COURT FILE NO.: 05-30104
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Michael Boyce and Carl Lem, for the Applicant
Applicant
- and -
DIANE SERRÉ
Natasha J. Calvinho and J. Michael Spratt, for the Respondent
Respondent
HEARD: March 12, 2012
REASONS RE FINDING OF ADVERSITY/HOSTILITY REGARDING ISSAM DAKIK (TRIAL RULING #1)
Aitken J.
Nature of Application
[1] On March 12, 2012, Crown counsel brought an application under s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C.-5, to have the Crown witness, Issam Dakik, who is testifying under subpoena, declared adverse and to obtain leave to cross-examine him. I found that Mr. Dakik was adverse, and I granted leave to the Crown to cross-examine him on prior inconsistent statements. During submissions, the Crown also invited me to make a finding that Mr. Dakik was a hostile witness as, in the view of the Crown, the evidence supporting a finding of adversity also supported a finding of hostility. I agreed and consequently allowed the Crown to cross-examine Mr. Dakik at large.
Background
[2] Issam Dakik was originally a co-accused, along with his wife, Vivian Badaan-Dakik, and Diane Serré in regard to the immigration cases being dealt with in these proceedings. On June 30, 2006, Mr. Dakik pled guilty to nine counts relating to the events underlying the charges currently before the court against Diane Serré. At the same time, he pled guilty to several other offences relating to credit card fraud, forgery, obstruction of justice, breach of an undertaking, and tax evasion. In accordance with a joint recommendation of counsel, Mr. Dakik was sentenced to two years nine months concurrent for each of the immigration and credit card fraud offences, six months concurrent for each of the breach of undertaking and tax evasion offences, and twelve months concurrent for the obstruction of justice offence. Once Mr. Dakik pled guilty to these offences, all charges against Vivian Badaan-Dakik were withdrawn. Mr. Dakik has now served his sentence.
[3] At the time of his guilty plea and sentencing, Mr. Dakik signed a 46-page Agreed Statement of Facts. On the page containing the signature of Mr. Dakik and his lawyer, Mark Wallace, it was stated in bold:
Having reviewed all of the information contained in this document with my counsel, I admit to the truth and accuracy of all of the information contained herein with the knowledge and understanding that this information will [sic] be relied on by a Judge of the Ontario Court of Justice in support of my plea of guilty. I make this admission and agree to plead guilty voluntarily, having had my legal rights and options, and the consequences of pleading guilty explained to me by my counsel.
[4] Prior to making a finding of guilt, Justice Adler specifically asked Mr. Dakik if he was admitting the contents of the Agreed Statement of Facts, and Mr. Dakik responded that he was.
[5] The Preliminary Hearing in regard to the charges against Diane Serré took place in April 2008. Mr. Dakik was called as a Crown witness and testified over a period of nine days. At the time, Mr. Dakik was incarcerated. The parole he had enjoyed since December 2006 had been revoked shortly before the Preliminary Hearing as a result of new fraud and false pretence charges laid against him. At the time of the Preliminary Hearing, Mr. Dakik was reluctant to testify as he feared reprisals against himself, his wife and his children. He felt under tremendous stress at the time. He did not have those same fears at trial.
Evidence on the Voir Dire Regarding Adversity/Hostility
[6] Crown and Defence counsel agreed that the evidence on the voir dire would consist of the evidence of Mr. Dakik tendered in the trial proper up to the time of the voir dire. By that time, the Agreed Statement of Facts had been identified by Mr. Dakik, and he acknowledged signing it at the time of his guilty plea and prior to his being sentenced. By the time of the voir dire, Mr. Dakik had also acknowledged that he had provided evidence at the Preliminary Hearing in this matter in 2008. Therefore, the transcript of his evidence at the Preliminary Hearing was also evidence on the voir dire.
