Court File and Parties

COURT FILE NO.: 14-R2001 DATE: 20170327 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ZAKARIA SHEEK-HUSSEIN Accused

Counsel: Bruce Lee-Shanok, for the Crown Diane Condo, for the Accused

HEARD: January 9, 10,11,12,13,16,17,18,19,20,23,26, 2017

REASONS FOR Decision Toscano Roccamo J.

Overview

[1] Zakaria Mahmoud Sheek-Hussein is charged with aggravated assault and assault with a weapon, namely a knife, on Ratwan Heybad, contrary to ss. 268(2) and 267 (a) of the Criminal Code, R.S.C. 1985, c. C-46. On January 16, 2017, at the request of the Crown, a charge in relation to a breach of a condition of a recognizance was withdrawn on the grounds that there was no reasonable prospect of conviction. Further, on January 18, 2017, the Defence moved, on consent of the Crown, for directed verdict to dismiss a charge of uttering a threat to cause death to Mr. Heybad, contrary to s. 264.1(2) of the Criminal Code.

Background Facts

[2] On the evening of January 10, 2014, the complainant, Ratwan Heybad (“Heybad”), suffered disabling and disfiguring stab wounds to his right biceps, abdomen and right leg. The particulars of injuries and subsequent treatment are contained in the admissions filed pursuant to section 655 of the Criminal Code, R.S.C. 1985, c. C. 46, as Exhibit 10 at trial.

[3] The stab wounds were incurred in an altercation outside the Chapters located on Sussex Drive near Rideau Street in the City of Ottawa. The altercation followed an evening of drinking that began after Mr. Heybad met up with Amin Warsame at the Billings Bridge Plaza where they remained between 6:00 and 8:00 p.m. There, they shared a mickey of rum and started to drink a 26 oz bottle of rum. After they left Billings Bridge, their plan was to attend a party near the University of Ottawa.

[4] En route, they altered course and stopped off to socialize with others who crowded the Roof-Top Terrace at the Rideau Centre, a popular hangout for youth, before heading to other destinations. At the Roof-Top, Mr. Heybad and Mr. Warsame encountered a friend of Mr. Heybad’s, Bayle Khandid, as well as a friend of Mr. Warsame’s, the accused, Mr. Sheek-Hussein.

[5] After leaving the Roof-Top Terrace, Mr. Heybad, Mr. Warsame, and Bayle Khandid found themselves in the food court at the Rideau Centre. There, Mr. Heybad alleges that he inquired as to the whereabouts of the balance of the 26 oz bottle of rum, sparking a discussion with Mr. Warsame loud enough to cause Mr. Khandid to attempt to diffuse the discussion. At this point in time, security personel intervened.

[6] Mr. Heybad alleges that, before leaving the food court, he asked the accused whether he had drunk from Mr. Heybad’s bottle of rum. Mr. Heybad alleges that the accused took offence at the suggestion that he had appropriated Mr. Heybad’s alcohol. Mr. Heybad suggests that Mr. Sheek-Hussein invited him to take the argument outdoors and they left together in the company of Bayle Khandid on foot, crossed Rideau Street at its intersection with Sussex Drive and walked north to a point just before the entrance to the Chapters Store on George Street. There, Mr. Heybad alleges that Mr. Sheek-Hussein began to throw punches at him, which Mr. Heybad returned before being stabbed by the accused. Mr. Heybad claims that he was unaware he had been stabbed in the stomach and leg as he tried to staunch the bleeding from his right arm while running across Rideau Street towards the Chateau Laurier. There, he eventually found help before paramedics arrived and found him lying on the ground next to the driveway leading to the main entrance of the Chateau Laurier. He was transported by ambulance to hospital for surgery at 10:00 pm.

Issue

[7] The only real issue for determination is whether the evidence of Ratwan Heybad is sufficiently reliable and credible, with or without confirmatory evidence, to establish beyond reasonable doubt that the identity of his stabber is Zakaria Sheek-Hussein.

[8] The issue arises given the potential that Mr. Heybad’s evidence was affected by alcohol consumption. Further, his recognition of the stabber as Mr. Sheek-Hussein was potentially tainted by having examined photographs of the accused on Facebook in the day or two after the stabbing, and by his brief encounters with the accused at Billings Bridge Plaza where he attended for treatment after discharge from hospital.

Position of the Crown

[9] The Crown maintains that Mr. Sheek-Hussein was present at the Rideau Centre and in the company of Mr. Heybad and his friends on the evening of January 10, 2014. The Crown alleges Mr. Sheek-Hussein stabbed Mr. Heybad three times after a verbal altercation. The Crown posits that there are potentially four paths that could lead to the conviction of Mr. Sheek-Hussein.

[10] First, the Crown suggests that if the Court accepts Mr. Heybad’s trial testimony that the accused apologized to him for the stabbing, then the accused should be found guilty based on the accused’s admission of guilt.

[11] Second, the Crown suggests that if the Court accepts Mr. Heybad’s evidence that he recognized the accused from earlier dealings with him, and knew who his stabber was that night, then the accused should be found guilty.

[12] Third, if the Court does not accept that Mr. Heybad knew who his stabber was by name, but accepts his trial testimony that he recognized the accused’s face due to prior dealings and was able to accurately pick out the accused from the photo-lineup, then the accused should be found guilty.

[13] Fourth, if the Court is unable to accept that Mr. Heybad knew who his stabber was well enough to recognize his face and finds that Mr. Heybad sought confirmatory evidence in a Facebook photo, then the Court may, from corroborating evidence, and convict the accused.

[14] Finally, the Crown recognizes that, if the Court concludes that Mr. Heybad’s trial testimony was neither credible nor reliable, as to his ability to recognize the face of his stabber without reference to the Facebook photographs and subsequent sitings of the accused, then the Court is obliged to acquit Mr. Sheek-Hussein of all charges.

Position of the Defence

[15] The Defence takes the position that Ratwan Heybad was neither a credible nor a reliable witness, noting that in 2 audiotaped statements provided on January 11 and January 12, 2014, Mr. Heybad did not cooperate with police and provided various and conflicting descriptions of his stabber without identifying him by name.

[16] The Defence called the investigating officer, Det. Andrew Milton, who testified in the context of a K.G.B. application, that on February 7, 2014, Mr. Heybad made further disclosure relied on for the truth of its contents identifying the accused by name. The Defence relies on two further statements made by Mr. Heybad in the course of preparing for trial on December 15 and 16, 2016, for impeachment purposes only. These statements pertain to Mr. Heybad’s encounters with the accused in February and May 2016, and subsequently while driving next to the accused’s car on Walkley Road in Ottawa. The Defence describes the evidence of Mr. Heybad as replete with lies and inconsistencies.

[17] The Defence maintains that Mr. Heybad tainted his own photo-identification of the accused conducted on April 4, 2014 by examining photographs of the accused on Facebook on January 11 or 12, 2014 and admitted that in a conversation with police on March 24, 2014, he saw the accused at least once at Billings Bridge.

[18] The Defence posits that Mr. Heybad further undermined his own credibility by perjuring himself at the preliminary inquiry on July 13, 2015 on the subject of how he came to learn the name of his stabber.

[19] Finally, the Defence notes that there is ample evidence Mr. Heybad was drunk both prior to and at the time of the stabbing. Accordingly, his memory of events was clearly affected. Furthermore, his criminal record suggests a history of offences associated with alcohol consumption which further lays into question the strength and weight that should be accorded his testimony.

[20] In addition to the evidence of Det. Andrew Milton, the Defence relied upon Sgt. Jeff Leblanc’s Investigative Action admitted for the truth of its contents as Exhibit 11. The Defence also tendered the statement of Emmanuel Morin for the truth of its contents as Exhibit 12. Mr. Morin is an individual who rendered assistance after the stabbing.

Guiding Principles of Law

[21] In addition to the trial testimony of its principal witness, Mr. Heybad, the Crown tendered the following evidence:

• that of Rideau Centre security guard, Pascal Mainville;
• that of Bayle Khandid; and
• a DVD of five Rideau Centre surveillance videos (Exhibit 2);
• a DVD containing video surveillance taken from the Chateau Laurier (Exhibit 3);
• the photo lineup shown to Mr. Heybad and accompanying instructions (Exhibit 5);
• a DVD containing the videotaped photo lineup (Exhibits 6);
• the evidence of Mahmoud Haider and related Photobook containing 8 still photographs from within a taxi cab driven by Mr. Haider who is alleged to have picked up Mr. Khandid and Mr. Sheek-Hussein at the St-Laurent Shopping Centre more than 3 hours after the stabbing at about 1:30 a.m. on January 11, 2014. (Exhibit 8)

[22] However, after receiving Mr. Heybad’s testimony, it became apparent that the reliability and credibility of his evidence was critical to the result in this case. While this issue also became abundantly apparent in the course of receiving the testimony of another Crown witness, Bayle Khandid, the Crown’s case clearly turned on the evidence of Mr. Heybad.

Reliability and Credibility of Witnesses Providing Identification Evidence

[23] In all cases that turn on the issue of the reliability and credibility of witnesses, I guide myself by the dicta of Justice Watt in R. v. H. C., 2009 ONCA 56, 244 O.A.C. 288 at para. 41, where he noted:

Credibility and reliability are different. Credibility has to do with a witness’ veracity, reliability with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately:

i. Observe; ii. Recall; iii. Recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility on the other hand, is not a proxy for reliability:

A credible witness may give unreliable evidence.

[24] The reliability and credibility of Mr. Heybad pertains specifically to whether he was able to identify or recognize his stabber on January 10, 2014. As such, I must also be guided by the case law wherein identification and recognition of an accused is pivotal to the Crown’s case. Having considered the case law tendered by both Crown and Defence in identification and recognition cases, I have distilled the guiding principles from the appellate cases, and have had regard for the application of these cases in trial level decisions.

