WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2017-05-29

Court File No.: Ottawa 16-RM2310

Between:

Her Majesty the Queen

— And —

Dominique P. Chrétien, Candy L. Locey, Johnnie-Dean Locey-Derochie, and Todd S. Turner

Reasons for Decision on Section 540(7) Application

Before: Justice P. K. Doody

Released: May 29, 2017

Counsel:

• J. Semenoff and C. Lefebvre — counsel for the Crown
• L. Shore and M. Johnston — counsel for the defendant Dominique P. Chrétien
• M. Spratt — counsel for the defendant Johnnie-Dean Locey-Derochie
• K. Pegg and M. Godoy — counsel for the defendant Candy L. Locey
• R. Carew — counsel for the defendant Todd S. Turner

Doody J.:

Part 1: Overview

[1] The four defendants are charged with first degree murder of Dady Junior Jean on November 14, 2015. I am hearing the preliminary inquiry into these charges. The Crown has brought an application under s. 540(7) to admit into evidence the videotape of an interview of Majd Sajadi on November 23, 2015. Mr. Sajadi died on February 24, 2016.

[2] The Crown theory is that:

(a) the defendant Candy Locey was at the deceased's apartment at 340 Lacasse Street in the Vanier section of Ottawa on November 14, 2015 along with the deceased and at least two others;

(b) Ms. Locey got into an altercation with the deceased and left the apartment;

(c) she then called her son, the defendant Johnnie Locey-Derochie and told him that she had been assaulted or insulted by the deceased;

(d) Mr. Locey-Derochie then travelled from his mother's home at 140 Somero Private in cab 492, driven by Mr. Sajadi, and picked up the defendant Dominique Chrétien from his girlfriend's apartment on Borthwick Avenue;

(e) the two of them drove to Mr. Chrétien's parents' home on Hannah Street, where Mr. Chrétien left the cab briefly and returned carrying an Adidas bag which contained a firearm;

(f) they then continued in the cab to an apartment building at 349 Lacasse Avenue, on the opposite side of the street from the deceased's apartment building at 340 Lacasse;

(g) they entered an apartment at 340 Lacasse along with Ms. Locey;

(h) in that apartment was the defendant Todd Turner;

(i) Mr. Locey-Derochie opened the Adidas bag and retrieved a firearm in such a way that all in the apartment could see it, placing it inside his sweatshirt;

(j) the four defendants then left the apartment, and crossed the street;

(k) Ms. Locey then enticed the deceased out of the building by calling him or his friend who was with him;

(l) when the deceased left the building Mr. Locey-Derochie shot and killed him.

[3] The Crown wishes to have the interview with Mr. Sajadi admitted into evidence because what Mr. Sajadi told the police officer interviewing him is relevant to the allegations of the travel in the cab by Mr. Locey-Derochie and Mr. Chrétien on the evening of November 14, 2015, the stop at Mr. Chrétien's parents' house, Mr. Chrétien's retrieval of the Adidas bag, and the continued travel of Mr. Locey-Derochie to 349 Lacasse Street.

[4] The application was heard on a voir dire in which evidence was heard from Sarah McEwen, a civilian employee of the Ottawa Police Service, and Det. Theresa Kelm. Det. Kelm was the officer who interviewed Mr. Sajadi. She played the recording and explained the circumstances surrounding it. The Crown and all defendants agreed that the evidence heard on the preliminary hearing could be considered on the application, together with the evidence on the voir dire.

Part 2: The Law re Section 540(7)

(a) Code Provisions

[5] Subsections 540(7) and (9) of the Criminal Code came into force in 2004. They are as follows:

Evidence

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

Appearance for examination

(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).

(b) Meaning of Section 540(7)

[6] These provisions have been considered by preliminary hearing judges on a number of occasions and at least twice by superior court judges hearing applications for prerogative writs after completion of a preliminary hearing. I have been provided with a number of cases by counsel. I agree with and adopt the conclusions of Paciocco J. in R. v. Ali, Bakal, Batubenga, Belance, Egeh, Farah, and Osman, an unreported decision in the Ontario Court of Justice dated July 27, 2015 in Ottawa file No. 14-RM2313, and of Ratushny J. in R. v. Francis (2005), 202 C.C.C. (3d) 147 (S.C.J.). In my view, the following propositions are correct statements of the law in respect of this provision.

