Case Summary

The Crown sought to admit ante-mortem statements made by the deceased to a business partner, Mr. Eyup, immediately before being fatally shot. The statements concerned a prior verbal confrontation with the accused, David Odesho, resulting in Odesho being banned from the café, and the deceased's belief that Odesho had previously brought a gun to the café. The court applied the principled exception to the hearsay rule, finding the necessity criterion met due to the declarant's death. The court admitted the portion of the statement regarding the verbal confrontation and Odesho's ban from the café, finding it reliable and highly probative to motive, intent, and planning. However, the court excluded the portion concerning the deceased's belief that Odesho had previously brought a gun, deeming it unreliable due to vagueness and lack of basis, and highly prejudicial with negligible probative value. interesting_citations_summary: > This ruling provides a practical application of the principled exception to the hearsay rule in a criminal context, particularly concerning ante-mortem statements. It highlights the two-part test of necessity and threshold reliability, emphasizing that reliability can be established by the circumstances of the statement's making. The decision also demonstrates the court's residual discretion to exclude evidence where prejudicial effect outweighs probative value, especially when the basis of the hearsay is unclear or erroneous, even if genuinely believed by the declarant. Key cases like R. v. Khelawon and R. v. Blackman are applied to distinguish between threshold and ultimate reliability and the role of the jury. final_judgement: > The court ruled that utterances made by the deceased to Mr. Eyup about a dispute with the accused, leading to Mr. Odesho being banned from the café, are admissible under the principled exception to the hearsay rule. The second aspect of their conversation, concerning the reason for the disagreement (i.e., the deceased's belief that the accused had previously brought a gun to the café), was deemed inadmissible due to lack of reliability and excessive prejudicial effect. winning_degree_applicant: 2 winning_degree_respondent: 4 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 4631 file_number: "14-04174" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4631/2016onsc4631.html" cited_cases: legislation: [] case_law: - title: "R. v. Khelawon, 2006 SCC 57" url: "https://www.canlii.org/en/ca/scc/doc/2006/2006scc57/2006scc57.html" - title: "R. v. Blackman, 2008 SCC 37" url: "https://www.canlii.org/en/ca/scc/doc/2008/2008scc37/2008scc37.html" - title: "R. v. Carroll, 2014 ONCA 2" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca2/2014onca2.html" - title: "R. v. Chretien, 2014 ONCA 403" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca403/2014onca403.html" - title: "R. v. Polimac, 2010 ONCA 346" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca346/2010onca346.html" - title: "R. v. Candir, 2009 ONCA 915" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca915/2009onca915.html" - title: "R. v. Moo, 2009 ONCA 645" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca645/2009onca645.html" - title: "R. v. Griffin, 2009 SCC 28" url: "https://www.canlii.org/en/ca/scc/doc/2009/2009scc28/2009scc28.html" - title: "R. v. Johnstone, 2014 ONCA 474" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca474/2014onca474.html" keywords: - Hearsay - Principled exception - Ante-mortem statements - Reliability - Necessity - Probative value - Prejudicial effect - Motive - Criminal law - Evidence areas_of_law: - Criminal Law - Evidence --- NEWMARKET COURT FILE NO.: 14-04174 DATE: 20160715 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen Applicant – and – David Odesho Respondent Kevin Stewart and Melisa Montemurro, for the Applicant James L. Miglin and Zaire Puil, for Mr. Odesho HEARD: July 14, 2016 # RULING ON ANTE-MORTEM STATEMENTS **Bird J. :** # Background [1] Just after 6:30 p.m. on June 6, 2014, a gunman walked into the kitchen of the Baggio Café in Vaughan and fatally shot Sarhad Sadiq. A second victim, Behget Eyup, was also shot but survived. The Crown alleges that the accused, David Odesho, was at the café earlier in the day and was told to leave by the deceased, who jointly owned the business with Mr. Eyup. Angered by this, Mr. Odesho returned a short time later, armed with a gun and shot both men in the kitchen. He then fled to a waiting car (a white Mazda 3) that was being driven by Fade Dawood. Mr. Odesho told Mr. Dawood to drive away from the scene. After driving a short distance, the accused instructed Mr. Dawood to get out of the car. He did, and Mr. Odesho drove away. It is the position of the defence that Mr. Odesho was not the shooter and that it may have been Mr. Dawood