[25] The common law categorizes visual or sensory identification evidence as lay opinion evidence. This class of evidence is called identity opinion or identification evidence. Canada is not immune from the problem of wrongful convictions based on erroneous identification evidence (R v Jack, 2013 ONCA 80, 302 O.A.C. 137; R. v. Hanemaayer, (2008) 2008 ONCA 580, 234 C.C.C. (3d) 3 (Ont. C.A.); R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283; R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197). Thus, while presumptively admissible, the use of this evidence warrants much caution and courts have repeatedly warned against the inherent frailities of eyewitness identification evidence (R. v. Powell, 2007 ONSC 45918, at para. 10, upheld in R. v. Powell, 2010 ONCA 105, 258 O.A.C. 247).

[26] As the Ontario Court of Appeal points out in R. v. Oliffe, 2015 ONCA 242, 331 O.A.C. 12 at paragraph 37, the main concern turns on the reliability of this form of evidence:

The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 ONCA 2595, 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33. [Emphasis added].

[27] Thus, an eyewitness may be honest and convincing in his or her account of who s/he saw, however the danger of an honest but inaccurate identification is still present, and courts must be careful not to convict on this kind of evidence. (R. v. Oliffe, at para 37; R. v. Jack, at para. 14; R. v. Goran, at paras. 26-27).

[28] In assessing identification evidence, the Court of Appeal in R. v. Jack at paras. 15-16 calls for special attention to be given to the following elements:

• Whether the witness knew the suspect;
• What the circumstances of the contact during the commission of the crime were, including whether the witness had a lengthy or fleeting opportunity to see the suspect;
• Whether the sighting of the witness were made in circumstances of stress;
• Whether the description was vague or generic;
• Whether the description included references to distinctive features of the suspect.;
• Where there is no other inculpatory evidence, the failure to mention distinctive characteristics can be sufficiently important to reduce the case to one of no identification;
• That an in-court (also called in-dock) identification is to be given negligible, if any weight.

Recognition Evidence

[29] Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence (R. v. Oliffe, at paragraph 38). In R. v. Oliffe, the Court of Appeal explains at para. 39:

The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, 1970 ONCA 390, [1970] 3 O.R. 74 (C.A.), at p. 82.

[30] In some cases, previous contacts that are brief and occurred “in the normal course of business” months before the alleged crime, have not been considered to fall within the range of recognition cases for want of providing an opportunity to make note of a suspect’s features (R. v. Jack, at paragraph 25). Thus, not only is recognition evidence a form of identification evidence, but its probative value may be limited by the circumstances of the initial contact.

Evidence of the Crown

Pascal Mainville

[31] Before introducing the testimony of Mr. Heybad, the Crown called Pascal Mainville. Mr. Mainville was a security guard on duty at the Rideau Centre, along with a co-worker, Melissa Eddy, on the evening of January 10, 2014.

[32] While Mr. Mainville clearly did not have previous dealings with either the complainant or the accused, or any of their friends while they socialized on the Roof-Top Terrace, nor did he witness the stabbing, his testimony introduces key surveillance video footage taken from various locations at the Rideau Centre on January 10, 2014. His testimony also sets the stage insofar as it deals with his and Ms. Eddy’s response to a loud discussion and commotion in the food court by the escalators near the washrooms, some of which was captured in the KFC-Food Court Cam video tendered as part of Exhibit 2.

[33] Mr. Mainville recalled that he received a call at 9:55 p.m. while he was patrolling the second level of the mall that an argument was taking place on one of the lower floors.

[34] As depicted on video, in particular at 9:57 p.m., he and Ms. Eddy travelled down the escalator to the first floor, located a group of three black males between the ages of 18 to 25 engaged in an argument. Ms. Eddy, who was in the lead, directed them to leave via the food court exit and not to return for 24 hours.

[35] Mr. Mainville described the first male to be of slim build, approximately six feet tall and wearing dark clothing. He had white styled ear buds and was carrying a Tim Horton’s cup with dark liquid in it. The second male was of medium build, was six to six and a half feet tall and wore a Blue Jays’ jacket and a blue tuque. The third male also had a slim build and was six feet tall and wore dark clothing.

[36] Brief words were exchanged with the male wearing the Blue Jays’ jacket who assured Mr. Mainville and Ms. Eddy that the issue in dispute was resolved. They did not leave the food court or at this time.

[37] Mr. Mainville had dealings with the first male carrying the Tim Horton’s cup. He asked him what he was drinking and was advised that it was Red Bull. Mr. Mainville knew that this was not truthful because of its color. The male subsequently admitted the fluid was alcohol. Given the policy at the Rideau Centre was not to have alcohol on the premises, he directed this male to leave immediately. Before leaving, the male dropped his ear buds and Ms. Eddy picked them up and returned them to him.

[38] Approximately five minutes later, Mr. Mainville was approached by an unidentified male who came to him, Ms. Eddy, and their supervisor and disclosed that a fight had erupted just outside the doors on Rideau Street.

[39] Mr. Mainville confirmed that he did not see any of the black males coming down the escalators from the upper levels of the Rideau Centre, but noted persons coming down those escalators could be coming from a number of locations including from the MacKenzie Street bridge where the bus transit stop is located, or from the escalators coming down from the Roof-Top Terrace.

[40] Mr. Mainville also confirmed that a McDonald’s is located across the street approximately 100 to 150 meters east of the food court exit beside the Hudson’s Bay entrance. He further confirmed that this McDonald’s is approximately 200 to 220 meters from the corner of Rideau Street and Sussex Drive and that if one walked west on Rideau and turned the corner at Rideau Street and Sussex Drive, one could continue north to the George Street entrance of the Chapters book store.

[41] Mr. Mainville recalled that he was able to smell alcohol on the breath of the male carrying the Tim Horton’s cup. He did not take note of other signs of impairment, as his conversation was brief and the goal was to ask this male to leave the property. The video footage suggested to him that this male eventually left via the food court exit while the other two males including the one with the Blue Jays’ jacket and the other one dressed in dark clothing stayed in the food court area for at least another minute. He did not take note of the subsequent whereabouts of the remaining two black males as his concern was the one carrying the Tim Horton’s cup.

[42] Having regard to the subsequent testimony received, there is little doubt that the first male carrying the Tim Horton’s cup was Mr. Heybad; the second male wearing the Blue Jays’ jacket and blue tuque was Mr. Warsame; and the third male was Bayle Khandid.

Mr. Khandid

[43] Mr. Khandid testified before Mr. Heybad took the stand. While Mr. Khandid swore to tell the truth on the Koran at trial, after the preliminary evidence given as to his friendship with Mr. Heybad whom he met in high school and whom he used to drink and party with on a frequent basis, it became evident that there were a number of issues with his evidence. When he was referred to the video footage taken in the food court at the Rideau Centre in Exhibit 2; subsequently to the video footage taken in front of the Chateau Laurier about 14 minutes later in Exhibit 3; and finally, to 8 photographs initially marked as Exhibit A for subsequent identification as Exhibit 8 and taken from the camera of a taxi cab almost three hours later at 1:21 a.m. on Saturday January 11, 2014, he claimed that a lot of the evening was a blur due to the fact that he began drinking before going to the Rideau Centre, and was “really really drunk.” Moreover, he testified that his recollection was affected by the passage of time. He was not forthcoming in his testimony nor was of much assistance to the Crown’s case.

[44] His initial recollection was that on January 10, 2014, he went to the Rideau Centre alone where he encountered Mr. Heybad being loud in the food court. He reiterated that he did not recall who Mr. Heybad was with because he had been drinking throughout that day. He guessed that Mr. Heybad was in the company of others, who were possibly women.

[45] He confirmed that he knew Zakaria Sheek-Hussein about the same length of time as Mr. Heybad, but did not know Mr. Sheek-Hussein as well as he knew Mr. Heybad. He met Mr. Sheek-Hussein through a friend. He did not know if Mr. Heybad and Mr. Sheek-Hussein knew each other because the three of them never “hung out” together.

[46] He was not with Mr. Heybad or Mr. Sheek-Hussein on January 10, 2014, although he admitted that later that night, he met up with Mr. Sheek-Hussein in the St-Laurent Shopping Centre and they jumped into the same cab. He was clear that he did not meet Mr. Sheek-Hussein at any place other than the St-Laurent Shopping Centre on January 10, 2014. He was referred to 8 pages of the photographs in Exhibit 8, and identified himself as the passenger initially seated behind the cab driver and on a cell phone. He identified himself as that occupant on page 1, 3, and 7 behind the cab driver. He was less certain of whether the photocopied photograph on the right side of page 4 was himself as it was blurry and of poor quality.

[47] More importantly, he did not identify the other passenger depicted in the photocopies of the photographs on page 5 and 6 of Exhibit 8, other than to say that “the image was kind of blurred,” that it looked like a lot of high school friends he knew, and that he did not want to jump to any conclusions.

[48] I would observe that it is difficult to describe the clothing Mr. Khandid wore, as depicted in the photography in Exhibit 8, other than to state that he wore something with dark sleeves, part of which was a two-toned vest or jacket. No other details were possible to make out in Exhibit 8. I would also observe that the clothing worn by the other occupant is similarly difficult to make out. The occupant appeared to be wearing a light-colored jacket about the same shade as the lighter section near the shoulders of the vest that Mr. Khandid wore. It is also possible that the other occupant either had a hood on his jacket that was also of light color, or possibly a “hoodie” below the jacket.

