R. v Omar, 2016 ONSC 4065

minicounsel

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, 11, 12, 13, 14, 15, 18, 19, 20, 21, 25, 26, 28, and 29, and May 2, 2016

molloy j.:

(Admissibility of Accused’s Statements to Undercover Police)

A. INTRODUCTION

1Liban 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. The voir dire proceeded before me from April 6 through to May 2, 2016.

2There 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;

(4) the admissibility of opinion evidence, tendered by the defence, from a psychologist with expertise in false confessions and “Mr. Big” operations.

3For separate Reasons released at the same time as this decision, I have found Mr. Daley’s statement to the police to be inadmissible at trial. [2] 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]

4These Reasons deal with the evidence of Abi Yousufi (as to the approximate height of the shooter) and to the admissibility of Mr. Omar’s statements. For the reasons that follow, I find Mr. Omar’s statements to the undercover officers to be admissible at trial. I did not rely upon the evidence of Mr. Yousufi in reaching that decision. However, in my view, his evidence is admissible at trial and it will be for the jury to determine how much weight to give to his evidence.

5My detailed reasons follow.

B. BACKGROUND FACTS

6Just 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 and blowing a hole through the back of his skull. The murderer then fled in Mr. Farah’s car. Some parts of the shooting were captured on video by a surveillance camera focused on the driveway of a resident on the street. However, the video is of very poor quality and it is not possible to see any facial features of the shooter.

7Not long after the shooting, the accused, Liban Omar, became a person of interest to the police. At the time, Mr. Omar was just barely 19 years old, but had a significant criminal record, most of which was as a young offender. The police devised a plan to introduce an undercover officer to Mr. Omar (UO#1), with the hope that he would develop a rapport with Mr. Omar and obtain evidence that would assist in the murder investigation. Before that plan was put in motion, the police received information, which they were subsequently able to verify, that Mr. Omar had been seized by associates of the deceased (who was known to be a drug dealer) and severely beaten, requiring treatment in hospital.

8Coincidentally, on October 22, 2012, as the plans for the undercover operation were being finalized, Mr. Omar turned himself into police in response to information that a bench warrant had issued for his arrest when he had failed to appear at a recent court date for unrelated outstanding charges. The police took advantage of this opportunity to insert an undercover officer (“UO#1”) into the cell adjacent to Mr. Omar’s at the police station where he was being held. UO#1 befriended Mr. Omar and obtained contact information for him. During the course of that first interaction, UO#1 also learned that Mr. Omar was an insulin-dependent diabetic.

9Subsequently, UO#1 contacted Mr. Omar by text message. They exchanged a few messages and a phone call and arranged to meet in person on November 1, 2012. Thereafter, UO#1 met in person with Mr. Omar on November 1, 6, 8, 16 and 27. For all of these interactions, UO#1 wore a body wire and all of his conversations with Mr. Omar were recorded. Each occasion involved meeting in public places and having food and/or drinks. Over the course of these meetings and a few telephone conversations, UO#1 gradually told Mr. Omar that he worked for his cousin, who was affluent, connected, and the head of an organization that was clearly criminal in nature. UO#1’s role was as a courier of some sort, dropping off goods such as bootleg SIM cards for resale by businesses. UO#1 described his cousin as being very generous to those in his organization and said that his cousin was treating him and his girlfriend to an all-expense paid one-week vacation in Jamaica.

10On November 6, UO#1 took Mr. Omar to a Caribbean roti take-out spot, where they “unexpectedly” ran into two friends of UO#1 (actually “UO#2” and “UO#3” who were undercover officers posing as associates in a “business” headed by UO#1’s cousin). On another occasion, Mr. Omar was introduced to UO#1’s girlfriend, also an undercover officer (“UO#4”).

11Early on in his meetings with UO#1, Mr. Omar disclosed information about his own past criminal activities including drug trafficking and possession of firearms. Frequently when Mr. Omar met with UO#1 he brought up, unprompted, the occasion when he had been beaten up and tortured by men from “Flemo.” He said that his assailants were trying to get him to identify the person who killed Mr. Farah, but that he refused to tell them. He said he passed out during the torture and woke up in the hospital. UO#1 testified that Mr. Omar was usually happy and smiling throughout their interactions, but that his demeanour changed and he became very serious when he was talking about this incident. Over the course of his meetings with UO#1, at various times, Mr. Omar disclosed increasingly more detailed information about the murder of Mr. Farah. Initially he stated that he knew the guy who had done it and got the information from him. On a later meeting he said he had been present at the time; still later he said he was the one who administered the fatal shot, and ultimately he said that he was the one who did all of the shooting and his friend was just there with him.

12As these meetings progressed and the rapport between the two developed, UO#1 started to bring up the idea of introducing Mr. Omar to his cousin as a first step to bringing him into the organization where he would be able to make some money. Ultimately, they arranged for Mr. Omar to go with UO#1 to a party at the Fallsview Casino in Niagara Falls, where Mr. Omar would meet the cousin. The party was a staged event depicting the cousin (played by UO#7) as an affluent high-moving professional type of individual. There were a total of 10 undercover officers involved, all dressed elegantly to fit their roles. In the course of the party, UO#7 gave UO#1 a Mercedes as a reward for his good work. UO#7 met privately with Mr. Omar. Early in the discussion Mr. Omar brought up the fact that these guys had burned his face and UO#7 said that they could “help him out.” Mr. Omar also brought up the murder with UO#7 and provided more details about his involvement. He told UO#7 that he had killed Mr. Farah himself, and nobody else had been there.

