CITATION: R. v. Al-Enzi, 2016 ONSC 6911
COURT FILE NO.: 08-11565
DATE: 2016-11-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
James Cavanagh and Jason Neubauer, for the Crown/Applicant
Applicant
- and -
NAWAF AL-ENZI
Alan D. Gold and Etai Hilzenrat, for the Respondent
Respondent
HEARD: September 21, 22, 23, 26, 27, 28 and 29, 2016, at Ottawa, Ontario
MADAM JUSTICE B. R. WARKENTIN
REASONS ON APPLICATION TO ADMIT HEARSAY STATEMENTS OF MAHMOUD KAYEM
[1] This trial was scheduled to commence immediately after jury selection on September 19 and 20, 2016. The Crown had subpoenaed the witnesses for the prosecution to appear on September 19, 2016. Two of the Crown’s witnesses, Ali Abdul-Hussein and Mahmoud Kayem, did not appear on September 19 as required. These two individuals are alleged to have been witness to the homicide of Mohamed Zalal.
[2] The Crown knew in advance that it was unlikely that Ali Abdul-Hussein would appear for the trial because Canada Boarder Services Agency had informed the police and Crown that in early August 2016, after Mr. Abdul-Hussein had been served with a subpoena to appear in court, he had left the country.
[3] The Crown did not anticipate that their other witness, Mahmoud Kayem would not appear as required. The evidence was that Mr. Kayem had through his lawyers, informed the Crown that he would be attending the trial as required by his subpoena.
[4] The Crown has brought two applications, one seeking to introduce hearsay evidence of Mr. Kayem by way of his statement to police in June 2008 under the principled approach to the admissibility of hearsay. The second application seeks to introduce Mr. Abdul-Hussein’s statement to police in August 2009 together with the evidence he gave in the first trial and a subsequent bail hearing pursuant to s. 715 of the Criminal Code and under the principled approach to the admissibility of hearsay.
[5] The Crown sought rulings on these applications prior to making their opening statement to the jury. On October 11, 2016 I informed counsel that the Crown’s applications had been denied and that written reasons would follow.
[6] These reasons address the application to introduce hearsay evidence of Mr. Kayem.
[7] Because the Crown is unable to locate Mr. Kayem or to guarantee his appearance in court, it was undisputed that the necessity criterion of the admissibility of his hearsay evidence is met. The issue for this court is whether or not threshold reliability has been met and if it has, whether or not the probative value of admitting the statement is outweighed by the prejudicial effect.
Background
[8] Mohamed Zalal was shot in the back of the head on the night of August 18 or the early morning of August 19, 2006. He was known to police as a member of the Ledbury Banff Crips street gang and had just been released from a short prison term the morning of August 18, 2006.
[9] For close to two years, the Guns and Gangs unit of the Ottawa Police Service pursued a variety of leads, culminating in the arrest of three individuals, Mahmoud Kayem, Ali Abdul-Hussein and the Respondent, who were all charged with first degree murder. The charges were laid in June 2008 at the time of their arrest.
[10] All three of these individuals were interviewed by and provided statements to police at various times between August 19, 2006 and August 31, 2009. Mr. Kayem and Mr. Abdul-Hussein, after initially denying any involvement in the homicide, eventually provided statements to the police that placed them in the car where they claimed Mr. Zalal had been shot and claimed that it was the Respondent, Mr. Al Enzi, who shot Mr. Zalal. The Respondent in his statements to police denied any involvement in the shooting.
[11] There were two preliminary hearings conducted in 2009 before Justice J. Nadalle in the Ontario Court of Justice. Mr. Kayem’s preliminary hearing was first and he was committed to stand trial for first degree murder. The second preliminary hearing was for both Mr. Abdul-Hussein and the Respondent. At the conclusion of that preliminary hearing and prior to Justice Nadalle’s determination, Mr. Abdul-Hussein negotiated a plea to being an accessory after the fact that was a joint recommendation by the Crown and Defence. As part of the negotiation for the plea, Mr. Abdul-Hussein provided a sworn statement to the police about the events surrounding the death of Mr. Zalal and agreed to testify at the trial of the Respondent and Mr. Kayem. The Respondent was committed to stand trial for first degree murder.
[12] Mr. Kayem and the Respondent were tried jointly in 2010. The Crown’s theory in that trial was that Mr. Zalal was killed as part of a joint enterprise. The Crown invited the jury to convict both Mr. Kayem and the Respondent of first degree murder, arguing that they had planned the murder together. The Crown alleged that Mr. Kayem was the driver of the car and the Respondent was the shooter.