[49] Finally, I would also observe that both black males depicted by the photocopies in Exhibit 8 have generous lips and a thin mustache, larges foreheads and similar hairlines, although the quality of the photocopies again makes this difficult to discern.

[50] Mr. Khandid was next taken to the video footage taken in front of the Chateau Laurier at 10:13 p.m. Again, he did not recall being there on the evening of January 10, 2014, because he was “really really drunk.” He suggested that his information about the evening came from other sources including his mother. He did not know if Mr. Heybad suffered injuries that night. However, he described how Mr. Heybad could behave in a violent manner when he became drunk and referred to an incident when Mr. Heybad was charged along with one of Mr. Khandid’s younger cousins in relation to an incident on the Roof-Top Terrace. Mr. Khandid surmised that on January 10, 2014, Mr. Heybad may have argued with someone while drunk and “gotten into someone’s face.”

[51] Mr. Khandid denied recognizing either black male in the video footage taken between 10:13:21 p.m. and 10:13:37 p.m. in front of the Chateau Laurier in Exhibit 3. Indeed, he did not recognize the location as the Chateau Laurier.

[52] My own observation of the contents of Exhibit 3 is that the video footage is of such poor quality that the facial features of both black males are not clearly made out, although the male to the left and walking behind the other is wearing clothing similar to that worn by the person Mr. Khandid identified as himself in the taxi cab three hours later. The other individual whose face cannot be made out clearly and who is walking in front of the other is wearing a dark jacket with a light colored hoodie, and not a light jacket as depicted in the taxi stills forming part of Exhibit 8.

[53] Mr. Khandid was unable to say how he and Mr. Heybad parted company at the Rideau Centre, other than to suggest he likely left Mr. Heybad because he was being loud and drunk. Mr. Khandid could not recall how he left the area of the Rideau Centre that evening. He denied knowing a person nicknamed “Zip-Lock Zac.” Crown counsel attempted to refresh his memory by inviting him to read the transcribed contents of an audiotaped statement he provided to Det. Milton on February 7, 2014. Mr. Khandid stated that he had read the transcript but that it did not refresh his memory because the incident happened so long ago, as did the taking of the statement. He thought perhaps that he was picked up by someone near the Rideau Centre, but he did not know by whom. He admitted withholding that information from police because he did not want to involve the person who picked him up. He confirmed that he met Mr. Sheek-Hussein at St-Laurent Shopping Centre at some point, but could not say whether this was before or after he saw Mr. Heybad at the Rideau Centre. He did not know whether he had plans with Mr. Sheek-Hussein, but surmised that they might have met up with some females.

[54] Mr. Khandid confirmed that he received CPR or First Aid training either as part of a Police Foundations course he took for a semester or two in 2014, or CPR training he received when he worked as a security guard. He did not recall putting his CPR or First Aid training to use on January 10, 2014.

[55] I dismissed the Crown’s application under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 to cross-examine Mr. Khandid on the issue of whether or not he used his First Aid to assist Mr. Heybad after the stabbing, after concluding that there was no contradiction on the face of the answers given to questions put to Mr. Khandid to ground the Crown’s application to cross-examine on that issue. The Crown subsequently expanded its application to include new areas of inquiry arising from the transcript of Mr. Khandid’s police interview, about Mr. Khandid’s contact with Mr. Heybad and with the accused on the night of the stabbing. He maintained that he encountered Mr. Heybad at the Rideau Centre, but after a quick conversation with him, and after observing Mr. Heybad to be loud and drunk, he decided to leave the Rideau Centre. He did not recall the time of day, other than to say it was dark outside when he left. He did not recall when he went home, but when referred to the transcript of his interview he confirmed that he had not arrived home at approximately 7:00 p.m. on January 10, 2014 as he had advised Det. Milton.

[56] Crown counsel subsequently sought leave to cross-examine Mr, Khandid on the basis of inconsistencies between his trial testimony and the information provided in his audiotaped statement as to the circumstances pertaining to why he left the Rideau Centre area on January 10, 2014. Having failed to satisfy me as to a body of inconsistencies or overall adversity on the part of Mr. Khandid to justify a cross-examination of Mr. Khandid at large, I allowed some moderately leading questions to further trigger Mr. Khandid’s memory. As a result, Mr. Khandid further testified that before January 10, 2014, he and Mr. Heybad would often hang out at least once per month although it was too long ago for him to say whether it was more frequent than this. He did not have the same kind of relationship with the accused. He knew Mr. Heybad more because he would hang out with him. He agreed that Mr. Heybad would come over to his house although he could not say how often. At this point, Mr. Khandid informed the court that he was feeling unwell and was having difficulty raising the volume of his voice because of a sore throat.

[57] Mr. Khandid did not recall having contact with Mr. Heybad between January 10, 2014 and the date he gave his police interview, and reference to the transcript of the police interview did not refresh his memory; however, he did not take issue with its contents that indicate he probably did message Mr. Heybad on Facebook. As a result of this further questioning of Mr. Khandid, and on consent of the Defence, the transcript of Mr. Khandid’s interview by Det. Milton in relation to his contact with Mr. Heybad between January 10 and February 7, 2014 was received as past recollection recorded.

[58] Mr. Khandid eventually testified that what caused him to leave the mall was the fact that Mr. Heybad was loud and arguing with someone and that there were a lot of people there. Referred to the transcript of his police interview which he confirmed reading, Mr. Khandid said all that he remembered was that Mr. Heybad was arguing with some guy, and that Mr. Heybad was being loud after which Mr. Khandid left the mall. He agreed with the proposition put to him by Crown counsel that he probably told Mr. Heybad to “chill out” but then he left knowing what Mr. Heybad was like when he was drunk. He could not recall if he left with anyone at this point. When pressed as to why he did not recall, he maintained that he was drunk and that it all took place three years ago.

[59] After extracting this much from Mr. Khandid, the Crown made a further application under ss. 9(1) and 9(2) of the Canada Evidence Act to permit cross-examination of Mr. Khandid, either on five discreet areas of contradiction or cross-examination at large. After canvassing the additional areas of contradictions as between Mr. Khandid’s trial testimony and audiotaped interview with police, and after hearing submissions from both counsel, I determined that there was only one additional area of inconsistency identified by the Crown, that being that Mr. Khandid and others may have been told to leave the food court by patrolling security as opposed to having left because Mr. Heybad was loud and drunk.

[60] Based on my ruling, Crown counsel did not proceed further with an application under ss. 9(1) and 9(2) of the Canada Evidence Act. Instead, the Crown invited me to exercise my common law jurisdiction to declare Mr. Khandid a hostile witness for the purpose of cross-examining him at large. Defence counsel correctly pointed out that a voir dire would be required to canvass all aspects of the audiotaped statement provided by Mr. Khandid, including the instructions provided by Det. Milton to Mr. Khandid to provide “no comment” to any question he was uncomfortable answering, and to canvass other conditions of the interview including the complaints made by Mr. Khandid that Det. Milton was crowding his body space and pressuring him. Counsel did not proceed with a voir dire. Therefore, on the body of the evidence I received at trial being Mr. Khandid’s limited memory of events due to the passage of time and his having been intoxicated on the evening of January 10, 2014, and the limited body of inconsistencies, I could not conclude that he had a hostile animus towards the Crown and was necessarily opposed to Crown counsel’s position. I would also observe that, because Mr. Khandid’s evidence was called before that of Mr. Heybad, the factual matrix that could have suggested a more pivotal role played by Mr. Khandid on the night of January 10, 2014 and which Mr. Khandid may have sought to minimize, did not emerge.

[61] In further reference to the transcript of his police interview, Mr. Khandid agreed that he told Det. Milton that a friend of his picked him up. He also recalled that at the time of the interview, he remembered who this friend was but declined to tell Det. Milton. At the time of trial, however, he did not remember telling this to Det. Milton and could not recall today which friend picked him up. As such, he adopted the transcript to this extent as past memory recorded.

[62] The video footage taken from the KFC-Food Court Camera between 9:56:40 p.m. and 9: 57:45 p.m. in Exhibit 2 was shown to Mr. Khandid. He confirmed that the video footage depicted the food court area of the Rideau Centre. From viewing the video, his memory was not further refreshed about the argument he overheard. He could not say who was in the vicinity when he approached Mr. Heybad. He was unable to say whether anyone had any alcohol with them. He was unable to recognize any of the individuals at any point aside from Amin Warsame.

[63] At the end of the day, Mr. Khandid’s evidence did not shed light on who Mr. Heybad’s stabber was. At no time did he clearly identify himself as the person who accompanied another black male in the Chateau Laurier video. His evidence was that he got into a taxi cab with Mr. Sheek-Hussein, but he could not recall whether that was before or after his encounter with Mr. Heybad at the Rideau Centre.

Ratwan Heybad

[64] Mr. Heybad is a 25-year old heavy set black man who generally testified in a calm, careful, deliberate and at times guarded manner, clearly alive to the potential areas of weakness in his evidence. Indeed, at times his evidence had a practiced quality, particularly when he offered explanations for the inconsistencies between his trial testimony and prior statements made to police, and for perjured testimony offered at the preliminary inquiry on April 13, 2015. To say that his evidence was problematic is to be charitable. By his incremental and sometimes inconsistent disclosure to investigating police officer, Det. Milton, in two recorded statements taken January 11 and 12, 2014 and on four subsequent occasions including on February 7, March 28, 2014, December 15 and 16, 2016, coupled with his perjured testimony at the preliminary inquiry, Mr. Heybad placed his own credibility in question.

[65] Mr. Heybad swore to tell the truth on the Koran, noting that he is a practicing Muslim and follows the laws of Islam, as does his family. He grew up in the south end of the City in the Heatherington neighborhood, which he described to be an area populated by low income families where there was a lot of violence in the community.

