ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50000109-0000
DATE: July 6, 2012

BETWEEN:
HER MAJESTY THE QUEEN - and - GULEED WARSAME

Michael Wilson, for the Crown
Benjamin Moss, for Guleed Warsame

HEARD: May 29, 2012

APPLICATION TO ADMIT K.G.B. STATEMENTS

T. DUCHARME j.

I. Introduction

1Guleed Warsame is charged with 16 criminal offences relating to the commission of five robberies between Sept 25th and 30th, 2009:

i) Robbery while using a restricted or prohibited firearm (5 counts);

ii) Using an imitation firearm to commit the indictable offence of robbery (4 counts);

iii) Robbery (1 count);

iv) Being masked with intent to commit an indictable offence (5 counts); and

v) Failing to comply with a condition of a recognizance (1 count).

2In this case there is no dispute that the robberies were committed. The parties filed a statement of admissions pursuant to s. 655 of the Criminal Code about each of the robberies Mr. Warsame is alleged to have participated in. These admissions involved not only the anticipated testimony of independent witnesses but also admissions of particular facts relating to these robberies. Thus, the only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Warsame participated in the robberies thereby committing the offences set out in the indictment.

3Mr. Wilson for the Crown concedes that the Crown’s case on identity rests solely on the out of court statements of Mr. Jama, a friend of Mr. Warsame, who was arrested on October 1, 2009. Hours after his arrest, Mohamed Jama provided an audio-recorded statement to investigators in which he admitted to his participation in a total of 11 robberies, including those that Mr. Warsame is charged with. During the course of the interview, Mr. Jama identified three other individuals involved in some of the robberies by the names “Ace”, “Ali” and “Stacks”. Following the completion of the audio interview, Mr. Jama was allegedly shown a photograph of Mr. Warsame, whom he verbally identified as being “Stacks”, the individual who had participated in a number of the robberies he had described in the audio statement. Mr. Jama then allegedly signed the photograph of Mr. Warsame. The Crown concedes that without this second statement the Crown cannot prove identity.

4At this trial Mr. Jama testified under an affirmation to tell the truth and recanted his audio-taped statement claiming that he had no knowledge of the robberies he had discussed and had lied about his involvement in any of them. He claimed his confession was the result of his being beaten by various police officers not once, but eight times, following his arrest. As for the critical second statement where Mr. Jama allegedly identified Mr. Warsame as “Stacks” Mr. Jama claimed he had no knowledge of that statement at all and he denied signing the photograph of Mr. Warsame.

5Following Mr. Jama’s recantation, Mr. Wilson brought an application under s. 9(2) of the Canada Evidence Act (R.S.C., 1985, c. C-5) which I granted. After cross-examining Mr. Jama, the Crown then brought a “K.G.B. application” to have the two statements admitted pursuant to the principled approach to hearsay as most recently explained in R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 .

II. Issue

6This voir dire concerns the two unsworn out of court statements allegedly made by Mr. Jama. In his testimony before me, Mr. Jama recanted the first statement and denied any participation in, or knowledge of, the second statement. The sole issue is whether either of these prior statements should be substantively admissible at the trial of Mr. Jama’s alleged accomplice, Mr. Warsame.

III. The Law

(A) The Admission of Hearsay Evidence

7As with all other forms of evidence, hearsay may only be admitted if it is relevant to an issue in the case. Relevance was defined by Cory J. in R. v. Arp , 1998 769 (SCC) , [1998] 3 S.C.R. 339 , at para. 38 :

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to "increase or diminish the probability of the existence of a fact in issue".

This will likely not be an issue in most cases. However, in this case Mr. Jama provided details about 12 robberies that he was involved in. Of these 12 robberies, Mr. Jama implicated Mr. Warsame in only four. The portions of Mr. Jama’s audio-taped statement that relate to these four robberies are relevant as they go directly to the circumstances of the offences Mr. Warsame is charged with as well as to the central issue of the identity of the perpetrators. The balance of Mr. Jama’s audio-taped statement is not substantively admissible as they are not relevant to the case against Mr. Warsame. However, as I will discuss below, the balance of Mr. Jama’s audio-taped statement is nonetheless relevant to the threshold reliability inquiry. [1]

8Once the issue of relevance is determined, prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must establish on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

9Once the proposed evidence is identified as hearsay, it is presumptively inadmissible . The reasons for this general prohibition are the dangers associated with the admission of out of court, unsworn statements: (1) the declarant has not been cross-examined; (2) the statement is not made under oath; and; (3) the trier of fact is unable to assess the demeanour of the declarant. As Charron J. explained in Khelawon at para. 35 :

[T]he central concern underlying the hearsay rule [is] the difficulty of testing the reliability of the declarant's assertion … The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. [Emphasis added.]

10Historically, hearsay evidence could nonetheless be admitted at trial if it fit within a recognized exception to the hearsay rule. The relationship between the rule and its exceptions is straightforward, “[I]t is the difficulty of testing hearsay evidence that underlies the exclusionary rule and, generally, the alleviation of this difficulty that forms the basis of the exceptions to the rule.” [2]

11Starting with R. v. Khan , 1990 77 (SCC) , [1990] 2 S.C.R. 531 the Supreme Court of Canada began to develop what has become known as the principled approach to the admission of hearsay. While not abandoning the traditional hearsay exceptions, the Court emphasized the principles which underlie the hearsay rule and its exceptions alike and developed an approach which focused on the question of whether the proposed evidence is both necessary and reliable. As explained by Chief Justice Lamer, “The movement towards a flexible approach was motivated by the realization that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination.” [3]

(… remaining text preserved exactly as provided …)

T. Ducharme, J.