CITATION: R. v. Jama, 2017 ONSC 472
DATE: 20170123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
LIBIN JAMA, SALMA ABDULLE, ABDULAZIZ EGAL and ROGAR BRYAN
Tom Lissaman and Danielle Scott for the Crown
Daniel Brodsky and Allison Pyper for Libin Jama
Robert Nuttall and Angela Ruffo for Salma Abdulle
Dirk Derstine and David Parry for Abdulaziz Egal
David Bayliss and Karen Lau-Po-Hung for Rogar Bryan
HEARD: November 24, 2016
RULING ON MISTRIAL APPLICATION
TROTTER J.:
INTRODUCTION
[1] This ruling arises from a mistrial application made by three accused persons (Ms. Jama, Ms. Abdulle and Mr. Egal) as a result the closing address made on behalf of Mr. Bryan.
[2] The four accused persons were jointly charged with the second-degree murder of John Maclean. At the conclusion of the Crown’s case, Ms. Abdulle and Mr. Bryan called evidence. Consequently, counsel for the accused addressed the jury before the Crown: Criminal Code, s. 651(4). Because Mr. Bryan was listed last on the indictment, his counsel (Mr. Bayliss) addressed the jury after the other defence counsel. Before the Crown’s closing address, Mr. Derstine (for Mr. Egal) made an application for a mistrial, citing prejudicial and inflammatory language in Mr. Bayliss’ presentation. Counsel for Ms. Jama and Ms. Abdulle supported the application.
[3] At the conclusion of argument, I dismissed the application with reasons to follow. In the meantime, Ms. Jama, Ms. Abdulle and Mr. Egal were convicted of second-degree murder. Mr. Bryan was acquitted. These are my reasons for dismissing the mistrial application.
FACTUAL BACKGROUND
(a) Introduction
[4] It was alleged that, on February 12, 2014, the four accused persons were involved in an altercation with Mr. Maclean at an apartment building in Toronto. Mr. Maclean lived in the building. None of the accused was a resident of the building. That night they were trespassers who used the building to drink alcohol and/or consume drugs.
[5] The evidence never really established how the dispute with Mr. Maclean arose. What seemed to start as a verbal altercation (perhaps over one of the male accused urinating in a stairwell), quickly moved outside into the parking lot, where Mr. Maclean was brutally beaten, kicked and stabbed to death. With his t-shirt in tatters, he was left for dead in the freezing cold.
[6] The Crown alleged that the four accused were co-perpetrators, with one or more of them inflicting fatal stab wounds.[^1] After this attack, the accused ran away, ending up at the nearby home of Ms. Jama’s mother, Khadra Abdi. Ms. Abdulle tended to an injury she apparently sustained during the altercation with Mr. Maclean. Ms. Jama removed her shoes, soaked with Mr. Maclean’s blood, and left them in a hallway closet. The group[^2] left shortly afterwards.
(b) Testimony About a Knife
[7] The mistrial application has its roots in the evidence of Ms. Abdi and her statements to the police. In her first statement, given on February 28, 2014, without a Somali interpreter, Ms. Abdi described the events at her home on February 12, 2014. She made no mention of a knife.
[8] Ms. Abdi spoke to the police again on March 5, 2014, when she viewed a photo line-up. Again, she did not have an interpreter. Ms. Abdi recognized a photo of Mr. Egal. She told the officer conducting the photo line-up (who was not involved in the investigation and who asked no leading questions) that Mr. Egal had a “knife.” Ms. Abdi was interviewed again on March 10, 2014, this time with an interpreter. She denied using the word “knife” in her prior statement. She did not refer to a knife when she testified at the preliminary inquiry.
[9] The Crown called Ms. Abdi as a witness. During her examination-in-chief, she made no mention of a knife. Mr. Derstine (for Mr. Egal) applied to prohibit Mr. Bayliss (for Mr. Bryan) from cross-examining Ms. Abdi on the statement in which she mentioned a knife. Mr. Derstine argued that, given the history of this issue, it was highly unlikely that Ms. Abdi would agree that she saw a knife. Instead, the net effect of cross-examination would be to plant in the minds of jurors the highly prejudicial suggestion that Mr. Egal had a knife. Mr. Derstine also contended that Mr. Bryan really had nothing to gain from cross-examination on this issue because nobody (at that point during the trial)[^3] had identified Mr. Bryan as being at Ms. Abdi’s home that night.