[66] Mr. Heybad testified that on January 10, 2014, he was stabbed by Zakaria Sheek-Hussein whom he pointed to in the body of the courtroom. At the time of the stabbing, he knew the accused by his street name, “Zip-Lock Zac.” He met him through mutual friends, but had only a few brief encounters with him over the years before the stabbing. He characterized the encounters as not more than the casual “hi and bye.” He recalled that he met him three to five times before January 10, 2014. None of these encounters were planned but mere coincidental events in malls.

[67] On one such casual encounter before January 10, 2014, he was asked by the accused if there were any job openings at the Winners where he and Mr. Warsame were employed at the time of the stabbing. The conversation was brief and limited to this subject.

[68] After a voir dire at trial, I concluded that Mr. Heybad’s ability to recognize Zakaria Sheek-Hussein was better than mine, having regard to his encounters with Mr. Sheek-Hussein prior to January 10, 2014. On the other hand, I am also satisfied that Mr. Heybad’s ability to recognize Mr. Sheek-Hussein at the relevant times, would not foreclose a finding that he was unable to identify the stabber and was unsure about his identity, until after he consulted the Facebook page of the accused in the days that followed the stabbing.

[69] A summary of his evidence exposes the frailties in his testimony.

[70] On the day of his stabbing, Mr. Heybad began to work at about 6:00 a.m. and finished his shift 6 or 7 hours later at 2:30 p.m. or 3:00 p.m. He then met up with his co-worker, Amin Warsame, at the Billings Bridge Plaza. Although he was unsure how much time he and Mr. Warsame spent at the Billings Bridge Plaza, he recalled they were there for some time sorting out their eventual plans to go to a party at the University of Ottawa. While at the Plaza, Mr. Heybad gave Mr. Warsame money to purchase a mickey of rum as well as a 26 oz bottle of rum. He delegated to Mr. Warsame the task of purchasing the alcohol and carrying it for him in order to foreclose the potential that he might thereby be seen to openly transgress the teachings of Islam that prohibit the purchase and consumption of alcohol. Nevertheless, together with Mr. Warsame, they consumed about an equal portion of the 13oz mickey of rum, and Mr. Heybad consumed an additional two shots from the 26 oz bottle of rum in the course of approximately four hours before the stabbing.

[71] He testified that before going to the party at the University of Ottawa as they had planned, he and Mr. Warsame got off the city bus they took from Billings Bridge and went to socialize with others at the Roof-Top Terrace. He recalled that the locale was pretty packed, it being a Friday night, and that he met two girls and others outside having cigarettes on the terrace. However, he did not recognize anyone other than Mr. Warsame. It was a cold evening, and aside from going outside to smoke, he remained indoors. By the time he and Mr. Warsame were ready to leave, he testified that the accused and Bayle Khandid arrived. Consistent with the evidence of Mr. Khandid, he confirmed that he and Mr. Warsame had no plans to meet others on the Roof-Top, and he was unsure whether the accused and Mr. Khandid were together that evening.

[72] Mr. Heybad said that the four of them left the Roof-Top together and went to the food court. Once there, although Mr. Heybad testified that the other two were not too far away, he “branched off” to have a private word with Mr. Warsame and specifically, to ask him what had happened to the alcohol he purchased at the Billings Bridge Plaza. When he last saw the 26 oz bottle of rum, it was pretty much full, but in private discussion he learned from Mr. Warsame the alcohol had been finished.

[73] Mr. Heybad carried with him a disposable plastic cup from the Billings Bridge Plaza, and wanted to pour himself some more alcohol when Mr. Warsame told him the bottle was finished. He characterized his conversation with Mr. Warsame as a “friendly argument.” I formed the impression that he couched the discussion in terms intended to refute the suggestion that he had a loud and angry discussion with Mr. Warsame near the escalators in the food court. On the one hand, he denied being angry, and on the other hand, he said that friends argue all the time. Mr. Heybad said that he was merely “calling” Mr. Warsame on the matter to tell him who had consumed the alcohol. When he realized the conversation with Mr. Warsame was going nowhere, he decided to ask questions of the others.

[74] Before being referred to the video footage in Exhibit 2 taken at the Rideau Centre on the evening in question, Mr. Heybad recalled that Mr. Warsame was wearing a blue coat and blue hat and jeans. He himself wore a black jacket and casual timberland boots. He recalled that Bayle Khandid was wearing a plain black coat with a small amount of gold detail or design although he was unsure where exactly this detail was on the coat.

[75] He was referred to the video footage taken from the first floor washroom of the food court at 9:42 p.m. and identified three males walking into the washroom. Mr. Heybad said that the first male was Bayle Khandid, followed by Amin Warsame in the Blue Jays jacket, and to the left of Mr. Warsame was Zakaria Sheek-Hussein in a black down-filled jacket with a white hoodie.

[76] Mr. Heybad was subsequently shown to the video footage taken from the Rideau Court 2 camera, depicting two individuals walking towards the escalators leading down to the food court. He could only identify one of them as Amin Warsame as the video was too blurry.

[77] He subsequently viewed the video footage from the food court camera and confirmed that after 9:57 p.m., the camera depicted him and Mr. Warsame near the washroom in conversation, subsequently joined by Bayle Khandid. He confirmed that this was when he was asking Mr. Warsame what happened to his bottle of rum. He corroborated Mr. Khandid’s involvement, proffering the opinion that Mr. Khandid came over to diffuse the situation and to calm him down. He further corroborated Mr. Khandid’s testimony that the conversation with Amin Warsame ended when they reassured Mr. Khandid that they were not mad at one another. Subsequently, security came down and directed them to leave as the mall was closing. He could not recall if he was carrying anything or what happened to the disposable cup he had carried from Billings Bridge.

[78] It was Mr. Heybad’s recollection that when the security guards told them to leave, he proceeded to exit the mall and was accompanied by Mr. Warsame, Mr. Khandid and the accused.

[79] By the time he left the food court, Mr. Heybad had already concluded that Mr. Warsame had shared his alcohol with Mr. Khandid and the accused, and had decided that he was not going to take his frustrations out on them because it was not their responsibility, but Mr. Warsame’s. I formed the impression that this evidence was proffered to suggest that he had no animus towards anyone, other than Mr. Warsame, to this point in the events.

[80] Once outside of the Rideau Centre, Mr. Heybad testified that he stopped for a cigarette in front of the doors to the mall, and then asked Mr. Khandid if he had consumed his alcohol. Mr. Khandid denied doing so and then he asked the accused if he did. Mr. Heybad recalled that the accused got extremely mad “right off the bat”, began to swear, and denied helping himself to Mr. Heybad’s alcohol.

[81] The exchange with the accused took place near a shelter just left of the doors at the food court exit. Mr. Heybad described how in a state of rage, the accused walked towards him and how Mr. Khandid and Mr. Warsame, and the two girls they had met, created a barrier between them. The accused then reached over with his index finger and pushed Mr. Heybad’s forehead. Once this happened, Mr. Heybad felt disrespected and prepared to fight, bracing for impact. He recalled the accused threw the first punch somewhere near his head. At this point, the others disbursed and moved away as a fight was in process. Mr. Heybad claimed that he responded in self-defence by throwing a punch, because he saw the accused approaching again. He was unsure if he connected or not. The others tried to separate him and the accused once again, but the accused was extremely mad, told Mr. Heybad that he was going to beat him up, and invited him to finish the fight. Accordingly, they walked across to the sidewalk towards the Chateau Laurier hotel, crossed Rideau Street and travelled on the sidewalk closest to the Chapters book store. While he mentioned that he and the accused were accompanied by Bayle Khandid, he notably made no mention of Amin Warsame, and the two girls. Other evidence received, however, suggests that Mr. Warsame was around at this time.

[82] Mr. Heybad recalled that before making it to the entrance of the Chapters store on Sussex and George St, Mr. Khandid pulled the accused towards him and he presumed that his friend was trying to calm down the accused. Mr. Heybad had also planned to calm the accused down, having concluded that the dispute over alcohol was not worth it. He recalled Mr. Khandid and the accused were a step behind him towards his right. He then saw something moving on his right side from the corner of this eye. He thought the accused was coming towards him to throw another punch. Mr. Heybad jumped back to put distance between himself and the accused after throwing a punch at the accused. Next, he felt an impact to his right biceps after which he felt his arm go completely dead and fall to his side. It did not occur to him right away that he had been stabbed, but as he prepared to throw another punch with his right arm, he realized he could feel nothing in the arm or the right hand and observed blood squirting out of the right biceps. Staunching the blood flow with his left hand, he ran across the street and eventually found a young couple to call an ambulance. Calling upon his CPR training, he lay down and tried not to pass out. His next memory was that Mr. Khandid was on his right side and the accused was on his left side, as he lay waiting for the ambulance. He recalled the accused said something like “you’re not so high and mighty now – look at you.” He ignored these words and just focused on his right biceps. He was unaware that he was also bleeding from the stomach and right leg.

[83] Mr. Heybad admitted to a criminal record with respect to offences which pre-dated his stabbing. His criminal record, entered as Exhibit 4, reflects a conviction for assault causing bodily harm; obstructing police and 2 charges for failure to comply with conditions of his undertaking. For these offences, he received a suspended sentence and twenty four months’ probation.

[84] Mr. Heybad admitted that police took statements from him while he was in hospital. He admitted that he did not give them honest answers at that time.

[85] While Mr. Heybad’s memory as to the words exchanged with the accused before and immediately after the stabbing was preserved to the point he quoted the words or paraphrased the accused, I noted that he could not recall whether he had provided police with a description of his assailant.

