Her Majesty the Queen v. Nawaf Al-Enzi, 2016 ONSC 6972

CITATION: R. v. Al-Enzi, 2016 ONSC 6972

COURT FILE NO.: 08-11565

DATE: 2016-11-09

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 29, 30 and October 5 and 6, 2016, at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

REASONS ON APPLICATION TO ADMIT HEARSAY STATEMENTS OF ALI ABDUL-HUSSEIN

1This application was heard immediately after the Crown’s application to admit the hearsay statements of Mahmoud Kayem.

2Both Mr. Kayem and Ali Abdul-Hussein failed to appear at the commencement of trial as required by their subpoenas. These two individuals are alleged to have been witness to the homicide of Mohamed Zalal.

3This application seeks to introduce Mr. Abdul-Hussein’s evidence pursuant to s. 715(1) of the Criminal Code, R.S.C. 1985, c. C-46, as well as under the principled approach to the admissibility of hearsay.

4On October 11, 2016, prior to the Crown’s opening address to the jury, I informed counsel that both the Crown’s applications to admit the hearsay statements had been denied and that written reasons would follow.

5These reasons address the application to introduce hearsay evidence of Mr. Abdul-Hussein.

The Crown’s Application and Position

6The Crown seeks to adduce the following statements made by Mr. Abdul-Hussein into evidence:

• Mr. Abdul-Hussein’s statement to police on April 11, 2007 where he denied knowledge of the homicide of Mohamed Zalal;

• Mr. Abdul-Hussein’s conversation at the police station with Sergeant Hudson on November 14, 2007;

• Excerpts of Mr. Abdul-Hussein’s video-taped statement to Sergeant Jim Smyth on June 6, 2008, following his arrest for the murder of Mohamed Zalal

• Wire-tap intercepts of Mr. Abdul-Hussein’s conversations with a friend, Khalid Ichrakie on June 9, 2008, his sister, Zeinab Abdul-Hussein on June 9, 2008 and his father, Hussein-Hussein on June 9, 2009.

• Mr. Abdul-Hussein’s audio-recorded conversation with Sergeant Hudson on August 5, 2008 at the Ottawa Carleton Detention Center.

• Mr. Abdul-Hussein’s videotaped sworn statement to Sergeant Hudson on August 31, 2009.

• Mr. Abdul-Hussein’s guilty plea and sentence to accessory after the fact to the murder of Mohamed Zalal, on 15 October, 2009, before Justice Nadelle of the Ontario Court of Justice.

• Mr. Abdul-Hussein’s full evidence at the first trial of Mr Al Enzi. In that trial Mr. Abdul-Hussein recanted his August 31, 2009 statement and claimed he was not present when Mr. Zalal was shot.

• Mr. Abdul-Hussein’s charge of perjury in relation to the evidence given at the first trial of Mr Al Enzi for the murder of Mr Zalal, that he did not contest. This hearing occurred on February 8, 2011 and June 22, 2011, before Justice Alder in the Ontario Court of Justice.

7The Crown seeks to introduce Mr. Abdul-Hussein’s evidence to support its position that it was the Respondent who shot Mohamed Zalal, and its position on the circumstances surrounding the homicide of Mohamed Zalal.

8The Crown contends that the statements are admissible because portions of the evidence meet the requirements set out in s. 715 of the Criminal Code and the remainder satisfies the necessity and reliability criterion of the principled exception for admitting hearsay statements.

9It was the position of the Crown that necessity is established because Mr. Abdul-Hussein is not available to testify. The Crown also contends that the production of the full record of Mr. Abdul-Hussein’s statements, including those where he contradicted himself, satisfies the threshold reliability criterion. The Crown argued that putting the full record of Mr. Abdul-Hussein’s evidence to the jury will place them in a position to ascertain the credibility of Mr. Abdul-Hussein and to determine the ultimate reliability of the hearsay statements.