C. GOVERNING LEGAL PRINCIPLES FOR “MR. BIG” OPERATIONS

13In July 2014, the Supreme Court of Canada released its decision in R. v. Hart, fundamentally changing the law on the admissibility of statements made by an accused in the course of a “Mr. Big” undercover operation. [4] In September of that same year, the Supreme Court released a further companion decision on the same issues, R. v. Mack. [5] Although the Crown in the case before me was reluctant to characterize this case as a “Mr. Big” operation, she readily agreed that it was governed by the principles established in Hart and Mack. As the Supreme Court noted, there is no fixed scenario or set of criteria to establish the precise parameters of what brings a police operation within the Mr. Big case law. There might well be situations in which an undercover operation lacks some of the essential ingredients to attract the Mr. Big principles. This case is not one of them. Here, an elaborate police undercover operation was set in place pursuant to which various undercover officers posing as criminals befriended the suspect (Mr. Omar) and offered him the possibility of joining their criminal organization. His participation in the organization was subject to his proving his trustworthiness and obtaining the approval of the head of the organization (“Mr. Big”). The organization was held out to be close-knit, lucrative and successful, such that there would be substantial financial rewards in the future, as well as the opportunity to receive the friendship and protection of the group. These are the classic features of the Mr. Big kind of operation referred to by the Supreme Court in Hart and Mack, and the principles therein clearly apply.

14The starting premise in Hart is that confessions obtained in a Mr. Big sting are inherently unreliable. The Supreme Court referred to three main concerns. First, there is a serious risk of false confessions, with the potential for same increasing in proportion to the nature and extent of the inducements offered to the accused. This danger is higher than in a statement made to a person in authority such as a police officer, but traditionally did not carry with it any constitutional protections or any burden on the Crown to prove voluntariness. Second, Mr. Big confessions are inherently prejudicial because they invariably involve the accused agreeing to participate, and sometimes actually participating in conduct he knows to be illegal. The nature of many of the discussions can be coarse and illustrative of bad character, often revealing prior illegal conduct over and above the subject offence under investigation. Also, in order to refute the confession made, the accused is often faced with the necessity of testifying and asking the jury to disregard his confession because he was lying. Third, there is a greater risk that police officers will engage in improper tactics in their attempts to obtain evidence from the suspect, particularly where they are cultivating an aura of violence as part of their fictitious criminal organization.

15At the same time, the Supreme Court recognized that not all Mr. Big operations are abusive and are capable of producing valuable evidence not otherwise attainable. Typically the technique is only used in serious cases where conventional investigatory techniques have already proved inadequate. There is nothing improper in police officers posing as criminals undercover to obtain evidence, nor are police officers prohibited from using lies or trickery against a suspect in the hopes of obtaining evidence. [6]

16In order to guard against the dangers inherent in a Mr. Big operation while at the same time not unduly hampering the ability of the police to investigate serious crime, the Supreme Court of Canada proposed a two-pronged approach. [7] The first prong establishes a new common law rule of evidence for assessing confessions obtained in this manner. The second prong involves closer scrutiny of police conduct to determine if there has been an abuse of process. For the first prong, the burden is on the Crown to prove, on a balance of probabilities, that the probative value of the evidence outweighs its detrimental effect. For the second prong, the defence bears the onus of proving abuse of process, also on a balance of probabilities.

17The new rule of evidence for Mr. Big confessions carries with it the presumption that such statements are inadmissible. This can be rebutted by the Crown proving that the probative value of the evidence outweighs its prejudicial effect, largely a function of establishing reliability. Moldaver J. (writing for the majority) summarized the rule as follows: at para. 85:

Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.

18The probative value assessment contemplated by the Court in Hart is similar to the test for the admission of hearsay evidence based on circumstantial guarantees of reliability. The trial judge must look at the circumstances in which the statements were made and whether there is any confirmatory evidence. [8] Moldaver J. emphasized that the trial judge is required to consider all of the surrounding circumstances, but for guidance listed some factors he considered particularly relevant, holding at paras. 102 -103 as follows:

Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do not normally confess to crimes they have not committed ( Hodgson, at para. 60). But the circumstances in which Mr. Big confessions are elicited can undermine that supposition. Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession. These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health.

Special note should be taken of the mental health and age of the accused. In the United States, where empirical data on false confessions is more plentiful, researchers have found that those with mental illnesses or disabilities, and youth, present a much greater risk of falsely confessing (Garrett, at p. 1064). A confession arising from a Mr. Big operation that comes from a young person or someone suffering from a mental illness or disability will raise greater reliability concerns.

