COURT FILE NO.: CR-18-10000033-0000

DATE: 20180406

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

MOHAMUD DIRIE

– and –

AYUB ALI

Joanne Capozzi and Tim DiMuzio, for the Crown

Magdalena Wyszomierska and Ariel Herscovitch, for Mohamud Dirie

Cydney Israel, for Ayub Ali

HEARD: February 28, March 1, 5, 6 and 13, 2018

By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

M. Dambrot J.:

[1] Mohamud Dirie and Ayub Ali are being tried by me, with a jury, on an indictment alleging that they committed the first degree murder of Mr. Kabil Abdulkhadir on August 9, 2015. Mr. Abdulkhadir was shot five times and killed while standing behind a motor vehicle that was stopped on Bay Street just south of Dundas Street at 2:42 a.m. The Crown brings this application asking that I admit in evidence a series of ante-mortem statements allegedly made by the deceased to his mother, Fouzia Hassan, and his cousin, Koos Abshir, and certain related evidence that sheds light on these statements.

[2] Counsel for Mr. Dirie opposes the admission of most of this evidence on the basis that it is inadmissible hearsay evidence, inadmissible bad character evidence or both.

[3] I will proceed first to summarize the Crown’s case and the hearsay and related evidence in issue. I will then discuss the legal framework for considering the admissibility of hearsay evidence, determine the relevance of the hearsay and related evidence in this case, determine the admissibility of that hearsay and related evidence, and finally undertake a probative value/prejudicial effect analysis of the evidence.

THE CROWN’S CASE

[4] The following is a very short overview of the Crown’s case.

[5] The Crown alleges that there was a long-standing history of animosity between Mr. Dirie and Mr. Abdulkhadir dating back to a beating of Mr. Abdulkhadir by Mr. Dirie and his brother in 2009. For the most part, the hearsay evidence in issue on this application tends to show that the animosity endured from 2009 to 2015 when Mr. Abdulkhadir was murdered.

[6] On August 9, 2015, Mr. Dirie and Mr. Ali were the occupants of a blue Hyundai Elantra. Mr. Ali was the driver. Mr. Dirie was the passenger. The Crown alleges that the two men used the vehicle to track Mr. Abdulkhadir down and shoot and kill him.

[7] Shortly after midnight on August 9, 2015, Mr. Dirie and Mr. Ali arrived at the Bar Code nightclub in the Port Lands in Toronto in the blue Hyundai, parked it in the parking lot outside the club and entered the premises. Mr. Abdulkhadir parked in the parking lot and entered the premises at approximately 1:30 a.m. Shortly after 2:00 a.m., Mr. Ali and Mr. Abdulkhadir were both in the parking lot at about the same time, but were not together. Ms. Abshir was also in the lot. She spoke first to Mr. Ali and then to Mr. Abdulkhadir. Mr. Abdulkhadir told her that he had had a conversation with Mr. Dirie on the patio and tried to resolve the dispute between them, but Mr. Dirie shoved him and brushed him off.

[8] Mr. Ali got into the blue Hyundai at 2:10 a.m. Mr. Abdulkhadir got into his vehicle almost immediately after Mr. Ali entered the blue Hyundai, and began to leave. As he did so, Mr. Ali’s headlights came on. Mr. Ali drove to the right, stopped, and turned his headlights off. Mr. Dirie then got into the car. Mr. Abdulkhadir left the parking lot at 2:12 a.m. Mr. Ali permitted a truck to follow Mr. Abdulkhadir out, and he followed behind the truck.

[9] The blue Hyundai arrived at the Marriott Hotel at 525 Bay Street at 2:37 a.m. and at 2:38:37 a.m. entered the Eaton Centre Parkade. At 2:39:12 a.m., two vehicles, one of which was the vehicle driven by Mr. Abdulkhadir, stopped southbound on Bay Street, south of Dundas Street, opposite the entrance to the Eaton Centre Parkade. At 2:39:44 a.m., the blue Hyundai left the Parkade. At 2:42:17 a.m., Mr. Abdulkhadir got out of his car and walked to its rear. At 2:42:36 Mr. Abdulkhadir’s car was illuminated by the arrival of the blue Hyundai. The Crown alleges that Mr. Dirie got out of the passenger door of the blue Hyundai, approached Mr. Abdulkhadir at the trunk of his car, and shot and killed him at close range. The blue Hyundai then sped away.

THE ANTE-MORTEM STATEMENTS OF THE DECEASED

[10] As I have said, the Crown seeks to tender into evidence at this trial ante-mortem statements allegedly made by the deceased to his mother, Ms. Hassan, and his cousin, Ms. Abshir, and certain related evidence. The following is a summary of these statements and the related evidence.

1. Statements Made to Ms. Hassan

[11] Ms. Hassan was the mother of the deceased. The age difference between them was only fifteen years, and they were very close friends.

[12] Ms. Hassan provided information to the police related to the homicide of her son and testified at the preliminary inquiry into this matter. My summary of her proposed evidence comes mostly from her evidence at the preliminary inquiry.

[13] Ms. Hassan testified that there was a history of animosity between her son and Mr. Dirie, which to her knowledge began sometime in 2009. Prior to that, Mr. Dirie and her son were friends. The Crown proposes to call Ms. Hassan as a witness at this trial. Included in her proposed evidence are several hearsay statements made by her son to her that the Crown argues are admissible for a non-hearsay purpose because they fall within traditional exceptions to the rule against hearsay, or because they are covered by the principled approach to hearsay. I will proceed to summarize these incidents.

The Car Incident

[14] Ms. Hassan testified that she received a telephone call from her sister and her son when she was travelling during the summer of 2009. In cross-examination, she stated she was in Hargeisa at the time she received the call and that it was the end of June or mid-July. Her sister spoke first and then Mr. Abdulkhadir spoke. During that telephone call Mr. Abdulkhadir told her that he had been beaten by Mr. Dirie and his brother, Mohamed Dirie. Mr. Dirie is known as “Monopoly” and Mohamed Dirie, who is deceased, was known as “Beetlejuice.”

[15] Ms. Hassan stated that her son told her that the Dirie brothers called him and told him to come see them, which he did. Other men who were friends of the Dirie brothers were also present. The brothers had a conversation with Mr. Abdulkhadir inside the premises where this incident took place, and then went outside. When Mr. Abdulkhadir went outside, a man named Ayub was there, and he told Mr. Abdulkhadir that the brothers “broke” his car. Glass was broken, and $500 that was inside the car was taken. Mr. Abdulkhadir went back to the rear entrance of the building, and asked the brothers why they had broken into his car. They told him that he started tribalism and tried to stop them from getting their work or their job done, and beat him.

[16] Ms. Hassan said that Mr. Abdulkhadir told her about this incident when it happened. When asked if she were able to assess whether her son was under the influence of any substances at the time of this call, she said that he was not, and that she understood everything he said to her. When asked whether her son would have any reason to lie to her about Monopoly and Beetlejuice being the persons responsible for what had happened to him that day, she answered that her son did not lie to her. When asked if she knew of any problems between her son and the Dirie brothers prior to this call, she answered she was not aware of any.

[17] Ms. Hassan testified that she and Mr. Abdulkhadir spoke about this incident upon her return to Canada, although she could not say when that happened. She believed that they spoke about it prior to Mr. Abdulkhadir’s arrest. In cross-examination, she stated that the conversation took place in person immediately after she came back to Canada, at her sister’s home in the Scarlettwood area. He repeated the same story. She could not remember who started the conversation or exactly how long it was.