Position of the Defence

10The Defence opposes the Crown’s application and objects to the introduction into evidence of any of Mr. Abdul-Hussein’s evidence from the first trial into evidence or statements he provided at other times during this investigation and after the trial.

11The Defence argued that Mr. Abdul-Hussein’s trial testimony, and the exhibits filed during that testimony, should not be admitted under section 715 of the Criminal Code because:

a) The Respondent did not have a full opportunity to cross-examine Mr. Abdul-Hussein at the first trial; and

b) The court should exercise its discretion under section 715 of the Criminal Code to exclude the evidence, as its admission would result in an unfair trial.

12The Defence submitted that Mr. Abdul-Hussein’s out of court statements are inadmissible under the principled exception to the admission of hearsay because:

a) The Respondent did not have a full opportunity to cross-examine Mr. Abdul-Hussein, and there is no other suitable substitute for contemporaneous cross-examination in this case [first branch of R. v. Khelawon 2006 SCC 57, [2006] 2 S.C.R. 787 re: threshold reliability];

b) The other means to test the reliability of the hearsay statements are insufficient, be it through the circumstances in which they were made or other evidence before the trier of fact [second branch of Khelawon re: threshold reliability]; and

c) The prejudicial effect of admitting Mr. Abdul-Hussein’s statements outweigh their probative value [under the Court’s residual discretion to exclude].

13The Respondent conceded that for the purpose of the Crown’s application to admit hearsay evidence under the principled approach to the admission of hearsay, that the necessity requirement has been established because Mr. Abdul-Hussein has fled the jurisdiction and failed to attend court as per his subpoena.

14The Defence contends that there are no adequate substitutes for the lack of opportunity to cross-examine Mr. Abdul-Hussein contemporaneously at this trial because:

a) Mr. Abdul-Hussein was treated as a hostile witness by the Crown during Mr. Al Enzi’s first trial which is fatal to threshold reliability;

b) Mr. Abdul-Hussein is an unsavoury witness;

c) The oath Mr. Abdul-Hussein was under offers no further guarantees of reliability or trustworthiness because Mr. Abdul-Hussein has been shown to repeatedly lie regardless of whether or not he had sworn to tell the truth;

d) Mr. Abdul-Hussein’s police statement of August 31, 2009 in which he incriminated Mr. Al Enzi as the one who shot Mr. Zalal was given after he was shown the statement of Mr. Kayem that placed him at the scene of the shooting and after his lawyer and the Crown had negotiated a joint guilty plea to the lesser offence of accessory after the fact to murder; and

e) The Crown’s corroborating evidence is limited.

15The Defence also argued that the Respondent’s defence team in his first trial did not have a full opportunity to cross-examine Mr. Abdul-Hussein owing to:

a) The Crown’s late disclosure of wiretap evidence and the trial judge’s refusal to allow the Defence to cross-examine Mr. Abdul-Hussein on this new evidence;

b) The Respondent’s expectation that he would have an opportunity to seek an opportunity to have additional cross-examination and apply for a severance of the trial after Mr. Kayem’s counsel had completed their cross-examination; and

c) The fact that Mr. Al Enzi was no longer represented by counsel during part of Mr. Abdul-Hussein’s testimony in the first trial.

Background Facts and Summary of the Proceedings at the First Trial

16In order to consider the positions of the Crown and Defence on this application, I was provided with most of the trial evidence pertaining to the period that Mr. Abdul-Hussein testified in the first trial together with all other statements he made to the police that related to this proceeding and other court appearances, as well as other evidence of his criminal history. I have set out a summary of that evidence below. To the extent that I have described the rulings in the prior trial, it is only to set out the narrative for the purpose of making a ruling on this application.

17Mohamed 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.

18For 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, all of whom were charged with first degree murder. The charges were laid in June 2008.

19There 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, prior to Justice Nadalle’s determination, Mr. Abdul-Hussein, through his counsel, negotiated a guilty plea to being an accessory after the fact that was a joint recommendation by the Crown and Defence.