[emphasis added; citations omitted]

19Having considered the surrounding circumstances, the trial judge must then examine the statement itself for markers of reliability, including: the level of detail; whether it leads to the discovery of new evidence; whether it identifies elements of the crime not known to the public; and the extent to which details of the statement can be confirmed by other independent evidence. [9]

20In determining potential prejudice, the trial judge must take into account reasoning prejudice (the extent to which reviewing the Mr. Big operation will distract the jury from the central issues in the case) and moral prejudice (the bad character evidence inherent in an accused wanting to join a criminal organization and any other evidence of prior wrongdoing that may arise). The trial judge must then weigh the probative value against the prejudicial impact. Moldaver J. noted the similarities between this exercise and considering the admissibility of prior discreditable conduct as was described by the Supreme Court in R. v. Handy. [10] In both Hart and Mack, the Court stipulated that some prejudice could be mitigated by removing references to bad character not essential to the narrative and/or by limiting instructions to the jury. [11]

21Finally, with respect to the second prong of the test for admissibility, Moldaver J. held that it was time to “reinvigorate” the doctrine of abuse of process as it is applied in cases of this nature. Even where a statement is proven to be reliable, it can be excluded if the conduct of the police in obtaining it is so abusive as to undermine the integrity of the justice system or the fairness of the trial. [12] While noting that Mr. Big operations are “too varied for a bright-line rule to apply,” Moldaver J. suggested as particularly problematic: inducements or threats that are sufficiently extreme that they overcome the will of the accused and are coercive; physical violence or threats of physical violence; operations that prey on a suspect’s vulnerabilities such as mental health problems, substance addictions or youthfulness; and, any conduct that “offends the community’s sense of fair play and decency.”

22Bearing these general principles in mind, I turn now to consider how they apply to the facts before me in this case.

D. PROBATIVE VALUE WEIGHED AGAINST PREJUDICIAL EFFECT

1. Reliability of the Statements

Vulnerability of the Accused

23Mr. Omar had just turned 19 years old at the time of this operation. As such, he must be considered to be a vulnerable person. He told the undercover officers many times that he was a college student studying social work. That was a lie – he was still missing credits to complete high school. Although he led a criminal lifestyle with significant violence, I consider him to be immature and unsophisticated.

24Mr. Omar was an insulin-dependent diabetic, having been diagnosed with Type 1 diabetes when he was in custody in 2011. He required insulin several times a day. I accept the evidence of Mr. Omar’s mother that he was not good about monitoring his sugar levels or taking his insulin on a regular basis as required. However, I also accept the evidence of the undercover officers who testified that he did not appear to be suffering any adverse effects from his condition when in their presence. However, I saw no evidence that this contributed to his vulnerability to making a false confession.

25The defence called Dr. Julian Gojer, a forensic psychiatrist, as a witness on the voir dire, and proposes to also introduce his evidence at trial. There is no challenge to the admissibility of this evidence. Dr. Gojer testified that Mr. Omar meets the criteria for diagnosis of an anti-social personality disorder, although he was reluctant to attach that label to someone who is only 19 years old. He noted that in addition to his criminal lifestyle, Mr. Omar showed other traits such as low self-worth, low self-esteem, deceit, and pathological lying. Dr. Gojer was also of the view that in the fall of 2012 Mr. Omar was suffering from post-traumatic stress disorder as a result of being beaten and tortured, or at the very least was suffering from symptoms of that disorder including depression, anxiety, nightmares, paranoid reactions, difficulty trusting people, flashbacks, avoidance, and hyper-vigilance. In addition, Dr. Gojer noted that Mr. Omar was a very poorly-controlled diabetic and that his excessive drinking exacerbated the problems related to his diabetes. In Dr. Gojer’s opinion, Mr. Omar was in an emotionally and physically compromised state during the period of time that he was meeting with the undercover officers in November 2012. He saw Mr. Omar as immature and gullible and testified that Mr. Omar would say anything that suited him in the moment in order to impress people or get financial rewards. Much of the information underlying Dr. Gojer’s opinion came from Mr. Omar himself, but he also took into account information from others, most notably Mr. Omar’s mother. Dr. Gojer candidly admitted that his opinion was dependent upon the accuracy of the information upon which he relied.

26It is clear Mr. Omar was severely beaten shortly after the murder. I accept the evidence of his mother that he was fearful after this event. However, I am not as certain that the abuse inflicted on Mr. Omar was as severe as he described to the undercover officers or as he portrayed to Dr. Gojer. For example, although he claims to have been tortured with a blowtorch to his face, I have reviewed the records of the hospital where he was admitted and stayed for over 24 hours. There is not a single entry on the records confirming any kind of burn to his face or anywhere else. Multiple other injuries, mainly abrasion, are noted, but no burns. I am doubtful of this detail being true. However, I readily accept that even without the torture this would have been a traumatizing event for any person, and likely was so for Mr. Omar. Some of the symptoms of the PTSD described by Dr. Gojer as being exhibited by Mr. Omar, and which to some extent were confirmed by his mother, are strikingly similar to the symptoms Mr. Omar told the undercover officers that his “friend” who committed the murder was experiencing as a result of “catching his first body at the age of 18.” Bearing in mind that Mr. Omar later admitted that there was no friend and he committed the murder entirely on his own, it could be that Mr. Omar was indeed experiencing nightmares, but as a result of the murder, rather than the kidnapping and beating. However, for present purposes, I am prepared to assume that Mr. Omar was experiencing some symptoms of post-traumatic shock at the time of his interactions with the police officers, and was in a somewhat compromised emotional state.

