judge made no error in finding that the evidence of the “car incident” was not sufficiently prejudicial to warrant exclusion. The trial judge excluded other evidence which he found was highly prejudicial toward Mr. Dirie. I see no reversible error in the trial judge’s ruling on the “car incident”.

(2) The trial judge did not err in admitting the “if I die” statements

[36] It was Ms. Hassan’s evidence that Mr. Abdulkhadir frequently told her that if he died it would be Mr. Dirie’s fault. Ms. Abshir said that Mr. Abdulkhadir had said the same thing to her on at least one occasion.

[37] In his pre-trial ruling, the trial judge found that this evidence was admissible. In doing so, he held that it was not hearsay evidence, but, rather, that it was Mr. Abdulkhadir’s expression of his state of mind, namely his “extreme fear” of Mr. Dirie:

Ms. Hassan’s evidence that Mr. Abdulkhadir always said to her, “if I die, that’s the guy who kill me, Monopoly[^1]” is not hearsay. It is a recounting of Mr. Abdulkhadir’s expression of extreme fear of Mr. Dirie. It is virtually identical to the evidence found to be admissible in Griffin. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

Ms. Abshir’s evidence was that in 2010, when Mr. Abdulkhadir came out of jail, he told her, “if I was to die, he’s the one that killed me,” referring to [Mr. Dirie]. As was the case with Ms. Hassan’s similar evidence, this statement is not hearsay. It is a recounting of Mr. Abdulkhadir’s expression of extreme fear of Mr. Dirie. It is virtually identical to the evidence found to be admissible in Griffin.

[38] Mr. Dirie argues that the trial judge made two errors in admitting this evidence. First, he should not have relied on Griffin because the principles in that case only apply to circumstances where there are alternative suspects. Second, the trial judge failed to consider the highly prejudicial nature of this evidence. In my view, the trial judge did not commit any reversible errors in admitting the “if I die” statements.

[39] I do not agree with Mr. Dirie’s submission that Griffin is meant to be limited to statements of fear where there is a third-party suspect. In Griffin, at para. 63, the majority of the Supreme Court explained the rationale for admitting these types of statements:

The connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationship between the two; if a deceased and an accused are unknown to one another, this course of logic can find no application. That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), 17 B.C.A.C. 71, aff’d, [1996] 1 S.C.R. 757. This is not to say that a deceased’s state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased’s state of mind is one piece of evidence that may be relevant to the issue of motive.

[40] While the court in Griffin went on to state that, in that particular case, the deceased’s expressions of fear vis-à-vis the accused were particularly relevant given the defence’s theory that a third party had committed the murder, the court’s ratio was not limited to such situations. Moreover, on more than one occasion, this court has found that evidence of the deceased’s fear of the accused, without any suggestion of a third-party suspect, can nevertheless be admitted as one piece of circumstantial evidence relevant to motive: R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 105; R. v. Coté, 2018 ONCA 870, 143 O.R. (3d) 333.

[41] Mr. Dirie’s second argument is that the trial judge failed to analyze whether the probative value of the “if I die” statements outweighed their prejudicial effect. I agree that the trial judge did not explicitly address this issue. However, his ruling contains a general section weighing the probative value and prejudicial effect of the statements the Crown sought to introduce. In that context, he found that some statements were too prejudicial to be put to the jury and that others were not too prejudicial. The latter included the evidence about the two beatings in 2009 and 2010. In my view, the “if I die” statements were no more prejudicial than the beatings and Mr. Abdulkhadir’s fear of Mr. Dirie was consistent with that evidence. In addition, the prejudice would be consistent with the prejudice in Griffin and the decisions of this court referred to above.