20That plea was entered on October 15, 2009 and Mr. Abdul-Hussein was sentenced to time served (the equivalent of 22 month based upon receiving credit of pre-trial detention at a rate of 2:1) and eighteen months’ probation. In rendering his decision, Justice Nadelle noted that “[…] it is my view that based on the evidence I have heard in those two Preliminary Hearings, the plea entered today, precisely reflects what the Crown could have proven in any trial. Obviously, I am intimately aware of all of the facts in this case.”

21The evidence supports the fact that as part of the negotiation for the guilty plea, Mr. Abdul-Hussein was required to provide a sworn video statement to the about the events surrounding the death of Mr. Zalal and agreed to testify at the trial of the Respondent and Mr. Kayem. The negotiations and the sworn video statement took place on August 31, 2009.

22The evidence was that Mr. Abdul-Hussein was provided two choices; to either provide the statement to the police in exchange for their support and the recommendation of the Crown to a charge of accessory after the fact or face the possibility of committal by the he preliminary hearing judge to the charge of first degree murder. He chose to provide a statement to the police.

23Prior to providing that statement, Mr. Abdul-Hussein signed an agreement that the statement could not be used against him and that he would testify and cooperate with the Crown in their prosecution of others for the homicide of Mr. Zalal.

24The Respondent was committed to stand trial for first degree murder. The Crown chose to try Mr. Kayem and the Respondent together in a joint trial.

25In every statement that Mr. Abdul-Hussein provided to the police and to the Court, except the statement he gave police on August 31, 2009, he denied either knowledge of or involvement in the events surrounding the shooting of Mr. Zalal. Mr. Abdul-Hussein did not give evidence at his guilty plea or at his perjury hearing after the joint trial of Mr. Kayem and the Respondent.

26Prior to providing his sworn statement to the police on August 31, 2009, Mr. Abdul-Hussein on more than one occasion, had seen all or a portion of the statement that Mr. Kayem had provided to the police on June 4, 2008 in which Mr. Kayem alleged that Mr. Abdul-Hussein was a passenger in the vehicle when Mr. Zalal was shot from behind by the Respondent.

27Mr. Abdul-Hussein’s sworn statement to the police mirrored the statement that had been given by Mr. Kayem, with only modest changes. The most significant differences were that:

a) Mr. Abdul-Hussein claimed Mr. Kayem had assisted the Respondent in moving the body of Mr. Zalal from the car to the grass where it was found, whereas Mr. Kayem claimed he did nothing to assist the Respondent in removing the body from the car;

b) Mr. Abdul-Hussein did not see the Respondent wearing gloves or a leather jacket as Mr. Kayem had claimed; and

c) The Respondent did not go home and eat eggs after disposing of the body as Mr. Kayem had claimed.

28On May 3, 2010 Mr. Abdul-Hussein was called to testify at the joint trial of Mr. Kayem and the Respondent. Mr. Abdul-Hussein testified that he was not present when Mr. Zalal was shot and that he had made up the story he told police on August 31, 2009 in order to get out of prison. Mr. Abdul-Hussein claimed he told the police what they wanted to hear; that he was innocent and was charged with murder when the police knew he was not involved.

29Mr. Abdul-Hussein claimed that when he gave the statement on August 31, 2009, he adapted what he had heard from Mr. Kayem in a few places so that it would look like he was telling his own version of the events on the night of August 18, 2006 in order to ensure the police would believe him.

30The Crown then sought to have Mr. Abdul-Hussein declared an adverse witness under s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5 in order to permit the Crown to cross-examine him at large and informed the Court that it was their intention to make an application to tender his August 31, 2009 statement for the truth of its contents.

31The Respondent’s counsel objected to the Crown seeking to tender the statement for the truth of its contents. He did not comment on the Crown’s right to apply under s. 9(1) of the Evidence Act. Mr. Kayem’s counsel argued that a s. 9(1) application required a voir dire.

