Court Information

Court File No.: 14-RM2313

Ontario Court of Justice

Her Majesty the Queen

v.

Makador Ali; Sabar Bakal; Fabrice Batubenga; James Belance; Shakib Hussein Egeh; Saad Farah; Ramadan Osman

Proceedings at Preliminary Hearing

Ruling

Before His Honour Justice D. Paciocco

on July 14, 2015

at Ottawa, Ontario

Appearances

Counsel for the Crown:

• J. Cavanagh
• A. Levans

Counsel for the Defendant Makador Ali:

• B. Engel

Counsel for the Defendant Sabar Bakal:

• D. Condo
• M. Grenier

Counsel for the Defendant Fabrice Batubenga:

• R. Carew

Counsel for the Defendant James Belance:

• A. Weinstein

Counsel for the Defendant Shakib Hussein Egeh:

• J. Addelman
• M. Frouhar

Counsel for the Defendant Saad Farah:

• L. Goldstein

Counsel for the Defendant Ramadan Osman:

• A. Brass
• E. Tanny

Ruling

PACIOCCO, J. (orally)

All right. In anticipation of the issue that we just dealt with, I was able to conduct relevant legal research last night and prepare a memo on the principles that I have to apply. I was also able to sketch out the basic factual outline from the documents in question. As a result I am in a position not only to give a ruling but to give reasons for the ruling.

The accused before me are charged with attempted murder and related charges arising out of an attack alleged against Afdal Said on 17th November, 2013. The preliminary inquiry commenced in November 2014 before another justice, who it is agreed proved unable to continue. Pursuant to subsection 547.1 I therefore made an order, anticipated by the parties and agreed to by them after the matter was pre-tried before another judge, that I would continue the preliminary inquiry in his stead. This is my ruling on whether I can and should reconsider a ruling made by the initial preliminary inquiry judge after a Crown application relating to the admissibility of evidence pursuant to section 540(7) of the Criminal Code.

Initial Application and Ruling

The preliminary inquiry began on November 17th, 2014. At the outset the Crown informed the court that it was bringing a section 540(7) application to file transcripts of witness statements relating to four witnesses. After preliminary matters were dealt with, the Crown indicated that its plan was to have the transcripts of witness statements filed pursuant to section 540(7), call the witnesses, have them cross-examined, and then argue for committal on that record. Defence counsel announced that the application was opposed. Mr. Brass, speaking for the other defence counsel, raised objections to proceeding in this manner, but full argument was not made on whether the target evidence satisfied the "credible or trustworthy" precondition to admissibility. The presiding judge asked the Crown to respond to the objections raised by Mr. Brass, who had expressed concern about the late disclosure and the inability to respond to the notice of application that he had received the day before. The presiding judge then said that he wanted to hear from the Crown in response and said, "I am not inclined to grant your application without some fleshing around upon which I can rely". The Crown did not do as was invited but made submissions focusing on why proceeding in the suggested fashion would expedite things, given the difficulties with the witnesses that could be anticipated and that might otherwise protract the hearing. The presiding judge immediately said, "Thank you. Leaving aside the lack of specificity that is contained in the, what the Crown gives as notice of this application, in my view there is not enough bases upon which I can look to the evidence to justify the application going ahead. It seems to me that the Crown is requesting to do so in these circumstances without proper grounding, and in fact is to put the horse before the cart [sic], and the application is denied, and the notice of the Crown on which I have written the word specificity, that will be exhibit A on the application under section 540(7)."

The presiding judge then heard three and a half days of evidence from Miss Walker during which the defence brought [sic], the Crown brought an application pursuant to subsection 9(2) and 9(1) in an effort to secure information from Miss Walker that she had provided to the police in various statements. The statements were not adopted by her. The R. v. K.G.B. component of the application was not completed when the matter was adjourned for continuation. In the interim the presiding judge stepped down from the case, and on July 5th, 2015 [sic], the Crown provided formal notice to the parties of its intention to renew the section 540(7) application relating to Miss Walker and several other witnesses, including but not confined to the witnesses who were the subject of the initial application. I began hearing argument on the application for reconsideration from the Crown in the early afternoon of the 13th of July, 2015, my first day sitting on the case. When the Crown argument was completed I was advised that parties were objecting to the renewal application even being brought, given that the initial preliminary inquiry judge had already ruled on the matter. This is my ruling on that objection.

Authority to Reconsider

In my view the decision of the preliminary inquiry judge does not prevent the Crown from renewing or expanding the initial application. As I interpret the decision made, the presiding judge, while not prepared to grant the motion as presented, left the door open to its proper presentation. He had been met, frankly, with a poorly-conceived and incompletely-presented effort by the Crown to use subsection 540(7) to streamline the proceeding. The initial 540(7) application was presented with inadequate notice, and without compliance with the rules. The admission of the evidence was sought without a clear description of the nature of the material, without previously sharing that evidence with the presiding judge, without regard to the proper procedure for establishing the evidentiary record, and based on incomplete submissions having more to do with convenience than the legal test of "credibility or trustworthiness". In that context it is not surprising that the judge would respond cryptically.

