Citation: R. v. Ibrahem, 2016 ONSC 6675
COURT FILE NO.: 13735/14
DATE: 2016-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FERAIDON IBRAHEM Defendant
Counsel:
B. Green & N. Trbojevic, for the Crown
F. Davouti & S. Caramanna, for the Defendant
HEARD: October 21, 2016
Before: Justice B.A. Glass
Motion by Defence for the Crown to Produce the Complete Police Statement to the Jury as Evidence
[1] The lead police investigator is Detective Leipsig. He testified at the trial and was cross-examined by Mr. Davoudi and in doing so, counsel asked about the deceased stabbing a bicycle. Nasira Fazli was alleged to have punctured the tires of the bicycle with scissors.
[2] In re-examination, Ms. Green asked the officer whether or not there had been any admission about the stabbing of the bicycle. There have been several admissions but this was not one of them.
[3] Then, Ms. Green asked: “In the Crown’s case, other than the note, is there any other source of information other than Mr. Ibrahem?”
[4] The answer was: “No, there isn’t.”
[5] The Defence position is that this question and answer are sufficient to leave the jury with the understanding that the Defendant had provided a statement to the police. Bringing up this information is prejudicial to Mr. Ibrahem. In effect, the Crown is selectively choosing evidence and parsing up its evidence improperly as it presents the evidence to the jury.
[6] The Crown through Mr. Trbojevic submits that the defence position is without foundation. No reference to any statement to the police by Mr. Ibrahem was made. The admissions have been presented as the Crown advanced through its evidence. There was no inference that the Defendant spoke with the police. To adopt the position of the Defence would amount to taking a leap of interpretation without a basis for doing so. Further, when the re-examination of Detective Leipsig was conducted, the proper course of action of the Defence would have been to address the issue then rather than waiting for many days before bringing this application. Waiting until the Crown closes its case is the wrong time to do so.
[7] I am not persuaded by Mr. Davoudi that the answer and the question lead jurors to conclude that Mr. Ibrahem spoke with the police. There is no selective presentation of evidence nor is the Crown splitting its case. The Defendant was arrested with a note in his shirt pocket and that note contains reference to Nasira Fazli stabbing the bicycle. That evidence was presented to the jury during the presentation of the Crown’s evidence.
[8] There is no surprise evidence here. There is no wording that suggests that Mr. Ibrahem provided a statement to the police.
[9] The Defence has waited in the bushes in effect to spring the application upon the Crown. If the matter had been brought to the court’s attention at the time of it arising or while the Crown had its case open, it might have affected how the Crown would handle the completion of its evidence.
[10] This is not trial by ambush. If a party chooses to hold off with an application, the party might find themselves boxed in with timing in that the Crown had closed its case. Further, and most importantly, the words used by Ms. Green in re-examination do not infer any statement being given to the police. Nor do the words specifically speak to a statement as submitted by Mr. Davoudi.
[11] Cases were presented by Mr. Davoudi with submissions that if the Crown presents part of a statement, it must present all of it. The Crown cannot selectively edit statements of accused person. Such points of view are correct for those cases in which there is a reference to statements and editorial presentation of them. This case is not one of them.
[12] There is no foundation for the Defence position.
[13] The application is dismissed.
Note: These reasons in writing are the official reasons for decision at this application of Mr. Ibrahem and take precedence over oral reasons read into the record in court today.
Justice B.A. Glass
Released: October 26, 2016