[13] During the first trial, the Crown did not play the June 4, 2008 video statement of Mr. Kayem in which he claimed to be the driver of the car in which Mr. Zalal was shot by the Respondent. The trial judge refused an application by Mr. Kayem’s lawyers to permit them to play the video statement when they cross-examined Mr. Abdul-Hussein, on the grounds that it would be too prejudicial to the Respondent. It is this statement the Crown now seeks to introduce in the second trial of the Respondent.
[14] Neither Mr. Kayem nor the Respondent testified in that trial or in any other proceeding in advance of the trial.
[15] At the conclusion of that trial, Mr. Kayem was acquitted of first degree murder and the Respondent was convicted of first degree murder. The Respondent appealed his conviction and the Court of Appeal ordered a new trial.
[16] On appeal, the Court of Appeal found that there had been a miscarriage of justice in the manner in which the trial against the Respondent had occurred. In brief, the Respondent’s lawyer was forced to resign part way through the trial and the trial judge refused the Respondent’s request for either a mistrial or for a severance. The Respondent was forced to proceed with court appointed amicus against the Respondent’s strenuous objections. The Court of Appeal also found that by the time the Respondent’s counsel resigned; the Crown and Mr. Kayem were aligned against the Respondent.
[17] The Crown now seeks to introduce in this re-trial, the statement made by Mr. Kayem to the police on June 4, 2008 for the truth of its contents, under the principled exception to the rule against the admission of hearsay evidence.
Evidence of Mahmoud Kayem
[18] Mr. Kayem was first interviewed by the police on April 26, 2007. In that interview he denied any involvement in or knowledge of the circumstances surrounding the death of Mr. Zalal. A few weeks after that interview, Mr. Kayem left Canada for Dubai where he remained until late April 2008 when he returned to Canada.
[19] Mr. Kayem was arrested on June 4, 2008 and told that he was being charged with the first degree murder of Mr. Zalal. He was then interviewed after having been cautioned and provided an opportunity to speak to his lawyer. The interview was video and audio taped. The interview lasted close to four hours during which Mr. Kayem was encouraged to tell the officer who conducted the interview, a Detective Jim Smyth, his version of the events that occurred on the night Mr. Zalal was shot.
[20] For the first approximately two hours of the interview, Mr. Kayem refused to acknowledge that he was present when Mr. Zalal was shot or to accept any responsibility. During that part of the interview, Detective Smyth offered Mr. Kayem pieces of information from the police investigation that demonstrated Mr. Kayem’s version of his involvement was not true.
[21] Detective Smyth informed Mr. Kayem that his DNA had been located at the scene where Mr. Zalal’s body was found and that his and others’ phones had been wiretapped. Detective Smyth suggested to Mr. Kayem that the police knew he was not the one who shot Mr. Zalal and that it would be better for him if he told the truth about what had occurred the night of the shooting.
[22] Detective Smyth told Mr. Kayem that he knew that Mr. Kayem did not instigate the shooting, but that Mr. Kayem was “caught up in a situation that got way out of hand”. Detective Smyth also told Mr. Kayem that because his DNA evidence was recovered at the scene where the body was found, it gave the Respondent the ability to accuse Mr. Kayem of the shooting.
[23] After almost 2 hours, considerable hesitation and a clear unwillingness to provide any information, Mr. Kayem eventually told the police that he had been the driver of the car in which Mr. Zalal had been shot. He claimed to have had no knowledge that Mr. Zalal was in any danger and he alleged that the shooter was the Respondent.
[24] Mr. Kayem described the events he alleged occurred the night Mr. Zalal was shot as follows:
a) He and Mr. Abdul-Hussein were driving around together on the afternoon/evening of August 18, 2006. The Respondent called him on his cell phone and told him to pick Mr. Zalal up near Lansdowne Park on Bank Street in Ottawa.
b) Mr. Kayem and the Respondent communicated by cell phone on a few occasions that evening. Once he picked Mr. Zalal up, he then drove to the Respondent’s residence and picked up the Respondent.
c) Mr. Kayem was the driver with Mr. Zalal in the front seat passenger. Mr. Abdul-Hussein was seated behind Mr. Kayem and the Respondent was seated behind Mr. Zalal.
d) The Respondent directed him to drive on the highway; that they were going to get something the Respondent had to pick up. While driving they were listening to music that was playing loudly on the radio.
