NEWMARKET COURT FILE NO.: CR-11-01457

DATE: 20140228

CORRECTED DATE: 20140501

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAND MOHAMAD

Defendant

P. Westgate/R. DeChellis, for the Crown

M. Mirosolin/S. Wickramasinghe, for the Defendant

HEARD: June 12, 13 and 17, 2013

Corrected decision: The text of the original Ruling was

Corrected on May 1, 2014 and the description of the correction

is appended.

RULING #2 – ADMISSIBILITY OF “K.G.B.” STATEMENT

and PRELIMINARY HEARING EVIDENCE OF SEAN McDERMOTT

McISAAC J.

[1] On June 17, 2013 I made a “bottom-line” ruling granting the Crown’s application to admit as substantive evidence before the jury two items emanating from their witness, Sean McDermott:

• his “K.G.B.” statement to the police dated January 23, 2011; and

• his preliminary hearing evidence in relation to this charge given on April 30 and May 1, 2012.

[2] These are the formal reasons supporting that ruling that I undertook to deliver in due course.

BACKGROUND

[3] Arash Bakhtaryani was shot and killed on January 21, 2011. He, along with the accused and Sean McDermott, had attended a large stag party at a banquet hall in Concord that evening. Mr. Bakhtaryani and Mr. McDermott were roommates at the time. The shooting happened shortly after the three of them had left the banquet hall and proceeded towards the rear parking lot. Their order of departure as captured on security cameras was in short sequence: Mr. Mohamad, Mr. Bakhtaryani and then by Mr. McDermott.

(i) Police Statements – January 22-23, 2011

[4] Sean McDermott gave three police statements during the initial investigation. In his first statement given at 1:05 a.m. on January 22, 2011 he denied that he lived with the deceased. As well, contrary to what was on the video cameras that showed him following the accused and the deceased proceeding towards the rear parking lot, he insisted that he was stationary outside the front doors of the banquet hall when he heard the sounds of gunshots. He stated that he proceeded around the corner of the building and found Mr. Bakhtaryani lying in the snow. He made no mention of seeing the accused or anyone else in the vicinity of the incident who may have been responsible for the shooting.

[5] Mr. McDermott gave his second statement approximately three hours later. Again, he made no mention that he was a roommate of the deceased. He repeated that he did not see the shooting because he was at the front door trying to “mooch” a cigarette off someone. He only saw his friend after he heard the shots and went around the corner of the building. He saw no other person or vehicle that he associated with the shooting. However, he did make the comment that “…the cameras should tell the whole fucking story.”: see Ex. “R”, p. 35. At the end of this interview, Mr. McDermott broke down and began to cry.

[6] Mr. McDermott’s third statement was given on January 23, 2011. It was videotaped and taken under oath towards the end of the process. Prior to embarking on the interview, Detective Reid emphasized the following points with Mr. McDermott:

• the importance of honesty in the interview;

• the fact that his friend was shot and killed almost in front of him;

• he had to be “straight … on everything 100 percent”;

• lying to the police during an investigation constituted an offence;

• that he had to tell him “100 percent what had happened” on the night of the shooting;

• that he knew that the deceased was his roommate;

• that he could not get into the other evidence that had developed in the investigation; and

• that he was only interested in his version of what had happened that night.

[7] Early in the interview, Mr. McDermott had inquired of Detective Reid if the police had accessed any security videos and was told by him that he could not get into that. Mr. McDermott then described what had taken place on the night in question. The “new” information included the following:

• the deceased confronted Alirezsa Amiri at the stag party who he “smacked” a few times;

• the deceased said that he wanted to talk to the accused when he saw him come into the banquet hall;

• that the deceased and Mr. Mohamad had been waiting to see each other;

• that he had never before seen the accused;

• that a few minutes later the deceased got up from their table and went outside with the accused;

• that he followed the two of them outside;

• that he tried to persuade the deceased from going outside with the accused;

• that once they turned at the corner of the building, the accused who was leading, turned around and shot Mr. Bakhtaryani;

• that when he went to check on his friend, a vehicle came from the parking area and the deceased was shot again from this vehicle.

[8] Once Mr. McDermott had finished taking Detective Reid “step-by-step” through what had happened, he suggested that the police look at the video surveillance implying that it would confirm what he had just told them. In particular, he said “I know you seen me going outside with him.”: see Ex. “K”, p. 20. He insisted that although he did not know the accused’s name, he saw him shoot Mr. Bakhtaryani: see Ex. “K”, p. 21. He later said that if he was subpoenaed to come to court, he would refuse to do so because the police had the “cameras”: see Ex. “K” at p. 61. He insisted that the shooting would have been captured on camera: see Ex. “K” at pp.62-3.

[9] Before the oath was administered, Detective Reid warned Mr. McDermott that if at any time he claims to not remember the events that he had just described, the contents of this videotaped statement could be used as evidence in court. He was also advised that he could face several criminal charges for giving false information in this statement: see Ex. “K”, pp. 80-1. He confirmed that he understood the importance of telling the truth in the investigation and that he had not been threatened by the police. He insisted that he was telling the truth: see Ex. “K”, p. 82. He acknowledged that in his original statements he had failed to mention being an eyewitness to the shooting and that there had been a “coup de grâce” from the departing vehicle: see Ex. “K”, pp. 82-3. He agreed to swear to the truth of the contents of this statement before a Commissioner of Oaths: see Ex. “K”, pp. 85-6. Mr. McDermott saw no need to change or add to this statement: see Ex. “K”, p. 94. He concluded the interview by asking if this information would assist the police in “figuring it out” and suggested that they speak to a plow driver who may have seen the shooter’s vehicle leave the parking lot: see Ex. “K”, pp. 105-6.