[42] Notably, in his jury charge, the trial judge was careful to explain to the jury the limited purpose for which this evidence could be used:

Some of the evidence given by Ms. Abshir and Ms. Hassan is about Mr. Abdulkhadir’s own fears and expectations in relation to Mr. Dirie and not about things said and done by Mr. Dirie. For example, there is evidence that Mr. Abdulkhadir said to his mother things like, “If I get killed, that is the boy that killed me,” referring to Mr. Dirie. The simple fact that Mr. Abdulkhadir said these things, if you find that he did, is not by itself evidence that Mr. Dirie had feelings of animosity towards Mr. Abdulkhadir and is not evidence that Mr. Dirie intended to harm Mr. Abdulkhadir or that he was in fact the person that shot Mr. Abdulkhadir. But it is evidence, if you find it credible and reliable, of Mr. Abdulkhadir’s state of mind – that Mr. Abdulkhadir feared Mr. Dirie.

How can you use evidence of Mr. Abdulkhadir’s fears of Mr. Dirie? If you find that Mr. Abdulkhadir feared Mr. Dirie, his fear may shed light on the relationship between the two men, and may show that the relationship was acrimonious, and in turn may serve as one piece of circumstantial evidence that, when taken into consideration with other evidence about the relationship, may assist you in determining whether or not Mr. Dirie had animus towards Mr. Abdulkhadir.

[43] In my view, the trial judge did not err in admitting the “if I die” statements, especially given his caution about the use of those statements in the jury charge.

(3) The trial judge did not err in admitting evidence of the time period during which Mr. Dirie was incarcerated

[44] Mr. Dirie submits that the trial judge erred in admitting evidence of two periods of time during which he was incarcerated.

[45] Mr. Dirie was in custody from October 6, 2009 to November 19, 2010 and from August 5, 2011 to October 14, 2014. This information was set out in agreed statements of fact, which also included information about the circumstances of the offences that led to Mr. Dirie’s incarceration.

[46] On the voir dire, the Crown sought a ruling that this evidence be admitted. The Crown argued that the evidence was relevant because it provided an explanation for why Mr. Dirie had not acted on his animus between the earlier violent incidents in 2009 and 2010 and the time of the shooting.

[47] In his ruling on the voir dire, the trial judge ruled that the evidence regarding Mr. Dirie’s periods of incarceration was admissible. The trial judge accepted that the evidence regarding Mr. Dirie’s periods of incarceration was relevant. It served to confirm that Mr. Dirie and Mr. Abdulkhadir were incarcerated in the same institution at the same time. It also explained why the shooting did not take place sooner after the jailhouse incident. The trial judge also found that the evidence was even less prejudicial than the beatings and that any prejudice could be attenuated by not telling the jury about the nature of the offences.

[48] Mr. Dirie argues that the trial judge erred in finding that the evidence was relevant because he was released from custody ten months before the shooting occurred. He also argues that the trial judge failed to properly consider the prejudice caused by admitting the evidence. I do not accept these arguments.

[49] In my view, the trial judge committed no error in finding that the evidence was relevant. Given the sequence of events in this case, as found by the trial judge, the evidence was relevant to explain both why Mr. Dirie and Mr. Abdulkhadir had been in custody at the same time and why there was a gap in time between the 2010 beating and the 2015 shooting. The fact that there was a ten-month gap between Mr. Dirie’s release from custody and the shooting may go to the weight the jury could give to the evidence, but it does not make it irrelevant.

[50] I also see no error in the trial judge’s finding that this evidence’s prejudicial effect did not outweigh its probative value. Notably, the jury was necessarily going to be aware that Mr. Dirie was in custody at some point given that the beating in 2010 took place while both men were in custody and that one of the witnesses to the incident was a police officer at the detention centre. In that context, it was open to the trial judge, in the exercise of his discretion, to find that it would be no more prejudicial to let the jury know about the specific amounts of time Mr. Dirie was in custody, especially if the nature of his offences was withheld. A trial judge’s “determination that the probative value of evidence outweighs its prejudicial effect is discretionary and should be reviewed with deference”: R. v. Schneider, 2022 SCC 34, at para. 62. This is because of the trial judge’s “proximity to the evidence and awareness of the dynamics at trial”: R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at para. 148; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

[51] Ultimately, in his jury charge, the trial judge cautioned the jury that they could not use this evidence for the purpose of propensity reasoning and that the evidence was only admitted for the limited purpose of addressing the significant gap between the incidents involving Mr. Dirie and Mr. Abdulkhadir:

When a jury does hear about other possible misconduct of a person charged with an offence for some specific reason, it is vitally important the jury use the evidence of other misconduct only for that specific reason, and for no other purpose.