27That said, it is unclear how truly fearful Mr. Omar was. It is obvious from his interactions with UO#1 that Mr. Omar was partying regularly with his friends and going out at night and during the day to public places, including in the Flemingdon Park neighbourhood where his assailants reportedly hung out.

Length and Nature of the Interactions

28This was not a particularly lengthy operation. The first contact between the primary undercover officer (UO#1) was on October 22, 2012, when he was placed in an adjoining cell to Mr. Omar’s cell at a police station. There were then face-to-face meetings on five days, none of which went much beyond three hours, including time spent driving from one location to another. Finally, there was a party in Niagara Falls on November 30, 2012, where Mr. Omar met other members of the fictitious criminal organization (three of whom he had already met at on a prior occasion) and in particular met with UO#7, who was the “Mr. Big” of this organization. The party involved about 10-12 undercover officers and was very convivial. Mr. Omar was picked up at his home in Ajax by UO#1 in an impressively expensive brand-new Mercedes Benz, which was said to belong to UO#7. They drove to the Fallsview Casino in Niagara Falls for the party, which started in a private hotel room and continued in a portion of a private lounge overlooking the falls. Mr. Omar was at the party for approximately six hours, and was then driven back home. In the course of the party, Mr. Omar had a private meeting with UO#7 to whom he revealed substantial details about the murder and the steps he took to dispose of evidence after the murder. He told UO#7 that he was the only one present and his friend Kenny was not there.

29The party was a lavish event, particularly for an unsophisticated 19-year-old. At the party, UO#7 gave what appeared to an expensive piece of jewellery to his girlfriend for her birthday, and gave UO#7 the Mercedes Benz as a gift for doing well in the organization. The whole scenario was designed to impress Mr. Omar, and I have no doubt it did impress him. There was a clear message that the members of this criminal organization were achieving considerable financial success. It was suggested to Mr. Omar, although not specifically promised, that if he was brought into the criminal organization he could expect to eventually earn a great deal of money, even if he started out on a modest scale.

Relationship Between the Accused and the Undercover Officers

30All of the undercover officers Mr. Omar encountered in the course of the operation were at least 10 years older than he was, some of them considerably older than that. However, his main interaction was with UO#1 who was portraying himself, quite credibly, as being in his mid-twenties.

31Mr. Omar and UO#1 had an easy-going friendly relationship. There was never a hint of conflict. Mr. Omar seemed completely at ease talking to and bantering with UO#1. He did not appear to be deferential to UO#1.

32Mr. Omar was considerably more deferential to UO#7, who was older and more of an authority figure. However, they met only that one time at the party in Niagara Falls and had a couple of telephone discussions later, which I find to be of no consequence. Their relationship was convivial, with Mr. Omar being respectful of UO#7. There was no suggestion of any fear or concern on the part of Mr.Omar.

Inducements

33Mr. Omar began to volunteer information about the murder, including his own involvement in the murder, early in his relationship with UO#1. He repeatedly brought this up voluntarily.

34No overt inducements were promised to Mr. Omar. He was never paid anything in exchange for services rendered to the organization. He constantly mooched off UO#1, constantly promising to treat “next time” but claiming to be unable to pay for food and drinks and cigarettes at various times. However, none of these amounts were significant.

35Mr. Omar lived with his parents and two siblings in a very nice house in a middle class neighbourhood in Ajax. His parents provided food and shelter and, at least until his conviction for impaired driving, access to a car. However, he was unemployed and did not appear to have much, if any, spending money. At least according to Mr. Omar, he had previously had considerable financial success in drug trafficking. However, the deceased, Mr. Farah, was one of his main suppliers, and he told UO#1 that another supplier (who he called “the Chinaman”) would not deal with him anymore. Prices for wholesale drugs had risen dramatically and he was having difficulty re-establishing himself. He did not appear to be interested in gainful employment. He was, however, very interested in the opportunity for easy money dangled before him if he was able to gain entry into this criminal organization. The inducement, although not tangible, was definitely there.

36The defence also argued that Mr. Omar was induced to make the statements he did in order to gain entry into the criminal organization so that he could obtain protection from them from the individuals who had attacked him. I agree there was a lot of discussion about how tight the organization is, how it treats its members as family, and how they support each other. Mr. Omar did provide some information about the people who attacked him and did express some interest in having that “taken care of.” However, Mr. Omar told UO#7 that he knew where these guys lived and would obtain precise information and pass it along to UO#7. Mr. Omar was not arrested until December 19, more than two weeks after his meeting with UO#7. During that time, he was in touch by phone with both UO#1 and UO#7 a number of times. However, he did nothing to pass on this information. I infer from this that Mr. Omar’s interest in protecting himself from these individuals was not particularly pressing. As I stated, he continued to go out regularly and to associate with his known friends, including in the same neighbourhood where these Flemo guys lived. I reject the argument that obtaining projection was a primary, or even significant, motivation for Mr. Omar to confess to murder in order to gain admission to this criminal organization.

Violence and Threats

37There were absolutely no threats and no demonstrations, or even suggestions, of violence. On one occasion, there was a staged meeting with two undercover officers at the roti take-out restaurant. Both were fairly large in size. It was suggested this was the introduction of individuals who were the “muscle” in the organization. I reject that. There was nothing said or done or even hinted at to suggest any kind of violence against Mr. Omar, nor that the organization sought to involve him in violence. On the contrary, the organization was depicted as trying to appear “clean” and not being involved in anything like drugs.

