Court File and Parties

COURT FILE NO.: 08-11565 DATE: 2016-08-30 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant

James Cavanagh, Jason Neubauer, and Louise Tansey, for the Crown/Applicant

• and -

NAWAF AL-ENZI Respondent

Alan D. Gold and Etai Hilzenrat, for the Respondent

HEARD: March 21, 22, 23 and June 22, 2016, at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

REASONS ON APPLICATION TO ADMIT HEARSAY STATEMENTS

[1] On July 31, 2014 the Ontario Court of Appeal ordered a new trial for Nawaf Al-Enzi (“the Respondent”) from his conviction on September 26, 2010 of first degree murder after a trial before a jury. The Crown’s application for leave to appeal to the Supreme Court of Canada was dismissed on December 11, 2014.

[2] The Respondent stands charged with committing the murder of Mohammed Zalal (“Zalal”) on the night of August 18 or the early hours of August 19, 2006. On August 19, 2006, Zalal’s body was found on the outskirts of the City of Ottawa. The cause of death was a single gunshot wound to the head. A lengthy homicide investigation lasting nearly two years culminated in June 2008 when the Respondent and two others, Mahmoud Kayem (“Kayem”) and Ali Abdul-Hussein (“Abdul-Hussein”) were charged with the first degree murder of Zalal.

[3] The Crown seeks to introduce hearsay statements of Zalal made to two witnesses, Elissa Smith Banks and Omar Ahmed (“Ahmed”). Ahmed may not be available to testify at trial because he was deported to Somalia shortly after giving evidence in the first trial in 2010. Therefore, the Crown seeks to introduce not only Zalal’s hearsay statements made to Ahmed, but also Ahmed’s testimony by way of transcript evidence, regarding Ahmed’s involvement in the events leading up to and on the day of Zalal’s murder.

[4] The hearsay statements of Zalal as it pertains to the prosecution witness, Elissa Smith Banks, is not contested by the Respondent provided that it is limited to a recitation of those statements and does not include speculation or opinion. Counsel for the Respondent expressed concern that in the Respondent’s first trial, the evidence of Ms. Smith Banks as it pertained to hearsay utterances of Zalal, included speculation and opinion and should not have been admitted.

[5] Because the Respondent is not contesting the hearsay statements made by Zalal to Elissa Smith Banks, these reasons address only the hearsay evidence of Omar Ahmed.

[6] The Respondent objects to any of Ahmed’s evidence being introduced at trial in Ahmed’s absence. The Crown is seeking to produce the transcripts of Ahmed’s testimony in the preliminary hearing of Kayem and Ahmed’s evidence from the joint trial of Kayem and the Respondent.

[7] The Crown’s application to introduce the hearsay utterances of Zalal and Ahmed’s transcript testimony, should Ahmed not be present at trial, was heard on March 21, 22 and 23, 2016. Prior to my decision on the application, the Crown notified the Court that it would be seeking to re-open its application. The Crown sought to re-open its application regarding Ahmed’s transcript evidence on the following basis: a) To adduce evidence of the efforts made to locate Omar Ahmed between the first hearing in March and June 2016; b) To file a transcript and the audio of an intercepted communication, the contents of which, the Crown submitted, were relevant and material to the application to adduce Omar Ahmed’s evidence; and c) To file an evidence table regarding the evidence of Mr. Ahmed in his preliminary hearing evidence, as compared to his trial evidence.

[8] I granted the Crown’s motion to re-open its application and heard additional evidence and arguments on June 22, 2016.

[9] For the reasons set out below, the Crown’s application to introduce the transcript evidence of Omar Ahmed is denied. Neither the hearsay utterances of Zalal to Ahmed nor the remaining testimony of Ahmed from prior proceedings may be introduced at trial in Ahmed’s absence.

[10] The Crown alleges that the Respondent shot Zalal in the back of the head because of a dispute over a 9 mm handgun belonging to Zalal. The shooting is alleged to have occurred in a motor vehicle in which Kayem, Abdul-Hussein, Zalal and the Respondent were travelling.

[11] Kayem and Abdul-Hussein were also charged with first degree murder. There were two preliminary hearings conducted in 2009. The first preliminary hearing was with respect to Kayem’s culpability, and he was committed to stand trial for first degree murder. The second preliminary hearing was for both the Respondent and Abdul-Hussein. After this second preliminary hearing, Abdul-Hussein pled guilty to being an accessory to murder after the fact and the Respondent was also committed to stand trial for first degree murder.