You also heard that Mr. Dirie was in custody from October 7, 2009 to November 19, 2010 and from August 5th, 2011 to October 14th, 2014. There are many reasons why a person might be in custody and you must not speculate about it. You heard this evidence because it may assist you in determining the significance of the absence of evidence of any other contact between Mr. Dirie and Mr. Abdulkhadir during those periods.

[52] Accordingly, I see no error in the trial judge’s ruling to admit evidence about Mr. Dirie’s periods of incarceration. Any prejudice caused by this evidence was properly attenuated by his jury instruction cautioning the jury about the limited use they could make of the evidence.

(4) The trial judge did not err in deciding that he did not need viva voce evidence from Ms. Hassan on the voir dire

[53] During the oral argument of the appeal, Mr. Dirie’s counsel did not make submissions on this ground of appeal but stated that he relied on the arguments in his factum. In my view, there is no merit to this ground of appeal.

[54] Ms. Hassan testified for seven days at the preliminary inquiry. A significant portion of that evidence was cross-examination by the defence.

[55] As indicated above, as part of the pre-trial applications, the Crown sought to have some of Ms. Hassan’s hearsay evidence about Mr. Abdulkhadir’s ante mortem statements admitted for the truth of their content. In response, Mr. Dirie argued that all of Ms. Hassan’s hearsay evidence should be excluded because her evidence was fundamentally flawed; she was so biased against Mr. Dirie, disrespectful of the court process and argumentative that the court should find that her evidence could not have any probative value. In advancing this position, Mr. Dirie relied on this court’s decision in Humaid, at para. 57, where the court held that there may be exceptional circumstances where a witness’s evidence is so devoid of credibility or reliability that a trial judge has a residual discretion to exclude otherwise admissible hearsay evidence:

There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion.

[56] In order to establish that Ms. Hassan’s evidence met the Humaid caveat, Mr. Dirie sought to cross-examine Ms. Hassan on the voir dire. The trial judge rejected this request. In doing so, he explained that he relied on his case management powers to determine how the voir dire would be conducted and that he did not need to hear Ms. Hassan’s viva voce evidence to decide whether her evidence should be rejected altogether. In this regard, he noted that he had the benefit of her extensive testimony at the preliminary inquiry, which made the credibility concerns with Ms. Hassan’s evidence obvious:

[I]n the particular circumstances surrounding Ms. Hassan’s evidence, I do not need to hear and see her to assess the credibility concerns raised by the defence. I do not only have reference to the length of time Ms. Hassan testified at the preliminary inquiry. I have reference as well to the fact that the credibility concerns of the accused are apparent, and I will not be enlightened by further cross-examination. Those concerns relate to the established inconsistencies in the witness’s evidence, her aggressive response to cross-examination and her refusal to answer certain questions. I do not need to see her face or hear her voice while testifying to understand the issues that have been raised.

[57] Ultimately, the trial judge rejected the defence’s argument that Ms. Hassan’s evidence should not be admitted based on the Humaid caveat and, instead, found that it would be up to the jury to assess her credibility and the reliability of her evidence.

[58] On appeal, Mr. Dirie only challenges this ruling on procedural grounds, arguing that the trial judge erred in not allowing Ms. Hassan’s cross-examination on the voir dire. I reject this argument.

[59] I agree with the trial judge that his case management powers entitled him to decide whether it was necessary for Ms. Hassan to be heard viva voce on the voir dire for the purpose of deciding whether the Humaid caveat should be applied in this case. In reaching this conclusion, the trial judge relied on well-established principles regarding the breadth of his trial management powers:

I begin by noting that it is beyond dispute that as part of my trial management power, I have the power to require an offer of proof before embarking on a lengthy voir dire, to defer rulings and to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form. The decision of Rosenberg J.A. in R. v. Felderhof (2003), 2003 ONCA 37346, 68 O.R. (3d) 481 at para. 57, provides support for this power:

I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called.