Level of Detail in the Statements

38The statements made by Mr. Omar to the undercover officers were extremely detailed. He described initial shots being fired inside the car and Mr. Farah rolling out on the street. He said that he followed Mr. Farah out onto the street and fired more shots at him. He said the victim was rolling around and crawling on the ground and begging, “my nigga, my nigga.” He then described the final shot by placing his fingers, shaped as if a gun, and demonstrated shooting Mr. Farah in the head on the right side at about the jaw line. He said the shot caused the back of Mr. Farah’s head to blow off. Mr. Omar described the precise make and model of the murder weapon and said it had a clip that held 15 cartridges. He further said that the clip had been full at the beginning and afterwards there were only three cartridges left.

39Mr. Omar told the undercover officers that he took the victim’s car and drove along the 401 to Ajax. He parked it in an area not far from his house, but it got stuck in the mud and he had to get a tow truck to pull it out the next day. He said he cleaned the car thoroughly, wiping it down with Windex and paper towels, and that he also took it through a car wash. Then he parked it, locked the doors and threw away the keys.

40Mr. Omar said he sold the murder weapon to a guy in Ajax. He also said he took some jewellery and a 9 mm. Kel Tec firearm from the stash box in Mr. Farah’s car. He described the location of the stash box. He said he sold a ring stolen from Mr. Farah to his friend Gavin Daley and that the Kel Tec was with a friend of his in Scarborough. The undercover officers made repeated attempts to persuade Mr. Omar to allow them to purchase or rent the Kel Tec, but he was persistent in refusing to do so, with excuses that seemed to me to be transparently flimsy.

Volunteered as Opposed to Coerced

41It was almost always Mr. Omar who brought up the topic of his torture and the related murder of Mr. Farah. He did so without any prompting from UO#1. Once Mr. Omar started into his stories, UO#1 was certainly a willing listener, but the information provided was not coerced, nor was it elicited by leading questions. It was fully voluntary.

42The defence points out that Mr. Omar only started to implicate himself in the murder when UO#1 showed an interest in meeting Mr. Omar’s friend who had done the murder. In that sense, there may have been some encouragement for Mr. Omar to embellish his own involvement in order to curry favour with UO#1. However, apart from that subtlety, I see no grounds for concern.

43Prior to UO#7’s meeting with Mr. Omar, he was told that the objective was to get tangible evidence from Mr. Omar, and that there was no need to attempt to get admissions. UO#7 attempted to cut Mr. Omar off a number of times when Mr. Omar started to tell him about the murder. However, when Mr. Omar persisted in trying to give him the details of the murder, he let him go on. UO#7 then asked Mr. Omar about a lot of the evidence, ostensibly under the guise of assisting him to get rid of anything that could come back later to cause problems for them if Mr. Omar was working for the organization. Mr. Omar showed no reluctance about providing this information. There was only one point at which UO#7 pushed Mr. Omar and that was with respect to the involvement of his “friend” Kenny. UO#7 appeared to be expressing some concern about having to take care of this detail and suggested outright to Mr. Omar that Kenny was not there, and Mr. Omar acknowledged that he was not.

44There was never any suggestion to Mr. Omar that confessing to murder, or indeed any crime, was a quid pro quo for admission into this lucrative criminal organization. He was told he needed to “impress” the cousin (UO#7) and he was told he needed to be completely honest with him. Mr. Omar repeatedly asked UO#1 if he should tell his cousin about the murder and UO#1 told him he did not need to bring it up, but that he should answer truthfully if UO#7 asked him any questions. Notwithstanding this, Mr. Omar brought up the topic himself, without any apparent reluctance.

Impact of Alcohol

45There was considerable evidence about the state of Mr. Omar’s sobriety on each of the dates upon which he met with undercover officers. It is clear from the evidence of all of the meetings on November 1, 6, 8, 16 and 27 that Mr. Omar drank very little while in the presence of the undercover officers. Mr. Omar was accustomed to partying and to drinking to great excess. The modest amounts he consumed while with the undercover officers cannot have been sufficient to have induced him to falsely confess to murder. Indeed, I can detect no evidence of inebriation at all.

46On November 27, Mr. Omar had been drinking before he was picked up by UO#1. There is some evidence of him being more boisterous on that occasion than during the other meetings. However, UO#1 testified that he did not believe Mr. Omar to be drunk. Mr. Omar was coherent and answering questions without difficulty. While he may have been more exuberant than on other occasions, there are certainly examples from other occasions where he displays the same degree of excitement and where he was clearly not under the influence of alcohol. The disclosures made by Mr. Omar on November 27 were along the same continuum as on previous days. It was not like his description of the killing on November 27 was a marked departure from what he said on other occasions. I accept the evidence of UO#1 that Mr. Omar was not inebriated that day.