[86] His memory was that at a later date, he provided police with the name “Zakaria” as well as his nickname, Zip-Lock Zac. When afforded an opportunity to review the second of two audio recorded interviews conducted by police on January 12, 2014, Mr. Heybad confirmed that on this day he gave police a name, but again, could not recall if he gave a description of his attacker. His memory had to be refreshed by reference to the transcripts of his police interviews and subsequent contacts with police. It is important to chronicle the details of his incremental disclosure to police both before and after Mr. Heybad made a positive identification of the accused in a photo lineup on April 4, 2014. In doing so, I do not lose sight of the fact that on January 11 or 12, 2014, a family member, quite possibly his brother, brought him his tablet with which he searched for a photo of his attacker on Facebook. In what appeared to me to be an attempt to anticipate a potential area of cross-examination, Mr. Heybad offered the evidence that he did not need to look at the Facebook photographs to identify his attacker, but wished only to direct police to the Facebook photographs to allow police to locate his stabber.

[87] On January 11, 2014, Mr. Heybad recalled that he did not speak to anyone except his mother and that she had provided no information relating to his attack. He admitted that he withheld information during his first police interview because he was unsure if he was going to be arrested, or considered the victim in the case. He did not explain why he would have had this confusion. This raised an alert as to whether his condition on the day of the stabbing, including his ingestion of alcohol, may have affected his memory to the point he considered himself a possible suspect.

[88] Mr. Heybad recalled that on January 11, 2014, he was still assessing his options and was unsure if he was going to press charges, considering the culture and neighborhood in which he was raised and in which persons did not collaborate with police. He also had a concern about his own safety if he reported the attacker, and had not had enough time to reflect about his options. He agreed that he did not tell police on January 11, 2014 that Mr. Khandid and the accused were by his side, as he lay waiting for paramedics at the Chateau Laurier. He agreed that he told police he simply lay there with his eyes closed.

[89] At trial, he justified this omission on the basis that he was trying to protect his friend, Mr. Khandid. While he testified that on January 11, 2014, he was heavily medicated and that a side effect of the medication was that he slept a lot, he maintained that he had a clear head and did not recall any effects upon him when he was awake. While he testified that he knew his attacker was the accused on January 11, 2014, he agreed in cross-examination that he began his interview by telling police the stabber was a “drunk guy” that he saw in front of the McDonald’s on Rideau Street.

[90] At trial, he added that he was not sure if the episode with the man in front of the McDonald’s actually occurred. Later on in his cross-examination, he said that his story about the stabber being the “drunk guy” at the McDonald’s was a lie, and that he also lied to police when he told them that, after leaving the food court, he went to McDonald’s for a bite to eat. He also admitted that on January 11, 2014, he told police he did not know who stabbed him and described the stabber as one wearing a brown/dark jacket. He told police that he did not see whether the stabber had any facial hair. He also admitted that he told police that the man at the McDonald’s yelled at him, and that he tried to ignore him but was stabbed by him, although he did not actually see the knife, only the hand of his stabber moving as though he carried a knife. He also acknowledged in cross-examination that when he was asked on January 11, 2014 if the McDonald’s attacker was alone, he advised them that he did not know because there were a lot of people around. At the same time, he agreed that Det. Milton kept bringing him back to events in the food court at the Rideau Centre during his interview of January 11, which caused Mr. Heybad to ask police what the fixation was with the food court. After that, he admitted he changed his account to police and informed them that he had had an argument with a “skinny guy” at the food court. He agreed that when police asked him if Mr. Warsame knew the skinny guy, in cross-examination Mr. Heybad explained that he told police that Mr. Warsame did not know the “skinny guy”, because he wanted to protect Mr. Warsame.

[91] At trial, Mr. Heybad also admitted that during the January 11 interview, he told police there was a person he referred to as “the peacemaker” who was trying to calm him and the accused in the heat of the argument. He acknowledged, at trial, that the peacemaker was Bayle Khandid and that he withheld Mr. Khandid’s name on January 11 to protect him. This evidence was contrary to the testimony of Mr. Khandid who stated that he intervened between Mr. Heybad and Mr. Warsame, because Mr. Heybad was drunk and loud. This is also contrary to the events captured in the food court video in Exhibit 2, which do not depict Mr. Khandid attempting to calm matters between Mr. Heybad and the accused.

[92] After much prompting and being referred to the transcripts of his interview, Mr. Heybad finally agreed that his brother brought him his tablet before the police interview on January 12, 2014, and that he failed to inform police on January 11 and January 12, 2014 that he had his tablet with him at the hospital, and accessed Facebook photographs of the accused.

[93] On January 12, 2014, Mr. Heybad admitted that he continued to be deceitful to police about the identity of his attacker. Although he claimed to know the identity of this attacker, and had had access to the Facebook photographs of the accused, at trial he admitted he lied to police and informed them that the name of his stabber was Zip-Lock Zac or Zakaria and that the name “just came to him.” When it was suggested to him in cross-examination that he also offered police deceitful information about collateral matters, including suggesting to police the argument with his stabber was over cigarettes or money, Mr. Heybad resisted this detail. When taken to the transcript of his January 12 interview to refresh his memory, he persisted that he was hinting to police that the argument was about something he bought. Although Mr. Heybad acknowledged that he knew full well on January 12, 2014 that the argument was about alcohol, and that the police gave him an opportunity to provide further details, he agreed that he did not want to be forthright with police. It was noteworthy that Mr. Heybad would not agree with the suggestion that he lied to police when he said that the object of dispute was something that fell out of his pocket, given that he testified that Mr. Warsame was the one who had possession of the 26 oz bottle of rum. Mr. Heybad could not explain why he felt this was not a lie other than to say it did not feel to him like a lie. In the end, Mr. Heybad agreed that he had provided several reasons for the argument with the accused: on January 11, 2014, he told police that the argument occurred when he and Mr. Warsame chose to “ditch Mr. Khandid and the accused to keep the girls to themselves”; and on January 12, he advised police that the argument was about cigarettes, money or something that fell out of his pocket. The story changed again at the preliminary inquiry, which I shall address later in these Reasons.

[94] Mr. Heybad admitted that on January 12, after he got his tablet, he gave the police the name Zip-Lock Zac or Zakaria as his stabber. After being shown his transcript of the January 12 the interview where he advised police that he had not seen the accused for months prior to January 10, 2014, Mr. Heybad testified that it could have been an estimate, but agreed that, on this date, he was still withholding information to police.

[95] At trial, Mr. Heybad had little memory of statements he made over the telephone to Det. Milton on February 7, 2014. In particular, he could not recall telling the police officer that a friend, Brian, told him that the guy who stabbed him was Zakaria. He agreed that it was on this occasion that he learned that Bayle Khandid had also been interviewed by police and that their stories did not match. Although he did not know if Mr. Khandid knew the accused, he concluded Mr. Khandid was no longer a good friend. He also agreed that on February 7, 2014, he first told police that Mr. Khandid and the accused were at his side as he lay waiting for paramedics at the Chateau Laurier. Yet, he still withheld information that the dispute was over alcohol, as he felt embarrassed about being stabbed over a bottle of alcohol worth about $25, and also did not want his parents to know that he consumed alcohol.

[96] In cross-examination, Mr. Heybad first said that he had had no encounter with his stabber between January 10 and February 2014, but then seemed to appreciate from the direction of cross-examination that he had encountered the accused at the Billings Bridge Plaza where he had regular appointments to change the medical device and dressings to drain his stomach infection. He then said that he had seen the accused, but did not know if the accused had seen him as they did not speak. He agreed that on March 28, 2014, he advised Det. Milton that he had seen the accused on three occasions at Billings Bridge. While he did not remember advising Det. Milton that he had seen the accused on three occasions, he recalled this phone call and reporting that he had seen the accused at least one time.

[97] Mr. Heybad admitted that less than a week later on April 4, 2014, after receiving the instructions from Det. Avery Flanagan on a photo lineup, as per the contents of Exhibit 5, he positively identified the accused as his stabber from the videotaped photo-lineup in Exhibit 6. I observed that, while Mr. Heybad maintained the same subdued and calm reaction to the examination of photographs contained in each of the 12 envelopes, when he viewed the photograph of Mr. Sheek-Hussein, he simply stated “it’s clear as day,” noting the picture depicted the same skin color, the same facial features and that there was “no change [in Mr. Sheek-Hussein’s appearance], …one hundred and ten percent.”

[98] It is noteworthy that when first cross-examined at trial as to whether he himself saw a photograph of Zip-Lock Zac on Facebook, Mr. Heybad denied knowing what method he used to access photographs of the accused. However, when he was reminded that in his examination-in-chief, he had volunteered that he went on Facebook looking for Zip-Lock Zac, and that he saw a photograph of the accused wearing a hat and another photograph of the accused in a car, Mr. Heybad agreed that he had gone looking for Zip-Lock Zac on Facebook. He agreed that this was prior to the photo lineup and while he was in hospital. He agreed that he had other opportunities to look at the photographs before the photo lineup, but maintained that he only looked at them once. I note that he did not offer details of how long he examined the photographs, but I inferred that it was long enough to have a particular memory of seeing a photograph of the accused wearing a hat and another photograph of the accused in a car.

[99] As previously noted, after a voir dire to determine Mr. Heybad’s ability to identify Mr. Zakaria Sheek-Hussein based on the four or five occasions when he encountered Mr. Sheek-Hussein prior to January 10, 2014, I concluded that Mr. Heybad’s ability to identify Mr. Zakaria Sheek-Hussein was likely better than my ability at trial three years later, and to that extent, met threshold admissibility.