who fired the shots. [2] The Crown seeks to tender utterances made by the deceased in a conversation he had with Mr. Eyup immediately before he was fatally shot. While the two men were in the kitchen of the café, Mr. Sadiq told his friend and business partner about his encounter with the accused earlier in the day. According to Mr. Eyup, Mr. Sadiq said that he told the accused to leave the café and warned him not to bring a gun with him again. [3] Mr. Eyup described his conversation with the deceased to the police in three statements, two of which were given at the hospital within hours of the shooting. The hospital interviews were audio recorded in their entirety but were not made under oath or affirmation. At the start of the second statement, the interviewing officer explained that there could be criminal consequences for giving a false statement. [4] Mr. Eyup was given a more formal caution about the importance of telling the truth at the outset of the third statement, which was taken at the police station on June 18, 2014. This interview was audio and videotaped. In this statement, Mr. Eyup told the police for the first time that a third man, Denkha Ashor, was with he and Mr. Sadiq in the kitchen at the time of the shooting. In his two hospital statements, Mr. Eyup said that he and the deceased were alone when the accused entered the kitchen. Mr. Ashor testified at the preliminary hearing and denied being in the kitchen at the time of the shooting. [5] The Crown submits that the deceased’s utterances are admissible, pursuant to the principled exception to the hearsay rule as being both necessary and reliable. In contrast, the position of the defence is that there are not sufficient guarantees of reliability to overcome the dangers associated with the hearsay statements. Further, their probative value is minimal and is outweighed by their prejudicial effect. # Legal Analysis [6] In order for a statement to be admissible under the principled exception to the hearsay rule, it must be both necessary and reliable. The evidence is presumptively inadmissible so the Crown must satisfy me on a balance of probabilities that both criteria are satisfied. There is no question that the necessity criterion is met since the declarant, Mr. Sadiq, is dead. With respect to reliability, at this stage what I must determine is whether the statement satisfies a threshold assessment. The ultimate reliability of the statement, if admitted, would be a matter for the jury. Trial judges play a limited role with respect to admissibility because the ultimate reliability of the statement should not be determined on the *voir dire*. ( [R. v. Khelawon, 2006 SCC 57](https://www.canlii.org/en/ca/scc/doc/2006/2006scc57/2006scc57.html), [2006] S.C.J. No. 57 at paragraphs 3 and 93). [7] Reliability can be established in one of two ways: first, its contents may be deemed trustworthy as a result of the way it came about and secondly, circumstances may permit the trier of fact to sufficiently assess its worth ( *Khelawon, supra*, at paragraph 2). Because Mr. Sadiq is not available for cross-examination, the Crown must rely upon the circumstances under which the statement was made to establish reliability in this case. [8] In assessing the admissibility of the statement, the factors to be considered should not be categorized in terms of threshold or ultimate reliability. Rather, a functional approach should be employed with the focus of the inquiry being on dangers raised by the hearsay evidence and the circumstances that may overcome them. All relevant factors should be considered, including any confirmatory or contradictory evidence ( *Khelawon* at paragraphs 4 and 93). There remains a residual discretion to exclude hearsay evidence even if it is found to be necessary and reliable, if its prejudicial effect exceeds its probative value ( *Khelawon* at paragraph 3). [9] Generally, concerns about weaknesses in the evidence of the recipient of the statement are properly a matter for the trier of fact. The recipient will testify at the trial and can be cross-examined on any inconsistencies in what he has previously said about the substance of the deceased’s statement or the circumstances in which it was made. The jury is well positioned to assess the truthfulness and accuracy of the recipient’s evidence in relation to the statements allegedly made by the declarant ( [R. v. Blackman, 2008 SCC 37](https://www.canlii.org/en/ca/scc/doc/2008/2008scc37/2008scc37.html), [2008] S.C.J. No. 38 at paragraph 50). [10] Further, the Crown is not required to eliminate all possible concerns about the memory, sincerity or perception of the declarant. In [R. v. Carroll, 2014 ONCA 2](https://www.canlii.org/en/on/onca/doc/2014/2014onca2/2014onca2.html), [2014] O.J. No. 2 (C.A.), the Court recognized