[18] Ms. Hassan testified that Mr. Abdulkhadir told her that he caught three young boys drinking alcohol and raised this with the boys’ mothers. One of the boys had drugs in his bag, which the boy’s mother found. According to Ms. Hassan, Mr. Abdulkhadir and the boy were from the same tribe. Her evidence was that this was the reason Mr. Abdulkhadir was beaten by his friends and accused of tribalism and hampering with the Dirie brothers’ work.

[19] Ms. Hassan said that she discussed this information with Mr. Abdulkhadir many times. Mr. Abdulkhadir believed that his life was in danger, and as a result, he was in hiding most of the time during this period. He was unable to visit her or his siblings due to being threatened or being under threat by Mr. Dirie and his friends.

[20] Ms. Hassan did not report any of this to the police.

Mr. Abdulkhadir’s Arrest

[21] Mr. Abdulkhadir was arrested on firearms charges on August 30, 2009. Ms. Hassan testified that after her son was arrested on these charges, she spoke to him by phone and in person while he was in custody. In the first phone call after his arrest, Mr. Abdulkhadir said, “I’m so sorry,” but did not discuss other details of his arrest at that time. Mr. Abdulkhadir later told her that he was carrying the gun because he was afraid of Monopoly and Beetlejuice and their friends.

[22] When Mr. Abdulkhadir spoke to her about his gun charges, he was very frightened and did not appear to be under the influence of any substances. She was not aware of any reason he would have to lie to her about his charges or his concerns.

The Finch Court Cells Incident

[23] On October 6, 2009, the Dirie brothers were arrested on two counts of robbery with a firearm and pointing a firearm. In addition, they, their mother and their younger brother were all arrested for possession of cocaine for the purpose of trafficking on that same date. The drug charges resulted from a search warrant executed by police at the family home located at 2063 Islington Avenue.

[24] In January 2010, Mr. Abdulkhadir called his mother from jail and told her that he was going to court that day. When he returned from court, he called her and told her that he had been in Finch Court, and that he saw Monopoly and Beetlejuice, who were also in custody. He said that the two of them called him a snitch and beat him. When asked whether Mr. Abdulkhadir expressed any fear or concerns to her about being called a snitch, Ms. Hassan said that he was afraid of coming near the entire neighbourhood.

[25] Ms. Hassan testified that when she spoke to Mr. Abdulkhadir, he did not appear to be under the influence of substances and that she understood everything he said to her. She also said that she did not think he would have any reason to lie by saying it was Monopoly and Beetlejuice who beat him up and called him a snitch.

[26] In cross-examination, Ms. Hassan testified that Mr. Abdulkhadir told her prior to the beating that it was in his disclosure that members of Monopoly’s crew called the police on him.

Statements about Returning to Live with Ms. Hassan while Mr. Abdulkhadir was in Custody

[27] Ms. Hassan testified that she and Mr. Abdulkhadir discussed the subject of whether Mr. Abdulkhadir would live with her on the phone while Mr. Abdulkhadir was still in custody and again upon his release. Mr. Abdulkhadir told her that he had enemies in the neighbourhood, specifically Monopoly, Beetlejuice and their friends, that he was running for his life and that it was not possible for him to live with her.

[28] She also testified that Mr. Abdulkhadir believed that Monopoly’s friends were angry and that the entire family was going after him, including the mother. The family believed Mr. Abdulkhadir was responsible for their arrest. She did not remember when Mr. Abdulkhadir told her this but it was when he was in custody.

The “Adnan” Statements

[29] Ms. Hassan testified that she talked to Mr. Abdulkhadir on the phone while he was still in custody and asked him to warn his brother, Adnan, to stay away from these men. Mr. Abdulkhadir spoke to Adnan and then Adnan would pass the phone to her. Mr. Abdulkhadir told his mother to help Adnan stay away from these men. At the time of these calls, she and Adnan were at home. This happened many, many times. Mr. Abdulkhadir was worried about his brother and he was scared. He did not appear to be under the influence of any substances at the time, nor did he have any reason to lie to her about his concerns for Adnan.

[30] Adnan suffered a beating around New Year’s Eve of 2010. Ms. Hassan testified that she talked about the beating with Mr. Abdulkhadir immediately after it happened, although in cross-examination she was not sure how much time had passed after the beating and before their discussion. They discussed the matter more than once. She said that Mr. Abdulkhadir told her that he heard that Adnan was beaten by the “two boys” (the Dirie brothers) and their friends and their family. Mr. Abdulkhadir also told her that this was done to Adnan because of him. Ms. Hassan told Mr. Abdulkhadir other details of the incident that she had learned from Adnan, specifically that he had had been beaten in a parking garage and that he was taken to the basement and put inside a car. Mr. Abdulkhadir told her that he had already heard what they had done to him. He said that he was staying away from these men, that they were threatening him and looking for him.

[31] On June 12, 2011, Ms. Hassan sent Adnan out of the country. She did not go to the police about what happened to Adnan.

Statements about Returning to Live with Ms. Hassan upon Mr. Abdulkhadir’s Release from Custody

[32] Ms. Hassan testified that she and Mr. Abdulkhadir discussed on the phone whether Mr. Abdulkhadir would live with her again upon his release. Mr. Abdulkhadir told her that he had enemies in the neighbourhood, specifically Monopoly, Beetlejuice and their friends, that he was running for his life and that it was not possible for him to live with her.

The Scarlettwood Court Incident

[33] After his release from custody, Mr. Abdulkhadir lived in the Scarlettwood Court area and also in the Dundas area. During this period of time, and probably in 2011, Mr. Abdulkhadir told Ms. Hassan, in person, about an incident in Scarlettwood. She testified that Mr. Abdulkhadir told her that Monopoly and “Squitch” were looking for him. His friend, Bashir, told him that they asked him where Mr. Abdulkhadir was. Bashir responded with vulgarities, and they opened fire at him. Bashir ran away. Mr. Abdulkhadir told his mother that he was the target and that “the bullets that were meant for me were shot at Bashir.” He also told her that “that boy doesn’t have relatives in Scarlettwood so he had no reason to be there.” Mr. Abdulkhadir was in the Dundas area that day.

[34] Ms. Hassan testified that Mr. Abdulkhadir was frightened when he told her about this incident. He did not appear to be under the influence when he spoke about it, nor did he have any reason to lie to her about what he told her. He said to her, “Mom, if I die, I would be killed by Monopoly and you should know that.”

The “Shisha House” Incident

[35] Mr. Abdulkhadir was sent out of the country and returned in 2014. After he returned, he lived with his mother. In 2015, after Mr. Dirie was released from custody and while Mr. Abdulkhadir was at his mother’s home, he told her about an incident that took place when his cousin, Kenan, was in a shisha place downtown. Kenan told him that Monopoly followed him into the washroom, put a gun against his side and said, “Where is Kabil?” The cousin said, “I don’t know” and Monopoly said, “Tell Kabil that I will kill him.” Mr. Abdulkhadir told his mother, “If I die, that is the guy.”

[36] Mr. Abdulkhadir did not tell her when it was that Kenan had seen Monopoly in the shisha house. He did not appear to be under the influence of any substances and did not have any reason to lie to her about it, to her knowledge.

