Court File and Parties

COURT FILE NO.: CR-14-30000319-0000 DATE: 20160621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LIBAN OMAR Defendant/Applicant

Counsel: R. Juginovic and J. Smith, for the Crown D. Derstine and J. Shanmuganathan, for the Defendant/Applicant

HEARD: April 6, 7, 8 and 29, 2016

MOLLOY J.:

REASONS FOR DECISION #3

(Admissibility of Deceased Witness’ Statement to Police)

A. INTRODUCTION

[1] Liban Omar is charged with first degree murder in connection with the shooting of Abdulaziz Farah. Mr. Omar was arrested on this charge on December 19, 2012, following a two-month-long undercover police operation, in the course of which Mr. Omar made a number of statements to undercover officers confessing to his involvement in the shooting. The undercover operation was in the nature of a “Mr. Big” sting, carrying with it the presumption that the statements elicited are inadmissible unless the Crown meets the test for admissibility established by the Supreme Court of Canada in R. v. Hart. [1] At the outset of trial, the Crown brought an application for a ruling as to the admissibility of the statements Mr. Omar made to the undercover officers. There were also other pre-trial motions as to the admissibility of a Crown witness on the likely height of the shooter and a defence expert witness on Mr. Big operations. The voir dire proceeded before me from April 6 through to May 2, 2016.

[2] There are four issues before me arising from the voir dire:

(1) the admissibility of the statements made by Mr. Omar to the police; (2) the admissibility of the evidence tendered by the Crown as to the height of the shooter, as corroborative evidence with respect to the reliability of Mr. Omar’s statements to the police; (3) the admissibility of a statement given by Gavin Daley to the police implicating Mr. Omar in the murder, Mr. Daley having been killed by the time of trial; and (4) the admissibility of opinion evidence, tendered by the defence, from a psychologist with expertise in false confessions and “Mr. Big” operations.

[3] For separate Reasons released at the same time as this decision, I have found Mr. Omar’s statements to the undercover officers to be admissible at trial. [2] Those Reasons also deal with the evidence of the Crown’s witness as to the height of the shooter, both with respect to its use on the voir dire and at trial. Further, for separate Reasons also released with this decision, I have found the evidence of the psychologist, Dr. Patry, to be inadmissible in respect of issues on the voir dire and at trial. [3]

[4] These Reasons deal with admissibility of the video-taped statement given by Gavin Daley to police following his arrest on December 19, 2012. The Crown conceded during argument that, at the voir dire stage, Mr. Daley’s statement should not be used to provide corroboration for statements made by Mr. Omar to undercover officers in order to determine the threshold reliability of Mr. Omar’s statements. However, the Crown argued that if I find the statements of Mr. Omar to be admissible for consideration by the jury, I should then consider whether the statement of Mr. Daley could be introduced as evidence at trial in order to provide corroboration of various aspects of Mr. Omar’s statements to the undercover officer and thereby assist the jury in deciding whether those admissions by Mr. Omar were true.

[5] After providing his statement, but before trial, Mr. Daley was murdered. The necessity test is met. However, I am not satisfied that there are sufficient guarantees of reliability to warrant the admission of hearsay evidence untested by cross-examination. Mr. Daley’s statement is not admissible at trial. My detailed reasons for that conclusion follow.

B. BACKGROUND FACTS

[6] Just after midnight on September 8, 2012, Abdulaziz Farah was brutally shot dead. The initial shots were fired within Mr. Farah’s car, while he sat in the driver’s seat. He tumbled out of the car and was crawling and dragging himself along the street while his assailant shot at him several more times and also beat him. People in nearby homes heard the shots and saw and heard Mr. Farah on the ground begging for his life. The assailant then administered the fatal shot, which entered Mr. Farah’s head near the right jaw, blowing a hole through the back of his skull. Mr. Farah died instantly. The murderer then fled in Mr. Farah’s car.