that not all of the statements the Crown sought to adduce were expansive or incredibly detailed in terms of the details of the deceased’s relationship with the accused. However, the Court found that they contained enough detail to allow the jury to assess their worth. [11] While there is no exhaustive list of relevant factors to be considered on the issue of reliability, it is appropriate to take into account the timing of the recipient’s statement to the police (in relation to when the utterances were made by the declarant), whether the recipient was aware of the seriousness of the situation and the consequences of providing false information, the state of mind of the recipient (whether he was under the influence of alcohol or drugs or suffering from a lack of sleep), the relationship between the recipient and the declarant, whether the interview with the recipient consisted of leading questions, any motive the recipient might have to make up the utterances attributed to the declarant and the existence of any confirmatory or contradictory evidence ( [R. v. Chretien, 2014 ONCA 403](https://www.canlii.org/en/on/onca/doc/2014/2014onca403/2014onca403.html), [2014] O.J. No. 2351 (C.A.) at paragraph 59). [12] It is also appropriate to consider whether the deceased had any obvious motive to lie to the recipient. The absence of a motive to lie is only one factor to consider in determining the threshold reliability of a hearsay statement ( *Blackman, supra*, at paragraph 42 and [R. v. Polimac, 2010 ONCA 346](https://www.canlii.org/en/on/onca/doc/2010/2010onca346/2010onca346.html), [2010] O.J. No. 1983 (C.A.) at paragraph 80). [13] The utterances made by the deceased to Mr. Eyup can be placed into two categories. First, Mr. Sadiq told Mr. Eyup that he had a verbal confrontation with the accused that caused him to tell Mr. Odesho to leave the café. Mr. Eyup has used different terms to describe exactly what Mr. Sadiq said about this incident. Sometimes he used the phrase “took him out”, and on other occasions he said Mr. Sadiq “kicked” Mr. Odesho out. This may be viewed as an inconsistency in Mr. Eyup’s recollection of the conversation. In addition, there is no evidence that Mr. Odesho was physically ejected from the café as might be expected if Mr. Sadiq took him out. This is a potential weakness in the evidence. However, Mr. Eyup has been consistent in all of his statements about being told of a dispute between the two men that resulted in Mr. Sadiq telling Mr. Odesho that he was no longer welcome in the café. [14] In relation to Mr. Sadiq’s utterances on this point, several factors support the reliability of the statements reported by Mr. Eyup. There is no evidence that the deceased had any pre-existing animus towards Mr. Odesho. There is no reason for him to have concocted a story about events earlier in the morning to tell Mr. Eyup. To the contrary, since they were business partners, there was every reason for Mr. Sadiq to be truthful and accurate when speaking to Mr. Eyup. The defence points out that the primary purpose of the café seemed to be illegal gambling rather than the sale of food and beverages. The defence submits that the fact that this was not a typical, lawful business, detracts from the weight that can be placed on the relationship between the deceased and Mr. Eyup. However, regardless of the legality of their business, the men had a common interest in making sure that there was no unwanted trouble in their café. [15] Further, there is no evidence that Mr. Eyup had any reason to falsely implicate the accused in the shooting, or to make up utterances by Mr. Sadiq in an attempt to bolster his identification of Mr. Odesho as the shooter. [16] The conversation between Mr. Eyup and Mr. Odesho occurred moments before the shooting. Mr. Eyup told the police about it in the two statements he made at the hospital within hours of the incident, while the events were still fresh in his mind. His statements were audio recorded so the words he attributed to Mr. Sadiq are accurately recorded. If there are inconsistencies in what he told the police about his conversation with the deceased, he can be cross-examined on those differences. [17] There is no evidence that either the deceased or Mr. Eyup were under the influence of alcohol or drugs such as to affect the reliability of the statement. Given the fact that the shooting occurred immediately after the conversation, it would have been significant to Mr. Eyup and something that he would be expected to remember. [18] In addition, there is some extrinsic evidence that supports the reliability of this aspect of the statements attributed to Mr. Sadiq by Mr. Eyup. Several witnesses saw Mr. Odesho at Baggio’s on June 6, 2014 before the shooting. This confirms that Mr. Sadiq had the opportunity to speak with