(a) Admissibility of evidence under s. 540(7) ought, in the absence of consent, to be determined at the conclusion of a voir dire held in the course of a preliminary hearing. The Crown is required to establish to the satisfaction of the presiding judge that the proposed evidence is credible or trustworthy in the circumstances of the case. The Crown need not lead evidence to establish this – admissions or supporting documents filed on consent may suffice, or the materials may speak for themselves. (Ali, par. 32; Francis, paras. 25-6)

(b) The Crown need not call the author of a statement sought to be admitted under s. 540(7), but must follow the law of evidence on the voir dire to establish the requisite foundation for admission (Ali, paras. 35-6 and 39)

(c) Although the language of "credible or trustworthy" is the same language used in section 518(e) with respect to bail hearings, the issue at a preliminary hearing – whether there is evidence that, if believed, could allow a reasonable jury, properly instructed, to deliver a guilty verdict – is quite different than that at a bail hearing – whether detention is necessary to ensure the defendant's attendance in court, for the protection of the public, or to maintain confidence in the administration of justice. A purposive approach to the interpretation of the language in the two sections would not lead to a conclusion that they should mean the same thing. Furthermore, as Justice Paciocco notes at paragraph 40 of Ali, where there is a dispute about the facts at a bail hearing, the law in Ontario requires that it be resolved through sworn evidence or affidavit: R. v. West (1972), 9 C.C.C. (2d) 369 (Ont. C.A.); R. v. John, [2001] O.J. No. 3396 (S.C.J.). The practice of introducing evidence at a bail hearing by having an officer read from the disclosure file has as its basis implicit consent.

(d) "Credible or trustworthy" means information which is either credible or trustworthy is admissible under s. 540(7). It need not be both. (Ali, par. 18; R. v. P.(M.L.), [2008] B.C.J. No. 1440 (Prov. Ct.))

(e) The consideration of what information would meet the test of what the preliminary hearing judge considers "credible or trustworthy in the particular circumstances of the case" should not be circumscribed without reference to the situation of each case – as Justice Ratushny noted at paragraph 26 of Francis, "that consideration has to be made on a case-by-case basis as the subsection itself requires it be made 'in the particular circumstances of the case'."

(f) The standard is, however, necessarily lower than that required for admissibility of the information at trial. Otherwise, there would be no need for s. 540(7). Lest there be any doubt, the provision refers to "information that would not otherwise be admissible". (Ali, par. 9; Francis, par. 28)

(g) "Credible" means "believable" in the sense of the kind of criteria used in the first branch of R. v. Khelawon, 2006 SCC 57 as indicia showing that, on its face, the evidence is capable of being believed or credited, and "trustworthy" means "information that a presiding judge could trust a trier of fact with" (Ali, paras. 21-2).

(h) Information tendered for admission under s. 540(7) must be assessed both with respect to what Justice Paciocco calls "indicia providing a threshold indication that the statement is sufficiently reliable or accurate to justify admitting for the trier-of-fact's consideration" or by "process-based indicia of reliability" that permit it to be evaluated, much like court testimony. (Ali, para. 13; see also R. v. Blackman (2006), 84 O.R. (3d) 292 at para. 49 (C.A.)).