[7] The day after the murder, Mr. Farah’s car was found in the parking lot of a strip plaza near Morningside and the 401. It was caked in mud. An effort had been made to burn the interior, an effort which was only partially successful. A plastic Tim Horton’s Iced Cappuccino cup and a straw were found on the floor of the car in front of the front passenger side seat. Mr. Omar’s DNA was on the straw. Mr. Omar’s palm print was found on the exterior driver’s door.

[8] The police suspected Liban Omar of being the shooter. They developed a plan to set up a “Mr. Big” scenario in the hopes of obtaining admissions and/or other evidence connecting Mr. Omar to the crime, or otherwise identifying the shooter. An undercover officer (“UO#1”), posing as a criminal, befriended Mr. Omar and ultimately introduced him to his cousin (“UO#7”), who was held out to be an affluent leader of the criminal organization with which UO#1 worked. On November 30, 2012, UO#1 took Mr. Omar to a party in Niagara Falls where he was to meet his cousin and other members of this criminal organization. Mr. Omar was lead to believe that if UO#7 trusted him, he also could start working for the organization.

[9] During his various meetings with UO#1, Mr. Omar himself initiated discussions about the killing of Mr. Farah. He gave several versions of the killing to UO#1 in which he provided increasingly more detail about the shooting. Initially, Mr. Omar said his friend did the shooting and told him about it. In subsequent discussions, Mr. Omar said he was actually there with his friend at the time of the shooting and eventually told UO#1 that he was the one who fired the fatal shot. At his meeting with UO#7 on November 30, 2012, Mr. Omar took responsibility for the entire thing, stating that his friend was not there.

[10] Liban Omar was a drug dealer, as was the murder victim, Abdulaziz Farah. At the time of the murder, Mr. Omar lived in Ajax, but had previously lived in the Flemingdon Park area and been involved in crime there. Gavin Daley was a friend of Mr. Omar’s and also lived in Ajax, not far from the home where Mr. Omar lived with his parents. Mr. Omar told the undercover officers that he stole two rings from the deceased and sold one of them to his friend, Gavin Daley.

[11] Liban Omar was arrested on December 19, 2012. At approximately the same time, Gavin Daley was arrested and the police executed a search warrant on Mr. Daley’s home. As a result of that search, the police found a distinctive ring that has been identified as belonging to the deceased. In addition to the ring, police also seized from Mr. Daley’s home: a health card belonging to Mr. Omar; a shotgun shell; a quantity of cocaine; and approximately $300 in cash. Mr. Daley was advised that he was under arrest for possession of property obtained by crime.

[12] Gavin Daley gave a formal statement to the police, under solemn affirmation, after being cautioned about the consequences of lying, and after obtaining advice from his lawyer. He was not called as a witness at the preliminary hearing. The trial in this matter was initially scheduled to proceed for six weeks, commencing February 17, 2015. Mr. Daley was to be a prosecution witness at trial. On the eve of trial, Mr. Omar dismissed the lawyer he had at the time and retained new counsel, Mr. Derstine. As a result, the trial was adjourned. On March 24, 2015, a new trial date was set for April 5, 2016. On December 17, 2015, Mr. Daley was found dead in Kitchener. His death is considered to be a homicide.

C. GAVIN DALEY’S STATEMENT

[13] Det. Joel Kulmatycki was the officer in charge of the investigation. It was a number of hours after Mr. Daley had been arrested and brought to the police station before Det. Kulmatycki was advised of the ring that had been found and was free to interview Mr. Daley. By that time, Mr. Daley had been fully advised of his rights and had availed himself of the opportunity to speak to his lawyer.

[14] At the beginning of the interview, Det. Kulmatycki told Mr. Daley that a number of things of interest had been found at his home. He then told Mr. Daley that they were investigating the murder of a man named Farah, whose nickname was “Sparks”, and that the police had information that, after the murder, Liban Omar had given Mr. Daley some rings, one of which was found that day in his house.