I do not think that the passage of time has diminished the force of what was said by Gale C.J.O. in R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.):

But save in rare circumstances, the relevancy or propriety of specific evidence need not be determined by testimony given in advance and in the absence of the jury. By adopting such a procedure the trial is unduly prolonged, the jury is absent from the Courtroom too long, and the continuity of the trial which is so desirable is unduly disturbed, to say nothing of an unfair preview of the evidence that may be afforded to the opposite party. It should not become fashionable to have evidence disclosed by a voir dire without very good reason. On the contrary, it is desirable that whenever possible evidence that is to be challenged be considered in the absence of the jury upon an outline by counsel of the nature of the prospective evidence. In the vast majority of cases the Judge will then be in a position to rule upon its admissibility.

[60] Mr. Dirie argues that, regardless of the trial judge’s broad case management powers, this court, in R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, suggested that the Humaid caveat cannot be assessed without the benefit of viva voce evidence. In taking this position, Mr. Dirie relies on the following statement at para. 53 of Berry:

At the time of his ruling, then, the trial judge had only the transcript of her evidence at the preliminary inquiry to consider. Viva voce testimony need not be the only mode of proof on a voir dire. However, it would be an exceedingly rare case, in my opinion, where, without the opportunity to see and hear the narrator’s testimony, a trial judge would be in the position to rely on the Humaid caveat and make a “no probative value” finding – based on the narrator's lack of credibility – to exclude the statement. This is not one of those cases.

[61] Mr. Dirie made the same argument on the voir dire. The trial judge rejected the argument, providing a comprehensive explanation for doing so. Most notably, while he rejected that the passage from Berry establishes a general principle that cross-examination should be allowed in cases where the defence seeks to rely on the Humaid caveat, he noted that, even if there was such a principle, it would not apply here given the extensive evidence available from the preliminary inquiry.

[62] I agree with the trial judge’s reasoning. Berry did not establish that there should be viva voce cross-examination in all cases where the defence seeks to exclude a witness’s evidence based on the Humaid caveat. Notably, in Berry, the trial judge was not asked to apply the caveat and the court’s comments on the issue were obiter. More importantly, ultimately, the issue of whether cross-examination should be permitted depends on the circumstances of each case. Here, the trial judge was entitled to decide whether he required Ms. Hassan to testify viva voce, and I see no error in his decision given, as he observed, the extensive evidence available from the preliminary inquiry.

[63] In support of his argument that the trial judge erred in not permitting Ms. Hassan’s cross-examination on the voir dire, Mr. Dirie points to the fact that Ms. Hassan turned out to be a very difficult witness at trial, and that the trial judge himself referred to her as “uncontrollable”.

[64] In my view, how Ms. Hassan’s evidence turned out at trial is not relevant to whether the trial judge should have allowed her cross-examination on the voir dire. Issues about the quality of Ms. Hassan’s evidence at trial were to be dealt with in the context of rulings at trial and in the jury charge. Here, as pointed out by the Crown, once Ms. Hassan testified at trial, Mr. Dirie initially did not ask for a caution in accordance with Vetrovec v. The Queen, [1982] 1 S.C.R. 811, despite the trial judge raising the issue. Mr. Dirie then changed this position and asked for a caution. At that point, the trial judge decided that, while Ms. Hassan was a very poor witness, no Vetrovec caution was required. Notably, on appeal, Mr. Dirie does not challenge this ruling by the trial judge. In any event, despite deciding not to give a Vetrovec caution, the trial judge did specifically address concerns about Ms. Hassan’s evidence in his jury charge. After reviewing the evidence of Ms. Hassan and Ms. Abshir regarding the animus between Mr. Dirie and Mr. Abdulkhadir between 2009 and the date of the shooting, the trial judge cautioned the jury about how their evidence should be approached. This included a specific instruction regarding Ms. Hassan:

Overall, bear in mind the manner in which Ms. Hassan testified – her hostility towards the cross-examiner, her bias towards Mr. Dirie, and her insistence on saying whatever she wanted to say instead of answering the questions asked of her. But remember as well, none of this prevents you from accepting some or all of her evidence if you find it to be credible and reliable.