Statements Made After the Death of Mohamed Dirie

[37] Mohamed Dirie died in 2015. Ms. Hassan testified that Mr. Abdulkhadir’s fear increased after the death of Monopoly’s brother, because according to Ms. Hassan, elders from the neighbourhood were saying that Mr. Abdulkhadir killed Beetlejuice. Ms. Hassan testified that Mr. Abdulkhadir had not gone out for two days and two nights during the time when he was killed. Ms. Hassan said to Mr. Abdulkhadir, “they are putting this on us.” Mr. Abdulkhadir responded, “I’m so sorry about what happened to those boys.”

If I Die Statement

[38] Ms. Hassan said that her son always said to her, “If I die, that’s the guy who killed me, Monopoly.”

The Ducking Down Incident

[39] In 2015, Ms. Hassan was on her way to 370 Dixon Road when Mr. Abdulkhadir saw “Inch,” a friend of Mr. Dirie. Ms. Hassan observed Mr. Abdulkhadir duck down in the car and hide himself. He said, “Mom, let’s get out of here” and they left the area.

The Night of the Shooting

[40] On August 8, 2015, Mr. Abdulkhadir went to the Scarlettwood area. He left the car there for his mother to pick up and he told her, on the phone, that he was going to a party with a friend of his, but he did not say who the friend was. Ms. Hassan did not know the exact time of the phone call, giving various time between 8:00 and 11:00 p.m. Ms. Hassan said that she called Mr. Abdulkhadir a lot of times, but she did not know how many.

Gang Statements

[41] Ms. Hassan testified that Mr. Abdulkhadir told her in 2007 or 2008, prior to the incident where the car was broken into and he was beaten, that Monopoly and Beetlejuice belonged to a Somali gang, and that they were the leaders. She talked to him about it all the time because she did not want him associating with them. In cross-examination she testified that she could not remember when they talked about it. He told her the name of the gang and she believed it was “Blood Crips,” “Blood something,” or something to that effect. Mr. Abdulkhadir told her they were “Dixon Blood” or “Dixon Black.”

2. Statements Made to Ms. Abshir

[42] Ms. Abshir was Mr. Abdulkhadir’s first cousin. They lived in the same neighbourhood, and were very close. She considered him to be her brother. Mr. Abdulkhadir was six years older than her and took care of her. She saw Mr. Abdulkhadir every day as she was growing up. She knew who his friends were but did not really know them or care for them. Specifically, she knew Mr. Abdulkhadir was friends with Monopoly and Beetlejuice up until 2009. They used to come to her grandmother’s house daily, hang out and play basketball together.

[43] Ms. Abshir met with investigators several times beginning on August 9, 2015. These meetings were neither audio nor video recorded. She gave a video-recorded interview to the police on September 14, 2015, and testified at the preliminary inquiry on February 9 and 10, 2017.

The Car Incident

[44] Ms. Abshir testified about the same 2009 car incident that Ms. Hassan described. She said that sometime before Mr. Abdulkhadir went to jail in 2009, he told her about this incident. She observed that Mr. Abdulkhadir had a bruised eye, “a couple bruises, some light though,” and that he seemed to be in shock, confused, worried and scared, with his voice cracking, when he told her about it. Mr. Abdulkhadir told her that “they” rushed him, turned their backs on him, stole from him and beat him up. Ms. Abshir stated she believed that the beating took place at Monopoly’s mother’s house on Islington at the time, but she could not really recall.

[45] Ms. Abshir stated that after this incident, “Kabil hid from Monopoly for years.” He moved out of the neighbourhood and moved in with her family at Scarlettwood Court after this event.

The If I Die Statement

[46] Ms. Abshir testified that in 2010, when Mr. Abdulkhadir came out of jail, he told her, “If I was to die, he’s the one that killed me,” referring to Monopoly.

The Scarlettwood Court Incident

[47] Ms. Abshir also testified about the Scarlettwood Court incident. Mr. Abdulkhadir told her about this incident in 2010 or 2011, probably the day after it happened, at the Scarlettwood Court family home. Only she and Mr. Abdulkhadir were present. He did not appear to be under the influence of anything. He told her that Monopoly came to Scarlettwood Court and was looking for him. He came to the neighbourhood with a gun and asked one of the neighbourhood guys (Bashir) where he (Mr. Abdulkhadir) was. Ms. Abshir testified that there was a video of this on a Toronto Police website and that Mr. Abdulkhadir showed it to her when they spoke about it. Mr. Abdulkhadir was paranoid about the incident, and said to her, “Now they’re coming” and that he had to leave. Ms. Abshir told him to protect himself. This is when Mr. Abdulkhadir moved from Scarlettwood Court to Dundas. Mr. Abdulkhadir would come back to Scarlettwood after Monopoly went to jail. She said, “He came around, but he always laid low.”

The Penthouse Incident

[48] In January 2015, Ms. Abshir saw Mr. Dirie in a penthouse apartment at 330 Dixon Road. She was there to get her sister. Ms. Abshir testified that when she was about to exit, Mr. Dirie came into the apartment. In front of the door in the hallway, Mr. Dirie was moving weirdly, trying to “punk” her or bully her. He had a broom in his hand. Mr. Dirie was cussing at her saying she is the “opp,” the “opp’s cousin.” Ms. Abshir explained that “opp” means the opposition. Mr. Dirie also asked, “Where’s K2 (a reference to Mr. Abdulkhadir) at? Where’s my opp at?” He told her to get out of the whole place and she left.The Bar Code Statements

[49] Ms. Abshir attended the Bar Code nightclub on August 9, 2015. While waiting to get into the club, she had a brief interaction with the accused, Mr. Ali, whom she knew as “Kobe” from high school. He came from the club, “upstairs.” He appeared to be exiting and she asked him for $20. He gave it to her.

[50] When Ms. Abshir was right in front of the admissions area, she saw Mr. Abdulkhadir descending the stairs of the club. Mr. Abdulkhadir said, “Yo, that’s my sister. Oh Koos,” and she replied, “Yo, Kabil. Shut up, come downstairs.” He gave her a hug and appeared happy to see her.

[51] When they walked outside, Mr. Abdulkhadir told her about something that happened in the club. He told her that Monopoly was upstairs and that they had had a brief conversation on the patio. Mr. Abdulkhadir said, “I went up to him and I said to him, ‘may your brother rest in peace.’” Mr. Abdulkhadir stated that he tried to “resolve end meets.” Ms. Abshir explained that this meant that Mr. Abdulkhadir wanted to “squash what’s going on” between them. She explained further that he said, in Arabic, “Let’s squash whatever we have with each other and let bygones be bygones and let’s move on with our lives. It’s been six years.” According to Ms. Abshir, the Arabic word is in the Qur’an and may be spelled, “Allah Nuristo.”

[52] Ms. Abshir testified that Mr. Abdulkhadir used the words “Allah Nuristo” and “to your brother that passed away.” With respect to “let’s squash whatever we have with each other” and “let bygones be bygones; let’s move on with our lives; it’s been six years,” she testified that she was putting what he meant into her own words.

[53] When Mr. Abdulkhadir spoke to her he seemed “like he was happy but like he was kinda of like, I don’t know he was kinda like edgy, worried.” He looked “kinda shook like.” Ms. Abshir explained, “Because they don’t come to the same place together … he won’t go around where he’s at.” Ms. Abshir also testified that Mr. Abdulkhadir told her he loved her and that it was like “last minute words.”