e) Mr. Kayem claimed to be a bit tipsy and high that evening.
f) As they passed the Boundary Exit on Highway 417, Mr. Kayem heard a sound and saw a flash. He then noticed Mr. Zalal bleeding and realized what had happened.
g) He observed Mr. Zalal reach up to his head and utter a sigh.
h) Mr. Kayem was shocked and freaking out, particularly when Mr. Zalal’s body started leaning onto him. When that happened, the Respondent pulled Mr. Zalal upright by the brim of his baseball cap that Mr. Zalal was wearing backwards.
i) The Respondent told him to continue driving and directed him to turn at the Vars exit and directed him where to stop. They stopped on a gravel road that turned out to be a long driveway.
j) Mr. Kayem described the Respondent, whom he claimed was wearing a leather jacket and gloves, pulling the body of Mr. Zalal out of the car and throwing him on the side of the road after which they drove away.
k) From there, they returned to the Respondent’s family home where the Respondent changed his clothes and proceeded to burn the clothes he had been wearing in the parking lot near his apartment.
l) After this the three of them went to the home where the Respondent lived with his wife and the Respondent proceeded to eat a meal of eggs. Mr. Kayem found this conduct very disturbing.
m) Mr. Kayem claimed that he did not really know Mr. Zalal, although they had met a couple of times. He also claimed that he and the Respondent were not close and did not know each other well.
n) Mr. Kayem and the Respondent spent a considerable amount of time together over the next few days or weeks. Mr. Kayem claimed this was because the Respondent wanted to keep tabs on him.
o) Mr. Kayem claimed that he kept the car where the shooting happened for close to a year; however, at the Respondent’s suggestion he had removed the interior carpet and tried to remove the seats and the dash. In the end he arranged to have the car towed and crushed. He claimed he could not recall who towed the car or where it was sent for crushing.
Corroborating Evidence as Submitted by the Crown
[25] Crown counsel provided the court with a chart that was made Exhibit Z on the voir dire. This chart set out a summary of the statement by Mr. Kayem with a summary of the other evidence the Crown contended corroborated that evidence. I will summarize some of that evidence here.
[26] During the period that Mr. Kayem was out of the country (between June 2007 and April 2008), the phones of the Respondent and others connected with the investigation had been wiretapped pursuant to wiretap authorizations. I found that those wiretap authorizations were properly obtained in my reasons dated August 17, 2016. There were a number of calls made by the Respondent to Mr. Kayem that were recorded pursuant to the authorizations.
[27] The evidence from the wiretaps suggests that Mr. Kayem and the Respondent had some connection to the death of Mr. Zalal. Among other things, there is discussion about the importance of saying nothing to police. The conversations include discussions that the police have no evidence against them. In many of the conversations between Mr. Kayem and the Respondent, they discuss the benefits of Mr. Kayem staying in Dubai versus returning to Canada.
[28] In other wiretap conversations between the Respondent and others, including members of his family and his wife, Zeinab Abdul-Hussein (another application is anticipated when she is called to testify regarding possible spousal privilege; this issue has not yet been determined), the Respondent is asking his family members to speak to someone he refers to as “that one” and “Auntie”, whom the police presumed to be Mr. Kayem, to keep him from returning to Canada.
[29] The police had also obtained the cell phone tower call detail records that demonstrated where Mr. Kayem’s and the Respondent’s phones had been used on the night that Mr. Zalal was shot.
[30] The call detail records of Mr. Kayem’s and the Respondent’s phones demonstrate that there were numerous calls made between Mr. Kayem’s phone and the Respondent’s phone from the locations Mr. Kayem told the police he, Mr. Abdul-Hussein and the Respondent had been the evening of August 18 and morning of August 19, 2006.
[31] The records also showed that there were no calls between their respective phones for a period of hours, which is corroborative of the allegation that Mr. Kayem and the Respondent were together during that period.
[32] The call detail records also indicate that the Mr. Kayem used his cell phone in a location that was picked up by the Ramsayville cell phone tower; the cell tower location closest to the area where Mr. Zalal’s body was found.
[33] The Respondent had told the police in late August 2006 that he had been at a bar, Cosmos, in Gatineau on the night Mr. Zalal was shot. There were no cell tower records that demonstrated the Respondent used his cell phone in the vicinity of the bar where he had claimed to be.