[65] Accordingly, I see no error in the trial judge’s ruling not to allow viva voce cross-examination of Ms. Hassan on the voir dire.

C. The jury charge

[66] Mr. Dirie argues that the jury charge was unbalanced and that it favoured the Crown’s theory of the case.

[67] The primary focus of this argument is that the trial judge improperly suggested to the jury that they should not accept important potentially exculpatory evidence from two eyewitnesses. The Crown’s theory of the case was that there were three cars at the scene of the shooting, although only two cars are seen on the video footage of the shooting. The two eyewitnesses said that they only saw two cars at the time of the shooting. Mr. Dirie argues that the trial judge improperly suggested to the jury that they should not accept the two witnesses’ evidence that there were only two cars. Mr. Dirie also attacks a number of other isolated statements in the jury charge which he says show that the charge was unbalanced.

[68] In my view, looking at how the trial judge addressed the evidence of the two eyewitnesses as a whole, he did not improperly tip the scale. Rather, the trial judge expressed his opinion on the reliability of one aspect of the eyewitnesses’ evidence, albeit a significant aspect. But he was entitled to do so. In addition, looking at the entire jury charge, it was not unfair and improperly weighed to favour the Crown.

[69] In dealing with this issue, I start by addressing the general legal principles applicable to the jury charge, followed by a review of the relevant evidence and an analysis of the jury charge.

(1) Applicable legal principles

[70] Jury charges do not need to be perfect, but they must be “fair and balanced in their recitation of the evidence and their review of the position of the parties”: R. v. Baltovich (2000), 73 O.R. (3d) 481 (C.A.), at para. 114; R. v. Olufeko, 2022 ONCA 308, at para. 39. The requirement for a balanced jury charge derives from the broader need to ensure trial fairness: R. v. Li (2004), 183 C.C.C. (3d) 48 (Ont. C.A.), at para. 42.

[71] A jury charge is unbalanced where “the charge as a whole steers the jury in the Crown’s direction” or “navigat[es] the jury towards conviction”: R. v. Panovski, 2021 ONCA 905, at para. 104; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 126. A charge that has “unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence” lacks fairness and balance: Baltovich, at para. 113.

[72] A trial judge is entitled to “express his or her own view of the factual issues, including the credibility of witnesses,” and to do so in strong terms: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 231. However, trial judges must not “use such language as leads the jury to think that they must find the facts in the same way the judge indicates”: Evans, at para. 231. Where trial judges express opinions on factual issues, the court on appeal is entitled to intervene when the trial judge’s opinion is far stronger than the facts of the case warrant or is expressed in such terms that it is likely the jury would be overawed by the opinion expressed: Evans, at para. 232. This court may do so even if the trial judge has clarified to the jury that “they are not bound by his or her views on the evidence or factual issues”: Evans, at para. 232.

(2) Video and eyewitness evidence

[73] The shooting occurred around 2:30 a.m. on August 9, 2015. The events leading up to the shooting were caught on video. However, it is not possible to identify the shooter in the video. Therefore, any evidence pointing to Mr. Dirie as the shooter was circumstantial.

[74] At trial, there was no dispute that, on the evening of the shooting, Mr. Ali and Mr. Dirie were in a blue Elantra bearing licence plate number BVLL 973. Mr. Ali drove the car and Mr. Dirie was a passenger. There is video footage showing Mr. Ali and Mr. Dirie in the Elantra leaving the nightclub early in the morning of August 9, 2015, before the shooting. Soon after, there is video footage showing the Elantra arriving at the Marriot and driving around the driveway. The Elantra is then seen going back onto Bay Street and entering a parkade at the Eaton Centre, immediately adjacent to the hotel. The Elantra then turns around in the Parkade and stops in the entrance facing out onto Bay Street. From this vantage point, Mr. Dirie and Mr. Ali would have had a view onto Bay Street in front of the Marriot.

