R. v. Hafeez, 2016 ONSC 769
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant
– and –
ZOHAIB HAFEEZ Respondent
Jonathan Smith, for the Crown
Douglas Holt and Dumoluhle Siziba, for the Respondent
HEARD: January 22, 25 and 26, 2016
RULING ON A POST-ARREST STATEMENT AS AFTER-THE-FACT EVIDENCE
b. p. o’marra, j.
OVERVIEW
1Zohaib Hafeez faces three counts of robbery with a firearm and three counts of unlawful confinement. On December 24, 2012, Mr. Hafeez was in a parked van with the three complainants when two other men entered. One of the two men produced a handgun. Mr. Hafeez and the three others were ordered to hand over their cell phones. Shortly thereafter, Mr. Hafeez was allowed to leave the van with his phone. The three men originally inside were threatened, robbed and unlawfully confined.
2The two robbers were arrested within a few days. The Crown alleges that Mr. Hafeez was known to the robbers before these events and was a party to these offences.
3On August 9, 2013, Mr. Hafeez surrendered himself to police. He was arrested and provided a 50-minute statement. Exhibit 15 on the trial is an Agreed Statement of Facts setting out what Mr. Hafeez said to the police. Mr. Hafeez presented an evolving version of events. He admitted in various parts of the statement that he had lied earlier in the statement. Mr. Hafeez denied any role in the robberies or unlawful confinements.
4Mr. Hafeez testified at trial. He confirmed certain lies that he told to police in his statement of August 9, 2013. He provided explanations and reasons for his lies. He continued to deny that he had any role in the alleged offences.
5There is no direct evidence that Mr. Hafeez committed these offences. The Crown relies on various strands of circumstantial evidence to prove guilt.
6The Crown submits that the jury should be instructed that portions of the post-arrest statement are fabricated. On that basis, he submits the jury may consider those portions as further circumstantial evidence that Mr. Hafeez was involved in the commission of these offences.
7In his statement to the police on August 9, 2013 and in his testimony at trial, Zohaib Hafeez admitted that he lied about the following material facts to the police:
(1) Whether he knew Rajeev Balendra, also known as Henry Balendra (Mr. Balendra was the driver of the van and one of the complainants);
(2) Whether he possessed and used a particular cell phone on the day of the robberies. (Cell phone records admitted as evidence at trial showed calls between that phone and Mr. Balendra’s. The records also showed calls and text messages before and after the robberies occurred between that phone and a phone found in the getaway vehicle);
(3) Whether he was present when the robberies occurred;
(4) Whether the two robbers wore masks. (At trial, he testified that neither wore a mask and he recognized one of the robbers as Tristan Oldham);
(5) Whether he recognized photos of two suspects shown to him by the police. One photo was of Tristan Oldham and the other was of Quenston Hibbert. He denied recognizing or knowing either man. (At trial, he testified that he in fact recognized both men and knew their names. He testified that he recognized Quenston Hibbert driving a car that followed the victim’s van as it drove away from the scene of the robbery.)
8Mr. Hafeez testified that the reasons he told these and other lies to the police were as follows:
(1) A concern that he would be charged with fraud related to certain activities he was involved in on December 24, 2012;
(2) A desire to distance himself from what happened in the van; and
(3) Most importantly, he feared retribution against himself and his family if he identified the two men who were involved in the robbery.
THE LAW
9There is a distinction between an out-of-court exculpatory statement that is disbelieved and therefore rejected and such a statement found to be concocted or deliberately fabricated. The former has no evidentiary value. The latter can constitute evidence from which an inference of guilt may be drawn. In analyzing the evidentiary value of a disbelieved statement, the court will need to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged. R. v. O’Connor, 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.) at paras. 17 and 18.
10An out-of-court statement that is fabricated (and not simply disbelieved) is a form of after-the-fact conduct that merits a further specific instruction as to its use. It may constitute circumstantial evidence that assists the trier of fact in determining whether the charge has been proven beyond a reasonable doubt.
11By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events. R. v. Coutts, 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552.
12It is only where there is independent evidence of fabrication that a false out-of-court statement is capable of supporting an inference of guilt. In some cases, there will be clear independent evidence of concoction. In R. v. Hazel, 2009 ONCA 389, 95 O.R. (3d) 241, at para. 13, the accused admitted that he lied to an insurance adjuster about a material fact. The court held that it was for the jury to decide what weight to give the explanation for the lie. If the jury rejected the explanation for this fabrication, that would be a significant piece of circumstantial evidence.
13Where a judge concludes that there is independent evidence of fabrication of an exculpatory out-of-court statement, the judge should instruct the jury that it is open to them to find that the accused fabricated the exculpatory explanation because he was conscious of having done what is alleged and that they may use that finding together with other evidence in deciding whether the crown has proven the accused guilty beyond a reasonable doubt. O’Connor, at para. 37, and R. v. Bradley, 2015 ONCA 738 at para 174.
ANALYSIS AND RESULT
14This case is very similar to the Hazel decision in that the accused has admitted in testimony that he told out-of-court lies to the police about material issues. That satisfied the need for evidence of concoction beyond mere disbelief. The jury will be instructed that they may consider that evidence in light of the following:
(1) The surrounding circumstances related to the out-of-court statement, including that the accused surrendered himself and was interviewed over seven months after the alleged events;
(2) The materiality of the admitted lies; and
(3) The explanation and reasons given for the lies.
15The evidence will be left with the following instruction from Watt’s Manual of Criminal Jury Instructions:
It is for you to say whether Zohaib Hafeez fabricated, in other words, made up this version of events in an attempt to conceal his involvement in the offences charged. Remember that you must look at this issue in light of all the evidence. It is only after a consideration of all the evidence that you will be in a position to decide whether crown counsel has proven guilt beyond a reasonable doubt.
B. P. O’Marra, J.
Released: January 29, 2016
CITATION: R. v. Hafeez, 2016 ONSC 769
COURT FILE NO.: 15-30000039-0000
DATE: 20160129
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Applicant
– and –
ZOHAIB HAFEEZ Respondent
RULING ON A POST-ARREST STATEMENT AS AFTER-THE-FACT EVIDENCE
B. P. O’Marra, J.
Released: January 29, 2016