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 20, 2012
REASONS RE KGB APPLICATION (TRIAL RULING #2)
Aitken J.
Nature of Application
[1] On March 20, 2012, Crown counsel brought a KGB application in regard to Issam Dakik’s guilty pleas and the Agreed Statement of Facts filed in support thereof at his trial on June 30, 2006. After hearing the submissions of counsel, I ruled that both previous statements of Mr. Dakik, although hearsay, were admissible at this trial involving Diane Serré. I undertook to provide written reasons at a later date. These are those reasons.
Background
[2] Issam Dakik was originally a co-accused, along with his wife, Vivian Badaan-Dakik, and Diane Serré, in regard to the immigration fraud 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 all, there were 98 charges against Mr. Dakik, and he pled guilty to 33 of them. In accordance with a joint recommendation by 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 Dakik pled guilty to these offences, the few charges that had been laid against Vivian Badaan-Dakik were withdrawn. Mr. Dakik has now served his sentence.
[3] At the time of his guilty pleas 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] Crown counsel, Mr. Holowka, produced a copy of the Agreed Statement of Facts that had earlier been exchanged between Crown and Defence counsel and provided to the pre-trial judge, and he asked if Mr. Dakik would sign it. Mr. Wallace concurred but as a preface stated: “I should indicate as well, since the signature is an adoption of the accuracy of the facts, there is one fact – it’s really quite – almost irrelevant in nature, but I think since he’s signing the document, I should point it out.” The detail involved an account number. Mr. Holowka verified that the correction had already been made to the last draft that had been exchanged, and Mr. Dakik proceeded to sign the document.
[5] 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. The interchange went as follows:
MR. HOLOWKA: But I indicated if I could ask that Mr. Dakik formally sort of admit on the record the accuracy of the Agreed Statement of Fact that he signed. I appreciate the signature is already a reflection of that, but just for the purpose of the record.
THE COURT: Mr. Dakik, just so I am prepared to rely – rather than have the facts read in, I’m going to rely on what’s written and been presented to me. So, I need to be certain – you’ve signed the document, but are you admitting the contents of this document?
MR. DAKIK: Yes.
[6] 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. Nevertheless, he did provide evidence and, to a great extent, it was consistent with what was in the Agreed Statement of Facts.
[7] Mr. Dakik was a most reluctant witness at this trial. For the reasons set out in Trial Ruling #1, I declared him both an adverse and hostile witness. It was clear during the course of the trial that Mr. Dakik, though going through the motion of answering questions, was trying his best not to say anything that would be helpful to the Crown’s prosecution of the case. His evidence was replete with statements to the effect that he could not remember things or he was not sure of details. He favoured the expression that something was “possibly” or “likely” the case when, from all the wiretap and surveillance evidence, the fact in question was clearly established. Despite saying that he could not remember what would appear to be obvious points, Mr. Dakik refused to refresh his memory through reference to the Agreed Statement of Facts or the transcript from the Preliminary Hearing. As well, on numerous occasions at trial, Mr. Dakik provided evidence that was inconsistent with evidence provided at the Preliminary Hearing and with the Agreed Statement of Facts he signed and admitted at his own trial. Details of Mr. Dakik’s demeanour and attitude at trial and previous inconsistent statements are provided in Trial Ruling #1.
Summary of the Law
[8] Trials are truth-seeking exercises. As a general principle, all relevant evidence is admissible because it assists the trier of fact in determining the truth. Out-of-court statements tendered to prove the truth of their contents, even though relevant, are presumptively inadmissible due to concerns about the inability to test their reliability. Hearsay evidence will be admitted if it falls within one of the recognized exceptions to the exclusionary rule. It will also be admitted if it meets the dual criteria of necessity and reliability. If evidence of this nature is necessary, it will be admitted “if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth.”[^1]
[9] The onus of establishing necessity and reliability falls on the party who seeks to admit the evidence – in this case, the Crown. The criteria must be established on a balance of probabilities.
