Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 01 15 COURT FILE No.: 19-45004694 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Hacar KHESRO-MOHAMED-RASHEED

Before: Justice Cidalia Faria

Heard on: September 8, 2023 Oral Reasons: September 8, 2023 Written Reasons for Ruling to Re-Open Case after Finding of Guilt Released on: January 15, 2024

Counsel: Glen Tucker, Emma Haydon, Oslyn Braithwaite....................... counsel for the Crown Rupinjit Singh Ball … counsel for defendant Hacar KHESRO-MOHAMED-RASHEED

Faria J.:

Overview

[1] On February 23, 2023, I found Hacar Khesro-Mohamed-Rasheed, (hereinafter referred to as Rasheed) guilty of assault causing bodily harm on Mohamad Sulyman (Sulyman) in early November 2019, contrary to s. 267 (b) of the Criminal Code after a 5-day trial. [1] The matter was adjourned to obtain a Pre-Sentence Report (PSR).

[2] On May 31, 2023, Defence counsel filed a motion to adjourn the sentencing as new evidence had come to light and he intended to apply to re-open the case. The adjournment application was granted June 2, 2023.

[3] It took until July 25, 2024 for the Defence to file its application, and until August 15, 2023, to perfect it. The application was heard on September 8, 2023.

[4] The essence of the application is that pursuant to both the complainant and the accused at trial, present during the altercation that led to the charge, was a woman who Rasheed had brought to the victim’s apartment. She observed the incident and can testify as to what occurred as an independent eyewitness. Rasheed did not have her contact information to locate her prior to the trial, and the police never located her either. After the finding of guilt, Rasheed “found” her, and now wishes to call her as a witness.

[5] After submissions, to expedite matters, I granted the application to re-open the case, and permitted the Defence to set a date and call the woman as a witness, with reasons to follow. These are my reasons.

Evidence

[6] Rasheed filed two affidavits in support of the Application.

[7] The first affidavit was sworn on July 25, 2023, by Lesliy Hildred, a private investigator, hired by Calvin Barry, the firm representing Rasheed. Mr. Hildred deposed that he met Rasheed on March 10, 2020, who told him that a female named Ashley was a witness to the altercation for which he was charged. In June 2023, he had an agent attend at the bar, Drums and Flats, where Rasheed had met the woman to obtain further information. This was unsuccessful. He also did a social media check with negative results.

[8] He further stated that Rasheed advised him in March 2023 that he believed he had found the woman. On May 30, 2023, Hildred took a statement from a woman who identified herself as Kelly Farkas. She said she was in an apartment with Rasheed where an altercation occurred on November 8 and 9, 2019. She had told Rasheed her name was Ashley.

[9] The second affidavit was sworn on August 15, 2023, by Kelly Farkas. She stated she resides in Brampton, met Rasheed in the fall of 2019 at the bar, Drums and Flats, and told him her name was Ashley. They had a few drinks. She then went with him to his friend’s house close by. While there, the friend, whose name she did not recall, got really drunk, insulted both her and Rasheed, which led to an argument and the friend “smacking” Rasheed who did not react. She stated the friend then grabbed Rasheed by the throat and Rasheed punched the friend and fled. She left shortly thereafter and never saw Rasheed again, until “sometime in April 2023” when she “ran” into him and gave him her contact information.

Issue

[10] To be determined is:

a. Has the Applicant met the legal test to re-open the case after my finding of guilt?

b. Has the Applicant met the legal test in relation to “fresh evidence”?

Position of the Parties

[11] Put simply, the Applicant submits he has met both legal tests, and I should vacate my finding, permit the re-opening of the case, and allow Rasheed to call Farkas as a witness for the defence.

[12] The Crown submits the Applicant has not met either legal test, the case should not be reopened, and my finding should stand.