[15] In response, Mr. Daley stated that he had been advised by his lawyer not to say anything, but that if the police started talking about a homicide, Mr. Daley should call him again immediately. Det. Kulmatycki agreed to suspend the interview so that Mr. Daley could call his lawyer. He told Mr. Daley to be sure he communicated to his lawyer that his “jeopardy [was] changing;” that the police knew that the ring found in Mr. Daley’s possession belonged to the murder victim; that the police knew Liban Omar had given him the ring; and that he had been cautioned that he was “being investigated for accessory after the fact to the offence of murder.”

[16] Det. Kulmatycki then reviewed with Mr. Daley all of the things listed on the search warrant which the police had been looking for at Mr. Daley’s home, including:

• a 40 caliber handgun;
• 40 caliber ammunition;
• mud transfer from a stolen car associated with the deceased;
• keys for the Acura, the victim’s car;
• dirty or mud-covered clothes used to wipe down the exterior of the stolen Acura; and
• lighter or matches used to ignite the interior of the Acura.

[17] At 4:57 p.m., following this review by Det. Kulmatycki, Mr. Daley was taken to a private room where he had a further conversation with his lawyer. He then agreed to give a statement and at 6:47 p.m. was returned to the interview room. Det. Kulmatycki’s interview with Mr. Daley was video and audio recorded.

[18] At the resumption of the interview, Det. Kulmatycki again advised Mr. Daley that he was under arrest for possession of stolen property and told him that the pieces of jewellery he was interested in “are from a murder event.” He told Mr. Daley that he was also being investigated for accessory after the fact to murder. He then repeated, “You’re charged with possession of stolen property. But you’re only being investigated for accessory.” Mr. Daley agreed to provide the statement and was prepared to swear on the Koran. However, as there was no Koran available, he agreed to provide his statement by solemn affirmation. Det. Kulmatycki told him that this would have the same effect as if he swore under oath to tell the truth at a trial before a judge, and Mr. Daley indicated that he understood. Det. Kulmatycki gave Mr. Daley a full K.G.B. caution and explained to him the consequences of not telling the truth, including the potential for being charged with criminal offences for obstruction of justice and/or public mischief. Having established that Mr. Daley understood this, that he had not been offered any inducements to give a statement and was not required to give a statement, Det. Kulmatycki started the interview by again telling Mr. Daley that he did not plan to charge him with possession of cocaine, stating “I’m going to hold that for investigation. I’m not prepared to charge you with that.” He again said he was “not interested” in either the shotgun shell or the $300.00 in cash that had been seized. He then stated, “I think I said enough” when he read out the list of items listed on the search warrant and that he thought Mr. Daley had “some clues in [his]head about what was going on here.” He then asked Mr. Daley where he got the rings. Mr. Daley then stated that he got the one ring from “the person you’re saying was a suspect” and identified that person as “Omar Liban.”

[19] Mr. Daley said he got the ring from Mr. Omar in September or October. He said Mr. Omar owed him $350 from a drug transaction and that he had demanded payment from him. Mr. Omar came to his house one morning, driving a black Acura. Mr. Omar was wearing a number of rings (he estimated eight rings) and said he was going to sell them at a flea market and then pay Mr. Daley. According to Mr. Daley, when he asked Mr. Omar where he got the rings, Mr. Omar told him that his “next boy, SP” went to Hamilton and robbed some white guys. Mr. Omar told him that the black Acura belonged to SP. Later that evening, Mr. Omar returned in the same car, which Mr. Daley said was “muddy and stuff” and he agreed to take the ring as payment of the debt because Mr. Omar did not have any money. Mr. Daley also indicated that Mr. Omar told him that the car was muddy because it had gone into a ditch and had to be pulled out by a tow truck.