[54] Mr. Abdulkhadir told her that Monopoly did not care and that he refused Mr. Abdulkhadir’s suggestion. She testified that “it was like whatever; He didn’t give two shits.” Ms. Abshir explained that Mr. Abdulkhadir leaned over when he was talking to Monopoly and that Mr. Abdulkhadir basically said that Monopoly shoved him off with his shoulder. The witness demonstrated this by making a motion with her right shoulder, explaining that he (Monopoly) brushed Mr. Abdulkhadir off and did not accept Mr. Abdulkhadir’s suggestion. Ms. Abshir stated that Mr. Abdulkhadir made these motions when he explained what had happened between him and Mr. Dirie.

[55] Ms. Abshir did not tell the police that she had had this conversation with the deceased at the time of her videotaped police statement on September 14, 2015. She explained that she was scared, not herself, and suffering from “post trauma issues”.

[56] When asked if Mr. Abdulkhadir appeared to be under the influence of any substances, Ms. Abshir stated that “he seemed perfectly fine to me” and that he was not slurring his words. A toxicology report shows that Mr. Abdulkhadir had cocaine and alcohol in his system at the time of his death.

[57] Ms. Abshir testified that she told Mr. Abdulkhadir they should go home and she asked him to take her, but he told her that the car was full and he was not driving. He offered to put her into a limo, and said that they would meet later. He told her that friends of his that she did not know were in the limo. Outside the limo, Mr. Abdulkhadir told her how much he loved her and how proud he was of her. She then got into the limo. Mr. Abdulkhadir said goodbye and told her to text him, and that they would meet at the Marriott. Mr. Abdulkhadir then walked towards the parking lot. Ms. Abshir said that she believed, having looked at her phone, that the limo left the Bar Code between 2:30 and 2:35 a.m.

THE RELATED EVIDENCE

Evidence Surrounding the Scarlettwood Court Incident

[58] Mr. Dirie was charged with firearm offences as a result of an incident that occurred on July 30, 2011 at an apartment building located at 58 Waterton Road, which is in close proximity to the area where Mr. Abdulkhadir was living in hiding after the “car incident” with the Dirie brothers in 2009.

[59] On July 30, 2011, Mr. Dirie entered 58 Waterton Road wielding a gun, along with Mr. Omar, who also had a gun. Another man was also in the area at the time. Shots were fired in the parking lot adjacent to the building that day as well. A videotape was obtained by police from 58 Waterton Road showing Mr. Dirie in possession of the firearm. This videotape was released by the Toronto Police to their website and to the media. Mr. Dirie was arrested for several firearm-related offences on August 4, 2011. He was later convicted of being in possession of this firearm.

Custodial and Criminal Records of Mr. Dirie and Mohamed Dirie

[60] Mr. Dirie and his brother were in custody during the Finch Court cells incident when they met up with Mr. Abdulkhadir. They were each in custody during other relevant periods of time.

THE LEGAL FRAMEWORK FOR CONSIDERING THE ADMISSIBILITY OF HEARSAY EVIDENCE

[61] The first step that a trial judge must take in determining whether hearsay should be received in evidence at a criminal trial is to consider whether it is relevant. Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevance is a matter of inductive logic requiring that the trial judge examine the proffered evidence in light of the judge’s own knowledge and understanding of human conduct. Relevance is situational and depends not only on the ultimate issue in the case, but also on the other factual issues which either of the litigants raises as relevant to the ultimate issue. See R. v. P.R. (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.).

[62] Once a determination of relevance is made, a trial judge must take the functional approach to the issue described by Charron J. in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. In its factum, as it did in identical terms in R. v. Dupe, 2010 ONSC 6423, the Crown accurately summarized the functional approach to the determination of the admissibility of hearsay evidence as follows:

1. Confirm the proposed evidence is hearsay, meaning it is tendered for the truth of its contents and that there is no opportunity for contemporaneous cross-examination.

2. If it is hearsay, it is presumptively inadmissible. However, the court then considers whether it falls into a recognized exception. If it does, it is admissible.

3. If it does not fit a categorical exception, then it may still be admitted pursuant to an analysis of whether it is both necessary and reliable [the principled case-by-case exception to the hearsay rule].

4. If found to be necessary and reliable, the trial judge maintains residual discretion to exclude where the probative value of the evidence is outweighed by its prejudicial impact.

[63] When considering steps two and three, the party seeking to tender the hearsay statement must demonstrate its admissibility on a balance of probabilities. For the most part, I will be considering step 3 rather than step 2. To the extent that I consider admissibility under a categorical exception to the hearsay rule, I will discuss the exception when it arises. But I will take a moment to discuss the principled exception to the hearsay rule now.

The Principled Exception to the Hearsay Rule

[64] As I have already stated, under the principled exception to the hearsay rule, hearsay can be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities. By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. In a criminal case, as I have also noted, even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, the judge has discretion to exclude this evidence if its prejudicial effect outweighs its probative value.

[65] In this case, the declarant is deceased, and as a result there can be no doubt that the hearsay is necessary, and I need consider only reliability. The proper approach to reliability was most recently reviewed by Karakatsanis J. in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 26-32. As will be seen, reliability can be established if either procedural or substantive reliability is shown. In this case, only substantive reliability is possible. As a result, I will omit those parts of the discussion of reliability in Bradshaw that deal with procedural reliability:

26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

27 The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).

30 A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55).

31 While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[66] Although Bradshaw makes clear that the standard for substantive reliability is high, nevertheless, in the end, as Charron J. stated in Khelawon at paragraph 93, “…the trial judge must remain mindful of the limited role that he or she plays in determining admissibility - it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire.”

[67] I will proceed to consider the evidence proffered by the Crown on this application in accordance with the approach set out above, one statement at a time. But before doing so, I will consider whether the evidence is relevant. Needless to say, there is little point in embarking on a hearsay analysis if the proffered evidence is not relevant.

IS THE PROPOSED EVIDENCE RELEVANT?

[68] On this issue, I will consider all of the evidence at once. The Crown takes the position that all of the proffered hearsay evidence is relevant to the existence of animus, motive, intention, and planning and deliberation on the part of the accused, and that each of these considerations are relevant to the proof of first degree murder. Intention and planning and deliberation are, of course, elements of the offence of first degree murder. As for animus and motive, although it is undisputed in this case, I will simply observe that, “[i]n general, it might be said that animus towards another individual is simply a step in the formation of a motive to do harm to that individual” (see R. v. Riley, 2009 CanLII 15451 (ON SC), [2009] O.J. No. 1374, at para. 74). Further, “[e]vidence that a person had a motive to do an act, for example to unlawfully kill another, is relevant to prove that the person with the motive did the act, and did so intentionally” (see the judgment of Watt J.A. in R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 72.)

[69] However, the evidence proffered here does not directly relate to motive. Rather it relates to the relationship between the deceased and the accused. But the Crown correctly argues that such evidence is relevant to the existence of animus, motive and intention. Support for this too may be found in the judgment of Watt J.A. in Candir. Although he was discussing domestic homicide, the principles he described have been applied in relation to other homicides as well. Watt J.A. stated the following at para. 51:

In a prosecution for a crime of domestic homicide, evidence of the relationship between the principals, the persons charged and deceased, may be relevant and material: R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at para. 98. Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person’s animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing. Moo at para. 98; R. v. F. (S.D.) (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at para. 23; R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.), at p. 167; Plomp v. R. (1963), 110 C.L.R. 234 (H.C.A.) at pp. 243, 249-50.

[70] The accused, Mr. Dirie, does not in general dispute the relevance in this case of evidence tending to show an animus on his part towards the deceased, but he resists the relevance of evidence of the deceased’s state of mind towards him, specifically the deceased’s fear that the accused intended to do him harm. Watt J.A. addressed this issue as well in Candir at para. 52:

Motive or animus has to do with an accused’s state of mind, not that of the deceased. Yet evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased: R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para. 30; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), at p. 339.