[12] The Respondent and Kayem were tried together before a judge and jury between April and September 2010. They each blamed the other for Zalal’s murder.

[13] The trial before the jury began on April 29, 2010. On May 18, 2010, prior to the evidence of Omar Ahmed, the Respondent’s lawyer withdrew from the case, leaving the Respondent without counsel. The trial judge adjourned the trial in order to permit the Respondent to retain and instruct new counsel. In spite of approaching more than 100 potential lawyers the Respondent was unable to find someone who was prepared to step into the middle of an ongoing homicide trial. The Respondent then applied to sever his trial from that of Kayem and obtain a new trial with counsel of his choice.

[14] On August 6, 2010 after dismissing the Respondent’s application for a severance, the trial judge appointed amicus curiae, with whom the Respondent had no relationship, over the Respondent’s objections. The trial resumed in September, 2010.

[15] The trial continued until the jury reached its verdict on September 26, 2010. The jury convicted the Respondent and acquitted Kayem. The Respondent appealed his conviction resulting in this re-trial.

[16] In its reasons for granting the Respondent’s appeal, Mr. Justice J. Laskin, writing for the Court of Appeal, found that by failing to receive either a mistrial or a severance, the Respondent was deprived of a fair trial, both in appearance and in reality, that resulted in a miscarriage of justice. R. v. Al Enzi, 2014 ONCA 569, 121 O.R. (3d) 583 at paras 96, 97.

[17] The Court also found that by the time that the Respondent’s lawyer withdrew from the trial, the Crown and Kayem were aligned against the Respondent. The Court said at paragraph 86: […] Al-Enzi was deprived not just of counsel of his choice, but of counsel altogether. He was left unrepresented, facing two well-represented adversaries -- the Crown and Kayem -- who were lined up against him. Forcing him to proceed without a lawyer was unfair and produced a miscarriage of justice.

[18] It was in this setting that Omar Ahmed (“Ahmed”) testified for the prosecution on September 7 and 8, 2010.

Evidence of Omar Ahmed

[19] Ahmed had provided a statement to the police on June 5, 2008, after having been arrested for trafficking a weapon. That weapon was allegedly the one used to kill Zalal. His statement was video recorded. Ultimately, no charge was laid against him.

[20] On April 6, 2009, Ahmed testified at Kayem’s preliminary hearing. The transcripts of this testimony were filed at the Respondent and Abdul-Hussein’s preliminary hearing, which was held after Kayem’s preliminary hearing. Counsel for the Respondent asked that Ahmed be available for cross-examination. That motion was granted. However, when Ahmed appeared at the Respondent’s preliminary hearing to be cross-examined, he refused to answer any questions, claiming he had lost all memory of the relevant events.

[21] Ahmed then testified at the Respondent and Kayem’s joint trial on September 7 and 8, 2010, after the Respondent’s counsel had resigned. Ahmed was cross-examined by Kayem’s counsel. The Respondent was assisted in his cross-examination of Ahmed by amicus. As already indicated, by this time Kayem and the Crown’s positions had aligned and Ahmed’s evidence was prejudicial to the Respondent.

[22] The Crown now seeks to have the transcript of Ahmed’s testimony from Kayem’s preliminary hearing and the transcript of Ahmed’s testimony from the joint trial of Kayem and the Respondent entered into evidence in the re-trial of the Respondent, in lieu of calling Ahmed as a witness under the principled exception to the hearsay rule.