47I accept the evidence of the undercover officers that Mr. Omar’s intake of alcohol on November 30 at the party in Niagara was monitored and that they were careful to ensure that he did not drink too much. UO#1 cautioned him about not drinking too much and the importance of making a good impression before they even got to the party. The team had an agreed upon protocol that any drinks Mr. Omar had would be poured by UO#4 or UO#1. UO#1 did not pour him any drinks. UO#4 described pouring him two drinks of vodka with juice or pop. He also had a small amount of champagne for a toast to the birthday girl in the lounge and one drink of Scotch with UO#7 during their private meeting. That is not a lot of alcohol for the period of time involved. There was food available and UO#1 said he saw Mr. Omar go back to the buffet to fill his plate more than once. I have listened carefully to the audio of Mr. Omar in his discussions with UO#7. I can detect no signs of impairment. I accept the evidence of UO#1, UO#7 and UO#4 that they also saw no signs of impairment by alcohol. During the drive back to Toronto, Mr. Omar does not appear to be much different than he was on the drive to the party.

48Mr. Omar’s mother, Zainab Mohammed, testified that her son was very drunk when he got home, smelled strongly of alcohol, and was unable to walk properly. Her interaction with Mr. Omar was brief. He told her to leave him alone and she went back upstairs. She heard him leave a short while later, but when she went to the door he was already gone. She said that she did not know when her son came home that night, but that in the morning she checked on him and he had thrown up all over the place. It is important to note that when Mr. Omar left the house, he went to a drinking party at his friend’s house that was already underway. I do not accept Ms. Mohammed’s evidence as to Mr. Omar’s state of sobriety when he got home. It is possible she believes he must have been drunk earlier because of the state of his room in the morning, without realizing he had been drinking further after she saw him. It is also possible that she may have that date mixed up with another occasion when Mr. Omar came home drunk, which is by no means a rare occasion. Alternatively, she may be shading the truth in order to assist her son. Whatever the reason, I do not find her testimony to be reliable. It is inconsistent with the evidence of the officers whom I found to be credible and with the audio of Mr. Omar’s discussions with UO#7 and UO#1. Mr. Omar could well have smelled of alcohol, but I do not believe that he was drunk.

Corroborative Evidence

49At the time Mr. Omar gave the information to the undercover officers about the location of the stash box in Mr. Farah’s car, the car had already been subjected to a thorough forensic investigation without finding the stash box. As a result of this new information, forensic officers went back and looked at the car. The stash box was exactly where Mr. Omar said it would be. There were other details linking Mr. Omar to the car. There was a drinking straw on the floor of the front passenger seat area which contained Mr. Omar’s DNA, and Mr. Omar’s partial palm print was on the exterior driver’s door. I note, however, that Mr. Omar told the undercover officers that he knew Mr. Farah and dealt with him on a regular basis. Mr. Omar’s former girlfriend testified to at least one prior occasion when she was with Mr. Omar in Mr. Farah’s car. There could have been many opportunities for Mr. Omar’s DNA and fingerprints to be deposited on the car, other than in the course of the murder. Mr. Omar also could have learned of the location of the stash box from prior contact. Indeed, he said as much to UO#1. This evidence is somewhat corroborative, but by no means conclusive.

50Mr. Omar knew the exact make and model number of the murder weapon and the fact that it had an extended 15 cartridge magazine. This was not known to the police at the time. The firearm was only recovered a few months prior to trial. It is exactly as described by Mr. Omar. This is highly corroborative.

51Mr. Omar described shots being fired inside the car followed by Mr. Farah jumping out of the driver’s door and rolling and crawling around on the street while further shots are fired. This is corroborated by the surveillance video and by eye witness accounts. Eye witnesses also saw and heard the victim begging for his life before he was killed, as described by Mr. Omar. The fatal shot was indeed to the right side of Mr. Farah’s face, just above the jaw line. There were multiple spent shell casings on the street, with the total number of shots being in the range described by Mr. Omar. This level of detail and corroboration is very compelling.

52On the other hand, for the fatal shot, there was no exit wound; the bullet remained inside Mr. Farah’s head. This detail is not consistent with Mr. Omar’s graphic descriptions to the undercover officers about the back of the victim’s head being blown away. However, there was bleeding from inside Mr. Farah’s brain and out of his ear, which could have appeared to be caused by an exit wound and it is entirely possible that this detail was embellished or misunderstood by Mr. Omar at the time. There are also discrepancies with respect to the number of shots actually fired inside the car and the fact that none of the shots fired at Mr. Farah while he was on the ground actually hit him. Again, this is not fully consistent with Mr. Omar’s description and a matter of some concern.

53Mr. Omar told the undercover officers that he took Mr. Farah’s car and drove along the 401 to Ajax. This is confirmed by cell tower information which showed Mr. Farah’s cellphone travelling that route and ending up in a location not far from Mr. Omar’s home in Ajax.

54When the car was found, there had been attempts to wipe it down. The center console inside had been burned, as described by Mr. Farah. There was evidence of substantial mud on the car. The doors were locked and the keys were missing. All of this is consistent with the story told by Mr. Omar to the undercover officers. At the request of UO#7, Mr. Omar turned over to UO#1 a pair of running shoes that have considerable mud on them, also consistent with the story of the car being stuck in the mud and with the amount of mud on the floor and foot pedals on the driver’s side of the car. The shoes are black and red with a large Nike swoosh along the outside. From the video, it looks like the killer is wearing light coloured shoes, but the video is of such poor quality that it is difficult to take much from that. For example, the colour of the victim’s shirt also appears to be light on the video, and it was not.