[71] The accused correctly observes that Candir, Foreman and P. (R.) were all cases of domestic homicide, and argues that the proposition I have just quoted should be restricted to such cases, or at least treated as a case-specific rule and not one of universal application. I do not agree that this proposition is limited to domestic homicides. It is potentially available in any case where the deceased and the accused have a pre-existing relationship. However, I do agree with the accused that it is a case-specific rule. The rationale for the admission of this sort of evidence and its limitations is best explained in the majority judgment of Charron J. in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42.

[72] In Griffin two accused were charged with the shooting death of Poirier. The sole issue at trial was identity. The Crown’s theory was that the shooting was retribution for Poirier’s failure to repay a drug debt. The Crown led evidence that Poirier was in hiding and fearful of his safety in the period leading up to his death, and that Griffin was in search of him. Poirier’s girlfriend testified that shortly before his death, Poirier said to her, “if anything happens to me it’s your cousin’s family.” She understood this to be a reference to Griffin. The trial judge admitted the statement to show the state of mind of the deceased. However, he instructed the jury not to use the statement for the purpose of proving Griffin’s state of mind, or to conclude that Griffin in fact intended to harm Poirier.

[73] In respect of this issue, Charron J. first confirmed, at para. 55, the trial judge’s concern that the jury might take the statement as proof of Griffin’s intentions. She stated that the trial judge, after citing both R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, correctly observed that the “state of mind” or “present intentions” exception to the hearsay rule does not permit the admission of hearsay to show the state of mind of a third party. But she stated, at para. 59, that the statement was properly admitted for the truth of the fact that Poirier feared Griffin, in circumstances where the declarant’s state of mind was relevant, and the statement was made in a natural manner and not under circumstances of suspicion.

[74] Charron J. explained at paras. 60-61 that although a deceased’s state of mind has no direct bearing on the identity of the murderer, it may be relevant to the question of the accused’s motive. More precisely, the deceased’s state of mind may be probative of the relationship between a deceased and an accused, and the state of the relationship between a deceased and an accused in the time period leading up to the former’s murder has been recognized as probative of the issue of motive. She explained this more fully at para. 63:

The connection between a deceased's state of mind and that of an accused arises by virtue of a pre-existing relationship between the two; if a deceased and accused are unknown to one another, this course of logic can find no application. That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused's animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), 1992 CanLII 431 (BC CA), 17 B.C.A.C. 71, aff'd 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757. This is not to say that a deceased's state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased's state of mind is one piece of evidence that may be relevant to the issue of motive.

[75] As a result, I conclude that in this case, some of the evidence of the deceased’s state of mind has broad relevance as one piece of a large puzzle of circumstantial evidence going to proof of motive.

[76] I note as well that in Griffin, at para. 65, Charron J. stated that evidence of the deceased’s fear of the accused was evidence that tended to rebut the defence’s proposition that someone other than the accused might have had a motive to kill the deceased. While not conclusive, she said that such evidence was highly relevant to the question of identity. Those comments have application here as well.

[77] As a result, I conclude that all of this evidence is relevant, and will proceed to consider the remaining prerequisites to admissibility. To do so, I must consider the admissibility of the various hearsay statements individually.

THE ADMISSIBILITY OF THE HEARSAY STATEMENTS AND RELATED EVIDENCE

[78] My task is to examine each of the proffered hearsay statements in accordance with the functional approach to the determination of the admissibility of hearsay evidence developed in the jurisprudence that I have canvassed, in the following manner:

(a) Confirm the proposed evidence is hearsay.

(b) If it is hearsay, consider whether it falls into a recognized exception. If it does, it is admissible.

(c) If it does not fit a categorical exception, consider whether it falls within the principled case-by-case exception to the hearsay rule, meaning, in this case, whether it meets the test of threshold reliability, as follows:

(1) Identifying the specific hearsay dangers presented by the statement due to the absence of contemporaneous cross-examination of the hearsay declarant, specifically difficulties of assessing the declarant's perception, memory, narration, or sincerity; and

(2) Consider whether means of overcoming them have been shown, in this case because there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy, having regard to the circumstances in which it was made, and evidence that confirms or conflicts with the statement.

(d) If it falls within the principled exception to the hearsay rule, consider whether it should be excluded because the probative value of the evidence is outweighed by its prejudicial impact.

[79] In considering step (c)(1), I am additionally guided by the useful and often quoted list of circumstances provided by my colleague, Molloy J., in R. v. Hindessa, 2009 CanLII 48836 (ON SC), [2009] O.J. No. 3837, at para. 14. This list assists in determining whether sufficient guarantees of the inherent trustworthiness of a statement exist. Para. 14 reads as follows:

Factors that may be considered in assessing reliability at this stage include: the circumstances in which the statement was made; the person to whom it was made; when the statement was made in relation to the events to which it relates; whether there is any reason to doubt the truthfulness of the statement; whether there is a motive for the declarant to lie; whether there would be any difficulties with respect to the declarant's capacity to perceive or remember the events; the condition of the declarant at the time the statement was made; the spontaneity in the statement; the demeanour of the declarant at the time the statement was made; the amount of detail in the statement; and the extent to which there is other extrinsic evidence tending to confirm the reliability of the statement.

[80] I will now proceed to consider the individual statements.

1. Statements Made to Ms. Hassan

The Car Incident

[81] Mr. Abdulkhadir’s report of the car incident to his mother is clearly hearsay, and for the most part it does not fall within a recognized exception to the rule against hearsay. The specific hearsay dangers presented by the statement due to the absence of contemporaneous cross-examination of the hearsay declarant relate exclusively to sincerity. There is no difficulty in assessing the declarant’s perception, memory or narration of a highly significant event soon after it happened. I turn next to consider whether means of overcoming the difficulty of assessing the declarant’s sincerity without cross-examination have been shown in this case because there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. I note the following.

[82] Mr. Abdulkhadir had every reason to truthfully and accurately report to his mother what had happened to her car at the earliest opportunity. Of course, if responsibility for the damage was his, in whole or in part, he would have a motive to minimize or eliminate that part of the story. However, he would have absolutely no motive to blame any named individual for the damage, far less to invent a fictitious beating at the hands of those persons, since such a story could easily be refuted and would have potentially dangerous consequences for him. In particular, he would have no reason to blame his friends, thereby inevitably ending the friendship.

[83] In addition, the fact that the report was made to his mother in intimate circumstances has been held to be an indicator of reliability: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 43. In my view, it is an indicator of reliability in these circumstances. It is not undermined by the evidence that Mr. Abdulkhadir was not always open with his mother, a well-known phenomenon.

[84] I also take into consideration the fact that the statement was quite detailed; that Mr. Abdulkhadir made the statement very soon after it happened; that he subsequently repeated it several times to his mother, and also to his cousin; that the Dirie brothers became Mr. Abdulkhadir’s enemies after this event; and that Mr. Abdulkhadir commenced living in hiding after the incident, which demonstrates the gravity of making a statement pointing a finger at his friends.

[85] Counsel for Mr. Dirie raises a concern that there is double hearsay in the statement – Mr. Abdulkhadir did not see the Dirie brothers damage his car. He was told about it by Ayub. I see no significance to this. First, it is the report of the beating that has the predominant significance in this statement. But in any event, if, when asked why they had broken the car, the Dirie brothers responded by beating Mr. Abdulkhadir and telling him that he started tribalism and tried to stop them from getting their work or their job done, it would be hard to escape the conclusion that they adopted Ayub’s statement.