[75] In separate video footage that shows a view of Bay Street in front of the hotel, Mr. Abdulkhadir’s car and another car are seen on Bay Street, pulling up side by side in the southbound lanes. The cars are just across the street from the hotel and the entrance to the Parkade and would have been visible to Mr. Dirie and Mr. Ali. The Elantra is then seen leaving the entrance of the Parkade going north. Meanwhile, the footage of the two parallel cars shows Mr. Abdulkhadir exiting the car in the middle lane and going to the trunk. It is at this point that Mr. Abdulkhadir was shot, though this was not caught on camera. The two cars then rush away from the scene, and a third car follows the two other cars soon after. As the cars rush away, someone across the street, near the entrance of the hotel, is seen shooting at the third car. The third car is not clearly identifiable as the Elantra, but it is a dark sedan similar to the Elantra.

[76] The Crown’s theory of the case was that the Elantra was the third car seen on the video after the shooting. The Crown contended that, after leaving the parking garage, and going north, Mr. Ali and Mr. Dirie turned around and headed south on Bay Street. They pulled up behind the two cars visible on the video, and Mr. Dirie got out of the car and shot Mr. Abdulkhadir. Immediately after, Mr. Dirie got back into the car, and the car sped away as it was being shot at.

[77] The Crown’s theory of the case therefore required the jury to find that there was a third car stopped behind the two cars visible on the video.

[78] In addition to the video footage, there were two eyewitnesses who were present on Bay Street at the time of the shooting. The two witnesses were a couple, Lisa Reid and Kory Buker. They were walking south on the west side of Bay Street at the time of the shooting. They both testified at trial about what they saw. There were some inconsistencies between the evidence they each gave and the evidence of the shooting available on video. Ms. Reid testified that she noticed a vehicle stopped in the curbside lane with someone leaning into the trunk. Another vehicle approached slowly and stopped in the outer southbound lane parallel to the first car. A man came out the passenger side of the second car and shot at the man who was leaning into the trunk. Mr. Buker testified that he saw two cars stopped in the southbound curbside lane, one behind the other. He then saw the car in front pull into the middle lane and stop, after which a man got out of the passenger side and went to the trunk. Soon after, the other car pulled up immediately behind the first car. A man got out of the second car and shot the man who was by the trunk of the first car.

[79] From the defence’s perspective, while the evidence of Ms. Reid and Mr. Buker on the positions and movements of the cars is inconsistent, the key similarity in their evidence is that they both said there were only two cars. Given that the Elantra was neither of the cars visible on the video at the time of the shooting, this evidence is helpful to Mr. Dirie.

(3) The jury charge regarding the eyewitness accounts

[80] Mr. Dirie argues that the trial judge improperly downplayed the fact that neither Ms. Reid nor Mr. Buker testified that they saw three cars. He argues that the trial judge’s instruction on how to consider the evidence of Ms. Reid and Mr. Buker improperly favoured the Crown.

[81] I do not accept this argument. In my view, in making this argument, Mr. Dirie focuses on isolated language used by the trial judge in his jury charge. In looking at this aspect of the jury charge as a whole, it is evident that the charge to the jury was not uneven.

[82] Throughout his charge, the trial judge gave the jury the usual instructions that it was up to them to decide what evidence was important. For example, he said:

One word of caution. I will refer to some of the evidence in my charge, but I will not refer to all of the evidence. Please do not feel that because I included something that you do not feel is important or left out something that you do think is important that you are bound by my views. You are not. You are the judges of the facts and it is your view of the facts and only your view that matters.

…I want to emphasize that if I do convey my opinion on a matter in contention, or if you think I’m conveying an opinion, you are in no way bound to follow my opinions about the evidence. You must make your own decisions on questions of fact. You, and not I, decide what happened in this case.

[M]y recollection of the evidence is also not evidence. It is my best effort to assist you, but it is not binding on you. If any of the references to the evidence by counsel or by me do not accord with your view of the evidence, then you should rely on your own view and not ours.