him earlier in the day. [19] The second component of the deceased’s utterances to Mr. Eyup during the conversation in the kitchen is far more problematic. It concerns the reason that Mr. Sadiq banned Mr. Odesho from the café. For reasons that are not at all clear, the deceased apparently believed that the accused had brought a gun with him to the café at some point. In his various statements, Mr. Eyup has given differing accounts of what Mr. Sadiq told him about the accused having a gun. [20] It is important to note that Mr. Eyup has no personal knowledge of Mr. Odesho being in possession of a gun. He has never seen him with one. His sole basis for believing that Mr. Odesho may have had a gun at some earlier time, is his conversation with the deceased in the kitchen immediately before prior to the shooting. [21] The police did attend at Baggio’s Café a week before the shooting, on May 30, 2014, in response to an anonymous call. According to the police report, the caller advised that there were “a lot of people with guns in the back parking lot gambling”. There is nothing in the police report to suggest that the caller provided the name of any particular person who had a gun at Baggio’s. Mr. Odesho’s name does not appear anywhere in the report. When the police arrived, they did not find anyone in the rear parking lot. They located four men standing near the front entrance to the café. These men were patted down and no weapons were found. [22] The police then entered the café and found five more men in a back room playing video games. No weapons were located on these men or anywhere in the café. All of the people the police dealt with are identified in the report. Mr. Odesho was not one of them. A witness places him at Baggio’s earlier that evening, but no one claims to have seen Mr. Odesho with a firearm that night or on any other occasion. [23] Mr. Eyup has given various accounts of what exactly Mr. Sadiq told him about Mr. Odesho having a gun. The only conversation the two men had about this issue was in the kitchen immediately prior to the shooting. They were not able to finish their discussion because the shooter walked in and interrupted them. It may be that Mr. Sadiq did not have time to provide Mr. Eyup with a full explanation of the basis for his understanding that Mr. Odesho had a gun. However, the fact that the information relayed by Mr. Eyup on this critical issue is lacking in clarity is a significant concern. [24] Specifically, Mr. Eyup has provided the following accounts of what Mr. Sadiq told him about Mr. Odesho having a gun: (a) In the first statement he gave at the hospital, Mr. Eyup said that according to the deceased, Mr. Odesho had been at the café with a gun the week prior to the shooting, on the day the police came. As a result, Mr. Sadiq told Mr. Odesho not to come to the café because his presence causes the police to come. (b) In his second hospital statement, Mr. Eyup initially said that Mr. Sadiq told him that “sometime he come he have gun”. Further on, he advised that the deceased said that he did not see Mr. Odesho with a gun. Rather, Mr. Sadiq based his belief that the accused had a gun on the fact that the police came to the café to check for Mr. Odesho. This is not supported by the police report. The anonymous caller did not give the police the name of any specific person who allegedly had a gun at Baggio’s. (c) At the preliminary hearing, Mr. Eyup testified in examination in chief that Mr. Sadiq told him that Mr. Odesho came to the café with a gun. He did not specify whether it was that morning, on the day the police came or on some other occasion. Later in his examination in chief, Mr. Eyup said that Mr. Sadiq told him that “sometime he bring the gun”. In cross-examination, Mr. Eyup admitted that he did not have any idea what the basis of Mr. Sadiq’s belief that Mr. Odesho had a gun was. Mr. Sadiq never said that he saw the accused with a gun. [25] It is impossible to know from Mr. Eyup’s recitation of his conversation with the deceased when it was that Mr. Odesho allegedly had a gun in the café. More troubling, the basis for Mr. Sadiq’s belief is unknown. Mr. Sadiq never claimed to have seen a gun himself. If he believed the accused had a gun because the police attended at the café on May 30, 2014, this is problematic because there is no evidence that the call was related to Mr. Odesho specifically. [26] The defence submits that the vagueness surrounding Mr. Sadiq’s utterances that Mr. Odesho had a gun prevents the Crown from establishing the requisite threshold reliability. The Crown’s position is that any weaknesses in the evidence are related to the ultimate reliability of the evidence and should be left for the jury to assess. [27] The defence further submits that the prejudicial effect of the evidence