[10] I decided that there was no basis to prohibit Mr. Bayliss from cross-examining Ms. Abdi on this issue. At the time, Mr. Derstine’s application was speculative. It was unknown whether Ms. Abdi would agree to having seen a knife. As it turned out, after extensive cross-examination, Ms. Abdi refused to accept that she had even uttered the word “knife” when she spoke to the police on March 5, 2012. She explained that she used the word “enough”, instead of “knife,” and that this misunderstanding occurred because of her lack of proficiency in the English language.
[11] Mr. Bayliss then applied to adduce Ms. Abdi’s prior statement for the truth of its contents: R. v. Khelawon, 2006 SCC 57. I dismissed the application, holding (in part):
The prejudicial impact of admitting the statement is extremely high as it relates to the other accused persons, and mostly Mr. Egal. There is a real danger that, given the circumstances in which the statement was given and the uncertainty of what was said due to the failure to provide Ms. Abdi with an interpreter, the jury might misuse this evidence in a way that is very damaging to the other accused persons. They may be asked to find as fact that there was a knife was brought to Ms. Abdi’s home shortly after Mr. Maclean was killed, all based on a mistake, the product of a fundamental and avoidable shortcoming in the statement-taking process. Put another way, given the specific language issue that has arisen, the risk of misuse and its potential prejudicial impact, it would be extremely dangerous and unfair to the other 3 co-accused to permit the jury to rely upon it for the truth of its contents.
[12] I also decided that it would be appropriate to provide the jury with a mid-trial instruction on the limited use they could make of Ms. Abdi’s alleged prior utterance. I also indicated that a similar instruction would be given in my final charge to the jury.
(c) The Closing Address
[13] The mistrial application crystallized during Mr. Bayliss’ closing address. Referring to Ms. Abdi’s evidence, Mr. Bayliss foreshadowed my warning that, if the jury found that Ms. Abdi used the word “knife” in her March 5, 2014 meeting with the police, it could not be used as substantive evidence; it could only be used to assess credibility. Mr. Bayliss said, “You cannot use it as positive evidence against Mr. Egal.”
[14] Mr. Bayliss then addressed the content of Ms. Abdi’s evidence, which included the following passage:
And I am going to suggest to you that she clearly does use the word “knife” in her statement of March 5th. I’m suggesting to you that she let the truth slip out when she said that. She may have been reluctant to say it, she may have wanted to be truthful but I’m suggesting to you that she let the truth slip out when she said the word “knife.”
[15] Mr. Bayliss stressed the improbability of Ms. Abdi’s evidence on this issue. He invited the jury to question whether Ms. Abdi was being forthright in her testimony in general.
(d) The Final Instructions to the Jury
[16] I appreciate that the correctness of my decision refusing to declare a mistrial may stand or fall on the record as it stood at the time of the ruling. However, for the sake of completeness, I include my instructions on this issue. After providing a general instruction on the use of prior inconsistent statement (see David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), Final-25B), I said the following:
There are a couple of special instructions. One applies to Ms. Abdi (Ms. Jama’s mother). When she testified, it was suggested to her that, in one of her police statements, she said that she saw a knife the evening of February 12, 2014 when Ms. Jama, Ms. Abdulle and Mr. Egal came to her house. It will be up to you to determine whether in her statement of March 5, 2014 she used the word “knife.” After considering her evidence, in the context of all of the evidence at trial, you may find that she did refer to a knife. You may find that she did not. You may be unsure. If you do find that she said it on this previous occasion, you may use this apparent inconsistency with her trial evidence in assessing the value or worth of her evidence. However, and this is extremely important, if you do find that she referred to a knife in her previous statement, you must NOT treat it as substantive or positive evidence that Mr. Egal did have a knife that night. That is – if you find it was said, you must limit the use of that utterance to merely assessing Ms. Abdi’s credibility. Nothing more. It was suggested to Ms. Abdi in cross-examination, and it came up in one of the closing addresses, that Ms. Abdi let the truth slip out when she mentioned a knife. You must not use or approach this evidence in that way. It cannot be used for its truth (i.e., that there was a knife). Its only potential value is as a prior inconsistent/contradictory statement to assess credibility. I give you this warning in the strongest possible terms. [emphasis added]
ANALYSIS
[17] Criminal trials involving multiple accused persons present unique challenges. In addition to the familiar Crown-accused tension, trials with multiple defendants require a more delicate balancing of interests, between the Crown and each accused person on the one hand, and between the accused persons themselves. In the interests of full answer and defence, an accused person is permitted to conduct his or her defence without many of the constraints placed upon the Crown. This may result in the admission of evidence that is prejudicial to a co-accused: see R. v. Crawford (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 (S.C.C.), R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), R. v. Oliver (2005), 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92 (Ont. C.A.) and D. W. Elliott, "Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused", [1991] Crim. L. Rev. 5. Many of the disputes that arose during this trial were between the accused persons, with the Crown often observing from the sidelines.