[83] In his charge, the trial judge directly addressed the arguments made by the defence that there were only two cars rather than three at the scene of the shooting. In the context of addressing this issue, he thoroughly reviewed Ms. Reid and Mr. Buker’s evidence, highlighting the inconsistencies between the evidence they each gave and the inconsistencies between their evidence and the video footage.

[84] He started off this review by telling the jury that they would have to consider Ms. Reid and Mr. Buker’s evidence carefully to assess the argument made by the defence that there were only two cars at the scene of the shooting:

In order for you to assess this argument, you will no doubt want to examine the evidence of Ms. Reid and Mr. Buker closely. When you do that, you will realize, in fact you no doubt have already realized, that although their recollections of these events are similar in some respects, they are quite different in other respects. One way of testing the accuracy of the evidence of Ms. Reid and Mr. Buker is to compare their versions of the events, one to another, and as well to compare their versions to what we know for certain from the video.

[85] He went on to caution the jury about the reliability of eyewitness testimony. He then reviewed their evidence, including the inconsistencies in their evidence. Many of those inconsistencies are self-evident and relate to the positions of the cars at the relevant time. For example, the video clearly shows Mr. Abdulkhadir coming out of the car in the middle lane, whereas Ms. Reid says that his car was parked in the curb lane. As another example, Mr. Buker says that the shooter came out of a second car that pulled up behind Mr. Abdulkhadir’s car, but the video only shows two cars stopped side by side. As pointed out by the trial judge in his charge, if Mr. Buker’s version of events was accurate, the shooter had to come from a third car that pulled up behind Mr. Abdulkhadir’s car even if Mr. Buker did not remember the second car stopped beside Mr. Abdulkhadir’s car.

[86] After reviewing the inconsistencies in the evidence, the trial judge concluded by emphasizing that it was up to the jury to decide the issue:

What you make of all this is up to you, members of the jury. Please do not think, and I mean this, please do not think that I am trying to convey to you what evidence you should accept or reject and what findings you should make or not make on this issue. I am just reminding you of what the evidence of the two eyewitnesses was in contrast to each other and to the video surveillance and pointing out the obvious: it seems pretty clear that while the two eyewitnesses undoubtedly each observed a man emerge from a car, approach, shoot, and kill Mr. Abdulkhadir as he stood behind his car leaning into the trunk, their evidence about a great many of the surrounding details that the two eyewitnesses testified to is less reliable despite their best efforts to honestly recall what happened.

Still, it is open for you to accept counsel for Mr. Dirie’s position that you can rely on the fact that both Ms. Reid and Mr. Buker said that there was no third car. And if, after looking at all of the evidence on the issue of whether the Crown has established that Mr. Dirie caused the death of Mr. Abdulkhadir, not just the evidence of Ms. Reid and Mr. Buker, but all of the evidence, you find there were only two cars, neither of which was the Elantra, present at the scene when Mr. Abdulkhadir was shot, and not three cars, or if you have a reasonable doubt about it, then of course you must acquit Mr. Dirie and Mr. Ali.

On the other hand, you may find that the errors and inconsistencies in the details of the evidence of these eyewitnesses, when viewed together with the video evidence, do not bear out this defence argument that there could be no third vehicle, or even raise a reasonable doubt about it. It is up to you. [Emphasis added.]

[87] In my view, there is no reviewable error in the trial judge’s charge on this issue. The trial judge reasonably cautioned the jury that eyewitness testimony can be unreliable and pointed to the inconsistencies between the eyewitnesses’ evidence and the available video footage. In doing so, the trial judge did not unduly promote the Crown’s case. Rather, he alerted the jury to the potential problems with the eyewitness testimony, including the aspects that were demonstrably incorrect, when compared to the video footage of the events leading up to the shooting.