[10] A distinction must be drawn between admissibility of the hearsay evidence and reliance on that evidence when deciding the case. That distinction is obvious here, as I ruled the previous statements of Mr. Dakik admissible but ultimately assigned them virtually no weight.
Necessity
[11] The criterion of necessity may be met when a witness, who has given an earlier out-of-court statement that is highly relevant to the issues at trial, refuses to adopt that statement at trial or professes to have no recollection or a foggy memory of the facts contained in the statement. In these circumstances, relevant evidence of value is unavailable unless the statement is admitted to prove the truth of its contents. As Lamer C.J. stated in R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at para. 110:
In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, “hostage”. The different “value” of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness’s explanation of the change.
[12] In this case, the Crown was seeking to admit in evidence to prove the truth of its contents Mr. Dakik’s guilty pleas regarding the charges relating to immigration fraud and those portions of the Agreed Statement of Facts relating to immigration fraud that contained facts within Mr. Dakik’s personal knowledge. The guilty pleas were highly relevant in establishing that Mr. Dakik had committed offences under s. 121(1)(d). The Crown needed to establish that that was the case in order to establish that Ms. Serré was a party to those offences. In regard to the Agreed Statement of Facts, Crown counsel identified the following seven factual propositions in regard to which the Agreed Statement of Facts was highly relevant:
- Whether Diane Serré was at Issam Dakik’s residence when he made calls to immigration clients;
- Whether Mr. Dakik would confer with Ms. Serré and get information and advice about the clients’ immigration files when he was speaking on the phone to the clients;
- Whether Ms. Serré showed Mr. Dakik or gave to Mr. Dakik documents from the clients’ immigration files;
- Whether on certain occasions, when speaking to clients, Mr. Dakik referred to Ms. Serré as “the lawyer”;
- Whether Ms. Serré called immigration clients directly at Mr. Dakik’s request or with his knowledge as part of the immigration fraud scheme;
- Whether certain conversations between Mr. Dakik and Ms. Serré in which code was used actually related to immigration clients and files; and
- Whether with respect to the Dalank, Chahine, Nader, Zbib, Almoredey, and Hamze files, Mr. Dakik paid to Ms. Serré a portion of the funds he received from the client.
[13] Although there was circumstantial evidence to support all of these factual findings, with most, there was no direct evidence. Mr. Dakik could provide direct evidence about all. During the course of his examination-in-chief, Mr. Dakik at times provided some direct evidence on some of these points, but at other times contradicted what he had agreed to in his Agreed Statement of Facts or waffled as to what his evidence actually was. On many occasions, he claimed that he could not remember or recall a point clearly stated in the Agreed Statement of Facts. Or he stated that a fact was only “possibly” true. At times he denied the truth of a fact stated in the Agreed Statement of Facts, particularly in regard to whether he paid to Ms. Serré a portion of the funds he received from his immigration clients. At the end of his evidence-in-chief, he did acknowledge providing Ms. Serré with gifts in regard to each of the immigration files that had been the subject of his testimony over the six previous days; however, throughout most of his evidence, he had denied paying her money for her help on those files. The prospect existed that, during cross-examination in the trial proper, Mr. Dakik would draw an even more stark contrast between his evidence on these points during the trial and the facts stated in the Agreed Statement of Facts. This led to the conclusion that the quality of evidence provided in the Agreed Statement of Facts would be lost to the trier of fact if it and the guilty pleas were not admitted in evidence.
Threshold Reliability
[14] There are two ways of establishing threshold reliability. One is to show that the circumstances under which the statement was made are such that it is likely trustworthy. The second is to show that, in the circumstances, the truth and accuracy of the statement can be sufficiently tested so as to address the main concern underlying the rule against hearsay.[^2] In this case, both ways of establishing threshold reliability are present. Following the recommendation in R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 87, I will first consider whether there are adequate substitutes to contemporaneous cross-examination for testing the evidence.