[86] In addition, I do not find that Mr. Abdulkhadir’s failure to report this incident to the police undermines the sincerity of his statement to his mother. It is plain from the evidence I have heard that at least Mr. Abdulkhadir and the Dirie brothers are involved in the commission of criminal offences. None of them are likely to report a beating.

[87] I am satisfied that there are sufficient circumstantial or evidentiary guarantees that this hearsay statement is inherently trustworthy and overcomes the difficulty of assessing the declarant’s sincerity without cross-examination. As a result, I am satisfied that this statement falls within the principled exception to the hearsay rule. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

Mr. Abdulkhadir’s Arrest

[88] Mr. Abdulkhadir’s statements to his mother after his arrest in 2009 were efforts by him to explain to his mother that he was carrying a gun when he was arrested as a result of his fear of the Dirie brothers and their friends, and that for this reason he would not return to live with her. He also suggested to her that the Dirie brothers were responsible for his arrest. For the most part, these statements are hearsay. Although Mr. Abdulkhadir’s simple statement that he would not be returning home to live with his mother is not hearsay, his statement of the reason for this – that it was because of his fear of the Dirie brothers – is hearsay (see P.R., at para. 16).

[89] Crown counsel argues that the expression of his fear of the Dirie brothers and of his determination not return to live with his mother because of that fear falls within the state of mind exception and present intentions exception to the hearsay rule. Such evidence is admissible where the declarant's state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion (see Griffin, at para. 59). Crown counsel further argues that these statements were not made under circumstances of suspicion.

[90] While I considered the fact that Mr. Abdulkhadir’s car incident statement was made to his mother in intimate circumstances to be an indicator of reliability, I consider these circumstances to be quite different. Here Mr. Abdulkhadir was trying to explain to an angry and disapproving mother the reason that he committed a serious crime. The explanation he gave – fear of the persons who he had previously told his mother had beaten him – was a logical one, but it was also one that might easily be fabricated in order to diminish his responsibility for the crime and win over his mother. In the result, I consider the circumstances here to be circumstances of suspicion. As a result, the exception to the hearsay rule advanced by Crown counsel is unavailable.

[91] For similar reasons, I am not satisfied that there are sufficient circumstantial or evidentiary guarantees that these hearsay statements are inherently trustworthy to overcome the difficulty of assessing the declarant’s sincerity without cross-examination. I will not admit these hearsay statements under the principled exception to the hearsay rule.

The Finch Court Cells Incident

[92] Mr. Abdulkhadir’s statement to his mother that he had been called a snitch and beaten by the Dirie brothers in the Finch Court cells is clearly hearsay, and does not fall within a recognized exception. The specific hearsay dangers presented by the statement due to the absence of contemporaneous cross-examination of the hearsay declarant relate exclusively to sincerity. Once again there is no difficulty in assessing the declarant’s perception, memory or narration of a highly significant event soon after it happened. I turn next to consider whether means of overcoming the difficulty of assessing the declarant’s sincerity without cross-examination have been shown in this case because there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. I note the following.

[93] Mr. Abdulkhadir had no reason to be less than truthful and accurate in reporting to his mother that his physical safety had been placed in jeopardy. The statement was sufficiently detailed in the circumstances, and made proximate to the event. Reliability is enhanced in this instance because the statement was made to his mother. It is noteworthy, by way of contrast, that Mr. Abdulkhadir made no official complaint about the beating. There was no motive for Mr. Abdulkhadir to lie about the event, or about who did it. Indeed, falsely accusing the Dirie brothers would have been particularly dangerous for him.

[94] Finally, and most significantly, there is reliable extrinsic evidence that Mr. Abdulkhadir was beaten in the cells by the Dirie brothers in the evidence of a court officer, Officer Caringi, who was working in the cells that day and was an eye witness to the event.

[95] Counsel for Mr. Dirie emphasized that there is no extrinsic evidence that the Dirie brothers called Mr. Abdulkhadir a snitch while they beat him up, and argued that as a result, Officer Caringi’s evidence is without significance. I do not agree. Needless to say, for extrinsic evidence to enhance the reliability of a hearsay statement, it must corroborate or confirm a material particular of that statement. It need not corroborate every particular upon which the Crown hopes to rely. In this instance, there are two highly material particulars in Mr. Abdulkhadir’s statement: the Dirie brothers beat him and the Dirie brothers called him a snitch. Extrinsic confirmation of one of these particulars enhances the reliability of both.

[96] I am satisfied that there are sufficient circumstantial or evidentiary guarantees that this hearsay statement is inherently trustworthy to overcome the difficulty of assessing the declarant’s sincerity without cross-examination. As a result, I am satisfied that this statement falls within the principled exception to the hearsay rule. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

The “Adnan” Statements

[97] Mr. Abdulkhadir’s requests of his mother to help his brother Adnan stay away from the Dirie brothers is not hearsay, and tends to show that Mr. Abdulkhadir feared Mr. Dirie. However, his explanation for this advice requires the recounting of hearsay, double hearsay and opinion evidence. Ms. Hassan’s recounting to Mr. Abdulkhadir of Adnan telling her that he was beaten by the Dirie brothers is hearsay. Mr. Abdulkhadir’s response that he had heard about the beating is double hearsay, and his conclusion that the beating was because of him is opinion evidence. Mr. Abdulkhadir’s account of the beating does not come close to meeting the prerequisite of threshold reliability. Ms. Hassan’s account from Adnan does not meet the requirements of necessity or reliability. And Mr. Abdulkhadir’s opinion is inadmissible. Mr. Abdulkhadir’s request of his mother that she help Adnan stay away from the Dirie brothers is so inextricably wound up with this mass of inadmissible evidence as to itself be inadmissible. Counsel for the accused would be handcuffed in any effort to cross-examine Ms. Hassan about it in light of its underpinning. Evidence concerning this entire discussion is inadmissible.

Statements about Returning to Live with Ms. Hassan upon Mr. Abdulkhadir’s Release from Custody

[98] Mr. Abdulkhadir’s statement to his mother after his release from custody that he would not live with her, once again, is not hearsay, but his explanation that he had enemies in the neighbourhood, specifically Monopoly, Beetlejuice and their friends and that he was running for his life is hearsay. When I addressed a similar explanation in respect of what Mr. Abdulkhadir told his mother when he was arrested, I concluded that while the expression of Mr. Abdulkhadir’s fear of the Dirie brothers and of his determination not to return to live with his mother because of that fear fell within the state of mind exception and present intentions exception to the hearsay rule, it was nevertheless inadmissible because it was made under circumstances of suspicion. He was explaining his arrest for possession of a firearm to an angry and disapproving mother and might have been fabricating his explanation in order to diminish his responsibility for that offence. This time, in my view, the explanation was made in a natural manner to a mother who wanted him to return home. As such, these statements are admissible. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

[99] The additional statement made by Mr. Abdulkhadir to Ms. Hassan that he believed that Monopoly’s friends were angry and that the entire family was going after him goes well beyond what is necessary to explain Mr. Abdulkhadir’s state of mind, and appears to be double hearsay or speculation. I will not admit this part of the evidence.