32The trial judge determined that the requirements of s. 9 (1) had been met without holding a voir dire. He made a finding of adversity on the basis of Mr. Abdul-Hussein’s evidence in the trial to that point and declared Mr. Abdul-Hussein a hostile witness. The trial judge permitted the Crown to cross-examine Mr. Abdul-Hussein at large but did not permit the Crown to introduce the August 31, 2009 statement for the truth of its contents at that time. The trial judge did not preclude the Crown from seeking to introduce the statement for the truth of its contents at a later time.

33When the Crown put various parts of the August 31, 2009 police statement to Mr. Abdul-Hussein, he confirmed that he had given that statement to the police, however, claimed he had been lying to the police.

34The Crown then put its theory of the case to Mr. Abdul-Hussein, that both Mr. Kayem and Mr. Abdul-Hussein were party to the luring of and planning of the killing of Mr. Zalal together with the Respondent, who was the shooter. Defence counsel and Mr. Abdul-Hussein’s counsel (who sought, but was denied standing) objected to the Crown’s cross-examination in putting its theory to Mr. Abdul-Hussein as improper, arguing that the Crown had no basis on the facts of the case to suggest that either Mr. Abdul-Hussein or Mr. Kayem were party to the plan to shoot Mr. Zalal.

35Mr. Kayem’s counsel argued that had Mr. Abdul-Hussein adopted his August 31, 2009 statement to the police in the trial, the Crown could not have put forward its theory that Mr. Kayem and Mr. Abdul-Hussein were party to the planning and shooting of Mr. Zalal to Mr. Abdul-Hussein in their examination in chief.

36Both Mr. Kayem and Mr. Abdul-Hussein in their police statements claimed to have had no advance knowledge of the Respondent’s alleged intent to shoot Mr. Zalal. The Defence contended that the Crown had no evidence to support their theory that Mr. Kayem and Mr. Abdul-Hussein were involved in the planning of the homicide, other than cell phone call detail records showing a number of phone calls between Mr. Kayem and the Respondent on the night of the homicide.

37The Crown argued that because Mr. Abdul-Hussein was a hostile witness, the Crown was entitled to cross-examine him at large without the restrictions that would have been in place had he not been a hostile witness. The Crown submitted that they were entitled to put the Crown’s theory to Mr. Abdul-Hussein, even if it was different from the statement that Mr. Abdul-Hussein had provided. The trial judge sided with the Crown and permitted cross-examination at large without restriction.

38As the Crown’s cross-examination progressed and it became apparent that Mr. Abdul-Hussein would not resile from his recantation of his prior statement, the Crown pursued an application to have the August 31, 2009 video-taped statement introduced for the truth of its contents (the KGB voir dire). The Defence argued that the entire process that had occurred thus far with respect to the s. 9(1) application had been in error because a voir dire was not held prior to the trial judge’s finding that Mr. Abdul-Hussein was a hostile witness. Mr. Kayem’s counsel sought a mistrial or in the alternative an instruction to the jury that the Crown’s cross-examination from the prior day (May 3, 2010) should be entirely disregarded. The trial judge refused both motions.

39The KGB voir dire was held on May 4, 2010. The Crown sought leave to introduce all of Mr. Abdul-Hussein’s evidence from May 3, 2010, being the Crown’s examination in chief and cross-examination of Mr. Abdul-Hussein as a hostile witness, into the KGB voir dire as its evidence. The Defence objected on the basis that the Crown was not entitled to introduce their cross-examination, particularly the portion in which the Crown had put its theory of the case to Mr. Abdul-Hussein, into a KGB voir dire.

40On the basis of expediency, the trial judge agreed with the Crown and admitted the Crown’s cross-examination as part of the Crown’s evidence on the voir dire. Counsel for the Respondent and Mr. Kayem were then permitted an opportunity to cross-examine Mr. Abdul-Hussein on the KGB voir dire.

41On May 11, 2010, after having heard other relevant evidence and submissions on the KGB voir dire, the trial judge found that necessity and reliability had been met and permitted the August 31, 2009 statement by Mr. Abdul-Hussein to be introduced into evidence for the truth of its contents.