[7] Crown counsel made submissions on the voir dire. In light of the fact that Mr. Dakik had chosen not to refresh his memory from the Agreed Statement of Facts and the transcript of the Preliminary Hearing, Defence counsel chose not to make any submissions regarding the Crown’s application, aside from seeking clarification that Mr. Dakik could not be cross-examined on aspects of the Agreed Statement of Facts about which he had no personal knowledge. That was a point on which all agreed.
Summary of the Law
[8] The right of a party in a criminal case to cross-examine his or her own witness is based on either s. 9 of the Canada Evidence Act regarding adverse witnesses and previous inconsistent statements, or common law principles regarding hostile witnesses.
Section 9 of the Canada Evidence Act
[9] Section 9(1) of the Canada Evidence Act reads:
9(1) Adverse witnesses – A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
[10] It has been held that “adverse” under s. 9(1) of the Canada Evidence Act has a broader meaning than the word “hostile”. It includes not only “hostility of the mind”, but also “opposed in interest” or “unfavourable” in the sense of being “opposite in position” to that of the person calling the witness.[^1] It can relate to circumstances where the witness’ evidence assists the other side or where the witness fails to provide helpful information available to the witness.
[11] According to David M. Paciocco and Lee Stuesser, The Law of Evidence 6th ed. (Toronto: Irwin Law Inc., 2011) at p. 510, a witness is adverse, within the meaning of s. 9(1) of the Canada Evidence Act:
… when he is “unfavourable in the sense of assuming by his testimony a position opposite to that of the party calling him”.[^2] The mere existence of a material inconsistency between the earlier statement and the testimony may therefore be enough. Depending on the facts, adversity can even be inferred from the “tenor of [the] evidence and inconsistencies between it and other … statements”, made by the witness, without proof of material, inconsistent statements, and without there being a hostile animus.
[12] Section 9(2) of the Canada Evidence Act reads:
9(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
[13] The particular procedure to be followed under s. 9(2), at least in the context of a jury trial, was set out in R. v. Milgaard (1971), 1971 CanLII 792 (SK CA), 2 C.C.C. (2d) 206, (Sask. C.A.), leave to appeal refused [1971] S.C.R. x, 1971 CanLII 1411 (SCC), 4 C.C.C. (2d) 566n. The preliminary steps require the trial judge to find that the witness did in fact make a previous statement that is inconsistent with evidence the witness has given in court.
The Hostile Witness at Common Law
[14] In Paciocco and Stuesser, The Law of Evidence, supra, at p. 509, the authors state:
At common law, a court has the power to grant leave to a party to cross-examine his own witness when that witness is “hostile”. A witness is hostile when he does not give his “evidence fairly and with a desire to tell the truth because of a hostile animus towards” the party who called him.[^3] In essence, there is something motivating the witness to withhold or colour inappropriately his evidence. It is not necessary for a party to establish what this motivation is. The judge must simply be satisfied that some hostile animus exists, based on his demeanour, his general attitude, and the substance of his evidence.
[15] The motive underlying a finding of hostility on the part of a witness can be a motive to harm the party calling the witness; it can also be a motive to help the opposing party. It is not uncommon for a co-accused who has pled guilty and who is testifying under subpoena as a Crown witness to have a motive not to give his or her evidence in a fair, forthright, and complete fashion. The motive could involve anger toward the Crown arising from the witness’ prosecution, distrust of the Crown, fear of being labelled a snitch, fear of the accused, friendship with the accused, sympathy for the accused, or any of a variety of other motives.
Leave to Cross-examine and Scope of Cross-examination
[16] Once the court has found a Crown witness to be adverse under s. 9(1), or once the court has found under s. 9(2) that the witness has previously made a statement inconsistent with his testimony at trial, the court may grant leave to Crown counsel to cross-examine the witness in regard to the previous inconsistent statement and the circumstances surrounding it.[^4] In R. v. Figliola, supra note 4, the Ontario Court of Appeal made it clear that the scope of cross-examination under ss. 9(1) and (2) of the Canada Evidence Act is not cross-examination at large. Consequently, a finding of adversity, standing alone, does not open up the witness to cross-examination relating to matters other than the prior inconsistent statements.
