CITATION: R. v. Ibrahem, 2016 ONSC 7333
COURT FILE NO.: 13735/14
DATE: 2016-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FERAIDON IBRAHEM
Defendant
COUNSEL:
B. Green & N. Trbojevic, for the Crown
F. Davoudi & S. Caramanna, for the Defendant
HEARD: November 22 & 23/ 2016
BEFORE: Justice B.A. Glass
Amended Ruling on Video-recorded Statement of Mr. Ibrahem Being Played to the Jury
[1] There is no secret that Mr. Ibrahem spoke with Detective Leipsig. He is not prejudiced about his right to silence or counsel. The Defendant is testifying and has provided information to psychiatrists regarding state of mind and mental disorder. In doing so, he has made statements to the doctors.
[2] The Crown anticipates challenging Mr. Ibrahem for prior inconsistent statements as she will be entitled to do if there are inconsistencies. The prosecution wants to show the jury that Mr. Ibrahem was not in the state of shock and stress that he alleges while testifying at this trial. The Crown has agreed to play the whole of the statement to the court following cross-examination.
[3] The Defence had requested that the statement be filed as part of the Crown’s case previously but was unsuccessful at that application. My notes indicated that the Defence wanted the whole statement tendered. I am advised by counsel that there had been communications between the two legal teams at which time the Defence apprised the Crown of a desire to edit parts of the statement.
[4] Now, the Defence takes the position that parts of the statement should be edited because they might infringe Mr. Ibrahem’s rights to counsel and to silence because he answered some questions and not others.
[5] There is no prejudice to the Defendant if the whole of the statement is played to the jury because it does not create an unfair trial. At a previous application by Defence, I ruled that the statement was admissible as a voluntary statement. The probative value of the statement is that it may demonstrate to the jury that previous statements were made that are inconsistent with what he has told the psychiatrists and the jury. An important feature of a trial is that each witness may be cross-examined to test their evidence. The jury will see Mr. Ibrahem in a police interview with Detective Leipsig speaking at considerable length in English and will be able to consider whether the person appears to be one in shock. The demeanour of a witness is an important factor to consider as well.
[6] I am not persuaded that there is a prejudicial impact upon Mr. Ibrahem should the video recording of the statement be played to them. The presentation might not be a favourable aspect of his trial, but it is not one that creates an unfair trial.
[7] The fact of making a statement to the investigating police service is already before the jury through the mouth of the Defendant. He has testified that he was in shock and felt he had to speak to the police. Wanting to take back much of what he said by cutting out parts of what he told the police really because they are not as favourable to his position as he wants amounts to cutting and pasting his actions without any foundation.
[8] One part of the video recording shows Mr. Ibrahem near the end making a comment and his hand passes across his neck. One might wonder if he meant cutting his throat. There is no word to that effect. One would have to be looking for the motion and extending a thought to a possible meaning to come to such a conclusion. Both sides are content to edit this part from the video recording. It is at page 54 of the transcript. That will be excised.
[9] Otherwise, the whole of the video statement may be played to the jury.
Justice B.A. Glass
Released : November 23, 2016