(i) Because both s. 540(7) and the principled exception to the hearsay rule outlined in Khelawon require an evaluation of the "indicia of reliability" connected to the target evidence, guidance can be found in the hearsay decisions, keeping in mind that the evidence need not be demonstrably reliable enough to satisfy the principled hearsay exception in order to meet the s. 540(7) test – "the difference is one of degree, not of kind". (Ali, paras. 11, 12 and 28)

(j) Even if the preliminary hearing judge is of the view that the necessary degree of credibility or trustworthiness has been met, he or she is given the discretion to refuse to admit the evidence, since the subsection says a judge "may" receive as evidence any such information -- "the provision creates authority to admit the information, but no obligation to do so." (Ali, par. 11)

(c) Appropriate Considerations to Determine Whether Statement is "Credible or Trustworthy"

[7] A number of factors have been recognized in the jurisprudence dealing with s. 540(7) as appropriate to consider when determining whether the tendered information is credible or trustworthy. The following is not an exhaustive list, nor is it a list of factors which must be considered in every case. But the issues set out below are relevant to the preliminary hearing judge's determination, with the caveat that the importance of each may vary depending on the particular circumstances of the case:

(a) Whether the statement was made under oath or solemn affirmation (R. v. Muzhikov, 2005 ONCJ 67 at para. 27);

(b) Whether the declarant was cautioned about the importance of telling the truth or the potential consequences for not telling the truth (R. v. Inglis, 2006 ONCJ 154 at para. 35);

(c) Whether the declarant was cross-examined at the time of making of the statement;

(d) Whether the Crown was available for cross-examination at the preliminary hearing after the statement was introduced (Francis, at paras. 10-11; R. v. Ireland, 2005 ONCJ at para. 27; Ali, at para. 25);

(e) Whether the statement was videotaped so the court could see the witness and observe the manner of questioning (R. v. S.P.I., 2005 NUCJ 3);

(f) Whether the statement was made voluntarily (Ali, at par. 54)

(g) Whether the interviewer used open-ended, non-leading questions (S.P.I.; R. v. J.P.L. 2008 ABPC 313; R. v. Ireland, 2005 ONCJ 218);

(h) Whether the declarant expressed uncertainty or suggested that he or she is unsure of the events of which he is speaking (Inglis, at para. 43);

(i) Whether significant areas relevant to the reliability of the declarant's statement were left unexplored or whether, in the alternative, the initial account of the declarant was followed up with detailed secondary questioning or ambiguous responses were probed with additional open-ended questions (Inglis at para. 41; R. v. Kirkpatrick, 2011 ONCJ 112 at para. 53);

(j) The length of time between the events in issue and the giving of the statement (Inglis, at para. 42); and

(k) Whether any confirmatory or corroborating evidence was either present or, if it was reasonable to expect that there would be such evidence, absent (R. v. Vaughn 2009 BCPC 142 at para. 15; Kirkpatrick at para. 55; Ali, at para. 49).

(d) Inability to Cross-Examine

[8] I have noted, in subparagraph 7(d) above, that the ability of the defence to cross-examine the declarant has been noted to be a relevant factor to consider on a s. 540(7) application.

[9] This is because, as the Supreme Court of Canada has explained in R. v. Baldree, 2013 SCC 35 at paragraphs 31 and 32, cross-examination allows evidence to be tested in four specific areas of concern: the witness may have misperceived the facts to which the hearsay statement relates; even if correctly perceived, the relevant facts may have been wrongly remembered; the declarant may have narrated the relevant facts in an unintentionally misleading manner; and the declarant may have knowingly made a false assertion. Cross-examination of the declarant has the potential to show whether any of these concerns are justified in respect of the particular statement in issue.

[10] Justice Paciocco, however, notes at paragraph 25 of Ali that the ability of the defence to cross-examine the declarant is not the most important factor to consider in a s. 540(7) application. He wrote:

… the opportunity to cross-examine need not be, and should not be, as central an admissibility factor under section 540(7) as it is under the principled hearsay exception. The operative assumption underlying section 540(7) is that even if the opportunity to cross-examine is lost at the preliminary inquiry, that opportunity will be accorded where it matters most, at trial, unless the Crown satisfies a hearsay exception. [emphasis added]

[11] That underlying assumption is invalid in this case. The declarant is dead. Consequently, if the statement is introduced under s. 540(7) it will only be able to be considered by the jury at a trial if it meets the principled hearsay exception standard.

[12] To what extent does this affect my decision under s. 540(7)?