[23] The evidence of Ahmed contains some inconsistencies between the statement he provided to the police, the evidence he gave in Kayem’s preliminary hearing, and at the first trial; however, the substance of his evidence is as follows: a) Ahmed and Zalal were friends and moved in the same criminal gang culture circles. b) In July 2006, Zalal was incarcerated for certain offences and asked Ahmed to watch over his 9 mm handgun. Zalal had left the gun in a “safe house” used by a group of criminal associates for safekeeping by Ahmed until his release from prison. c) The Respondent persuaded Ahmed to lend him Zalal’s gun, which he did with Zalal’s limited permission. The Respondent then refused to return the gun to Ahmed. There is conflicting evidence from Ahmed’s testimony about how the Respondent came to be in possession of the gun. d) Zalal assured Ahmed that he should not worry about the Respondent’s refusal to return the gun; that he would look after the issue after his release from prison. e) On August 18, 2006, Zalal was released from prison. He and Ahmed made plans to attend the Exhibition at Lansdowne Park that evening. f) Ahmed did not connect with Zalal at Lansdowne Park, however sometime after 10 p.m., Zalal called Ahmed and told him he was going to get his “baby” back. Ahmed understood “baby” to mean the 9 mm gun. g) During that call, Zalal told Ahmed he was in a car being driven by a driver called “Mo” or “Moo” and Zalal sounded happy and relaxed. h) Ahmed and Zalal agreed to meet up later that evening and when Zalal did not show up, Ahmed went to Zalal’s apartment to look for him, but he was not there.

[24] Much of Ahmed’s evidence is expected to be corroborated in some fashion by other Crown witnesses.

Omar Ahmed’s Absence and Attempts to Locate Him

[25] In September 2010 when he gave his evidence, Ahmed was in custody as a result of immigration issues. The Government of Canada had commenced proceedings to have Ahmed deported to his birth country, Somalia, because of his criminal record.

[26] The investigating officer, Sergeant Hudson, co-ordinated Ahmed’s court appearances in the Respondent’s first trial with Ahmed’s immigration appearances to ensure they did not conflict. Deportation orders were signed on April 13 and September 8, 2010. Ahmed was deported from Canada to Somalia on December 7, 2010.

[27] The Respondent filed his Notice of Appeal of the conviction in October 2010, prior to Ahmed’s deportation. The Appeal was allowed on July 31, 2014 and the Crown’s application for leave to appeal the Ontario Court of Appeal’s decision declaring a mistrial was dismissed by the Supreme Court of Canada on December 11, 2014.

[28] In the June 3, 2015 pre-trial, the first held for the new trial, counsel for the Respondent informed the Crown that they would be objecting to admission of Ahmed’s prior testimony and sought disclosure of all attempts to locate Ahmed. That disclosure was made on March 7, 9 and 14, 2016 and additional disclosure was provided on June 10, 2016 and remains ongoing.

[29] On March 21, Sergeant Hudson testified about the attempts that had been made to locate Ahmed up to March 14, 2016 as follows: a) During the first trial, Sergeant Hudson spoke with Ahmed about his circumstances. Ahmed informed Sergeant Hudson that he was not going to be contesting his deportation, notwithstanding that he had been very young when he first came to Canada. Ahmed told Sergeant Hudson that his father was in Canada, but not in Ottawa. b) Between the deportation in December 2010 and January 2016, no actual steps were taken to attempt to locate Ahmed. There had been some information passed to the police about him, but not about his whereabouts or a means of locating him. c) On January 19, 2016 Sergeant Hudson received confirmation from CBSA that Ahmed had been deported in December 2010 and that Ahmed’s brother had also been deported on January 17, 2012, and that neither had returned to Canada since their respective deportations. Addresses of Ahmed’s father in Fort McMurray, Alberta and Ahmed’s aunt in Ottawa were provided to Sergeant Hudson at that same time. d) There were some unconfirmed rumours that Ahmed might be deceased. e) In February 2016 Sergeant Hudson spoke with a number of individuals who had contact with Ahmed prior to and during his deportation in 2010, however, none of those individuals had any information about Ahmed’s present whereabouts. f) At some point after February 22, 2016 contact was made with Ahmed’s aunt in Ottawa. She informed the officer with whom she spoke that she had not had contact with Ahmed since his deportation and that Ahmed’s father was presently out of the country. g) In mid-March 2016, Sergeant Hudson sought assistance from Interpol and other police liaison officers for areas neighbouring Somalia to locate Ahmed; there being no liaison officer in Canada that covers Somalia.