55Mr. Omar said he sold Mr. Farah’s diamond ring to his friend Gavin Daley. Police executed a search warrant at Mr. Daley’s residence on the same day that Mr. Omar was arrested. They found Mr. Farah’s ring there.

Conclusions as to Reliability

56I have some concerns as to reliability. Mr. Omar told several different versions of how this murder happened. Initially, he claimed that he was not there and that everything had been done by his friend. Over time, he injected himself more and more into the story, until finally saying that it was entirely him and that his friend had not even been there. He also told numerous other lies to the undercover officers, all of them to make himself look more important. He was a very convincing liar, as confirmed by Dr. Gojer.

57There are some inconsistencies with respect to his version of how the murder happened. For example, he described going first to another car to get his gun and then coming back and getting into Mr. Farah’s car and shooting him. That is not seen on the video. However, the other car could have been nearby and the gun obtained before Mr. Farah’s car is seen driving down Fawcett Trail and stopping in front of the surveillance cameras. As I have already noted, there are also some inconsistencies with respect to some other details (e.g. number of shots fired in the car and whether there was an exit wound).

58However, when all of the evidence is considered together, it is impossible that Mr. Omar could have guessed at some of these details. Only the killer could have supplied the degree of detail provided by Mr. Omar. I am also influenced by the extent to which much of his confession is versified by tangible and eye witness testimony.

59I see nothing about the surrounding details that causes me to be concerned about the reliability of what Mr. Omar was recounting. He had some inducement to curry favour with this organization in order to obtain financial gain. However, he had confessed to significant involvement in this murder before he had any awareness of this opportunity. He had some emotional issues, but nothing that prevented him from going out with the undercover officer and appearing to enjoy himself, as well as partying with his friends, and dealing drugs on the side. He had health issues and problems with alcohol, but none of that affected the reliability of the information communicated to the undercover officers.

60On the whole, while recognizing the inherent problems with Mr. Big disclosures in general and the particular difficulties in this case, I find the evidence of statements made by Mr. Omar to the undercover officers to be reliable and highly probative.

2. Prejudicial Effect

61As with any Mr. Big scenario, there is inherent prejudice that flows from showing that the accused is willing to join a criminal organization. That particular prejudice is less in this case than is often present in Mr. Big operations because of the nature of the criminal organization involved. In this case, there was no suggestion of violence or drug trafficking or other very serious crime. While the activities of the organization were illegal, they were more akin to fraud than violent crime and Mr. Omar’s role was nothing more than a courier. Certainly, the criminal activities involved were less serious than the charge before the court, and other criminal activity in which Mr. Omar was already involved.

62The more difficult problem is with the kinds of things Mr. Omar said about his own criminal and other distasteful proclivities over and above matters relevant to the offence charged. Some of his criminal conduct is relevant to the charge. For example, he spoke frequently to the officers about his drug trafficking. That is relevant to motive. He knew Mr. Farah and said that Mr. Farah was his regular drug supplier. It was in this context that the dispute giving rise to the murder was said to have occurred. Likewise, Mr. Omar said he had a record for possession of a firearm. He spoke frequently to UO#1 about various firearms. His access to and familiarity with weapons is relevant to whether he had the opportunity and means to commit the murder.

63However, Mr. Omar talked about many things that had no bearing on the charge before the court, and much of it portrayed him as a person of poor character. Some of his remarks were racist and sexist. Some offensive and prejudicial comments about his drug dealing conduct went far beyond what would be necessary to establish the connection between him and Mr. Farah.

3. Balancing Probative Value and Prejudicial Effect

64In my view, the probative value greatly outweighs the prejudicial effect of the statements. Many of the more extreme statements giving rise to prejudice can be excised from the audio and the transcripts without creating a problem. Even where it is evidence that there have been excisions, there would be no reason for the jury to speculate about the reasons for the excisions. I had already indicated to counsel that large portions of the audio should be excised merely because it was repetitive and irrelevant. I would be telling the jury in any event that irrelevant portions had been taken out so that they would not have to listen to hours of two people talking in a car while very loud rap music was playing in the background.

65There are some prejudicial things that cannot be extricated from statements that are material and relevant. However, a strongly-worded caution to the jury about the importance of ignoring such information would greatly reduce, if not remove, any risk of prejudice. Also, there will be an instruction to the jury about the limited use they can make of some of the evidence, which is relevant for some purposes. I have confidence that the jury will follow such instructions and not use the evidence improperly.

66Accordingly, taking all of these factors into account, I am satisfied that the Crown has discharged its onus of demonstrating that the probative value of these statements outweighs any detrimental effect.

E. ABUSE OF PROCESS

67The defence has failed to establish any abuse of process by the police in carrying out this operation.

68The police were criticized for not having obtained advice with respect to Mr. Omar’s diabetes and any potential impact it might have had for their activities. It would have been wise of the police to have done so. However, there was no evidence that the diabetes had any impact whatsoever on anything Mr. Omar said or did in the course of the operation. With the exception of the party in Niagara Falls on November 30, all of the contacts with Mr. Omar were brief. With respect to the November 30 party, UO#1 reminded Mr. Omar to be sure he brought his insulin and also cautioned him against drinking too much. Even during the course of the party, UO#1 repeated the caution against drinking too much, explaining they might have to do some work. UO#7 also prevented Mr. Omar from over-drinking with respect to the Scotch when they were meeting privately.