[18] There can be no doubt that it was in Mr. Bryan’s interests to place a knife in Mr. Egal’s hands shortly after Mr. Maclean was killed. Mr. Bayliss had a good faith basis for exploring this issue with Ms. Abdi (i.e., her March 5, 2014 statement): R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193. When Ms. Abdi disagreed with the suggestion that she had mentioned a knife, Mr. Bayliss was not obliged to accept this evidence and essentially down tools. He was entitled to vigorously pursue this theme. There was nothing improper in his suggestion to Ms. Abdi that she “let the truth slip out” when she mentioned a knife. It was part of Mr. Bayliss’ theory that Ms. Abdi changed her story out of fear of, or loyalty to, Mr. Egal, and perhaps the others.
[19] Mr. Bayliss’ use of the expression “let the truth slip out” during his jury address presented certain challenges, especially given the important distinction the jury was ultimately asked to draw. However, he was entitled to attempt to persuade the jury that Ms. Abdi mentioned a knife and that her about-face undermined her overall credibility.
[20] In all of the circumstances, Mr. Bayliss’ jury address did not compromise the fairness of the trial for the others. It did not contain the type of highly inflammatory and prejudicial rhetoric from counsel for a co-accused that might warrant a mistrial if left unchecked: see, for example, R. v. Giesecke (1993), 1993 CanLII 8600 (ON CA), 82 C.C.C. (3d) 331 (Ont. C.A.). The impugned aspect of the address was restricted to a single piece of evidence. It was capable of remediation with a straightforward and commonplace instruction in the final charge: R. v. Shchavinsky (2000), 2000 CanLII 16877 (ON CA), 148 C.C.C. (3d) 400 (Ont. C.A.), at paras. 85-89 and R. v. Howley, 2016 ONSC 2424, at paras. 34-39. I was satisfied that the jury would be able to understand the limited use that could be made of Ms. Abdi’s evidence on this issue.
CONCLUSION
[21] For these reasons, the mistrial application was dismissed.
TROTTER J.
RELEASED: January 23, 2017
CITATION: R. v. Jama, 2017 ONSC 472
DATE: 20170123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
LIBIN JAMA, SALMA ABDULLE, ABDULAZIZ EGAL and ROGAR BRYAN
RULING ON MISTRIAL APPLICATION
TROTTER J.
RELEASED: January 23, 2017
[^1]: Evidence of a forensic pathologist proved that Mr. Maclean suffered nine stab wounds. Two of them were fatal; another would have been fatal if left untreated. These injuries could have been inflicted with one knife or several knives. Mr. Maclean suffered other knife injuries, as well as two fractures (jaw and rib), bruises and abrasions. [^2]: There was conflicting evidence about how many people attended at Ms. Abdi’s home. Ms. Abdi only identified Ms. Jama, Ms. Abdulle and Mr. Egal. Ms. Abdulle testified that all four co-accused were present. Mr. Bryan testified and denied being there. [^3]: As mentioned in note 2, Ms. Abdulle testified that all four co-accused left the scene and went to Ms. Abdi’s house.```