As I read the decision, however, the presiding judge was ruling that the application could not go ahead as presented because there was not enough basis provided. The implication of his comment was that if the horse was indeed put before the cart and a proper grounding provided, things might be different. This was a sage approach for the judge to have taken. This experienced judge was no doubt familiar with the admonition in R. v. Harris, [1997] O.J. No. 3560, Ontario Court of Appeal, where Justice Muldaver cautioned judges not to make "advance" evidentiary rulings and should postpone doing so until such time as there is a complete contextual record.

I am confident that the presiding judge did not intend to rule finally on the application of subsection 540(7) because the materials contemplated by the Crown had clearly not yet been reviewed by the judge. It is also clear that defence counsel did not expect the matter would end so abruptly. Mr. Brass, who spoke for the assembled counsel, commented with respect to "credibility or trustworthiness" prerequisite, "I don't want to bore Your Honour with the essential legal arguments that will be presented at a later time".

Even if I am misreading the ruling of the initial judge, I would permit the renewed application to be heard and determined on its merits. The principles of res judicata do not apply during a hearing to decisions reached by a judge during a hearing, and a judge is not functus officio when a voir dire has ended, R. v. Farrah (D.) 2011 MBCA 49, 2011 M.B.C.A. 49 at paragraphs 22 and 23. As Justice Sopinka explained in R. v. Adams, [1995] 4 S.C.R. 707 at paragraph 29, "a court has limited jurisdiction to reconsider and vary its judgments of the case when the court is not functus". Indeed, even a trial judge that has convicted an accused can change their mind about guilt until the accused has been sentenced, R. v. Lessard, (1976), 30 C.C.C. (3d) 70, Ontario Court of Appeal.

It is true that it is not a material change in circumstance that a judge has been replaced while a judicial hearing is under way. It is also true that the replacement judge does not have appellate authority. Just as the initial judge has jurisdiction to reconsider their own rulings, however, the same authority to reconsider the earlier rulings by that judge rests with the judge who assumes responsibility for the case. The new judge stands in the previous judge's shoes jurisdictionally.

Principles for Reconsideration

The initial material question therefore is what principles should apply where reconsideration of a prior evidentiary ruling is requested. Justice Sopinka commented that, "as a general rule, any order relating to the conduct of the trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed"; R. v. Adams, supra, at paragraph 30. This is no doubt the most common basis for reconsidering an evidentiary ruling; see R. v. La, [1997] 2 S.C.R. 680 at paragraph 28; R. v. Savojipour, [2006] O.J. No. 469, Ontario Court of Appeal; and R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319 at paragraph 123, Manitoba Court of Appeal.

In this case the Crown urges that the recantation of Jessica Walker is a material change in circumstance relating at least to her statements. If it is so, it is only modestly so. The Crown alerted the presiding judge of the expectation that Miss Walker would recant.

The material change in circumstance is not, however, the exclusive basis upon which interlocutory decisions, including evidentiary decisions, can be reconsidered. The judge has discretion to reopen a voir dire, for example, because one of the parties misunderstood the scope of an admission, or because they were misled by the trial judge about the position they should take, or because counsel was unaware of relevant evidence at the time; see the decisions summarized in R. v. I.C., 2010 ONSC 32, [2010] O.J. No. 5 at paragraphs 151 to 163, Ontario Superior Court of Justice. A judge can also reconsider a ruling that they later discovered was made in error. The decision in R. v. Morgan, [1983] A.J. No. 742 at paragraph 15, Alberta Queen's Bench, recognized that a judge can reconsider an issue of admissibility because of "inadvertence or some other unusual circumstance" that the judge becomes aware of. And R. v. Williams, 2013 ONSC 3100, [2013] O.J. No. 2421, Ontario Superior Court of Justice provides an example of this occurring. The trial judge ruled on the admissibility of a video. It became apparent when he was releasing his decision that he had misapprehended the facts. This was drawn to his attention by the Crown. The trial judge reopened argument, and one of the defence counsel argued that the court was functus officio and must treat the video as admissible on the basis articulated, which was more favourable to the defence than the Crown's requested basis for admission. The trial judge disagreed, commenting, "it is obvious that evidence cannot be said to be properly admitted if it depends for its admissibility upon a mistaken understanding of the evidence said to support its admission".

In Setak Computer Services Corporation Ltd. v. Burroughs Business Machines et al., [1977] O.J. No. 226, 2226 at paragraph 16, Ontario High Court, the court considered its ruling relating to the use to which a set of business records could be put once admitted after a similar issue arose when a second set of business records was presented and the trial judge "had the benefit of a very full, able, and exhaustive argument on the issue".