significantly outweighs its very limited probative value. The Crown asserts that the evidence is highly relevant to several issues at trial, namely identity, intent to kill and planning and deliberation. [28] It is well established that evidence of motive is circumstantial evidence that may help to establish the identity of the killer, his state of mind and whether there was planning and deliberation ( [R. v. Candir, 2009 ONCA 915](https://www.canlii.org/en/on/onca/doc/2009/2009onca915/2009onca915.html), [2009] O.J. No. 5485 (C.A.) at paragraph 74, [R. v. Moo, 2009 ONCA 645](https://www.canlii.org/en/on/onca/doc/2009/2009onca645/2009onca645.html), [2009] O.J. No. 3706 (C.A.) at paragraph 106 and [R. v. Griffin, 2009 SCC 28](https://www.canlii.org/en/ca/scc/doc/2009/2009scc28/2009scc28.html), [2009] S.C.J. No. 28 at paragraph 63). Evidence that the accused had a motive to kill the deceased may also be relevant to rebut a defence that a third party committed the act ( *Carroll, supra*, at paragraph 109). [29] The fact that the deceased and the accused had a verbal confrontation that resulted in Mr. Sadiq banning Mr. Odesho from the café hours before the shooting is clearly relevant to motive, intent and planning and deliberation. The evidence on this point will not be complicated or lengthy. Mr. Eyup will be testifying in any event about the incident, so very little time will be added to the trial by permitting him to give this evidence. There is no reason to believe that the jury will be overwhelmed or misled by this portion of his conversation with the deceased. As a result, the probative value of the hearsay evidence relating to the fact that the deceased and the accused had a disagreement that resulted in Mr. Odesho being asked to leave the café, greatly exceeds any prejudice that it may cause to the trial process. [30] I come to a different conclusion with respect to the reason for the dispute between the two men. While the fact of a disagreement is highly relevant to several issues at trial, the reason for it is not. What matters is the fact that there was animus between Mr. Odesho and Mr. Sadiq. While in some cases the reason for the dispute may be admissible to provide context, in this case evidence that the deceased believed that the accused had previously brought a gun to the café is highly prejudicial. [31] I recognize that evidence of prior discreditable conduct, while presumptively inadmissible, can be admitted if it is otherwise relevant to an issue at trial ( [R. v. Johnstone, 2014 ONCA 474](https://www.canlii.org/en/on/onca/doc/2014/2014onca474/2014onca474.html) at paragraph 22). However, in order for it to be permitted its probative value must outweigh its prejudicial effect. While simple possession of a gun is not nearly as serious as the allegation that Mr. Odesho shot two men, there is a risk that the jury would use it to improperly infer that the accused is more likely to be guilty of murder because he carried a gun. This danger could potentially be addressed through a very strong limiting instruction. [32] The greater concern in relation to this aspect of the hearsay utterances is the complete lack of evidence about the basis for Mr. Sadiq’s belief that the accused had a gun. If that belief was based on the police attendance at the café on May 30, 2014, it was erroneous. The anonymous call was not related to Mr. Odesho specifically and he was not even present when the police attended. If Mr. Sadiq received information from someone else that Mr. Odesho had a gun, this is equally concerning. What is clear from the evidence of Mr. Eyup, is that at no time in their conversation did Mr. Sadiq ever claim to have personally seen Mr. Odesho in possession of a gun prior to the shooting. The probative value of his belief that the accused had previously brought a gun to the café is therefore negligible. [33] While Mr. Sadiq’s belief may have been genuinely held and may have led to him asking Mr. Odesho to leave the café, evidence on such a critical issue - that is based on an unknown source of information, is simply too prejudicial to be admissible. The probative value of this portion of the conversation between Mr. Sadiq and Mr. Eyup does not exceed its prejudicial effect. As a result, I am exercising my residual discretion to exclude it. [34] For the foregoing reasons, I am satisfied that the utterances made by the deceased to Mr. Eyup about the fact that he had a dispute with the accused, that resulted in him banning Mr. Odesho from the café, are sufficiently reliable to be admissible pursuant to the principled exception to the hearsay rule. The second aspect of their conversation concerning the reason for the disagreement is not admissible. Justice L. Bird Released: July 15, 2016 NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.