The Scarlettwood Court Incident

[100] Mr. Abdulkhadir’s statement to his mother that Bashir told him that Monopoly and “Squitch” asked him where Mr. Abdulkhadir was, and then opened fire on him, is double hearsay. His further statement to his mother that Monopoly and “Squitch” were looking for him, that he was the target and the bullets were meant for him, and that if he died Monopoly would be responsible was opinion evidence based on the double hearsay. While the statement is evidence that Mr. Abdulkhadir feared Mr. Dirie, it is so inextricably intertwined with highly prejudicial double hearsay, making it inadmissible.

The “Shisha House” Incident

[101] Mr. Abdulkhadir’s statement to his mother after Mr. Dirie was released from custody in 2015 that his cousin, Keenan, told him about being threatened with a gun by Mr. Dirie and told to convey a death threat to Mr. Abdulkhadir is double hearsay. Crown counsel fairly concedes that the underlying hearsay is too unreliable to be received for its truth. Once again, while Mr. Abdulkhadir’s statement of fear of Mr. Dirie might be admissible, it is so inextricably intertwined with highly prejudicial double hearsay, making it inadmissible.

Statements Made After the Death of Mohamed Dirie

[102] I can see no hearsay in the account of this discussion involving Mr. Abdulkhadir and his mother. The information heard by Ms. Hassan that elders in the neighbourhood were saying that Mr. Abdulkhadir killed Mr. Dirie’s brother is not led for its truth, and is admissible to show why Mr. Abdulkhadir’s fear of Mr. Dirie increased in 2015.

If I Die Statement

[103] Ms. Hassan’s evidence that Mr. Abdulkhadir always said to her, “if I die, that’s the guy who kill me, Monopoly” is not hearsay. It is a recounting of Mr. Abdulkhadir’s expression of extreme fear of Mr. Dirie. It is virtually identical to the evidence found to be admissible in Griffin. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

The Ducking Down Incident

[104] Ms. Hassan’s observation of Mr. Abdulkhadir ducking down and hiding himself in the car when he saw a friend of Mr. Dirie’s, and his statement, “Mom, let’s get out of here,” is not hearsay, and is admissible.

The Night of the Shooting

[105] Mr. Abdulkhadir’s statement to his mother on August 8, 2015 that he was going to a party with a friend of his is an admissible statement of intention and is not hearsay.

[106] Recall that on August 8, 2015, Mr. Abdulkhadir went to the Scarlettwood area. He left the car there for his mother to pick up and he told her, on the phone, that he was going to a party with a friend of his, but he did not say who the friend was. Ms. Hassan did not know the exact time of the phone call, giving various times between 8:00 and 11:00 p.m. Ms. Hassan said that she called Mr. Abdulkhadir a lot of times, but she did not know how many.

Gang Statements

[107] The prejudicial effect of the hearsay statement concerning Mr. Dirie’s membership in a Somali gang without any other evidence of it outweighs any slight probative value it may have in strengthening the inference that Mr. Abdulkhadir feared Mr. Dirie. I will not admit the statement.

2. Statements Made to Ms. Abshir

The Car Incident

[108] Mr. Abdulkhadir’s report of the car incident to his cousin, as with his report to his mother, is clearly hearsay, and for the most part it does not fall within a recognized exception to the rule against hearsay. The specific hearsay dangers presented by the statement due to the absence of contemporaneous cross-examination of the hearsay declarant once again relate exclusively to sincerity. There is no difficulty in assessing the declarant’s perception, memory or narration of a highly significant event soon after it happened. I turn next to consider whether means of overcoming the difficulty of assessing the declarant’s sincerity without cross-examination have been shown in this case because there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. I note the following.

[109] Mr. Abdulkhadir made his statement to his cousin when he was in distress and injured. She said that he had a bruised eye and seemed to be in shock, confused, worried and scared, with his voice cracking when he told her about it. These circumstances made fabrication most unlikely, all the more so because the statement was obviously made soon after the event, and was told to a close family member. Moreover, it is consistent with what Mr. Abdulkhadir told his mother.

[110] I am satisfied that there are sufficient circumstantial or evidentiary guarantees that this hearsay statement is inherently trustworthy to overcome the difficulty of assessing the declarant’s sincerity without cross-examination. As a result, I am satisfied that this statement falls with the principled exception to the hearsay rule. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

The If I Die Statement

[111] Ms. Abshir’s evidence was that in 2010, when Mr. Abdulkhadir came out of jail, he told her, “if I was to die, he’s the one that killed me,” referring to Monopoly. As was the case with Ms. Hassan’s similar evidence, this statement is not hearsay. It is a recounting of Mr. Abdulkhadir’s expression of extreme fear of Mr. Dirie. It is virtually identical to the evidence found to be admissible in Griffin. I will withhold my probative value/prejudicial effect analysis until I have identified all of the hearsay that I find to be admissible, and examine it all together.

The Scarlettwood Court Incident

[112] I will not admit this evidence for the same reason that I would not admit the similar evidence of Ms. Hassan, with one caveat. Ms. Abshir testified that when Mr. Abdulkhadir told her about this incident, he said that he had to leave, and subsequently moved from Scarlettwood Court to the Dundas Street area. She went on to say that he returned to Scarlettwood Court after Mr. Dirie went to jail, although he “always laid low.” If Ms. Abshir was able to say, perhaps in response to a leading question, that Mr. Abdulkhadir told her he left Scarlettwood Court out of fear of Mr. Dirie, I would permit it.The Penthouse Incident

[113] There is no hearsay issue arising out of the evidence concerning this incident.

The Bar Code Statements

[114] Ms. Abshir testified that she spoke to Mr. Abdulkhadir when he came out of the Bar Code nightclub shortly before he was murdered, and he told her about an interaction he had had earlier with Mr. Dirie inside the club. Counsel for the accused concedes that this evidence falls within the principled exception to the hearsay rule, subject only to my being satisfied that the statements she testified to came from the deceased directly. On this last point, Crown counsel must be careful to lead from the witness only words that Ms. Abshir attributes to the deceased. But it is for the trier of fact, and not for me, to determine what words were actually spoken. Given the accused’s concession that threshold reliability is satisfied in respect of this evidence, I will not analyze it further, but will simply say that, without the concession, I would have come to the same conclusion.

3. The Related Evidence

Evidence Surrounding the Scarlettwood Court Incident

[115] Since I have ruled the Scarlettwood Court statements inadmissible, this evidence is obviously inadmissible as well.

Custodial and Criminal Records of Mr. Dirie and his brother Mohamed Dirie

[116] This evidence is relevant to confirm that the Dirie brothers were in the Finch Court cells at the time of the Finch Court cells incident. It is also relevant to help explain why, if Mr. Dirie was the shooter, and if his motive related to the Finch Court cells incident, the shooting of Mr. Abdulkhadir did not take place at an earlier point in time. I will reserve consideration of ultimate admissibility of this evidence until I have concluded the probative value/prejudicial effect analysis of the various hearsay statements and related evidence.

THE PROBATIVE VALUE/PREJUDICIAL EFFECT ANALYSIS

[117] Trial judges presiding over criminal cases have a discretion to exclude Crown evidence in which the prejudicial effect of the evidence outweighs its probative value: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at para. 41. This discretion extends to what would otherwise be admissible hearsay evidence: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 188. It is an error for a trial judge to fail to consider this question: Starr, at para. 188. In this case, counsel for Mr. Dirie argues that some of the hearsay evidence should be excluded on this basis. Specifically, they argue the following:

1. All of Ms. Hassan’s evidence should be excluded because of her ultimate unreliability: her conduct at the preliminary inquiry demonstrates that she is “unavailable” for meaningful cross-examination, and her evidence is so clearly incredible and unreliable that no probative value can be ascribed to anything she says.[^1]

2. Some of the hearsay evidence should be excluded because it discloses prior disreputable conduct on the part of Mr. Dirie.