[17] In contrast, a declaration that a witness is hostile does entitle the party calling that witness to cross-examine the witness at large.[^5] That being said, the witness cannot be challenged on his or her general credibility as a person; only their testimony can be challenged.
[18] In deciding whether leave to cross-examine one’s own witness should be granted, the court should consider, among other things, the demeanour and attitude of the witness, how credible the witness is, how material any inconsistencies are, the circumstances in which they were made, and the purpose for which Crown counsel wishes to cross-examine the witness.[^6]
[19] In regard to purpose, the cross-examination must be undertaken for the purpose of producing relevant information and must not be unduly prejudicial.[^7] One acceptable purpose is to neutralize harmful evidence given by the witness. Another is to secure helpful evidence the witness may be in a position to provide but may be reluctant to provide.[^8]
[20] In circumstances where the witness is associated with the accused, and there is no evidence of collusion between the two, it has been held to be improper for the Crown to challenge its own witness for the sole purpose of implying that the accused must be guilty because the witness is not being honest or forthright in providing his or her evidence. These were the circumstances in R. v. Soobrian, supra note 4, where the Crown candidly acknowledged that he had called a witness for the tactical purpose of discrediting him and his evidence and thereby trying to discredit the expected defence. The Crown anticipated that the witness would provide the same evidence at trial in support of the two accused that he had provided at the preliminary hearing. The Crown planned to impeach that evidence through reference to an earlier inconsistent statement and, through cross-examination, to show that the witness had lied in collaboration with the accused. The trial judge refused to declare the witness adverse but did allow cross-examination on the prior inconsistent statement under s. 9(2). The Ontario Court of Appeal agreed with the trial judge’s decision not to declare the witness adverse under s. 9(1). It questioned whether there was any valid purpose to allow cross-examination under s. 9(2), but understood in the particular context of the case why the trial judge had no real option but to allow it. But the Court went on to allow the accused’s appeal on the basis that the trial judge had not adequately instructed the jury that it could not use a finding of credibility against the witness to support a finding that either of the accused was not credible.
[21] Similar circumstances occurred in R. v. Figliola, supra note 4, where the effect, if not the initial intent, of a wide-ranging cross-examination at large was, according to the court, “to shred the credibility of the Crown’s own witness and to create a factual matrix in which the jury might well conclude that [the witness] was not only a liar, but was a witness lying for the very purpose of covering up for the [accused’s] wrongful deeds and that the [accused] were therefore liars, and guilty too.” In that the jury was not adequately warned that they could not use the witness’ testimony in this fashion, the appeal was allowed.
Analysis
Mr. Dakik’s Demeanour and Attitude at Trial
[22] During early portions of Mr. Dakik’s testimony in chief, many of the questions posed by Crown counsel were leading in nature. Defence counsel did not object. It was obvious to everyone that, in order to get meaningful responses from Mr. Dakik, Crown counsel had to be given some leeway to lead Mr. Dakik. Otherwise, in regard to too many questions, Mr. Dakik responded that he could not remember or recall, or that something possibly was the case, or that most likely something was so. In this regard, Mr. Dakik appeared determined not to be forthcoming with information he had that was relevant to the case.