[13] The inability to cross-examine is one of the "particular circumstances of the case" that are required to be considered when determining whether the tendered statement is credible or trustworthy. In this case, cross-examination cannot be ordered under s. 540(9). In my view, this raises the standard to be met because the true meaning of the declarant cannot be brought out by cross-examination.

[14] I go further, however.

[15] I note that the Supreme Court of Canada has stated in United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 at paragraphs 40 and 41 (decided after the coming into force of s. 504(7)):

I take it as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence put against the person is not available for trial. As Donald J.A., dissenting in Ortega [2005 BCCA 270] (B.C.C.A.) stated, at para. 51:

If evidence is not available for trial it should not be used as a basis for committal. The concern goes well beyond modalities and rules of evidence, it goes to the heart of the question for the judge: whether there is enough evidence to put the requested person on trial.

[16] I have a discretion, as I have indicated, to decline to admit a statement under s. 540(7) even if I find it to be "credible or trustworthy" within the meaning of those words in that subsection. Judicial discretion is to be exercised for appropriate reasons.

[17] A committal for trial based on a statement which is "credible or trustworthy" but does not meet either a traditional or principled hearsay exception, when the declarant is not available to be cross-examined at trial, would be a contradiction of the very purpose of a preliminary hearing because such a statement would not be available to be used at trial.

[18] In Ali, the declarants whose statements were in issue were all available for cross-examination at trial. Furthermore, in only 1 of the 11 cases cited by Crown counsel dealing with s. 540(7) was there a suggestion that the declarant would not be available for trial. In that case, R. v. Ibrahim, 2014 ONCJ 388, there was no discussion of whether the evidence would meet the principled hearsay exception. Nor was there a consideration of either the issue of the unavailability of the declarant to be cross-examined at trial or the propriety of committal for trial on the basis of evidence which may not be available at trial.

[19] In my view, it would be an appropriate exercise of the discretion provided by s. 540(7), in such circumstances, to decline to admit such a statement into evidence. If that were the case here, I would not admit the statement into evidence.

[20] As a result, it is important to consider, in the unusual circumstances of this case, whether the tendered statement would meet the principled hearsay exception set out in Khelawon and the cases following that decision. If it did, it would be available to be used at trial. It would also be "credible or trustworthy" and I would admit it into evidence.

[21] In R. v. Couture, 2007 SCC 28 at paragraphs 100 and 101, the Supreme Court had this to say about the "trustworthiness of the contents" branch of the principled hearsay exception test:

… in assessing the statements' trustworthiness under this branch of the reliability test, it is important to keep in mind that the evidence, if admitted, will go largely untested. Because there are no adequate substitutes for testing the evidence on the facts of this case, there must be some compelling feature about the statement that commands sufficient trust in its truth and accuracy to warrant its admission regardless. Wigmore explains it well in these words:

There are many situations in which it can easily be seen that such a required test [i.e. cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance) in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [Emphasis added [by Supreme Court of Canada]]

Hence, what must be shown is a certain cogency about the statements that removes any real concern about their truth and accuracy. …

[T]he principled exception to the hearsay rule is not intended to supplant all other rules of evidence. Nor is it intended to provide a substitute for the usual rigours of the criminal trial process.

Part 3: The Evidence About the Statement

(a) Process-Based Indicia in Respect of Reliability

[22] Mr. Sajadi did not take an oath or solemn affirmation to tell the truth before he was interviewed by the police officer on November 23, 2015.

[23] Nor was he cautioned about the importance of telling the truth or the potential consequences for not telling the truth.

[24] Mr. Sajadi did, however, later swear that the statement was true. The way in which that came about is relevant to the reliability of the statement.

[25] The initial interview on Nov. 23 was conducted by Det. Theresa Kelm of the Ottawa Police Service. After she had interviewed Mr. Sajadi, she acquired further information – the GPS coordinates of Mr. Sajadi's taxi at various times on Nov. 14, the evening of the shooting. She wanted to use these to conduct a further interview of Mr. Sajadi. They agreed to meet on December 2. That day, Mr. Sajadi left Det. Kelm a voice message that he had been diagnosed with cancer, was in a lot of pain, could not drive, and would call her once he was mobile. She spoke to him that day. She called again on Jan. 27, and spoke with his wife, who told the detective that her husband was not well and did not want to speak with her again. On Feb. 8 Det. Kelm called again, and Mr. Sajadi's wife told her that her husband was at the cancer clinic and did not expect to live much longer.