[100] However, I pause to note that this, coupled with the admissibility of the photo lineup identification, hardly precludes a finding that, while Mr. Heybad may have known the accused as Zip-Lock Zac or Zakaria before the night of the stabbing, he did not identify and may not have recognized who his stabber was. A reasonable doubt arises from the body of other evidence I received, including Mr. Heybad’s own incremental disclosure of the identity of the stabber, his admitted reference to Facebook photographs of the accused, and his admission that he saw Mr. Sheek-Hussein at least once at Billings Bridge Plaza after discharge from hospital and only one week before the photo lineup identification.

[101] While it is plain that, by the date of the preliminary inquiry on July 13, 2015, Mr. Heybad had determined that he was not a suspect insofar as the events of January 10, 2014 are concerned, Mr. Heybad nevertheless perjured himself when he lied to the preliminary inquiry justice about a friend, Brian, telling him that the stabber was Zip-Lock Zac and that his friend pointed him to the Facebook page of Zip-Lock Zac. It is troubling to note that, while being vigorously cross-examined at the preliminary inquiry as to the identity of his friend, Brian, he insisted that he was telling the truth.

[102] I noted that when first confronted in cross-examination with the fact that at p. 72 of the preliminary inquiry transcript, he told the court that it was a friend who gave him the name “Zip-Lock Zac”, Mr. Heybad would not admit to this important detail. He countered by stating that the friend only gave him the last name of his stabber. When referred to p. 64 of his preliminary inquiry transcript, Mr. Heybad agreed that he told the judge that he did not know Zip-Lock Zac; that it was not a flashback; or an instance of him remembering the name, but that a friend gave him the name. He further acknowledged that when he was pressed to furnish his friend, Brian’s full name, he acknowledged stating that it did not matter that he was in a court of law and that he would not be pressed to give up his friend’s name. When further cross-examined at trial with respect to his perjury, Mr. Heybad tried to suggest that he was not given an opportunity to clear up his mistake; however, when he was invited to accept that he was given an opportunity to clear up all of the lies at the preliminary inquiry, he did not take the opportunity. The only explanation he could offer at trial was that he had “to stick with his story.” He embellished the lie by advising the court at the preliminary inquiry that he had deleted the Facebook messages between him and Brian. During his cross-examination, it was also put to Mr. Heybad that he testified at the preliminary inquiry that Brian led him to Zip-Lock Zac. At trial, Mr. Heybad stated that he did not recall that part of the preliminary inquiry but did not refute making this statement when referred to p. 84 of the preliminary inquiry transcript. On the other hand, he acknowledged that, at the preliminary inquiry, he saw fit to inform the court that the dispute with the accused was over alcohol.

[103] Mr. Heybad was cross-examined with respect to evidence he gave at trial that he encountered Mr. Sheek-Hussein in February or May of 2016 at Constellation Court beside Algonquin college when he went to pay a traffic ticket. He described how he was at a counter filling out paperwork when he felt a hand on his shoulder and looked up to find the accused. The accused asked if he could speak with him but Mr. Heybad said no, after which the accused began to “beg.” When he was told to move to the side of the counter to fill out the paperwork, Mr. Heybad testified that the accused started apologizing, pleading and giving reasons why the stabbing happened.

[104] Mr. Heybad further testified that the accused then began to say how the charge would affect his life in the long term if he receives a criminal record, as he did not have one to date. Mr. Heybad stated the accused then offered him $5000 to drop the case. Mr. Heybad added that the accused invited him to meet with his lawyer at court and to tell his lawyer that he had misidentified the person who had stabbed him, which would end the matter. Mr. Heybad recounted how the accused was so desperate that he offered to have Mr. Heybad stab him in all the places that he was stabbed. When Mr. Heybad repeatedly rejected the offers in exchange for an agreement to drop the charges, Mr. Heybad stated that the accused apologized for the stabbing. According to Mr. Heybad, they were not serious apologies in that they were made as others do when they feel they are in the right and justify their behaviour on the basis of alcohol consumption. Mr. Heybad added that the accused informed him that his Defence counsel stated that if he was convicted, he would face about one year in prison and that, accordingly, it was not worth it for Mr. Heybad to press the charges.

[105] Mr. Heybad testified that the last time he encountered the accused was when they were both driving and stopped in traffic side-by-side. Mr. Heybad testified that the accused opened his window and started to talk to him. Although he was unable to hear all the words, he concluded from the tone and what words he could capture that he was once again apologizing and pleading with Mr. Heybad. This quickly turned to swearing and ended with Mr. Heybad pulling up his window and driving away.

[106] In cross-examination, it was put to Mr. Heybad that on December 15, 2016, he spoke with Det. Milton and advised him he had encountered the accused at Constellation Court, and that while he felt the accused was going to speak with him, they did not talk. Mr. Heybad flatly denied having made this statement.

[107] Mr. Heybad appeared to back pedal somewhat when asked in cross-examination whether he had provided Det. Milton with further details about his encounter with the accused at Constellation Court in the course of trial preparation on December 16, 2016 with the Crown attorney. Mr. Heybad said he thought so but that he was not sure.

[108] In preparation for trial, on January 5, 2017, Mr. Heybad admitted that he provided more information about the Constellation Court encounter to Crown counsel and Det. Milton. On this occasion, he stated that the accused informed him that the Crown was looking for two years or less plus good behaviour as a sentence on a plea, whereas his lawyer said he would only serve a one year sentence if he was found guilty at trial. He added that the accused talked about other people being paid off for not testifying.

[109] Mr. Heybad could not recall whether, in statements made on December 15, 16, 2016 or January 5, 2017, he advised police about the other encounter in the car. He knew that Mr. Sheek-Hussein was under conditions not to speak with him at the time although he declined to admit this would have been an important thing for police to be informed of.

[110] In the course of his testimony, in addition to the video footage at the Rideau Centre, Mr. Heybad was also shown photocopies of photo stills taken from the taxi cab in Exhibit A, photographs which were subsequently identified and authenticated by the cab driver, and tendered as Exhibit 8. Mr. Heybad identified Bayle Khandid in the taxi cab seated behind the cab driver on his cell phone. I observed that the photocopies of the photograph depicting Mr. Khandid did not match the description of the black jacket with gold detail he previously testified that Mr. Khandid was wearing on the night of the stabbing. Mr. Heybad also identified Mr. Sheek-Hussein as the other occupant in the taxi cab, and again, I observed that he failed to take note of the fact the photographs depict him to be wearing a light or beige jacket, not a dark jacket as he had earlier testified. I could not determine whether this was due to the poor quality of the photocopy or the photo still itself.

[111] Mr. Heybad was also taken to the videotaped footage in Exhibit 3 depicting two black men in front of the Chateau Laurier hotel shortly after the stabbing. Mr. Heybad testified that he recognized Bayle Khandid on the phone wearing a vest, and Zakaria Sheek-Hussein as the other black male because of his clothes and body type. Although he admitted the facial features were unclear, he insisted “it’s his face.” Again, he failed to observe that the clothing worn by the person he identified as Mr. Khandid did not match the description he gave earlier in testimony that he wore a black jacket with gold detailing.

[112] Mr. Heybad’s recollection of events on the night of the stabbing, and his evidence with respect to the identification of Mr. Khandid, and the accused as his stabber, cannot be considered without regard to his admission that while at Billings Bridge, he and Mr. Warsame drank a 13 oz mickey of rum and that Mr. Heybad drank at least two shots from the 26 oz bottle of rum. It is noteworthy that he was unable to recall that when he was approached by security guard, Patrick Mainville, he was asked about alcohol in the disposable cup he was carrying, and did not recall it being taken away from him after telling Mr. Mainville that it contained alcohol. Although Mr. Heybad insisted that he was not intoxicated while speaking with Mr. Warsame about what became of the balance of the 26 oz bottle of rum, this is consistent with Mr. Khandid’s testimony that Mr. Heybad was drunk and mad. This is also consistent with the video footage in Exhibit 2, which shows Mr. Heybad carrying a disposable cup; Mr. Mainville’s recollection that he smelled alcohol on Mr. Heybad’s breath, and that he and Ms. Eddy were called to investigate the commotion because he and Mr. Warsame were engaged in an argument.

[113] In the course of cross-examination, it was established that Mr. Heybad’s criminal record revealed previous offences that he committed while under the influence of alcohol. The conviction for assault causing bodily harm related to an event in which Mr. Heybad was involved in a fight while drinking. Somewhat defensively, he admitted to drinking alcohol but claimed the drinking had no effect as he was not intoxicated. On the other hand, he admitted that he was intoxicated when he told a police officer he did not have identification on him when he actually did, and was subsequently charged and convicted of obstructing a police officer. He did not recall the events pertaining to two other convictions for breaching conditions of an undertaking, and suggested that perhaps one of them ought not to have been on his record.

Mahmoud Haider

[114] Mr. Haider is a taxi driver. He testified that at approximately 1:30 a.m. on January 11, 2014, he picked up two black men of slim build he estimated to be around 21 or 22 years of age. They were both out of breath and breathing fast. He wanted an excuse not to have them in his vehicle because he thought they were not acting normally. Therefore, he used identification he took as collateral from another fare and asked the occupant in the light colored jacket with the hoodie whether it was his identification. He observed his hand to be shaking when he denied that the identification belonged to him. This occupant entered the cab first, and informed the other occupant who was on his cell phone to “come on in, he’s legit.” Therefore, the other black male on his cell phone sat behind Mr. Haider in the car and continued to speak in Somalian, a language that Mr. Haider was familiar with. As he was driving, he observed that the man on the cell phone mentioned CTV and CBC news and was laughing. The other occupant replied “you think you’re famous now” in English.

[115] After that, Mr. Haider drove to an address at 1720 or 1721 Kilborn Ave. The occupant to whom he had shown the identification exited the vehicle to obtain money from his aunt or mother to pay the fare. The person on the cell phone behind him moved to the centre of the cab and asked him how to use the cell phone. This person had mentioned Rideau and Sussex in the same conversation in which he spoke about CTV and CBC.