42At that point the Respondent’s lawyer informed the court that he would be bringing a severance application because it was inevitable that by admitting the August 31, 2009 statement, all or portions of Mr. Kayem’s statement of June 4, 2008 would also end up before the jury because Mr. Abdul-Hussein was taking the position that he had used Mr. Kayem’s statement as the basis for the information he had given to the police on August 31, 2009. The Respondent’s lawyer expressed concerns that the prejudice to the Respondent of having any portion of Mr. Kayem’s statement before the jury would be so great that no instruction to the jury to disregard that statement as against the Respondent would be sufficient to overcome the prejudice to the Respondent.

43Mr. Kayem’s counsel objected to the Crown having a second opportunity to cross-examine Mr. Abdul-Hussein after the playing of the video statement. He again expressed his concern over the wide ranging cross-examination that the Crown had undertaken under s. 9(1) of the Canada Evidence Act. He argued that introducing a statement for the truth of its contents was only permissible after the limited cross-examination permitted under s. 9(2) of the Act, but that it was improper and highly prejudicial to the Defence to permit the Crown further opportunity to cross-examine after the Crown had put its theory to Mr. Abdul-Hussein in unfettered cross-examination under s. 9(1) of the Act.

44The trial judge ruled in favour of the Crown and permitted additional unfettered cross-examination. The Crown continued their cross-examination of Mr. Abdul-Hussein. At the end of the day on May 12, 2010, prior to completion of their cross-examination, the Crown provided Defence counsel with transcripts of two intercepted communications on which the Crown intended to continue to cross-examine Mr. Abdul-Hussein on May 13, 2010.

45Upon resumption of the trial on May 13, 2010, the Crown informed the Court and Defence counsel that they had decided to introduce the audiotapes of the two intercepted communications for the truth of their contents together with a third intercepted communication that they provided to Defence counsel that morning.

46The three intercepts consisted of 31 pages of transcripts. Some portions of the intercepts contained evidence of bad character of the Respondent that had not been edited out. Counsel for the Respondent sought an adjournment for the day in order to review the transcripts of the intercepts and to prepare submissions on whether or not the intercepts could be admitted for the truth of their contents. The trial judge refused the adjournment and required that Respondent’s counsel commence their cross-examination of Mr. Abdul-Hussein immediately upon the conclusion of the Crown’s cross-examination. The trial judge did refuse to consider whether the audio tapes of the intercepts could be introduced for the truth of their contents at that time, citing that the issue could be dealt with at a later time. The Crown then completed their cross-examination subject to the Court ruling on the issue of the audio tapes of the intercepts being introduced for the truth of their contents, which they claimed were necessary for the purpose of showing Mr. Abdul-Hussein’s state of mind.

47Counsel for the Respondent expressed concern about the order of cross-examination that required him to cross-examine Crown witnesses first, prior to counsel for Mr. Kayem, given their competing interests in having all or parts of Mr. Kayem’s police statement of June 4, 2008 introduced. The Respondent’s counsel again objected to being put in the position of having to start his cross-examination prior to a ruling on the issue of the introduction of the intercepts and again sought an adjournment in order to prepare his argument on that issue. The trial judge refused, and required counsel for the Respondent to conduct his cross-examination of Mr. Abdul-Hussein on May 13, 2010 at the conclusion of the Crown’s cross-examination.

48Counsel for the Respondent again expressed his intention to seek a severance of the trial citing the likely introduction of Mr. Kayem’s statement by Mr. Kayem’s counsel, including the portions of it that had already been referenced in the cross-examination of Mr. Abdul-Hussein. Counsel for Mr. Kayem confirmed that they would be introducing significant portions of Mr. Kayem’s June 4, 2008 statement in their cross-examination of Mr. Abdul-Hussein and refused to consider changing the order of the cross-examination.