[34] That same bar, Cosmos, had had a shooting on the night of August 18, 2006. Video surveillance from the bar of the patrons who left the premises after the shooting did not disclose the presence of the Respondent.
[35] Other significant corroborating evidence was Mr. Kayem’s DNA that was found on a cigarette butt at the scene where the body of Mr. Zalal was found.
[36] The Crown has also claimed that the evidence regarding the angle of the bullet wound as well as the flow of the blood from the entry and exit wounds suggest that Mr. Zalal was shot from behind and that his head was in an upright position (in other words, he was not lying down when shot). The Crown argued that this supports Mr. Kayem’s statement that Mr. Zalal was seated in the front seat of the car when he was shot from behind.
[37] The Crown also sought to introduce the statement of Mr. Abdul-Hussein of August 31, 2009 as corroboration of the statement of Mr. Kayem. Mr. Abdul-Hussein gave that statement to the police after he had been shown Mr. Kayem’s statement of June 4, 2008 and had sat through the preliminary hearing for the Respondent and himself. Mr. Abdul-Hussein then provided the police with a virtually identical statement in exchange for his plea bargain and testimony at the joint trial of Mr. Kayem and the Respondent.
[38] There was additional corroborating evidence including the fact that Mr. Kayem owned a silver Toyota Paseo, which is what Mr. Kayem claimed he was driving on the night of the shooting. A silver Toyota Paseo was observed by a police officer on October 22, 2006 as belonging to Mr. Kayem, in which he described interior damage that was consistent with what Mr. Kayem had described he had done to the vehicle in the weeks after the shooting.
Position of the Crown
[39] The Crown argued that there is sufficient corroborating evidence to establish threshold reliability and as such Mr. Kayem’s statement to police on June 4, 2008 should be admitted for the truth of its contents. It is the Crown’s onus to establish threshold reliability on a balance of probabilities.
[40] The Crown argued that the cumulative effect of the evidence, both direct and circumstantial from the DNA analysis, the forensic evidence of blood pattern that demonstrated that Mr. Zalal was in an upright body position when he was shot that was consistent with being seated, the cell tower phone records, the wiretap evidence and the statement of Mr. Abdul-Hussein are sufficient to establish threshold reliability and as such the statement made by Mr. Kayem on June 4, 2008 should be admitted for the truth of its contents.
[41] The Crown submitted that the demeanor of Mr. Kayem in the June 4, 2008 video statement could be assessed by the trier of fact. It was the Crown’s position that his demeanor demonstrated someone who was open and honest; who used body language when describing the events just before, during and after the shooting in a fashion that lends credibility to his statement and thus increased its’ reliability.
[42] Crown counsel made a strong argument cautioning the court to consider the cumulative effect of the corroborating evidence and against considering individual pieces of corroboration in isolation.
Position of the Defence
[43] The Defence noted that Mr. Kayem’s statement to police on June 4, 2008, was not taken under oath; the statement was provided almost two years after the shooting and occurred after Mr. Kayem had consistently denied any knowledge of or involvement in the shooting of Mr. Zalal.
[44] The Defence argued that the statement does not meet threshold reliability and in the alternative, if threshold reliability is met, the statement should be excluded because the prejudicial effect of the statement outweighs its probative value.
[45] The Defence pointed to Mr. Kayem’s motive to lie after he realized that his DNA was located at the scene where the body of Mr. Zalal had been left and that the police had other evidence that supported the police contention that he had been present when the shooting occurred.
[46] At the commencement of the June 4, 2008 interview, Mr. Kayem was told he was being charged with first degree murder and throughout the interview Mr. Kayem was informed that the police believed he was involved in the events surrounding the shooting, but that they believed someone else had been the shooter.
[47] The Defence submitted that Detective Smyth provided Mr. Kayem with a roadmap to point the finger at the Respondent as the shooter; which Mr. Kayem followed.
[48] The Defence also commented that although Mr. Kayem provided an exculpatory statement regarding his alleged role in the shooting, he was still charged and tried for first degree murder jointly with the Respondent. The Defence then noted that the Crown, in their cross-examination of Mr. Abdul-Hussein (after he was declared a hostile witness) suggested that both he and Mr. Kayem were aware of and assisted the Respondent in luring Mr. Zalal to his eventual death. The In their closing submissions to the jury in the first trial, the Crown invited the jury to make findings that Mr. Kayem was aware of the plan to shoot Mr. Zalal and that any suggestion that he was not aware of the plan should not be believed.