[26] The following day, Detective Kelm spoke with Mr. Sajadi, who was at the Ottawa Hospital. The same day, she saw him with Sarah McEwen, a civilian employee of the Ottawa Police Service who is a commissioner of oaths. They met Mr. Sajadi with his wife. They had told them that they wanted Mr. Sajadi to view his videotaped statement and sign a formal oath that it was true. Both Mr. Sajadi and his wife told them that they did not want to have any further involvement. Detective Kelm told them that she could not make any promises that he would not have to attend court if he did this, but that if he swore that the statement he had given was true it may assist in having the statement admitted into evidence if he was unable to attend court for health reasons.

[27] They went to a private room at the hospital. Mr. Sajadi watched the video recording of his interview, approximately an hour and a half long. He asked if he could lie down while he watched, and he did so. After he had watched the video, he was asked to, and did, swear an oath on the Quran that the information he had provided was true. He signed a document in which he answered "yes" to the following questions:

I want you to understand that you are now under oath and everything you have said concerning this matter is considered sworn testimony and that lying under oath is a criminal offence and doing so may result in perjury charges pursuant to the Criminal Code of Canada. Do you understand?

I also want to point out that anything you said on November 23, 2015, or have said in the past regarding this investigation, may be used for the purpose of laying criminal charges and you may be required to testify in subsequent criminal trials. Do you understand?

[28] This process was intended to be videotaped, and the camera was set up to do so, but something went wrong and there was no recording produced.

[29] Ms. McEwen testified that Mr. Sajadi appeared frail, but alert. She did not know if he was on pain medication. Det. Kelm testified that Mr. Sajadi was awake throughout the playing of the video. She testified that he appeared to understand what was said to him, and he was able to communicate to her his concerns about being involved in the process. When the video was finished, she asked him if he wanted to add to or delete anything he had said and he replied that he did not.

[30] A video recording was made of the original interview. The camera was placed at ninety degrees to the direction Mr. Sajadi was facing. It was difficult to see much of his face. Det. Kelm sat at his side, with her back to the camera. They were frequently looking at pictures, maps, or videos displayed on a table in front of them. Because of the placement of the camera, it was not possible to see what they were looking at. While Det. Kelm was able to testify to what most of the documents or recordings were, there were some she could not identify.

[31] Det. Kelm frequently asked leading questions of Mr. Sajadi, whose responses were often terse and not fully communicative.

[32] An example is at page 6, where, after showing Mr. Sajadi a photograph of Mr. Locey-Derochie and Mr. Chrétien in his cab, in an attempt to have Mr. Sajadi tell her when and where he picked them up, Det. Kelm said "because I was watching this fare and what saw I was that he [referring to Mr. Locey-Derochie] comes in around 8 o'clock – 8:01 and then he [referring to Mr. Chrétien] gets in later." She then repeats what she had seen on the video from the cab and Mr. Sajadi says "yeah, yeah, that's what I remember."

[33] Another example is at page 30. Mr. Sajadi told Det. Kelm early in the interview that he had taken Mr. Locey-Derochie back to the address on Somero where he had picked him up. She and Mr. Sajadi had the following exchange towards the end of the interview:

Det. Kelm: So where did you drop them off?

Mr. Sajadi: I can't recall.

Det. Kelm: I'm gonna tell you why I think it's not Somero, okay.

Mr. Sajadi: No, it's not Somero.

Det. Kelm: Because it was only three minutes after you picked …

Mr. Sajadi: No, no, it's not Somero. That's … that's exactly why.

[34] Many of the answers Mr. Sajadi gave to the questions put to him by Det. Kelm were unclear. Frequently ambiguities were not followed up with further questions which might have resolved them.