[116] In cross-examination, Mr. Haider admitted that the location where he picked up the two black males at St-Laurent Shopping Centre was the usual and convenient place for taxi drivers to wait for fares. It was also normal for persons to open the back door. He agreed that both could have been breathing fast if they were running for a bus and had missed one. He also admitted that it could have been cold that night and that this might explain why the occupants were breathing fast and why the occupant seated on the right side of the cab had shaking hands when he looked at the identification. He identified the person in photograph 3 of Exhibit 8 as the person who was on the cell phone and who had spoken about Rideau and Sussex and about the CBC and CTV news. Mr. Khandid previously testified that he was the person on the cell phone.

[117] Mr. Haider’s evidence was that he saw a small amount of dried blood on the hand of the person Mr. Khandid identified as himself. Only Mr. Heybad identified Mr. Sheek-Hussein as the other occupant of the vehicle. Given the noted concerns with Mr. Heybad’s testimony, I have carefully considered the demonstrative evidence in the video footage taken from various cameras at the Rideau Centre, notably the first floor washroom and the KFC-Food Court Cam in Exhibit 2, the video footage from the Chateau Laurier in Exhibit 3 as well as the still photos from the taxi cab in Exhibits 8 and 9 to determine whether this documentary evidence serves to corroborate or serves to dispel the noted concerns in Mr. Heybad’s testimony. Having repeatedly considered the video surveillance and the timeline of events furnished by Crown counsel, I did not find this evidence particularly helpful. The video footage of three black males whom Mr. Heybad identified as Mr. Khandid out in front, and Mr. Sheek-Hussein and Mr. Warsame behind him entering the first floor washroom, does not provide a clear view of the accused’s facial features, but only a partial profile.

[118] The KFC-Food Court Cam was unhelpful in that it fails to clearly depict and track all persons Mr. Heybad claimed to have had contact with in the food court, notably, Mr. Sheek-Hussein. Quite apart from the fact that Mr. Heybad’s evidence is not corroborated in that he, Mr. Warsame, Mr. Khandid and Mr. Sheek-Hussein are not seen leaving together from the Roof-Top, they are also not depicted all together in the food court nor depicted leaving the food court exit. At no point does the KFC Food Court Cam capture Mr. Sheek Hussein “hovering around” the discussion between Mr. Heybad and Mr. Warsame as Mr. Heybad testified the Food Court Cam does not depict the accused going back and forth to eavesdrop on the conversation, as suggested by Mr. Heybad.

[119] At the point in the KFC Food Court Cam after which both Mr. Mainville and Mr. Heybad testified that Mr. Heybad was asked to leave the food court by the food court exit, the video at 9:58 p.m. depicts Mr. Warsame clearly defined by his Blue Jays jacket near the tables in the food court with a number of black males coming down the escalator and speaking with him. Mr. Heybad did not know any of these individuals. The video footage shows these people going in different directions and Mr. Heybad acknowledged that one male with a black jacket and light hoodie went back up the escalator to the second floor rather than follow him out the food court exit with Mr. Khandid. That is assuming that Mr. Heybad’s recollection as to the clothing worn by Mr. Sheek-Hussein on the evening of the stabbing was in fact a black jacket and light hoodie, as the person he identified as Mr. Sheek-Hussein in photo 1 of Exhibit 8 is not wearing a dark or black jacket.

[120] The Chateau Laurier video is also of poor quality. While it may be possible to associate the clothing worn by one of the black males wearing a vest and on the cell phone as Mr. Khandid, having regard to Mr. Khandid’s admission that he was the person wearing similar clothing in the taxi stills, as Mr. Heybad acknowledged, the quality of the video was not good, and was unhelpful in identifying the features of the other male in his company walking away from the area where Mr. Heybad was found by paramedics lying on the ground. Assuming it is the accused, it fails to clearly depict any part of his face; the jacket of the person identified as the accused appears to be blue as opposed to black; and it does not appear to be the same color as the jacket worn by the person Mr. Heybad identified as the accused in the taxi cab stills in Exhibit 8.

[121] In re-examination, Mr. Heybad was asked to explain why he did not tell police who his stabber was, if indeed he knew that it was Mr. Sheek Hussein since January 11, 2014. Mr. Heybad offered a list of reasons and subsequently elaborated on each.

[122] Firstly, he noted he was questioned 22 hours after the incident and did not know what he was going to do.

[123] Secondly, he claimed that he was not given enough time to process his feelings over the magnitude of his injuries, and the realization that he was in greater danger of death than he thought when he lay in front of the Chateau Laurier after being stabbed.

[124] Thirdly, he was fearful that there would be retaliation from his stabber or from persons or friends involved that evening if he reported the matter. He was also fearful about explaining what happened to his parents and in open court. Further, he was fearful that he would not be able to defend himself ever again given the advice he received that his arm would never be close to the way it was before.

[125] Finally, he added that he did not want to speak to police right away because of the culture he grew up in. He described his neighborhood as one where people are not decent, and are taught at a young age that police are the enemy and that you are to handle your difficulties on your own. He had not had any previous dealings with police as a victim. He was taught that if you do speak with police, you would be isolated by your community. He acknowledged, however, that both Mr. Khandid and Mr. Warsame were not from his area and also conceded that he could not say what their thinking was vis-à-vis police.

[126] Mr. Heybad was invited to explain why he should expect the Court to believe in his oath to tell the truth at trial when he perjured himself at the preliminary inquiry. I have no doubt that Mr. Heybad was earnest in stating that he was “finally at peace” with the matter and had placed his faith in the legal system, the video surveillance and other evidence to establish the truth.

[127] In the course of hearing this testimony, I could not rule out an element of practice or rehearsal in this testimony. More importantly, I was unable to reconcile the material inconsistencies in his testimony pertaining to the description and identification of his stabber, and note that the other evidence was either lacking in quality or failed to sufficiently corroborate his evidence.

[128] Although the Crown had placed Amin Warsame under subpoena, he was not called to testify.

Evidence of the Defence

Det. Andrew Milton

[129] Det. Milton was called to testify in relation to the statements, both audiotaped and others, made by Mr. Heybad pertaining to the identity of his stabber and encounters with Mr. Sheek-Hussein after the stabbing, in support of a Defence application under s. 11 of the Canada Evidence Act to permit cross-examination on the previous oral statements made by Mr. Heybad to Det. Milton, and to further advance an application pursuant to R. v. KGB, 1993 SCC 116, [1993] 1 S.C.R. 740, to rely on the hearsay statements for the truth of their content.

[130] In my ruling pertaining to the first statement Mr. Heybad made to Det. Milton on February 7, 2014, I determined that the procedural requirements of section 11 of the Canada Evidence Act were met and that the statement should be admitted for its truth. This statement contained an utterance made by Mr. Heybad over the phone to the effect that he was told by a friend that Zakaria Hussein was his stabber. I took note of the fact that Det. Milton did not videotape or audiotape the statement; that it was not made under oath; that Det. Milton needed to refer to his notes having no independent recollection of the exact details of the conversation; that his notes were not taken verbatim and that his notes were not at all meant to show to Mr. Heybad for his approval or to refresh his memory. Nevertheless, Det. Milton specifically recalled that the statement was made as part of a “eureka moment” wherein Mr. Heybad declared, in an excited tone, distinctly from his usual way of communicating, that his source of information about his stabber came from a friend.

[131] Applying the reasoning of the Court of Appeal in R. v. Folland, (1999) 1999 ONCA 3684, 43 O.R. (3d) 290, as well as in R. v. Sunjka, (2006) 2006 ONCA 18514, 80 O.R. (3d) 781, I exercised my residual discretion in loosening the indicia of threshold reliability in applying a principled approach to the admissibility of the evidence, having concluded that the statement met threshold necessity due to the fact that Mr. Heybad denied making the statement at trial. In my opinion, given that Mr. Heybad testified that he knew from the “get go” who his stabber was, albeit only by his nickname and first name, the contrary statement he made to Det. Milton on February 7, 2014 was important and probative evidence essential to consider in arriving at my decision.

[132] Det. Milton also testified that on March 28, 2014, he recorded the gist of an oral statement made by Mr. Heybad to the effect that he saw Mr. Sheek-Hussein on three occasions at the Billings Bridge Plaza where he went for treatment. At trial, Mr. Heybad testified that he could not recall saying he had seen the accused three times, but did recall the phone call and reporting to Det. Milton seeing the accused on at least one occasion. The admissibility of the statement faltered upon the procedural requirements of section 11 of the Canada Evidence Act, in that there was not, in my opinion, an inconsistency with Mr. Heybad’s testimony at trial in that he neither distinctly admitted the prior statement nor refuted it. In addition, I dismissed the Defence application to admit the statement for the truth of its contents in that it did not give me the same degree of satisfaction as to threshold reliability as the February 7, 2014 statement. Det. Milton could not recall if he made the notes relating to the March 28th statement at the same time or contemporaneously with the statement taken from Mr. Heybad, or even reasonably soon after the utterance was made. As in the case of the February 7th statement, he had no independent recollection of the details of the conversation. This, coupled with the lack of a clear inconsistency with Mr. Heybad’s testimony that he could not recall when the Billings Bridge encounters with the accused occurred, I was not convinced that trial fairness would be affected by a refusal to admit the statement for failure to meet threshold reliability.