49The trial judge noted that Mr. Kayem’s Defence counsel were not obligated to provide advance notice of how they intended to pursue their case, but suggested that should an issue arise from Mr. Kayem’s cross-examination of Mr. Abdul-Hussein, it was open to the Respondent’s counsel to seek leave to conduct further cross-examination of Mr. Abdul-Hussein as a means of providing trial fairness. Counsel for the Respondent again objected strongly to the approach taken by the trial judge, particularly as it pertained to permitting portions of Mr. Kayem’s statement being read into the record during Mr. Kayem’s counsel’s cross-examination of Mr. Abdul-Hussein.

50Counsel for the Respondent again sought additional time to prepare before beginning his cross-examination in order to prepare and present argument on whether or not the three intercepts could be played at some later point in time and with respect to the introduction of significant portions of Mr. Kayem’s statement being introduced by his Defence team. This request was denied and the Respondent’s counsel was forced to conduct his cross-examination immediately after the Crown had finished.

51Respondent’s counsel conducted his cross-examination on May 13, 2010 as required and counsel for Mr. Kayem commenced his cross-examination immediately thereafter. Part way through that cross-examination, Mr. Kayem’s counsel sought to play part of a police interview of Mr. Abdul-Hussein from June 6, 2008 in which an excerpt of Mr. Kayem’s statement to police had been played for Mr. Abdul-Hussein. This request was overruled on counsel for the Respondent’s objection. The trial judge instructed Mr. Kayem’s counsel to continue without introducing that part of the interview, subject to hearing further submissions.

52On May 14, 2010, after the Respondent’s counsel had already completed his cross-examination, the trial judge found that the intercepts were admissible for the purpose of impeaching Mr. Abdul-Hussein’s credibility subject to editing out portions of those intercepts that dealt with any discreditable conduct of the Respondent.

53Immediately following that ruling the trial judge heard lengthy submissions regarding the introduction of Mr. Kayem’s statement of June 4, 2008 and ruled against it being permitted into evidence in its entirety. The trial judge did, however, permit Mr. Kayem’s counsel to continue their cross-examination of Mr. Abdul-Hussein using the same portions of Mr. Kayem’s statement that Crown counsel had already introduced. Counsel for Mr. Kayem’s cross-examination of Mr. Abdul-Hussein continued on May 14 and May 17, 2010.

54On May 18, 2010 the Respondent’s counsel was forced to resign (through no fault of his own) and the trial was adjourned to permit the Respondent time to retain new counsel. When none was found, the trial judge ordered that the Respondent continue without a lawyer and appointed amicus for him against his wishes.

55The trial resumed on September 7, 2010 with Mr. Kayem’s counsel continuing their cross examination of Mr. Abdul-Hussein followed by re-examination by the Crown. At the conclusion of the Crown’s re-examination, the Respondent sought the opportunity to ask further questions of Mr. Abdul-Hussein. He was informed by the trial judge that because his prior counsel had already completed his cross-examination, no further questions were permitted. The Respondent strenuously objected but was informed by his amicus that the trial process did not permit further cross-examination. The amicus had no knowledge of the Respondent’s prior counsel’s request to seek further cross-examination or the trial judge’s ruling that for trial fairness such an application would be considered. In fact, on many occasions prior to the end of the trial, amicus commented that he was at a disadvantage because he was unfamiliar with the case and the proceedings prior to his appointment.

56Throughout his evidence, Mr. Abdul-Hussein continued to insist he had made up his August 31, 2009 statement. He did not depart from this position throughout his evidence at the first trial, notwithstanding that he was on the witness stand, and cross-examined for approximately 8 days.

Analysis

57As already indicated, I heard the two applications to admit the hearsay statements of Mr. Kayem and Mr. Abdul-Hussein one after the other. My reasons for denying the Crown’s application to admit the hearsay statements of Mr. Kayem were released at the same time as these reasons.

58I do not therefore intend to recite the law as it pertains to the principled approach to the admission of hearsay again here. I have relied on my recitation of the law in paragraphs 62 through 69 of those reasons.