[23] In response to many questions from Crown counsel dealing with issues about which I had no doubt Mr. Dakik had knowledge, Mr. Dakik said repeatedly that he could not recall or could not remember. It was clear from Mr. Dakik’s demeanour and attitude while testifying that his goal was to hide behind the passage of time from the events in question to the date of trial in telling the Court that he could not remember much of what occurred. Nevertheless, he refused all offers for him to refresh his memory through reference to the evidence he provided at the Preliminary Hearing (from 2008) or through reference to the Agreed Statement of Facts (from 2006). He stated that he did not like to read, and he was not going to read either of these documents in an effort to refresh his memory so that his evidence at trial would be more responsive to the questions, more accurate, and more complete. In fact, it was established on the voir dire that, prior to testifying at trial, Mr. Dakik had been invited to review the Agreed Statement of Facts and the transcript of his evidence from the Preliminary Hearing, and he had refused to do so. His total refusal to refresh his memory through reference to earlier statements of his, that he had previously identified as being truthful, was a strong indicator that Mr. Dakik did not want to provide his evidence in a fair, forthright, and complete fashion and that Mr. Dakik was determined not to provide evidence that was helpful to the Crown.
[24] Mr. Dakik professed not to remember approximately how many immigration cases he had handled, when he had started doing this type of work, whether Ms. Serré had shown him documents from the immigration files of clients he helped, where he met Ms. Serré to discuss immigration cases, whether she was ever at his home when he called immigration clients, whether he would interrupt telephone calls with clients to get advice from Ms. Serré, and whether he had ever used the word “lawyer” to refer to Ms. Serré when he was speaking with immigration clients. Considering Mr. Dakik had finally acknowledged in his testimony prior to the voir dire that he had been in the business of helping immigration clients over a period of more than a year, he had followed a similar process in helping each of those clients, Diane Serré was the only person within Citizenship and Immigration Canada helping him with his immigration clients, and Ms. Serré was a good friend of himself and his wife, it was not credible that he could not remember more details about his immigration business and Ms. Serré’s role in helping him. This was especially so considering the following facts.
[25] Mr. Dakik was charged with numerous criminal offences relating to his immigration business and Ms. Serré’s role in it. After lengthy discussions with his lawyer, Mr. Dakik was confident that he understood his options. He voluntarily decided to plead guilty to nine offences relating to his involvement with Ms. Serré in regard to nine separate immigration clients. After receiving legal advice from his criminal lawyer, he signed a lengthy Agreed Statement of Facts setting out the details regarding these nine counts. Many of the details came from hundreds of intercepted telephone conversations between Mr. Dakik and Ms. Serré, as well as Mr. Dakik and his immigration clients. Subsequently, over days of testimony at the Preliminary Hearing in these proceedings, he provided evidence about his immigration business and the assistance he received from Ms. Serré. During the course of giving that evidence, Mr. Dakik was referred to many of the taped telephone conversations. In this context, it simply was not credible that Mr. Dakik remembered as little as he professed in regard to Ms. Serré’s involvement in his immigration work. Nor was it credible when he hedged his evidence as to whether he could or could not recognize the names of the immigration clients referred to in the criminal charges to which he pled guilty.
[26] Similarly, when Mr. Dakik was asked questions about the Zbib file, he professed to not know anything about it. When listening to wiretap evidence, including a telephone call between himself and an immigration client and then himself and someone whose voice would be easily identified if the person were a friend of Mr. Dakik, he claimed not to be able to recognize the client’s voice and only reluctantly acknowledged that the other voice might be that of Ms. Serré. He also refused to acknowledge that the phone call with Ms. Serré, which took place within two minutes of his phone call with the immigration client, related to any immigration case, let alone the case of the client with whom he had just spoken, even though that was the only logical inference that could be drawn from the conversation when considered in context. Mr. Dakik testified that he could not recall whether he ever spoke to Ms. Serré on the telephone regarding immigration matters, whether he and Ms. Serré ever used code words when speaking about immigration matters, and more specifically whether they ever used “Vivian” as a code word. He was categorical that reviewing his evidence at the Preliminary Hearing would not refresh his memory about these issues.