[20] Det. Kulmatycki asked Mr. Daley what information he had about Mr. Omar having a gun. Mr. Daley responded that a week or two after he gave him the ring, Mr. Omar asked him where “Gizzy” was and said that he had given Gizzy a 40 caliber gun and he hadn’t paid for it yet. He said “Gizzy” was a nickname for Ajalon Morgan. When asked if he could describe the gun further, he said it was a “40 Taurus.” He also said that Mr. Omar had talked to him before about guns they had in “Flemo” (referring to Flemingdon Park), but he couldn’t remember the details.

[21] At the conclusion of the interview, Det. Kulmatycki reminded Mr. Daley that he had shown him the search warrant appendix listing the items being sought and that this included Liban Omar’s name, as well as 40 caliber ammunition. The following exchange then occurred:

Det. Kulmatycki: Is [sic] any of that information from that piece of paper caused you to tell me untruths about Liban Omar or a ring or anything like that? Gavin Daley: No, not – no not untruths, but it liked clicked in my head like, of like I was starting to remember things like the ring and then it said 40 and I remember him saying 40. He gave me a ring, I’m like, that’s what this is all about. Det. Kulmatycki: But all the information you just told me … Gavin Daley: um-hmmm Det. Kulmatycki: . . .is independent of that piece of paper. Do you know what that means? Gavin Daley: Like what do you mean independent of it? Det. Kulmatycki: If I would have come in here and asked you these questions without you seeing that piece of paper . . . Gavin Daley: Yeah. Det. Kulmatycki: …you would have told me the same thing? Gavin Daley: Yes.

D. TEST FOR ADMISSION OF HEARSAY EVIDENCE

[22] The traditional rules against admitting hearsay evidence have been relaxed in modern times to provide for a “principled approach” to the admissibility of such evidence, based on the principles of necessity and reliability. Since it is the Crown that seeks to tender the hearsay statement of Mr. Daley as evidence at trial, the Crown bears the onus of establishing on a balance of probabilities that the criteria for admission have been met. [4]

[23] Normally, the death of a witness will easily meet the necessity criterion. However, in the absence of adequate efforts by the Crown and/or police to ensure the attendance of a witness, the necessity criterion will not be met. [5]

[24] In Khelawon, the Supreme Court modified the approach in previous cases which drew a distinction between threshold and ultimate reliability. A functional approach should be taken. As the trial judge, I must be cognizant of the fact that my only consideration of reliability is directed towards whether the evidence should be admitted before the trier of fact, not whether it should ultimately be accepted as truthful. In general terms, the reliability requirement will be met where the concern about the lack of cross-examination is sufficiently overcome to justify its admission. This can be proven either by showing that there is no real concern about the truth of the statement because of the circumstances in which it came about (substantive reliability) or because there are adequate substitutes for testing the truth and accuracy of the evidence (procedural reliability). My focus must be on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the Crown to overcome those dangers. [6]

[25] As I have previously held in R. v. Burnett, [7] factors that may be considered in assessing reliability at this stage include: the circumstances in which the statement was made; the person to whom it was made; when the statement was made in relation to the events to which it relates; whether there is any reason to doubt the truthfulness of the statement; whether there is a motive for the declarant to lie; whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember the events; the condition of the declarant at the time the statement was made; the spontaneity in the statement; the demeanour of the declarant at the time the statement was made; the amount of detail in the statement; and the extent to which there is other extrinsic evidence tending to confirm the reliability of the statement. [8]

E. ANALYSIS

Necessity

[26] The first step in the principled approach is to consider whether the requirement of necessity is met. Mr. Daley is dead; it follows that he is simply not available to testify. The defence argues, however, that the necessity requirement is not met in this case because the police “failed to make all reasonable efforts to secure the evidence of the declarant in a manner that also reserves the rights of the other party,” relying on Supreme Court of Canada’s decisions in R. v. Khelawon and R. v. Baldree. [9] In that case, Mr. Baldree was in custody when his cell phone rang. A police officer answered the phone, whereupon the caller asked for Mr. Baldree and said he wanted to purchase one ounce of weed at the “usual price” charged by Mr. Baldree, which he said was $150.00. The caller provided his address. The Crown sought to elicit this evidence through the police officer at trial. The Supreme Court of Canada ruled that this was hearsay evidence and did not meet the necessity requirement because the police made no efforts to secure the evidence of the declarant. They did not interview him or even attempt to do so, even though they had his address.