[49] In drawing the Court’s attention to the Crown submissions from the first trial, the Defence argued that the inferences that could be drawn from the evidence collected by the police investigation were not corroboration that supported Mr. Kayem’s statement, but should more correctly be viewed as evidence that cast doubt about who the actual shooter was.
[50] The Defence objected to any consideration of the trial testimony of Mr. Abdul-Hussein as corroboration of the statement of Mr. Kayem because Mr. Abdul-Hussein gave a statement to the police after having heard and seen the statement of Mr. Kayem. It was the Defence position that Mr. Abdul-Hussein simply repeated what Mr. Kayem had told the police in order to obtain a plea bargain. Mr. Abdul-Hussein recanted his statement in its entirety at the joint trial of the Respondent and Mr. Kayem and denied having been present when Mr. Zalal was shot.
[51] The Defence asked the Court to consider the prejudice to the Respondent if Mr. Kayem’s statement to police were introduced because of the fact that Mr. Kayem did not give the statement under oath, that he not only had a motive to lie, but was provided that motive by the police officer who interviewed him and that the Defence had never had an opportunity to cross examine him.
Voir Dire on Reason for Mr. Kayem’s Absence
[52] A voir dire, within the admissibility voir dire on Mr. Kayem’s absence, was conducted to determine if the court should consider the Crown’s theory as to why Mr. Kayem did not appear for this trial, even though subpoenaed.
[53] The Crown alleged that members of the Respondent’s family or his associates had offered Mr. Kayem a significant sum of money not to attend the trial. The Crown also suggested that it was possible that Mr. Kayem had been threatened and that the threats had come from members of the Respondent’s family.
[54] In support of these allegations, Mr. Kayem’s father, Riad Kayem testified about the conversations he had had with his son in the days prior to September 19, 2016, the commencement of trial.
[55] The evidence of Riad Kayem is hearsay. He testified that his son had been very quiet in the days prior to September 19 and on September 18, he and his son had a conversation in which Mr. Kayem expressed his concern for his safety and that it would be better for his family if he did not come to court to testify.
[56] Riad Kayem stated that he had been told by his son some months prior to the start of trial that he had been offered $50,000.00 not to attend court by the brothers of the Respondent. Riad Kayem testified that he had told his son that he should testify because it was the right thing to do. From their discussion he understood that his son intended to testify because he did not want to go to jail for failing to appear when subpoenaed.
[57] Riad Kayem did not testify that his son had told him that he had been threatened, nor did he testify that his son told him that there had been a further alleged attempt to bribe him not to attend. Riad Kayem said that his son was worried about what might happen if he testified and that he speculated that if the family of the Respondent was prepared to pay him $50,000.00 not to testify then perhaps they would pay someone else that money to prevent him from testifying.
[58] Riad Kayem confirmed that after the discussion with his son on September 18, 2016, he was not surprised when Mr. Kayem did not appear at the trial.
Analysis re: Riad Kayem Testimony
[59] The evidence of Riad Kayem is double hearsay because it relates to a conversation Riad Kayem had with his son, about something Mr. Kayem had been told by members of the Respondent’s family. In addition, his evidence about what Mr. Kayem told him about his concerns on September 18, 2016 was only speculation on the part of Mr. Kayem, not an actual threat or attempted bribe.
[60] Riad Kayem was only able to inform the court about his son’s musings about what might happen; not about an actual threat that had been made. The information about the alleged $50,000.00 bribe had been reported to him by his son months previously and had been reported to the police. Through Mr. Kayem’s lawyers and the Crown, the information provided to the court was that Mr. Kayem had planned to attend court pursuant to his subpoena and the Crown was taken by surprise when he failed to appear on September 19, 2016.
[61] For those reasons Riad Kayem’s testimony cannot be used to support the Crown theory that it was the Respondent or members of the Respondent’s family who caused Mr. Kayem to flee or go underground. I have not considered this evidence in support of the Crown’s application to admit the hearsay statement of Mr. Kayem.
Principles for Admitting Hearsay Statements
[62] The admissibility issue in this case is whether an out-of-court statement by a person not called as a witness at trial will satisfy the threshold reliability requirement of the principled exception to the rule against the admission of hearsay. The evidence is not otherwise available because Mr. Kayem has in essence refused to testify when he did not appear as required by his subpoena.
[63] The law regarding the admissibility of hearsay under the principled approach is set out in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. I described the test in my earlier decision of August 30, 2016, however it bears repeating. The onus is on the Crown to establish its admissibility on a balance of probabilities.