[27] Although Mr. Dakik would be responsive to questions tending to put himself and Ms. Serré in a good light in terms of the immigration work he did and the help Ms. Serré would or would not provide, it was clear that Mr. Dakik did not want to say anything that might be helpful to the Crown in prosecuting Diane Serré. For example, it was like pulling teeth to get Mr. Dakik to acknowledge that he was a friend of Diane Serré, and that he had given Ms. Serré gifts, some in the form of cash, for helping with immigration matters. His outright refusal to refresh his memory through reference to his Preliminary Hearing evidence was cogent proof that he was trying very hard not to make his answers meaningful. So too was the evasive and at times non-responsive manner in which he answered questions. One telling moment was when he questioned what the truth was when he was asked if he understood the importance of telling the truth.
Previous Inconsistent Statements
[28] When testifying, Mr. Dakik was adamant that he had never told Ms. Serré that he was earning money for helping with immigration clients. At the Preliminary Hearing, he said that initially he did not tell Ms. Serré that he was making money from his immigration work, but then she came to know that he was. It was at that point that he offered money to Ms. Serré, and she stated that she could not accept money, things, or gifts over $200.[^9]
[29] When testifying, Mr. Dakik was reluctant to identify the source of the money that he gave Ms. Serré for her help on immigration files. However, at the Preliminary Hearing, he clearly identified the source as being the money he received from the people he helped.[^10]
[30] When testifying, Mr. Dakik denied that Ms. Serré had ever come to his house just to discuss immigration cases. At the Preliminary Hearing, he stated that Ms. Serré had come to his place to discuss immigration cases.[^11]
[31] Mr. Dakik testified that he could not remember aspects of Ms. Serré’s involvement with his immigration business that he had remembered at the Preliminary Hearing. At the Preliminary Hearing, Mr. Dakik acknowledged that he consulted Ms. Serré on immigration matters both over the telephone and also in person at his home or in a public place; that on occasion, in conversations with immigration clients, he would refer to Ms. Serré as the “lawyer” who was helping him; that on occasion he would tell clients in telephone conversations that he was meeting with the lawyer at a time when Ms. Serré was with him;[^12] and that there were times when he and Ms. Serré would use code words when they were speaking about immigration files on the telephone.[^13]
[32] The inconsistencies in Mr. Dakik’s evidence between that given during the Preliminary Hearing and that given at trial prior to the voir dire were numerous. The evidence Mr. Dakik provided at the Preliminary Hearing was significantly more favourable to the Crown than what he provided at trial. The differences gain more force when one considers Mr. Dakik’s evidence that, when he testified at the Preliminary Hearing, he was incarcerated and was afraid of being labelled a rat or a snitch by his fellow inmates. He feared for his own safety and for the safety of his wife and children. Despite that, significant portions of his evidence were helpful to the Crown. In contrast, at trial, Mr. Dakik stated that he was no longer fearful and was not suffering from the same level of anxiety that he had been experiencing at the Preliminary Hearing. Nevertheless, he showed even greater reluctance to provide any evidence that might be harmful to Ms. Serré.
[33] The Agreed Statement of Facts which Mr. Dakik signed in June 2006 when he pled guilty to nine immigration offences – all of which implicated Diane Serré – stands in even starker contrast to his evidence at trial prior to the voir dire. It provided very detailed information about how Mr. Dakik conducted his immigration business and the role Ms. Serré played in its regard. More specifically, in regard to intercepted telephone conversations regarding the Zbib file, the Agreed Statement of Facts described in detail what was transpiring during those calls whereas, in his evidence prior to the voir dire, Mr. Dakik professed not to know what was happening during those calls.
Ruling
[34] In summary, Issam Dakik made a number of prior statements in his Agreed Statement of Facts and in his testimony at the Preliminary Hearing that were inconsistent with his testimony at trial. In his testimony at trial prior to the voir dire, Mr. Dakik adopted a position that was opposite to the Crown’s position in regard to Diane Serré’s interactions with him regarding immigration files. Mr. Dakik had a motive to testify in a way that dismissed or minimized Ms. Serré’s role in his immigration business because he, and his wife, were good friends of Ms. Serré.