[88] Mr. Dirie points to specific words used by the trial judge to support his argument that this aspect of the jury charge was unbalanced. For example, he takes issue with the use of “still” in the sentence: “Still, it is open for you to accept counsel for Mr. Dirie’s position that you can rely on the fact that both Ms. Reid and Mr. Buker said that there was no third car” (emphasis added). I do not read “still” as unduly suggesting to the jury that the Crown’s case was stronger, or that there were issues with the defence position. In my view, the trial judge, after reviewing the eyewitness accounts and their inconsistencies, was returning to the defence’s position, confirming that it was open to the jury to accept the defence’s submissions notwithstanding the inconsistencies he mentioned. I see nothing improper about this sentence, and certainly not in the context of the charge as a whole.

[89] Similarly, Mr. Dirie takes issue with the sentence: “On the other hand, you may find that the errors and inconsistencies in the details of the evidence of these eyewitnesses, when viewed together with the video evidence, do not bear out this defence argument that there could be no third vehicle, or even raise a reasonable doubt about it” (emphasis added). Mr. Dirie argues that this instruction effectively precluded the jury from simply accepting the unequivocal evidence of the eyewitnesses that there were only two cars. Again, I disagree. The trial judge first presented what the jury would need to find to accept the defence evidence or to find that it raised a reasonable doubt – that there was no third car and that the Elantra was therefore not present at the scene. He then presented what the jury would need to find to accept the Crown’s case. He did not preclude the jury from accepting the eyewitness evidence. Rather, he turned their attention to the factual findings necessary to accept either position, in light of the eyewitness testimony.

[90] There is nothing in this section of the charge that merits appellate intervention. While the trial judge expressed his views on some aspects of the facts in the case, he was entitled to do so in accordance with Evans. He repeatedly qualified his views with a reminder to the jury that they were not bound by them, and that it was ultimately up to them to determine the facts. Further, the opinions he expressed did not rise to the level contemplated in Evans as grounds for appellate intervention. His opinions were not stronger than the facts of the case warranted – he pointed out inconsistencies and errors based on demonstrated video evidence – and his opinions were not phrased in such a way that they would have overawed the jury.

(4) The jury charge as a whole

[91] Mr. Dirie also points to a number of other statements throughout the jury charge which he argues demonstrate that the charge was unbalanced in favour of the Crown. For example, he says that the trial judge says that the evidence of the police officer at Finch Court “obviously” confirms Ms. Hassan’s evidence about the beating in 2010, while the trial judge never used similar language to describe evidence supportive of the defence. Mr. Dirie also says that the trial judge improperly stated that he and Mr. Ali were “obviously” in a position to see Mr. Abdulkhadir in his vehicle when they were parked in the entrance of the Parkade. He says the use of the term “obviously” was improper because there was no evidence on the point other than the position of the vehicles. He also says that the trial judge improperly described a portion of the video as: “a bright light that was not present before this time can suddenly be seen inside the trunk of Mr. Abdulkhadir’s car” (emphasis added). He claims that the use of the words “bright” and “suddenly” unfairly supports the Crown’s theory that a third car pulled up behind the two parked cars, when there is no direct evidence supporting this contention.

[92] I disagree with Mr. Dirie that these aspects of the instruction and others he relies on demonstrate an imbalance in the charge. Mr. Dirie points to isolated language used by the trial judge. To the extent the language suggests that the trial judge was expressing an opinion on the evidence, the trial judge was entitled to do so, as long as he reminded the jury that they were not bound by his opinion, his opinion was not out of keeping with the facts, and his opinion did not overwhelm the jury. Further, he was not required to include every piece of defence evidence in his charge.

[93] Accordingly, I disagree with Mr. Dirie’s argument that either the charge as a whole or the portion of the charge dealing with the eyewitness testimony was unbalanced. The trial judge reviewed all relevant evidence, permissibly expressing his opinion on some pieces of evidence, and presented both the Crown and the defence’s case without improperly favouring the Crown’s case. I do not see any basis for this court to intervene.

D. Disposition

[94] I would dismiss the appeal.

Released: November 10, 2022 “D.D.” “L. Favreau J.A.” “I agree. Doherty J.A.” “I agree. M. Tulloch J.A.”

[^1]: The uncontested evidence at trial was that Mr. Dirie’s nickname was “Monopoly”.