[64] The Supreme Court of Canada in Khelawon 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.
[65] The Court then made the following comments about the test of threshold reliability for hearsay evidence 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.
[66] 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).
[67] The Ontario Court of Appeal in the case of R. v Chretien 2014 ONCA 403, [2014] O.J. No. 2351; 2014 ONCA 403 set out several principles in paragraphs 48 through 55 that “exert an influence in an assessment of the trial judge's decision to admit the statement.” (para 47):
48 First, hearsay evidence is presumptively inadmissible because the dangers associated with it may undermine the truth-seeking function of a criminal trial or the fairness of that trial: Youvarajah, at para.18; Khelawon, at para. 2. The hearsay dangers include an inability to test and assess a declarant's perception, memory, narration and sincerity: Youvarajah, at para. 18; Khelawon, at para.2.
49 Second, when invited to admit hearsay under the principled approach, a judge should adopt a functional approach that focusses on the particular hearsay evidence tendered for admission, as well as on those attributes or circumstances relied upon by the proponent of the hearsay to overcome those dangers: Youvarajah, at para. 21; Khelawon, at para. 93.
50 Third, in the principled approach to the admissibility of hearsay, the reliability requirement refers to threshold, not ultimate reliability. Were it otherwise, we would fail to maintain the distinction between admissibility and weight or reliance, breaching the divide between the role assigned to the trier of law, on the one hand, and the trier of fact, on the other: Khelawon, at paras. 2 and 50. Threshold reliability involves a determination of whether the evidence is worth receiving for assessment by the trier of fact: Youvarajah, at para. 24.
51 Fourth, a prior inconsistent statement of a non-accused witness may be admitted as proof of the truth of its contents if the proponent establishes the reliability indicia described in B (K.G.):
i. the statement is made under oath or solemn affirmation after a warning about the consequences of an untruthful account;
ii. the statement is videotaped in its entirety; and
iii. the opposite party has a full opportunity to cross-examine the witness on the statement.
See, B (K.G.), at pp. 795-796; and Youvarajah, at para. 29.
52 But the B (K.G.) indicia are not the only means of establishing threshold reliability in connection with prior inconsistent statements. Threshold reliability may also be established by:
i. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and
ii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).
These principal methods of establishing threshold reliability are not mutually exclusive: Youvarajah, at para. 30; Khelawon, at paras. 49 and 61-63; and Devine, at para. 22.
53 The most important factors supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents is the availability of the non-accused witness for cross-examination. This factor alone goes a long way towards satisfaction of the requirement for adequate substitutes for testing the evidence: Youvarajah, at para. 35; Couture, at paras. 92 and 95. Any limitations on the opportunity to cross-examine the non-accused witness at trial, for example because of the assertion by the witness of a privilege, a claim of lack of memory or a refusal to answer questions may render the opportunity more illusory than real: Youvarajah, at para. 36; Devine, at para. 37; R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212, at paras. 41-44; and R. v. U (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 46.
54 Where a proponent attempts to establish reliability based on the circumstances surrounding the making of a statement (substantive reliability), the trial judge may also consider the presence of corroborating (or conflicting) evidence: Khelawon, at para. 93; and Taylor, at para. 30.
55 The principled approach to the admissibility of hearsay requires a flexible case-by-case examination to determine whether the requirements of necessity and reliability are met. This approach eschews categories of exceptions within the necessity/reliability analysis: Khelawon, at para. 45. Although the nature of the evidence can have a bearing on the reliability analysis, there is no warrant for a discrete subdivision of reliability based on the centrality of the hearsay to the proof of the Crown's case.
[68] The Court is therefore directed to consider whether threshold reliability of that statement is established by:
a) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and
b) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).
[69] The two routes to establish threshold reliability are not, however, mutually exclusive.
[70] The Crown in their submissions directed me to the evidence that supports each of the routes to threshold reliability, therefore I have set out the issues that support or fail to support each of those routes. In so doing, however, I have ultimately resolved the issue based upon the functional approach to the evidence as directed by the SCC in Khelawon.
Route One: Procedural Reliability
[71] In this case, the adequate substitutes for testing truth and accuracy are undermined by the fact that Mr. Kayem’s statement to the police on June 4, 2008 was not under oath and because Mr. Kayem is not present in this trial to be cross-examined by the Defence.