69The police were also criticized for the fact that drinking was involved on every occasion in which they met. UO#1 explained that this was done because that is what Mr. Omar likes to do and they were trying to win his favour. At no time did the undercover officers give Mr. Omar anything more than modest amounts of alcohol, and it was always accompanied by food. Typically, they would share a pitcher of beer and a pizza or some other similar type food. For a person with Mr. Omar’s disposition towards partying and drinking, this was an inconsequential amount of alcohol. I accept the testimony of the officers, as supported by the audio tapes, that Mr. Omar was never intoxicated.

70The officers did not “prey on” Mr. Omar’s vulnerabilities. They presented a scenario that would be attractive to him, but it was not so ostentatious or “over the top” as to be irresistible. The police were aware that Mr. Omar had been abducted and beaten, and UO#1 testified that it was obvious Mr. Omar was emotionally affected by this because he would become serious and change his tone of voice every time he discussed it. However, the officers did not “prey” on this. It was never the officers who brought it up; it was always Mr. Omar. Although Mr. Omar talked often about his own criminal exploits, the undercover officers never followed suit. There was no situation in which Mr. Omar revealed information about his own criminal activity in order to match supposed criminal conduct described by an undercover officer. UO#1 said almost nothing about himself, other than details about his fictitious family and girlfriend. Basically, UO#1 just listened and Mr. Omar talked.

71There was nothing about this operation that would offend the community’s sense of fair play and decency. The undercover officers provided an opportunity to Mr. Omar to talk about his criminality and an incentive to reveal incriminating evidence so that he could obtain what he thought would be lucrative criminal work in the future. Very little persuasion and very little incentive needed to be offered. Mr. Omar revealed information willingly, often without prompting. There was no coercion, no violence and no threats.

F. CONCLUSION: THE STATEMENTS ARE ADMISSIBLE

72The Crown has overcome the presumption against admissibility for Mr. Omar’s statements to the undercover officers in this case. Although there are some issues with respect to reliability, these are matters that can easily be taken into account by the jury in its ultimate assessment as to whether the statements are true. On a balance of probabilities, the probative value of the statements outweighs any prejudicial effect, particularly given the fact that some of the most prejudicial statements will be excised and there will be a strong caution to the jury to avoid the evidence being used for an improper purpose. I find no abuse of process by the police officers involved. The statements are admissible, subject to editing to remove irrelevant and prejudicial comments.

73Attached as Schedule A is a mid-trial instruction I gave to the jury on this issue. That instruction was repeated and amplified in the jury charge itself.

74The statements made by Mr. Omar to the undercover officers meet the tests for reliability.

G. EXPERT EVIDENCE AS TO HEIGHT

75The Crown called Abi Yousufi as an expert witness at trial. The Crown sought to qualify Mr. Yousufi as an expert in photogrammetry and image analysis. Essentially, Mr. Yousufi used the images of the killer from the surveillance video and did some further measurements with a view to determining his height. Based on his analysis, Mr. Yousufi concluded that the shooter was 6’3’, with a margin of error of plus or minus two inches. In other words, he testified that in his opinion, the shooter was somewhere between 6’ and 6’5”. Mr. Omar is 6’5”. The Crown submitted that this was a further piece of corroborative evidence to support the reliability of Mr. Omar’s statement to the undercover officers that he shot Mr. Farah.

76Mr. Yousufi is a civilian who works with the Toronto Police in Forensic Investigation Services (FIS). He has a background as a licensed architect but has been with FIS since 1994. Mr. Yousufi has a background in geometry, trigonometry and mathematics as part of his training and experience as an architect. However, virtually all of his training in the fields in which he has been tendered as an expert has been obtained on the job over the past 22 years.

77The defence challenges the admissibility of this evidence as being “bad science” relying upon R. v. Abbey and in particular on the “Daubert factors” for admissibility of scientific evidence. [13]

78I reserved my decision. Subsequently, at the conclusion of the voir dire, and prior to the commencement of the trial, I delivered my ruling that I considered the evidence of Mr. Yousufi to be admissible. The trial proceeded, but the Crown elected not to call Mr. Yousufi as a witness.

79This issue has therefore become academic so I do not propose to deliver any detailed reasons for my conclusion. However, in my view, Mr. Yousufi’s evidence meets all of the criteria for admissibility as set out in Abbey and in the Supreme Court of Canada’s landmark decision in R. v. Mohan. [14] I agree with the submission of the Crown that the problems with Mr. Yousufi’s evidence pointed to by the defence were more questions of weight than admissibility.

80That said, Mr. Derstine, for the defence, did a very skillful cross-examination of Mr. Yousufi, at the conclusion of which I decided his measurements were so unreliable that I was not able to give them any weight at all. Accordingly, I did not take Mr. Yousufi’s evidence into account in making my decision as to the admissibility of the statements made by Mr. Omar to the undercover officers.

MOLLOY J. Released: June 21, 2016