[30] After granting the Crown’s motion to re-open its application, Sergeant Hudson again testified on June 22, 2016 and set out the ongoing attempts to locate Ahmed as follows: a) In late March, 2016, a Somali officer with the Ottawa Police Service, Constable Elmi, utilized his contacts in Somalia to attempt to locate and make contact with Ahmed, his brother, his father, his aunt or anyone from Ahmed’s village in Somalia who might provide some information. b) On March 26, 2016, Constable Elmi received information that Ahmed was no longer in Somalia. The information he received indicated that Ahmed had attempted to migrate, probably by boat, to Europe in search of a better life. c) Between April, 2016 and early June, 2016, attempts were made to contact other family members of Ahmed, to no avail. d) Attempts in June to locate Ahmed’s aunt, who was believed to reside in Ottawa, were finally successful on June 21, 2016. She told the officers that she had no contact information for Ahmed’s father, who was believed to be living in Fort McMurray. e) On June 21, 2016 Sergeant Hudson received a CPIC message from RCMP Wood Buffalo (near Fort McMurray, Alberta) with an address and two cell phone numbers that were identified as belonging to Ahmed’s father, as well as a prior address. The addresses were both in Fort McMurray. f) Notwithstanding the forest fire and evacuation that had occurred in Fort McMurray in the late spring and early summer 2016, it was confirmed that the addresses identified as Ahmed’s father’s were in the areas of Fort McMurray that had not been affected by the forest fire. RCMP officers attended those addresses and found that Ahmed’s father was not residing at either address. No-one matching his description had resided there in the recent past. g) The cell phone numbers were checked and belonged to individuals not connected to Ahmed’s father. h) Throughout this period to June 2016, all attempts to locate Ahmed through CPIC, OPS RMS, Ontario Works, Google, Social Media were unsuccessful and no other leads were identified.

[31] The Crown noted that there will be continued efforts to locate Ahmed prior to the commencement of trial and if he is located, to attempt to make arrangements for his testimony in person.

Analysis

[32] The Crown seeks to introduce the transcripts of Ahmed’s testimony under the principled exception to the rule against admitting hearsay evidence. In support of their position, they referred to the Supreme Court of Canada case of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, in which the Supreme Court of Canada affirmed that while hearsay evidence is presumptively inadmissible, there are circumstances where it may be admissible if the party tendering the evidence establishes that the evidence meets the requirements of necessity and reliability. The Court states at para 2, p. 793 […] When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the "threshold reliability" of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

[33] The Court in Khelawon made the following comment about the test of threshold reliability for hearsay evidence in this inquiry at para 3 and 4, p. 794: […] In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value. […] all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.

[34] Since Khelawon, courts have interpreted these passages as highlighting the presumptive inadmissibility of hearsay evidence in the application of the principled exception to its inclusion because of the evidentiary dangers. Hearsay evidence under the principled exception will not meet the test of threshold reliability unless it has been made under circumstances that “substantially negate the possibility that the declarant was untruthful or mistaken.” (R. v. Stevenson, [2009] O.J. No. 6421, at paras 27 and 28).

[35] The Defence objects to the admission of the evidence of Ahmed on the basis of both necessity and reliability. The Defence also argued that should I determine that the hearsay evidence sought to be tendered is both necessary and reliable, that I as the trial judge, I should exercise my discretion to exclude the evidence because its prejudicial effect is out of proportion to its probative value.

Necessity, Reliability and Discretion to Exclude Evidence

The Crown’s Position

[36] The Crown contended that the introduction of this hearsay evidence is relevant to demonstrate the relationship between the Respondent and Zalal together with the criminal activity in which they were involved. In addition, the hearsay evidence is relevant to the storage by Ahmed and use by the Respondent of Zalal’s 9 mm handgun that was allegedly used by the Respondent in the commission of the offence.

[37] The whereabouts of Ahmed are currently unknown. The police have been pursuing leads in an attempt to locate him since February 2016. Unfortunately, because he was deported to Somalia, a country in which Canada has no diplomatic relations and a country in which it is dangerous to travel, I find that the test for necessity to admit his evidence through transcripts has been met should he not be located prior to trial. The issue of necessity would have to be revisited should Ahmed be located and be unwilling or unable to attend the trial.

[38] With respect to reliability, Crown counsel confirmed that the proposed hearsay evidence will be adduced to prove the truth of its contents and acknowledged that by proceeding in this fashion, there will be no opportunity for a contemporaneous cross-examination of Ahmed.

[39] In addressing the requirement to establish threshold reliability, the Crown argued that the circumstances in which Ahmed gave his evidence in the first preliminary hearing that was held for Kayem, and again in Kayem and the Respondent’s joint trial, is sufficient to establish threshold reliability and the circumstantial guarantees of trustworthiness that are required in this inquiry.