[27] In my view, Baldree is easily distinguishable. There was no evidence in that case that the declarant was not alive and prepared to testify. The police simply took no steps at all to obtain his evidence. In the case before me, however, the police took a full videotaped statement from Mr. Daley, under oath, after a full caution, and after he had received legal advice. The defence argues that the Crown ought to have called Mr. Daley at the preliminary hearing in order to preserve the defence right of cross-examination. I do not agree. There was no reason for the Crown to believe that Mr. Daley would not be available to testify at trial. It is not the function of a preliminary hearing to call every conceivable witness who might testify at trial in order to give the defence an opportunity to cross-examine. Imposing such a burden on the Crown would dramatically increase the time required for all preliminary hearings. There is no such requirement.

[28] In my view, the requirement of necessity is easily met.

Reliability

[29] There was, and will be, no opportunity to cross-examine Mr. Daley. Procedural safeguards to ensure reliability simply do not exist. If the reliability requirement is to be met, it can only be because the statement is inherently trustworthy or because there are sufficient circumstantial guarantees of reliability to meet the test.

[30] The circumstantial guarantees must be looked at cumulatively. There are some positive features. However, on balance, the problems with the surrounding circumstances are sufficiently substantial that I have no confidence in the reliability of the statement. It would be unfair to the defence to allow it to be introduced at trial for its truth.

[31] On the plus side of the balance, the statement was under oath and given to police in a situation where the witness was aware of the importance of telling the truth and the consequences of lying. He had legal advice before he made the statements. He was sober and appreciated the circumstances in which he found himself. The statement was taken within about three months from the date upon the subject matter of the statement occurred and it is unlikely that poor memory or the passage of time were factors undermining potential reliability. These are factors in favour of the Crown’s position.

[32] However, there are significant negatives on the other side of the balance, including the unsavoury nature of the witness and his proven willingness to lie under oath, his motive to lie in this particular case, and the fact that the officer told him the specific information he wanted to hear.

[33] Mr. Daley has a lengthy criminal record, including for crimes of dishonesty. He has been convicted numerous times for breaching court orders and also has a conviction for fabricating evidence with the intent that it be used in a judicial proceeding. Given this history, it cannot be said that a solemn affirmation to tell the truth meant anything to Mr. Daley.

[34] Mr. Daley had a motive to lie. He was in possession of a ring that he was told had been stolen in the course of a murder. He had the opportunity of facing only the charge of possession of stolen property. He did in fact plead guilty to that offence and received a fine of $500.00 pursuant to a joint position. Before giving his statement, his jeopardy was clearly explained to him. He could have been charged with possession of cocaine that had been found in his home and he was also told that he was being investigated for being an accessory after the fact to first degree murder. It was abundantly clear to him that cooperation with the police was advisable if he did not want to face these far more serious charges.

[35] This incentive to lie was compounded by the interviewing officer feeding to Mr. Daley the answer he wanted on the central issue: where he got the deceased’s ring. Indeed, Det. Kulmatycki came right out and told Mr. Daley that the police knew Liban Omar had given him the ring. It was clear to Mr. Daley that Liban Omar was the prime suspect in the murder and that the police wanted him to implicate Mr. Omar.

[36] The Crown points to various details in Mr. Daley’s statement that are independently corroborated. Mr. Daley said that Mr. Omar was driving a black Acura covered in mud. In fact, the murderer fled the scene in the victim’s black Acura and when the car was recovered, it was covered in mud. However, Det. Kulmatycki told Mr. Daley that the car was an Acura and also told him they were looking for materials used to clean mud off the Acura. Mr. Daley provided information that Mr. Omar told him in September that he had sold a 40 caliber Taurus to Ajalon Morgan. The murder weapon was a 40 caliber Taurus. However, Det. Kulmatycki had told Mr. Daley that they were looking for a 40 caliber handgun.