(ii) Evidence at Preliminary Hearing – April 30 and May 1, 2012

[10] As predicted by him at the time he gave his videotaped statement on January 23, 2011, Mr. McDermott did not attend the preliminary hearing pursuant to subpoena and he had to be arrested to assure his attendance. In his re-examination on May 1, 2012 he explained that the reason he lied to the police in his two initial statements on January 22, 2011 was the following at p. 202 of the transcript:

A. I just didn’t want to be involved in this. I didn’t want to be – I just didn’t want to be involved. So I was looking for an out and I just didn’t want to be tied into all this. I just – it was tragic that – what happened. I was upset about what just happened and I just didn’t want to be in that situation and I was just – I – I said what I said because I didn’t want to be there.

Q. Okay. Do you still feel that way today?

A. Yeah, I still feel the same way.

[11] During the course of that proceeding, he confirmed the circumstances of the shooting as provided in the January 23, 2011 videotaped statement, although with significantly less definition as to the identity of the shooter. He explained this shift on the basis of the poor lighting along the side of the banquet hall. He also testified that he did not observe the second volley coming from the vehicle because he had hidden behind a line of parked cars that were beside this building. He only heard shooting from the direction of that vehicle as it passed by Mr. Bakhtaryani who was lying on the ground.

(iii) Trial Testimony

[12] Mr. McDermott had testified for the better part of six days before the jury before the Crown instituted this “K.G.B.” application. That period was replete with numerous efforts by the Crown to refresh the witness’ memory by reference to his previous statements, the preliminary hearing transcript and the video surveillance from the evening of the shooting. The major points of that exercise were to establish that the shooter was the same individual that Mr. Bakhtaryani had identified to Mr. McDermott as the person he had an “issue” with, that once outside, this same person turned around and preemptively shot Mr. Bakhtaryani and that this same person returned in a vehicle and inflicted a “coup de grâce” on his victim. In my view, these aspects of Mr. McDermott’s are critical to any claim of self-defence. As well, they could be the basis for a finding of first degree murder on the basis of planning and deliberation.

POSITION OF THE PARTIES

[13] The Crown suggests that both elements of necessity and reliability have been established on a balance of probabilities and that the application should be allowed on both aspects. On the other hand, counsel for Mr. Mohamad argues that Mr. McDermott has in no way recanted the matters in his previous statements but has merely “clarified” that information: see R. v. Scotland, 2007 CarswellOnt 8875. As such, the Crown application should be dismissed.

ANALYSIS

[14] In order to embark upon this exercise, one must appreciate exactly what Mr. McDermott testified to before the jury. In my view, it had elements of a recantation of what he had said on previous occasions about the circumstances surrounding the death of Mr. Bakhtaryani. This occurred when he stated that he “thought” the vehicle stopped beside his friend, but that he did not hear any gunshots, only “sounds”. He could not say the vehicle actually stopped at this point. As well, he was unsure if the person identified by Mr. Bakhtaryani inside the hall was the same as the shooter nor if the shooter turned around and shot his victim. However, just before embarking on this application, the Crown took Mr. McDermott through various critical passages of the preliminary hearing where the witness advanced a litany of claims of loss of memory. Accordingly, the circumstances before me are one of a hybrid, that is, some recantations and some claims of loss of memory on the part of a witness who shortly after the event claimed to have been an eyewitness to the execution of his roommate. There is no way these discrepancies can be described as a serious of unfortunate, but innocent, “ambiguities”.

[15] Mr. McDermott’s claim that the enormity of this event has triggered some form of post traumatic amnesia is weak and unconvincing. I am more impressed with his acknowledgement that it may be “unhealthy” for him to appear to co-operate with this prosecution given his affiliations with the criminal underworld. That circumstance, in my view, goes a long way to explain his obstructive attitude before the jury and satisfies me that he is doing his best to insulate the true events from their consideration. I am satisfied that the necessity component has been easily met by the Crown.

[16] Turning to the reliability component, the following procedural circumstances all support admission of the “K.G.B.” statement:

• it was videotaped;

• it was confirmed by oath;

• Mr. McDermott was advised of the penal consequences that may flow from providing false information; and

• the availability of Mr. McDermott for cross-examination at trial.

[17] In addition to these factors, I agree with the Crown that there is an additional substantive component which supports the reliability of this statement. This is the expectation by Mr. McDermott that the entire episode had been captured by the surveillance cameras. At the time he was interviewed on January 23, 2011, it is clear to me that he anticipated that everything he reported to Detective Reid would be confirmed when the police had an opportunity to review the video recordings. In my view, there was a significant motive for Mr. McDermott to be truthful.

[18] Finally, there is forensic evidence of gunshot residue around the front passenger winder of the vehicle used by the accused on the night in question that could confirm Mr. McDermott’s KGB statement of the “coup de grâce” administered as the shooter left the premises: see R. v. Khelawon 2006 SCC 57, [2006] 2 S.C.R. 787 at paras. 93-100.

[19] The evidence from the preliminary hearing was inherently reliable. It had the added feature of extensive cross-examination by Mr. Mirosolin.

CONCLUSION

[20] For all of these reasons, the Crown application to admit Mr. McDermott’s statement dated January 23, 2011 along with his testimony at the preliminary hearing as substantive evidence before the jury is allowed.

McISAAC J.

Released: May 1, 2014

Correction made to the spelling of the Defendant’s surname from Mohamed to Mohamad:

p. 1, Neutral Citation line

p. 2, para. 3, 2nd line

p. 3, para. 7 – third bullet

p. 5, para. 13, 1st line