[15] In regard to the second method of establishing threshold reliability, even though there was no contemporaneous cross-examination of Mr. Dakik at the time he signed the Agreed Statement of Facts and entered the guilty pleas, Mr. Dakik did testify at this trial and was available for cross-examination. Although he proved an adverse and hostile witness who was uncooperative in answering questions posed by Crown counsel, especially when those questions touched on Ms. Serré’s culpability, his evidence-in-chief did not suggest that he would be as uncooperative when answering questions posed by Defence counsel. When listening to Mr. Dakik’s evidence-in-chief, I was left with no doubt that he was trying to testify in a way that was as helpful as possible to Ms. Serré, someone who had been a close friend of his family. There was nothing in the evidence to suggest that Mr. Dakik was trying to shift any culpability to her. Consequently, there was a strong indication that cross-examination of Mr. Dakik would be useful to prod and challenge the contents of his guilty pleas and the Agreed Statement of Facts – particularly to the extent that they implicated Ms. Serré in the immigration fraud scheme.
[16] This was not a situation where Mr. Dakik claimed to have no recollection of any of the events forming the subject of the charges at this trial or the charges against him at his own trial. Although he had proved to be an adverse and hostile witness while testifying in chief, he still provided significant evidence relevant to a number of issues at trial.
[17] As well, this was not a situation where, on the voir dire, Mr. Dakik categorically denied the validity of his guilty pleas or any of the contents in the Agreed Statement of Facts. In fact, in his evidence on the voir dire, Mr. Dakik confirmed many of the conversations and events referenced in the Agreed Statement of Facts. In numerous circumstances where he was not prepared to confirm a fact, he indicated that it was possible.
[18] Furthermore, what was going to be available to myself as the ultimate trier of facts in assessing the reliability of the guilty pleas and of the Agreed Statement of Facts was the cornucopia of evidence upon which the Agreed Statement of Facts was based. Prior to the KGB application being brought, weeks of evidence had been tendered, including wiretaps, surveillance videos and observations, off-line computer searches, seized documents, forensic evidence, and the testimony of virtually all of the immigrants named in the charges. It was clear that I would have ample evidence by which to assess the reliability of the out-of-court statements, by comparing them with Mr. Dakik’s evidence at trial and considering them in light of much corroborating evidence and some conflicting evidence. In short, I was satisfied on a balance of probabilities that, despite the absence of contemporaneous cross-examination of Mr. Dakik in regard to his guilty pleas and Agreed Statement of Facts, I had sufficient means otherwise to ultimately assess the reliability of those out-of-court statements.
[19] Although arguably unnecessary to consider, the first means of establishing reliability of the out-of-court statements, focusing on the inherent trustworthiness of those statements due to the circumstances in which they came into being, is also at play in this case.
[20] Mr. Dakik acknowledged that his guilty pleas were offered voluntarily and after he had had ample opportunity to discuss with his lawyer all the charges against him, his pleas, the joint recommendation of counsel, and the understanding between Crown and Defence counsel on corollary issues. Mr. Dakik’s pleas were taken in front of Justice Alder, who had presided over numerous pre-trial conferences and who had assisted Crown and Defence counsel in arriving at a resolution of the charges against Mr. Dakik. The guilty pleas were entered approximately 18 months after Mr. Dakik’s arrest and after full disclosure had been made to Defence counsel. The pleas were entered in open court, after each charge to which Mr. Dakik was pleading guilty had been read out. There is a transcript of the proceedings. Thus, although there was no video of the court proceedings, and although Mr. Dakik was not under oath while in the courtroom, there were many indicia of reliability in the circumstances.