[40] The Crown argued that there is sufficient corroborating evidence that will be presented at trial in order to ensure the Respondent will have an opportunity to test the ultimate reliability of the hearsay evidence of Ahmed through cross-examination of those other witnesses.

The Respondent’s Position

[41] The Defence submitted that Ahmed was an unsavoury witness who was deported from Canada due to his multiple criminal convictions. It was their position therefore, that any of the evidence he may have given under oath does little to provide any assurance of reliability.

[42] Defence counsel agreed that based on the Crown’s submissions, there would be some corroborating evidence from other witnesses, however; they pointed to other discrepancies in Ahmed’s evidence from his police statements and from his testimony in Court.

[43] The Defence asked the Court to consider the fact that the only opportunity the Respondent had, through his own counsel, to cross-examine Ahmed was at the Respondent’s preliminary inquiry. In that hearing, Ahmed claimed to have no memory of the events in question and refused to answer any questions notwithstanding the fact that approximately 3.5 months earlier, at Kayem’s preliminary hearing, Ahmed’s memory was seemingly intact. Ahmed’s memory apparently returned when he testified at the joint trial approximately 13 months later, by which time the Respondent no longer had counsel.

[44] The Defence argued that Ahmed’s testimony was never tested through contemporaneous cross-examination by counsel for the Respondent either at the Respondent’s preliminary inquiry or at his trial. When Ahmed was called as a Crown witness, the Respondent no longer had a lawyer, instead was being assisted by amicus appointed by the Court against the Respondent’s wishes.

[45] The Defence suggested the Court be guided by s. 715 of the Criminal Code, R.S.C. 1985, c C-46, where the evidence of a person who testified at a prior trial on the same charge may be admitted in a subsequent trial, if that person is absent from Canada, provided the evidence was taken in the presence of the accused. The only bar to the admissibility of that evidence through s. 715 is if the accused proves that he did not have full opportunity to cross-examine the witness.

[46] The Crown conceded that they could not fit Ahmed’s evidence into the requirements to admit the prior testimony under s. 715 because the Respondent had not had a full opportunity to cross-examine Ahmed. It was for this reason that they sought to adduce the evidence pursuant to the principled exception to the rule against the admission of hearsay evidence.

Conclusion re: Testimony of Omar Ahmed

[47] The Court of Appeal ordered a new trial because the Respondent had not been provided a fair trial and as such, there was a miscarriage of justice. The inability of the Respondent to cross-examine the prosecution witnesses, including Ahmed, resulted in this miscarriage of justice. The reliability of Ahmed’s testimony is therefore questionable because of the ruling by the Ontario Court of Appeal that the trial was a miscarriage of justice.

[48] I find therefore, that to permit the evidence of Ahmed without requiring his presence would impact on the fairness of this trial. The Court in Khelawon was very clear that trial fairness must permeate the decision on admissibility and inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown.

[49] I accept the Defence position that the test of reliability has not been met. The combination of Ahmed’s criminal background, the inconsistencies in his prior testimony and statements from Kayem’s preliminary hearing, his police statements and Kayem and the Respondent’s joint trial, coupled with his refusal to answer questions or to recall anything at the Respondent’s preliminary hearing, do not satisfy the necessary threshold reliability for admission of his transcript evidence.

[50] Because threshold reliability is not established, the twin criteria of necessity and reliability, as per Khelawon, are not met and the principled exception to hearsay cannot be applied here.

[51] I do not accept therefore, that the transcript evidence would “substantially negate the possibility that the declarant was untruthful or mistaken”. (R. v. Stevenson, at paras 27 and 28).

Residual Discretion

[52] Even if I am incorrect and the Crown has established both necessity and reliability, I find that the hearsay evidence of Ahmed must be excluded to protect the Respondent’s constitutional right to a fair trial.

[53] To permit transcripts from the Respondent’s first trial that gave rise to a miscarriage of justice and to allow transcripts from the preliminary hearing of a different accused when the Respondent had no opportunity to cross-examine the witness, would result in repeating a similar miscarriage of justice as that which occurred in the Respondent’s first trial.

Madam Justice B. R. Warkentin Released: August 30, 2016