(b) Trustworthiness of the Contents Indicia in Respect of Reliability

[35] There were some independent pieces of evidence which corroborated parts of what Mr. Sajadi told Det. Kelm.

[36] Mr. Sajadi's statement that he received a call from Mr. Locey-Derochie on November 14 is corroborated by the records from Mr. Locey-Derochie's cell phone provider which shows calls to Mr. Sajadi's cellphone at 7:42:53 and 20:00:16 on Nov. 14, 2015. This corresponds with the GPS records from Mr. Sajadi's taxi which shows it on Somero Private, where Mr. Sajadi ultimately said he picked up Mr. Locey-Derochie, at 20:02:16.

[37] When Mr. Sajadi was shown the photo of Mr. Chrétien with the bag in his cab, he said "I remember they were talking about the bag now that you show me". This part of his statement is also corroborated by the evidence from Ms. Charlebois that Mr. Chrétien was going to get a bag from his father's house and Ms. Richards' evidence that two people got out of a cab and came in her apartment with a bag.

[38] Mr. Sajadi said (after some time) that he picked up Mr. Locey-Derochie at 140 Somero. That was admitted to be his mother's house. Furthermore, the GPS shows that he was at that location at 20:02:16.

[39] Mr. Sajadi said, at p. 24 of his statement, that Mr. Locey-Derochie and Mr. Chrétien said, when he stopped where Mr. Chrétien got out briefly and returned with the bag, something like "I think he's still in there. He's in his sleep." This was corroborated by Mr. Chrétien's statement in which he said that his father would not be as angry if he woke him rather than Mr. Locey-Derochie. It is also partially corroborated by Mr. Paul Chrétien's evidence that he went to bed very early, because he typically got up at 2 a.m.

[40] Mr. Sajadi's statement that Mr. Locey-Derochie told Mr. Chrétien that "he's insulted my mother" was consistent with Ms. Richards' evidence that Ms. Locey told her son on the phone that "he is going to get it" and that she had said that the deceased had tried to rape her.

[41] There were inconsistencies between Mr. Sajadi's statement and independent evidence with respect to some evidence, and internal inconsistencies within the statement.

[42] He told Det. Kelm that he drove Mr. Locey-Derochie home that evening, to the same place where he had picked him up. The GPS data, however, shows that he was on Somero only once that evening. Later in the statement he changed his mind, and said at page 31 that he had dropped him off in Vanier – "I think that was it."

[43] Mr. Sajadi gave varying statements about the extent to which he knew Mr. Locey-Derochie. When first shown his picture by Det. Kelm, he said "know this person" and said his name was "JL … JT something like that", implying that he had only a passing acquaintance with him. He underlined this by saying he had given him rides "a couple of times by coincidence by accident [being flagged down] in Montreal Road" "and a couple of times I got call I guess related to this person." Then, after Det. Kelm told him that she had the data for the calls that night, he said "he called me on my phone" and when asked who called him, he said "JD". He then was asked if he had his cell phone with him and he said he could give the detective his number. When the officer looked at the phone, she saw that he had Mr. Locey-Derochie listed as a contact in his phone. After further questioning, Mr. Sajadi said that he knew Mr. Locey-Derochie "pretty well".

[44] Mr. Sajadi was not truthful when he explained why his phone did not show any calls sent or received on Nov. 14. When Det. Kelm looked at Mr. Sajadi's phone and saw there were no calls shown on Nov. 14, Mr. Sajadi initially said that there was a limited capacity for the phone to store calls, implying that the calls on the 14th (9 days before the interview) had been automatically deleted. When she saw that there were calls from before and after Nov. 14 but no record of calls on that date, she asked him if he had deleted the calls on that date. He denied this. In fact, however, we know from the phone records that there were two calls from Mr. Locey-Derochie to Mr. Sajadi's phone on Nov. 14. Since neither call was shown on the phone on Nov. 23, the only conclusion is that the calls on Nov. 14 were deleted. This diminishes the reliability of Mr. Sajadi's statement.

[45] Crown counsel submitted that Mr. Sajadi's description of the house where Mr. Chrétien left his cab and returned a