[37] Thus, although there is some corroboration, much of it was given to Mr. Daley by Det. Kulmatycki. I do recognize that Mr. Daley added the detail that the car was black and that the gun was a Taurus, which had not been specified by the officer. However, the underlying problem is that these details do not really matter. The central point is whether it was Mr. Omar who had the ring belonging to the deceased, the car belonging to the deceased and a gun that is the same make and caliber as the murder weapon. Mr. Daley clearly had possession of the deceased’s ring. It is highly likely that it was given to him by the murderer. It may well be the case that the murderer was still driving his victim’s car when he went to see Mr. Daley and that Mr. Daley knew the murderer to have a 40 caliber Taurus. However, it is possible Mr. Daley knew all of that about another person altogether. If he had independently supplied the name of Liban Omar as the person who gave him the ring, along with these other details, I would have found this to be highly corroborative. However, once the suspect’s name was supplied to him, particularly in the strongly affirmative manner in which it was worded, the fact that Mr. Daley provided Mr. Omar’s name loses all of its force.

[38] I have considered the Crown’s argument that if I determine Mr. Omar’s statements to the undercover officers to be admissible, I can use that statement as further corroboration of Mr. Daley’s statement. I am not convinced that it is appropriate to use these two statements to corroborate each other in this manner. However, I do not need to decide that issue. Even assuming using Mr. Omar’s statements as corroboration is appropriate, it does not resolve the underlying problem. Mr. Omar told the undercover officer that he gave the ring to Gavin Daley. The police then told Gavin Daley that they knew Mr. Omar gave him the ring, and gave him an incentive to confirm that information, which he did. This is entirely circular. The crucial piece of evidence did not come first from Mr. Daley, but rather from the police. This significantly undermines any circumstantial guarantee of reliability.

[39] I have also considered Mr. Daley’s guilty plea and acceptance of facts read in at the time of his sentencing for possession of stolen property. In my view, this does not add anything to the reliability analysis. It is merely the culmination of the charge against Mr. Daley, with a favourable disposition, following his cooperation with the police.

F. CONCLUSION

[40] I find that the reliability test for the admissibility of this hearsay evidence is not met. I recognize that my task is not to determine the ultimate reliability of Mr. Daley’s statement. However, in my opinion, there are insufficient circumstances of reliability to permit the Crown to put this evidence before the jury as admissible for its truth. Accordingly, the Crown’s application to admit this evidence is dismissed.

MOLLOY J. Released: June 21, 2016

COURT FILE NO.: CR-14-30000319-0000 DATE: 20160621 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LIBAN OMAR Defendant/Applicant REASONS FOR DECISION #3 Molloy J. Released: June 21, 2016

[1] R. v. Hart, [2014] 2 S.C.R. 2014 SCC 52 [2] R. v. Omar #2, 2016 ONCA 4065 [3] R. v. Omar #4, 2016 ONCA 3066 [4] R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Khelawon, 2006 SCC 57 at paras. 56, 47, and 2-3 [5] R. v. Baldree, [2013] 2 SCR 520, 2013 SCC 35 [6] Khelawon at paras 60-100 [7] R. v. Burnett, 2015 ONSC 2282 at para. 25 [8] Khelawon; Khan; Smith; Blackman; R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319; R. v. S.S., 2008 ONCA 140, 232 C.C.C. (3d) 158; R. v. Hindessa, [2009] O.J. No. 3837, at para. 14 (S.C.J.); R. v. Mendez-Romero, [2008] O.J. No. 512 (S.C.J.); and R. v. Polimac, [2006] O.J. No. 4757 (S.C.J.). [9] R. v. Baldree, [2013] 2 SCR 520, 2013 SCC 35 at para. 68; R. v. Khelawon, supra, Note 1, at para. 104