None of these examples catch this case where the Crown, having brought an application without sufficient organization, seeks to do so again with a full record. The key driving principles, however, are that the reconsideration must not produce any unfairness and must be in the interests of justice, R. v. Montoute, [1991] A.J. No. 74, Alberta Court of Appeal.

Fairness and Prejudice

The former principle, unfairness and prejudice, is critical. Counsel often depend upon rulings to select their strategy. R. v. Underwood, [1998] 1 S.C.R. 77, "where a party has relied upon a ruling and it is too late to remedy their reliance by reopening an issue or the case, it is too late for reconsideration. In R. v. Morgan, [1983] A.J. No. 742, Alberta Queen's Bench, for example, the trial judge admitted a certificate of analysis into evidence without objection. At the end of the case defence counsel successfully argued that inadequate notice had been given, and the trial judge reconsidered and excluded the certificate. Had the Crown been advised of the decision before the end of the case, it could have proved the readings by calling other witnesses. The trial judge should have reopened the case and provided the Crown with an opportunity to litigate on the basis of the ultimate ruling.

Interests of Justice

Other principles apply to inform the interests of justice. In R. v. Adams, supra, at paragraph 29, Justice Sopinka commented that the rule, "is less formalistic and more flexible" with respect to orders relating to the conduct of a trial." This may be because judges have the authority to control the proceedings before them and should have the flexibility required to achieve the best possible result. There is a public interest in getting things right. By the same token, it is in the interests of justice for a court to exercise the judgment they are granted appropriately, indeed optimally, in all the circumstances. Perhaps for this reason Justice Sopinka also commented in R. v. Adams, supra, at paragraph 29, that authority to reconsider is greater where the order is a discretionary one.

Another consideration, peculiar to preliminary inquiries, is that there is no ability to appeal mere evidentiary errors. It is therefore important for preliminary inquiry judges to correct decisions it regrets even if rendered in an attempt to dispose of an issue. Since no one else can correct evidentiary errors by way of appeal or application, a judge who recognizes that they have made one should be prepared to correct that error, if no prejudice will occur.

Finally and of importance, there is an important public interest in encouraging finality and discouraging relitigation. Proceedings would become endless and redundant if the parties could ask for reconsideration lightly, particularly where they are the authors of their own misfortune as a result of inadequate preparation or presentation. It is my view that notwithstanding the general interest and finality, and that the Crown is the author of its own misfortune by having authored an inadequate record, this is a case where the interests of justice support reconsideration.

Application to This Case

As indicated, this was not a decision based on the application of the legal test for admission under section 540(7). The ruling was based on the state of the application. I do not feel comfortable presiding over a preliminary inquiry where the application of section 540(7) is disposed of without viewing the target evidence and considering the admissibility criteria. Had I issued the initial ruling, I would have been open to reconsidering the application on a full record if requested to do so.

Subject to submissions relating to the need to call formal evidence to authenticate the documents before me and to flesh out the circumstances in which they were obtained, I now have a full record, and if there is objection taken to the foundation before me, a full record can easily be achieved. I now also have the benefit of full argument from the Crown. Of critical importance, reconsideration can be done without prejudice to the defence, who have not relied to their detriment on the earlier ruling. None of the questioning of the sole witness that testified so far would have been different had it been evident that a section 540(7) issue would represent itself. All counsel cross-examined Miss Walker at a time when they were aware that they were addressing an admissibility question raising similar issues included in the K.G.B. application. No steps were taken in reliance on the section 540(7) ruling to anyone's prejudice. The witness is also available to be called for further cross-examination should the reconsidered section 540(7) application favour the Crown.

I therefore intend to rule on the application after hearing full argument from the parties.

At this stage we have the record presented by the Crown through the filing of the documents without support through testimony of witnesses confirming the authenticity of all of the documents sought to be admitted. We also do not have collateral information about the circumstances in which all of the statements were made. The statements nonetheless on their face indicate by the transcripts that have been provided whether they are full K.G.B. statements or otherwise. If there is objection to me ruling on the basis of the record I have, or if the Crown wishes to supplement the record at this point, now is the time to deal with it. I am going to begin by speaking to Mr. Cavanagh.

Certificate of Transcript

FORM 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Sharon Joliat, certify that this document is a true and accurate transcript of the Recording of Regina v. Ali/Bakal/Batubenga/Belance/Egeh/Farah/Osman in the Ontario Court of Justice held at Courtroom 10, 161 Elgin Street, Ottawa, ON taken from Recording 0411-10-20150714-075611_6_PACIOCD.dcr which has been Certified in Form 1.

Date: July 29, 2015

Signature of Authorized Person(s)

Transcript Processing Information

Transcript Ordered: July 17, 2015

Transcript Completed: July 22, 2015

Ordering Party Notified: July 29, 2015

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 539(1) OF THE CRIMINAL CODE OF CANADA BY ORDER DATED NOVEMBER 17, 2014