[72] Mr. Kayem had testified under oath at a bail hearing for Mr. Abdul-Hussein on October 4, 2010, after Mr. Kayem had been acquitted at the first trial. Mr. Kayem was cross-examined briefly by Mr. Abdul-Hussein’s counsel about his reasons for not testifying at his own trial. Mr. Kayem’s counsel objected to the propriety of the inclusion of Mr. Kayem’s evidence in the bail hearing, arguing that it was irrelevant to the question of Mr. Abdul-Hussein’s eligibility for bail and suggested there might have been an ulterior motive of the Crown for insisting on this evidence.
[73] At the time of writing these reasons, I have not had the benefit of the complete transcript of that hearing. Justice D. Rutherford agreed to hear the testimony of Mr. Kayem notwithstanding the objections of his counsel, with the caveat that he would rule on its relevance in his decision on the bail application. It was that part of the transcript that was not available at the time of writing these reasons.
[74] Regardless of Justice Rutherford’s determination of the propriety of Mr. Kayem’s evidence on the bail hearing, I find that his evidence in that hearing, even though it was under oath does not establish procedural reliability. That evidence is not a sufficient substitute for testing the truth and accuracy of Mr. Kayem’s June 4, 2008 statement, given the circumstances under which the October 4, 2010 evidence was taken and absent any opportunity at that time for meaningful cross-examination by the Respondent’s counsel.
[75] Therefore the reliability indicia as set out in B (K.G.) and the route to establish procedural reliability are not met.
Route Two: Substantive Reliability
[76] In considering the circumstances in which the June 4, 2008 statement was made, I note the following:
a) The June 4, 2008 statement was not made spontaneously or contemporaneously with the shooting of Mr. Zalal, it was made close to two years later;
b) Mr. Kayem had denied any involvement in or knowledge of the shooting in his prior interview with the police in April 2007;
c) For the first two hours of the June 4, 2008 interview, Mr. Kayem continued to deny any involvement or knowledge of the events surrounding the shooting. During this time, the interviewing officer provided him with some details of the police investigation that demonstrated Mr. Kayem was involved in the shooting including information from the wire taps and the finding of his DNA at the scene where the body was recovered;
d) Mr. Kayem was informed that he was being charged with first degree murder and then encouraged to tell the police that someone else was the shooter. The officer told Mr. Kayem that he believed that Mr. Kayem was not the shooter and that he was caught up in events beyond his control.
e) The officer also set out a scenario where Mr. Kayem was being controlled by others, particularly the Respondent, who would roll over on Mr. Kayem if Mr. Kayem did not tell the police his version first.
[77] In viewing the first half of the video statement, it is clear that Mr. Kayem was guided to provide the story the police wanted to hear. Mr. Kayem is seen clearly considering the information that he was provided by Detective Smyth. He then, as he was encouraged to do, implicated the Respondent as the shooter. While he was never told he would not be charged with first degree murder, the insinuation by the police was clear that they did not consider that he was the shooter and that he was probably in the wrong place at the wrong time.
[78] I wish to make it clear that Detective Smyth was not misleading Mr. Kayem when he told him that there was evidence that established that Mr. Kayem had some involvement in the events that culminated in the shooting, such as the DNA evidence, the cell phone call detail records and the intercepted communications. It is not my intention in these reasons to criticize the means by which the police conducted their investigation or the method by which they obtained a statement from Mr. Kayem. The only question I am determining is whether or not that statement may now be used against the Respondent without Mr. Kayem’s presence as a witness in this trial.
[79] While not exactly the same, the means by which this statement came about is somewhat analogous to the scenario in the Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, where the statement in issue was an agreed statement of facts prepared by the co-accused's lawyer rather than the witness' own spontaneous words. Mr. Kayem’s statement was in his words, but it lacked spontaneity due to the circumstances in which it was given, after he was provided the road map by the interviewing officer.
[80] Unlike Youvarajah, Mr. Kayem is not present and available at trial for cross-examination.
[81] Notwithstanding that the statement lacks spontaneity; I agree with the Crown that the statement is corroborated by other evidence that is confirmatory of Mr. Kayem’s statement. That confirmatory evidence must be considered when evaluating whether the second route to establish threshold reliability has been met. The Court of Appeal in R. v. Saleh, 2013 ONCA 742, [2013] O.J. No. 5544 at para 117 stated:
The principal characteristics of confirmatory evidence are independence and materiality. The evidence must be independent of the Vetrovec witness, that is to say, not tainted by connection to that witness: Khela, at para. 39. To be material, confirmatory evidence need not implicate the accused in the commission of the offence: Khela, at paras. 40-41. To be material, what the confirmatory evidence must do in the context of the case as a whole is to give comfort to the jury that the witness can be trusted in his or her assertion that the accused committed the offence: Khela, at para. 42; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15. Where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the Vetrovec witness is telling the truth in that regard before convicting on the strength of the Vetrovec witness’s evidence.