[35] In these circumstances, I found that Mr. Dakik was an adverse witness because his evidence was favourable to the accused and he had failed to provide information available to him that would be helpful to the Crown. On the basis of s. 9(1) of the Canada Evidence Act, I granted the Crown leave to cross-examine Mr. Dakik on his previous inconsistent statements and the circumstances surrounding the making of those statements. Regarding the Agreed Statement of Facts, Crown counsel was not permitted to cross-examine Mr. Dakik on any aspects of the Statement not within the personal knowledge of Mr. Dakik.
[36] As well, I found that Mr. Dakik was a hostile witness because he did not want to give his evidence fairly and with a desire to tell the complete truth. Instead, he was motivated as a result of his friendship with Diane Serré, and possibly as a result of other considerations, to be as protective as possible of Ms. Serré and to not provide information known to him that might assist the Crown in its prosecution of Ms. Serré. Mr. Dakik provided evidence of other potential reasons why he had a hostile animus towards the Crown, aside from his friendship with Ms. Serré. Mr. Dakik spoke of how Citizenship and Immigration Canada refused to provide service to Muslim and Arab immigrants and refugees after 9/11 and how the files of these individuals were left unattended for years on end while the applications of other immigrants were given priority. This angered Mr. Dakik, a Muslim Canadian from Lebanon, and made him want to help members of his community whose files were languishing at the Ottawa Immigration office. In his view, both he and Ms. Serré were acting on humanitarian grounds in helping these individuals and were doing nothing wrong.
[37] In that I determined that Mr. Dakik was hostile, as well as adverse, I allowed Crown counsel to cross-examine Mr. Dakik at large, subject to the limitation that Mr. Dakik’s credibility as a person could not be challenged. Only his testimony could be challenged.
Aitken J.
Released: June 22, 2012
COURT FILE NO.: 05-30104
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
DIANE SERRE
Respondent
REASONS RE FINDING OF ADVERSITY/HOSTILITY REGARDING ISSAM DAKIK (TRIAL RULING #1)
Aitken J.
Released: June 22, 2012
[^1]: See Wawanesa Mutual Insurance Co. v. Hanes, 1961 CanLII 28 (ON CA), [1961] O.R. 495, at para. 28 (C.A.), reversed on other grounds, 1963 CanLII 1 (SCC), [1963] S.C.R. 154; R. v. Cassibo (1982), 1982 CanLII 1953 (ON CA), 39 O.R. (2d) 288 (C.A.). [^2]: R. v. Cassibo, ibid at p. 302. [^3]: Reference re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 23 C.R. 1 at 20. [^4]: R. v. Figliola, 2011 ONCA 457, 105 O.R. (3d) 641, at para. 62; R. v. Soobrian (1994), 1994 CanLII 8739 (ON CA), 21 O.R. (3d) 603, 96 C.C.C. (3d) 208 at 217 (C.A.); R. v. T. (T.E.) (1991), 3 B.C.A.C. 29 at 34 (C.A.). [^5]: R. v. Figliola, ibid at para. 49, 51; Wawanesa Mutual Insurance Co. v. Hanes, supra note 1; R. v. Cassibo, supra note 1. [^6]: R. v. Soobrian, supra note 4. [^7]: R. v. Figliola, supra note 4; R. v. Soobrian, supra note 4; R. v. Fraser (1990), 1990 CanLII 983 (BC CA), 55 C.C.C. (3d) 551 (B.C.C.A.). [^8]: R. v. Mariani 2007 ONCA 329, 220 C.C.C. (3d) 74. [^9]: Preliminary Hearing Transcript, Tab 3, p. 63, lines 25-32; p. 65, lines 23-31; p. 80, lines 1-10. [^10]: Ibid, p. 80, line 30 to p. 81, line 2. [^11]: Supra note 9, p. 99, lines 15-17. [^12]: Supra note 9, p. 100, line 20 to p. 102, line 23. [^13]: Supra note 9, Tab 4, p. 101, line 5 to p. 102, line 20.