59In my reasons to deny the Crown’s application regarding the statement of Mr. Kayem, I found that the twin requirements of necessity and threshold reliability had been met, but determined that the prejudice to the Respondent of admitting the hearsay statements outweighed their probative value.

60With respect to the hearsay statements of Mr. Abdul-Hussein, I find that neither of the two routes to establish threshold reliability have been satisfied (procedural and substantive reliability) nor is the s. 715(1) of the Criminal Code requirement for the admission of evidence from a preliminary hearing or prior trial satisfied.

Admissibly under s. 715(1) of the Criminal Code

61Section 715(1) of the Criminal Code states as follows:

715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

62In the case of R v. Potvin, 1989 CanLII 130 (SCC), [1989] S.C.J. No. 24 at para. 28, the Supreme Court of Canada outlined what an accused must prove in order to oppose an application under the terms of then s. 643(1) [now s. 715] of the Criminal Code: “that his rights were infringed through the admission of evidence on which he had not had a full opportunity to cross-examine.” The Court clarified that “a denial or restriction can only have taken place if the intention or desire to pursue certain questions was present and was frustrated.”

63It has also been determined that the Court’s residual discretion to exclude evidence, otherwise admissible under s. 715 of the Criminal Code, is broader than the limited balancing of probative value versus prejudicial effect as established in common law. The Court of Appeal for Ontario in R v. Saleh 2013 ONCA 742, 314 O.A.C. 60, at para 75 stated: “the focus of the trial judge’s concern must be on the protection of the accused from unfairness, rather than the admission of probative evidence without too much regard for the fairness of the adjudicative process”.

64I find that as a result of the various rulings by the trial judge in the first trial in relation to Mr. Abdul-Hussein’s testimony, and in forcing the Respondent’s counsel to proceed with his cross-examination of Mr. Abdul-Hussein without permitting him to fully prepare or to make submissions on the propriety of the evidence sought to be introduced by both the Crown and the Defence for Mr. Kayem, resulted in the Respondent not being provided a full opportunity to cross-examine as required under s. 715.

65The prejudice to the Respondent was compounded when the trial judge refused to grant the Respondent, who by that time was self-represented leave for further questioning once the Crown had completed its re-examination, notwithstanding the Respondent had been assured such an application would be considered in order to ensure trial fairness.

66If find that the Respondent through his counsel before he resigned, clearly established an intention to cross-examine which was frustrated by both the Crown’s late disclosure and the trial judge’s refusal to permit the Respondent to prepare for and then have an opportunity to complete his cross-examination.

Admissibility under the Principled Exception to the Rule against Hearsay

67Even though Mr. Abdul-Hussein was under oath when he gave his August 31, 2009 statement to the police, Mr. Abdul-Hussein is not a witness whose profile is trustworthy. He recanted that statement in the first trial and told the court that he had lied when he gave that statement to the police. Thus, the fact that the August 31, 2009 statement was given under oath and video-taped, factors that ordinarily form the basis of procedural or circumstantial guarantees of trustworthiness (R v K.G.B, 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 795, 796; R v Yavourajah 2013 SCC 41, [2013] 2 S.C.R. 720, at paras 29-30), I accept the Defence position that they do not do so in this case for the following reasons:

a) Mr. Abdul-Hussein has a lengthy criminal record that pre-dates his involvement in this case. During Mr. Abdul-Hussein’s cross-examination in the first trial, he admitted that he had lied to the police on another occasion when his statement was taken under oath. In that instance he claimed he had been kidnapped and assaulted in order to avoid incarceration for failing to comply with his release conditions on a prior offence. This statement was not only a complete fabrication; Mr. Abdul-Hussein had actually physically injured himself in order to lend credibility to that statement.

b) He was declared a hostile witness in the first trial at the application of the Crown because he had recanted his August 31, 2009 statement, claiming he had lied when he made that statement.

c) When he made the August 31, 2009 statement, Mr. Abdul-Hussein only did so in order to secure a conviction on a lesser offence.

d) Mr. Abdul-Hussein only provided the statement to the police after he had seen Mr. Kayem’s June 4, 2008 statement.

e) Mr. Abdul-Hussein’s August 31, 2009 statement was more than three years after Mr. Zalal had been shot and Mr. Abdul-Hussein had provided three prior statements to the police in which he denied having any knowledge of the circumstances surrounding the death of Mr. Zalal.