Legal Principles

[13] A trial judge, sitting without a jury has the jurisdiction to vacate an adjudication of guilt and re-open a trial prior to the imposition of sentence. The discretion to do so should be used only in exceptional circumstances. [2]

[14] The criteria to be met, to determine the admissibility of fresh evidence on appeal, provides guidance to trial judges faced with such an application to re-open the defence case after a finding of guilt has been made. As articulated in several cases, the test is as follows:

a. The evidence should, generally, not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in a civil case. [3]

b. The evidence must be relevant to a decisive or potentially decisive issue at trial.

c. The evidence must be credible in the sense that it is reasonably capable of belief, and

d. The evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [4]

[15] The Palmer factors to consider on applications to introduce fresh evidence on appeal, incorporated into post-verdict applications to re-open, may be summarized as:

a. Admissibility;

b. Cogency; and

c. Due diligence. [5]

[16] More recently, the Ontario Court of Appeal re-affirmed these tests in R. v. R.G., 2023 ONCA 343. [6]

Analysis

[17] The Crown correctly concedes the proposed witness’ evidence of what she observed in the apartment the night of the altercation in question is admissible evidence.

[18] However, the Crown argues what Kelly Farkas’ deposes in her affidavit is not sufficiently cogent, credible and could not be reasonably expected to affect the outcome when considered in relation to the other evidence at trial so that it fails the second prong of the Palmer test, and the Defence did not do its due diligence thereby failing the third prong of the test.

[19] Certainly, the affidavit is sparse. Farkas does not provide specificity as to the circumstances prior to the altercation, its choreography, location in the apartment, duration or any injuries sustained. There is no indication of the language(s) spoken, or words used.

[20] Farkas’ description of the altercation is thin. In three sentences, she deposes: Rasheed’s friend “smacked” Rasheed; Rasheed did nothing until his friend grabbed him by the throat; Rasheed then punched the friend and immediately ran out of the apartment.

[21] The central issue at trial was whether Rasheed’s response was reasonable in the circumstances that it constituted self-defence. The objective photo evidence was compelling and contradicted Rasheed’s evidence of what occurred. However, Farkas’ evidence, is sufficiently similar in general terms to Rasheed’s narrative, that it is relevant to the evaluation of both Sulyman’s and Rasheed’s credibility and reliability, that it warrants consideration.

[22] I must carefully evaluate the proposed evidence and the credibility of its source. However, I should not determine the ultimate reliability or the ultimately credibility of the witness whose evidence is proposed to be tendered. [7]

[23] Although the Farkas affidavit is vague, I cannot say that it is definitively so lacking in credibility and cogency as to warrant its outright rejection. I also cannot say with certainty that her evidence could not reasonably affect the outcome. As a result, the applicant meets the cogency, relevance, and credibility considerations of the test.

[24] Turning to the due diligence consideration, the evidence is that Rasheed did not know the woman he brought to Sulyman’s apartment, other than that her name was Ashley and he met her at a bar. He hired a private investigator via his counsel, inquiries were made at the bar where he met her, and social media checks were made. Farkas deposed she lied to Rasheed about her name, did not give him her contact information, and only went to the bar where they met on a couple of occasions since the incident. Given the paucity of information Rasheed had about the woman, his efforts, though they could have been, and perhaps should have been more extensive, do demonstrate due diligence in this circumstance.

Conclusion

[25] I am mindful that re-opening a case after a finding of guilt should only be done rarely and in exceptional circumstances. To be blunt, this application is certainly not the strongest. Nonetheless, the evidence of an eyewitness to an altercation at the heart of the dispute, whose evidence is admissible, whose cogency and credibility is sufficient not to be rejected outright, and who was not located through no lack of effort on the part of the Applicant, should be heard.

[26] I grant the application to re-open the case, vacate my finding of guilt on the count of Assault Bodily Harm, and will permit the Defence to call Kelly Farkas as a witness.

Released: January 15, 2024 Signed: Justice Cidalia C.G. Faria

[1] R. v. Khesro-Mohamed-Rasheed, 2023 ONCJ 88 [2] R. v. Lessard, [1976] O.J. No. 74 (ONCA) at para. 12. [3] McMartin v. The Queen, 1964 SCC 43 [4] Palmer v. The Queen, 1979 SCC 8 at p. 775, R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.) at para. 31. [5] R. v. M.G.T., 2017 ONCA 736 at paras. 48-49. [6] R. v. R.G., 2023 ONCA 343 at paras. 54-55. [7] R. v. Snyder, 2011 ONCA 445 at para. 50-51.