[133] Finally, Det. Milton testified as to two statements made by Mr. Heybad in mid-December, 2016, just as he was preparing for the trial of this matter. On December 15, 2016, Mr. Heybad told Det. Milton over the phone that he saw the accused on two separate occasions after the preliminary inquiry held on July 13, 2015; once near Algonquin College at Constellation Court and again in traffic. However, Mr. Heybad did not tell Det. Milton that he had had any conversation with the accused. This was in stark contrast with the evidence Mr. Heybad gave at trial that he not only saw the accused, but that they engaged in conversation during which Mr. Sheek-Hussein admitted to the stabbing, apologized, effectively pleaded for mercy, and even tried to bribe Mr. Heybad to drop the charges. At trial, Mr. Heybad also testified that in the second encounter with the accused in traffic, Mr. Sheek-Hussein again pleaded with him to no effect.

[134] I concluded that the requirements of s. 11 of the Canada Evidence Act were met in relation to the statement of December 15, 2016 because Mr. Heybad did not, at trial, agree that he declined to engage in conversation with the accused. On the contrary, he testified as to an admission of guilt from the accused. The statement goes to the question of an apparent admission of guilt, which I determined necessary to admit for the purposes of impeachment. At the same time, I ruled that a further statement made by Mr. Heybad to Det. Milton on December 16, 2016 in which he amplified on the details of his conversation with the accused at Constellation Court consistent with his evidence at trial, should also be admitted for trial fairness. I was not persuaded that the statements of December 15 and 16, 2016 met the requirements for threshold reliability in accordance with R. v. KGB.

[135] In addition to the evidence of Det. Milton, the Defence filed two statements, with the consent of the Crown, for the truth of their contents.

Sgt. Jeff Leblanc

[136] The Defence tendered the Investigative Action dated January 11, 2014 of Sgt. Jeff Leblanc as Exhibit 11. Sgt. Leblanc was a police office on duty on general patrol on Rideau Street near the Chateau Laurier when he and a colleague observed a commotion near the east exit of the hotel driveway. He made a U-turn to investigate and discovered Mr. Heybad lying on the driveway with blood on the ground around him and smeared on the concrete wall beside his location. In the course of his investigation, he spoke with a white male, subsequently determined to be Emmanuel Morin and a white female, the friend of Mr. Morin, Hilary Moylan. He also spoke with an unidentified black male who approached the victim with a handful of Kleenex. The male said he knew the victim and had just found him there. Although the black male was asked to wait, he fled the scene. He described him as dressed all in black, wearing an open coat with a visible gold chain over his shirt. This black male was not Mr. Warsame, as the Investigative Action notes that Cst. Blake arrived on scene and took a black male into custody who was subsequently determined to be Mr. Warsame, and not the male that Sgt. Leblanc had spoken with earlier. I took note of the fact that the description of the black male who fled the scene detailed in the Investigative Action did not match the description of a male in a two-toned down vest identified by Mr. Heybad in the Chateau Laurier video and in the taxi stills to be Mr. Khandid. Sgt. Leblanc’s Investigative Action also makes no mention of a black male dressed in a black jacket with a white hoodie, consistent with the description of the black male seen with Mr. Warsame in the first floor washroom video surveillance in Exhibit 2; and identified by Mr. Heybad as the accused. His Investigative Action also did not refer to a black male with a light or beige jacket with a light hoodie, as appears in the taxi stills in Exhibit 8, identified by Mr. Heybad as the accused.

Emmanuel Morin

[137] The Defence tendered as Exhibit 12, a formal admission made pursuant to s. 655 of the Criminal Code, pertaining to a statement taken by Cst. Levesque on January 10, 2014 at 10:40 p.m. from Emmanuel Morin. The admission provides that Mr. Morin was at the Metropolitan restaurant at 700 Sussex Drive in the company of Hilary Moylan, when he went outdoors to have a cigarette in front of the restaurant approximately 50 feet from the corner of Rideau Street. Mr. Morin noticed three black males yelling at each other in another language. The three males were on the west side of Sussex Street across the street from Chapters. He said one male was wearing a Blue Jays jersey; one was wearing a beige jacket with a hoodie and Mr. Morin did not recall the description of the third male. Although it was nighttime, the area was relatively well-lit. At one point later, Mr. Morin saw one of the males stumbling up the stairs by the Metropolitan. After dinner, Ms. Moylan went to the Chateau Laurier to hail a cab. She subsequently called Mr. Morin to tell him someone had been stabbed. When Mr. Morin went to assist the victim, he saw blood at the same place he had seen the man stumble earlier. Mr. Morin does not know if the man he saw stumble up the stairs earlier was the victim of the stabbing. Mr. Morin does not know if the victim was one of the three males he saw arguing.

Analysis

[138] I am cognizant of the many frailties of identification evidence and the risks in relying on this form of evidence (R v Powell, at paras. 10-12) and this is a case in point.

[139] Contrary to the evidence provided by Mr. Heybad at trial, it could be inferred that one of the three males present at or around the time of the stabbing matched the description of Mr. Warsame. The other male with the beige jacket does not match the description of the person Mr. Heybad identified as the accused in the first floor washroom video in Exhibit 2, and may or may not be the same person Mr. Heybad identified as the accused in the taxi stills in Exhibit 8.

[140] Having admitted for impeachment purposes the statement of Mr. Heybad made to Det. Milton on December 15, 2016, in contrast to the detailed evidence he gave at trial of an admission of guilt made by the accused at Constellation Court, I am left with a reasonable doubt that Mr. Heybad, in preparing for trial, was effectively building the case against Mr. Sheek-Hussein as he approached the trial date. I am troubled by the fact that he had already, by this date, decided to work with police and lay faith in the justice system, yet he failed to alert police in February and May 2016 that the accused had allegedly breached his conditions of no contact with Mr. Heybad and had, on these two prior occasions, made an admission of guilt.

[141] Secondly, while pursuant to a the Behre voir dire, I accepted that Mr. Heybad was in a position to recognize the accused from earlier dealings with him, I cannot be satisfied to a criminal standard of proof that Mr. Heybad either identified or recognized his stabber was Mr. Sheek-Hussein on January 10, 2014. The content of his statements furnished to Det. Milton January 11 and 12, 2014, and the subsequent statement made over the phone to police on February 7, 2014, consistent with his perjured testimony at the preliminary inquiry that he did not identify his stabber as Mr. Sheek-Hussein until after he accessed the accused Facebook photographs and until after a friend told him that his stabber was Zakaria Sheek-Hussein, leaves me in a reasonable doubt.

[142] In addition, Mr. Heybad’s ability to identify his stabber or at a minimum, his ability to recall who his stabber was, may well have been affected by his ingestion of alcohol. In any event, I have concluded that it would be dangerous to rest my faith on Mr. Heybad’s recognition of the accused from earlier dealings, due to the fact that his photo identification of his stabber was tainted by the viewing of the Facebook photographs, compounded by subsequent sitings of Mr. Sheek-Hussein on at least one occasion at the Billings Bridge Plaza.

[143] Further, I am mindful in the reasoning in R. v. Jack that brief encounters that occur “in the normal course of business” months before the alleged crime, have not been considered to fall within the range of recognition cases for want of providing an opportunity to make note of a suspect’s features. Thus, I cannot accept Mr Heybad’s evidence as recognition of the accused or that his prior interactions with the accused make his evidence any more probative (R. v. Oliffe).

[144] Finally, having considered all of the statements furnished by Mr. Heybad to police over time with respect to the identification of his stabber, coupled with the body of evidence received in video surveillance taken from the Rideau Centre and the Chateau Laurier, as well as the taxi stills purporting to depict Mr. Khandid and Mr. Sheek-Hussein, I have concluded that I am simply unable to resolve the contradictory descriptions of the stabber furnished by Mr. Heybad on separate occasions.

[145] Mr. Heybad’s contradictory descriptions leave me no choice but to find that he was not telling the truth on at least one occasion, leading me to doubt the veracity of any of his statements. Because veracity is key to a finding of credibility (R. v. H.C., at para. 41), I am left with no choice but to conclude that he was not a credible witness. Moreover, “Any witness whose evidence on an issue is not credible, cannot give reliable evidence on the same point” (R. v. H.C., at para. 41). I must accept the Defence’s position and find Mr. Heybad’s evidence to be unreliable for want of credibility. I am simply unable to arrive at the truth with any level of confidence.

[146] While I am particularly disquieted by the potential that a number of persons fell silent as to what happened and who was involved in the critical events on January 10, 2014, including Mr. Khandid and possibly Mr. Warsame, speculation serves no purpose when I have concluded that a conviction cannot safely rest on the testimony of Mr. Heybad who chose to lie. I am left with a reasonable doubt by the fact that Mr. Heybad persisted in stating that he learned from a friend that his stabber was Zakaria Sheek-Hussein and persisted with this story at the preliminary inquiry well over a year after his stabbing.

[147] Had Mr. Heybad decided to come clean with the truth at his preliminary inquiry, his impassioned and earnest proclamation of faith in the justice system at this trial would have made greater sense.

[148] However, to accept his trial testimony, without regard to the contradictory evidence and the poor quality of the documentary evidence offered to corroborate Mr. Heybad’s testimony, I cannot be satisfied that a wrongful conviction would not be made.

Conclusion

[149] While I may be suspicious of the involvement of the accused, I am satisfied that the criminal standard of proof has not been met in this case. Indeed, to rest a conviction on the evidence of Mr. Heybad, as coupled with less than conclusory other evidence would be to dilute the standard of proof beyond reasonable doubt, and the presumption of innocence, both cornerstones of our system of justice.

[150] As such, Zakaria Sheek-Hussein must be acquitted, through no want of skill or tenacity in the prosecution and investigation of this case, and with due regard to the tragic reality that Mr. Heybad is left to live with disability and disfigurement, while his stabber remains at large.

The Honourable Madam Justice Toscano Roccamo Released: March 27, 2017