68The principled approach requires that the trustworthiness of the hearsay statements must be considered. The Supreme Court has made it clear that threshold reliability is concerned with the reliability of the declarant. (R. v Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras 50-51, The Law of Evidence, at p. 137).

69Mr. Abdul-Hussein’s history denotes a tendency to lie, whether or not he is under oath. He appears incapable of appreciating the implications of his statements, except to the extent that they favour his current circumstances. I find therefore that the Crown has not established the first route to threshold reliability (procedural reliability) as set out in Khelawon for any of Mr. Abdul-Hussein’s evidence, whether or not it was under oath.

70With respect to the second route to establish threshold reliability (substantive reliability), the Crown argued that as with Mr. Kayem’s June 4, 2008 statement, there was sufficient corroborating evidence such that threshold reliability was made out on a balance of probabilities.

71I disagree with the Crown. With Mr. Kayem, the police had his DNA that was found at the scene where the body was found. Cell phone call detail records from the night of the shooting showed Mr. Kayem and the Respondent had been in regular contact except for a period of time when the shooting allegedly occurred which supported the Crown’s theory that they were together when the shooting occurred. The Crown also had significant wire-tap intercepted communications that suggested Mr. Kayem was somehow involved in the events that surrounded the homicide of Mr. Zalal.

72With respect to Mr. Abdul-Hussein, there is little independent corroborating evidence to confirm that Mr. Abdul-Hussein was present at the time of the shooting. The only independent corroboration comes from certain wire-tap intercepts that suggest that Mr. Abdul-Hussein can be trusted not to speak to the police.

73Mr. Abdul-Hussein’s other statements made to the police or to others when his conversations were intercepted are not sufficiently confirmatory of his involvement. His answers could be interpreted in many different ways.

74The rest of the corroborating evidence is not independent. Mr. Abdul-Hussein was provided with Mr. Kayem’s version of events as early as June 6, 2008 in which he placed Mr. Abdul-Hussein in the car when Mr. Zalal was shot. Mr. Abdul-Hussein had sat through his entire preliminary hearing where he heard the Crown’s theory of the case and all of the evidence that supported the Crown’s position. This may have provided Mr. Abdul-Hussein a motive to lie because at the time of his plea arrangement, Mr. Abdul-Hussein was a co-accused facing the possibility of a first degree murder charge together with the Respondent and Mr. Kayem.

75Admitting Mr. Abdul-Hussein’s testimony in the circumstance would also be problematic as explained by the Supreme Court in Youvarajah at para 64:

The administration of justice would not be enhanced in permitting admissions made by a co-accused in his own interest, as part of a plea bargain for a conviction of a lesser crime and favourable sentence, to be used against a co-accused, in circumstances where the reliability of the statements cannot be adequately tested.

76It is open to debate whether or not the August 31, 2009 statement was even voluntary, in light of the negotiations that preceded his provision of that statement. I am not, however, making a finding on voluntariness in these reasons because I have already found that the evidence is inadmissible.

77The small amount of corroborating evidence that was independent is not material. It does not, in the context of the case as a whole, give comfort to the jury that Mr. Abdul-Hussein can be trusted in his assertion that it was the Respondent who committed the offence. R. v. Saleh, 2013 ONCA 742, [2013] O.J. No. 5544 at para 117.

78For these reasons, I find that the Crown has not established a basis to admit any of the evidence of Mr. Abdul-Hussein under either s. 715 of the Criminal Code or pursuant to the principled approach to the admission of hearsay. The Crown’s application is therefore dismissed.