[82] The confirmatory evidence in this case is independent. It is in the form of the DNA evidence, the cell phone tower call detail records and wire-tap intercepts, the evidence of the forensic pathologist and ballistics expert among other corroborating evidence. This evidence is not tainted by a connection to Mr. Kayem’s June 4, 2008 statement to the police.
[83] I do not find that the proposed corroborating evidence in the form of the statement of Mr. Abdul-Hussein was independent given the circumstances under it was obtained and I have not considered it in my analysis of the second route to threshold reliability.
[84] I find that the confirmatory evidence that I do accept, is material. Materiality does not require that the Respondent is implicated as the shooter nor is it required to explain a possible motive by Mr. Kayem to lie in order to absolve himself. Those issues are issues of ultimate reliability that would be for the jury to resolve.
[85] The corroborating evidence therefore supports a finding of threshold reliability by the second route of substantive reliability, in that there are sufficient circumstantial guarantees of reliability or an inherent trustworthiness in the corroborating evidence. This route to threshold reliability is undermined, however, by the lack of spontaneity of the June 4, 2008 statement by Mr. Kayem.
[86] Nonetheless, in concluding whether or not threshold reliability has been met, I find that it has been met on a balance of probabilities.
Trial Fairness
[87] I must also consider however, in my role as the gatekeeper to guard against the admission of hearsay evidence when the evidence is not capable of being meaningfully tested by the ultimate trier of fact, whether admitting the hearsay evidence would impact on the fairness of the trial.
[88] The Supreme Court of Canada in Khelawon at para 3 emphasized the trial judge’s role in ensuring that: “ […] 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.”
[89] Trial fairness includes both the rights of the accused and society’s interest of having the trial process lead to the truth. It does not guarantee a right by an accused to confront or cross-examine a witness. R. v. Naicker, 2007 BCCA 608; 229 C.C.C. (3d) 187, at para 29; leave to appeal to the SCC refused [2008] S.C.C.A. No 45.
[90] In this case, the prejudicial effect of Mr. Kayem’s June 4, 2008 statement to the police outweighs its probative value. It would be prejudicial to the Respondent to permit the entire statement into evidence, particularly those portions of the first two hours of the interview that include Detective Smyth’s theories of the evidence pointing to the Respondent as the one who shot Mr. Zalal, as well as the roadmap he provided to Mr. Kayem to implicate the Respondent. I have already found that Mr. Kayem’s statement lacked spontaneity for those reasons. That portion of the interview on June 4, 2008 would be prejudicial to Mr. Al Enzi and could unfairly influence the jury.
[91] Once that portion of the statement has been edited, what is left is Mr. Kayem’s statement implicating the Respondent, without the opportunity for the trier of fact to observe how Mr. Kayem came to give that statement. This, in my view would make admitting any portion of the statement extraordinarily prejudicial to the Respondent in a manner that cannot be resolved in an instruction to the jury on the weight that could be given to the statement. The only way by which the jury would be able to know how Mr. Kayem came to make this June 4, 2008 statement to the police would be through cross-examination in this trial.
[92] In this instance, society’s interest in having the trial process lead to the truth would not be lost by the exclusion of this hearsay evidence in light of the other evidence that will be before the jury including the corroborating evidence that has been reviewed in these reasons. The impact on the fairness of the trial however, cannot be overcome if the Respondent is not provided an opportunity to test the evidence contained in Mr. Kayem’s June 4, 2008 statement by way of cross-examination of Mr. Kayem in the presence of the jury.
[93] For those reasons, the Crown’s application to admit the hearsay statements of Mahmoud Kayem is dismissed.
Madam Justice B. R. Warkentin
Released: November 07, 2016
CITATION: R. v. Al-Enzi, 2016 ONSC 6911
COURT FILE NO.: 08-11565
DATE: 2016-11-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
NAWAF AL-ENZI
Respondent
REASONS ON APPLICATION TO ADMIT HEARSAY STATEMENTS OF
MAHMOUD KAYEM
Warkentin J.
Released: November 07, 2016