[21] An exceptionally lengthy and detailed Agreed Statement of Facts was produced to support the guilty pleas. Not only did Mr. Dakik sign the Agreed Statement of Facts in the presence of his lawyer attesting to its accuracy, but his lawyer also signed the document and Mr. Dakik stated in open court to Justice Alder that he was admitting the facts in that document. When he did so, he realized that he would be facing a sentence of two years and nine months and would be heading to prison immediately after he entered the pleas. Consequently, his statements were against his own interests. Finally, it is clear that Defence counsel, Mr. Wallace, had gone through the Agreed Statement of Facts with a fine-toothed comb after having received disclosure. It is noteworthy that Mr. Wallace picked out a small, and insignificant, error in the recitation of facts and ensured that it had been corrected before Mr. Dakik signed the Agreed Statement of Facts. In summary, the formal and serious nature of the circumstances in which Mr. Dakik made the two statements, and the attention to detail with which his counsel had reviewed the statements, supports the conclusion that threshold reliability has been established.
[22] In regard to the circumstances in which Mr. Dakik’s out-of-court statements were made, these occurred when he realized he was facing serious criminal charges, he had been made fully aware of his rights, he was facing significant jail time, and he was in court facing the judge who had presided over a number of pre-trial conferences attended by Crown and Defence counsel. As Moldaver, J.A. (as he then was) stated in R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), at para. 99, in these circumstances, it can be taken as a given that Defence counsel would have explained to Mr. Dakik the need to be honest and forthright with the court in terms not only of his role, but also the role of others, in the immigration fraud. This presumption was reinforced by Simmons, J.A. in R. v. Youvarajah (2011), 2011 ONCA 654, 107 O.R. (3d) 401 (C.A.), at para. 138, where she stated: “Presumptively, defence counsel would not have been complicit in the presentation of an Agreed Statement of Facts that he knew was untrue.”
[23] Defence counsel relied on the following evidence adduced on the voir dire in arguing that threshold reliability could not be established. Mr. Dakik claimed that he had not seen or read the Agreed Statement of Facts prior to signing it in the courtroom on the day of his plea. He simply signed it when instructed to do so by his counsel. He claimed never to have reviewed the voluminous disclosure provided to his counsel by the Crown. Although he was in court and listened to the charges being read out prior to his pleas being taken, he claimed that he had not really paid attention to the exact wording in the charges. Mr. Dakik claimed that he would have pled guilty to any charge put before him if it meant that charges against his wife would be withdrawn and he would only have to serve 33 months – the shortest sentence he believed he could get for the charges against him.
[24] Counteracting this image of his not placing much significance on what he was signing or saying, Mr. Dakik also testified that, prior to entering his pleas, he had discussed fully with his lawyer and his wife the options he was facing. Mr. Dakik acknowledged that, at the time of his trial, he had confidence in his counsel, Mr. Wallace, and continued to have confidence in him up to and during the Preliminary Hearing in this case. He considered the eventual pleas he gave and the joint recommendation of two years and nine months to be the best possible deal that could be negotiated for him, considering the large number of charges he was facing. He acknowledged his culpability in regard to the immigration fraud scheme that he had put into place.
[25] In my view, the indices of reliability from the circumstances in which the statements were made outweighed the evidence that Mr. Dakik had assigned insufficient importance to those statements to afford them sufficient reliability for admissibility. In this regard, some of the dangers referred to in cases such as R. v. Riley (2009), 2009 CanLII 15450 (ON SC), 246 C.C.C. (3d) 552 (Ont. S.C.J.) and R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131 were not so pronounced as to render the out-of-court statements inadmissible.
[26] My conclusion was that threshold reliability had been established.
Ruling
[27] The Crown’s KGB application was granted and both Mr. Dakik’s guilty pleas and those portions of the Agreed Statement of Facts within his personal knowledge were admitted to prove the truth of their contents.
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 KGB APPLICATION
(TRIAL RULING #2)
Aitken J.
Released: June 22, 2012
[^1]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2. The balance of this summary is taken from this case.
[^2]: Ibid, at para. 62-63.