[118] I will consider each of these issues in turn.

Ultimate Reliability of Ms. Hassan

Can the trial judge consider ultimate reliability when deciding on admissibility?

[119] I have given consideration throughout these reasons to the threshold reliability of the hearsay evidence, and not to its ultimate reliability. My approach is in accordance with the jurisprudence. Threshold reliability is for me. Ultimate reliability is for the jury. This was succinctly explained by Karakatsanis J. in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at paras. 23-24:

The trial judge, as the evidentiary gatekeeper, assesses the threshold reliability of the hearsay statement. The decision as to the ultimate reliability of the statement is left to the trier of fact: Khelawon, at para. 2. Even if the necessity and reliability of the hearsay evidence are proven, the trial judge maintains discretion to exclude the evidence where the “prejudicial effect is out of proportion to its probative value”: Khelawon, at para. 3.

Why not simply let the trier of fact determine both threshold and ultimate reliability? Professors D. M. Paciocco and L. Stuesser provide the following explanation, with which I agree:

In considering “reliability”, a distinction is made between “threshold” and “ultimate” reliability. This distinction reflects the important difference between admission and reliance. Threshold reliability is for the trial judge and concerns the admissibility of the statement. The trial judge acts as a gatekeeper whose function “is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement.” So long as it can be assessed and accepted by a reasonable trier of fact, then the evidence should be admitted. Once admitted, the jury remains the ultimate arbiter of what to do with the evidence and deciding whether or not the statement is true.

(The Law of Evidence (6th ed. 2011), at pp. 122-23)

[120] However, this does not mean that the characteristics of the witness who will testify to the hearsay evidence is immune from consideration in the analysis of probative value and prejudicial effect. Doherty J.A. made this point in R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), application for leave to appeal refused, [2006] S.C.C.A. No. 232. He stated the general rule about threshold and ultimate reliability at paras. 50 and 51:

The trial judge erred in law in holding that the credibility of Ms. Stevenson was relevant to a determination of whether Aysar’s statements were sufficiently reliable to justify their admission under the principled approach to the admissibility of hearsay evidence. Where, as here, the declarant of the out-of-court statement is not available for cross-examination at trial, the inquiry into the threshold reliability of the out-of-court statement looks for circumstantial guarantees of trustworthiness arising out of the circumstances in which the out-of-court statement was made. These circumstantial guarantees of trustworthiness must be sufficiently supportive of the reliability of the out-of-court statement to permit its admission despite the absence of an opportunity to cross-examine the declarant. If the threshold reliability hurdle is cleared, the ultimate reliability of the out-of-court statement is for the trier of fact: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257, at p. 930 S.C.R., p. 268 C.C.C.; Starr, supra, at paras. 215-17; R. v. Czibulka, 2004 CanLII 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), at paras. 22-26, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502.

Ms. Stevenson's credibility and the reliability of her narration of Aysar’s out-of-court statements were not circumstances surrounding the making of those statements. Nor was there any need to demand that Ms. Stevenson's reliability clear some threshold level as a precondition to the admissibility of her evidence as to Aysar's statements. Threshold reliability stands as a substitute for cross-examination of the declarant, not the narrator of the out-of-court statement. Ms. Stevenson would have testified at trial. Her credibility and reliability as they related to Aysar's statements could have been fully tested on cross-examination before the jury. No doubt, her credibility and reliability would have been important considerations in the jury's ultimate determination of whether Aysar made the statements testified to by Ms. Stevenson. Her credibility and reliability were not, however, part of the circumstances surrounding the making of the statements by Aysar such that her credibility or reliability could enhance or detract from the threshold reliability of Aysar's statements: McWilliams’ Canadian Criminal Evidence, 4th ed. (Aurora, Ont.: Canada Law Book, 2003) at 7-64.

[121] Doherty J.A. went on to express a caution about the discretion to exclude prejudicial evidence. He stated the following at para. 57:

There is one caveat to what I have said. A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence: R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19, 27 C.R. (4th) 141 (C.A.), at pp. 155-56, aff’d 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756, [1994] S.C.J. No. 97; R. v. Starr, supra, at para. 188. There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator's evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion. If the evidence was tendered by the defence, the discretion could be exercised only where the potential prejudice substantially outweighed the potential probative value to the defence of the out-of-court statement: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 66 C.C.C. (3d) 321, at p. 610 S.C.R., p. 391 C.C.C.; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 87 C.C.C. (3d) 289, at p. 140 S.C.R., p. 297 C.C.C.; R. v. Starr, supra, at paras. 187-88. I need not pursue this analysis as the trial judge did not purport to exclude Ms. Stevenson's evidence as to Aysar's statements by the exercise of that residual discretion.

[122] Counsel before me referred to this proposition as the Humaid caveat. The so-called Humaid caveat was affirmed by the Supreme Court of Canada in Blackman at para. 51. The question I must address in this case is whether the credibility or reliability of Ms. Hassan is so deficient that it robs the out-of-court statement of any potential probative value. This is a difficult test to meet.

Does the accused have the right to cross-examine the narrator of hearsay evidence proffered by the Crown on a voir dire?

[123] At the outset of the hearing of this motion, I was called upon to address a preliminary dispute between Mr. Dirie and the Crown. In the Applicant’s factum, Crown counsel made clear that it proposed to rely on the transcript of Ms. Hassan’s evidence at the preliminary hearing to inform the court of the details of the hearsay statements of Ms. Hassan that it proposed to adduce in evidence at trial, and the circumstances surrounding the making of those statements. As a result, as part of its record on the motion, the Crown filed the transcript of Ms. Hassan’s at the preliminary inquiry. She testified for four days in chief and three days in cross-examination by counsel for Mr. Dirie.

[124] In their factum, counsel for Mr. Dirie asserted that they were entitled to cross-examine Ms. Hassan on this motion as of right. They stated, “[f]or the purpose of this Application, the Respondent does not take issue with the Facts as set out in the Applicant’s factum, recognizing that it will be the viva voce testimony of Ms. Hassan and Ms. Abshir, rather than the preliminary inquiry testimony, that will form the evidence on the voir dire.” They also said, “…Fouzia Hassan and Koos Abshir will be testifying on the voir dire and it is that evidence which will be considered in determining admissibility.” However when we reached this issue in the pre-trial motions, counsel recognized that they did not have a right to cross-examine on the voir dire, and took a more restrained position. They argued that they should be permitted to cross-examine Ms. Hassan in this case for two reasons. First they say that it is necessary for me to hear Ms. Hassan’s viva voce evidence to determine whether her credibility is so deficient that it robs her out-of-court statements of any potential probative value. And second, they say that it is necessary for me to hear her evidence because there is uncertainty about what she might say when she testifies.

[125] I rejected the second argument out of hand, for reasons that I will explain shortly, but I took a different approach to the first argument. I was of the view that I should hear the hearsay arguments based on Ms. Hassan’s evidence at the preliminary inquiry, and determine whether any or all of her proposed evidence could be excluded without the necessity of deciding whether to hear the viva voce evidence of Ms. Hassan. If I were to decide that any of the hearsay evidence of Ms. Hassan falls within an exception to the hearsay rule, I would advise counsel of that determination, and give them a further opportunity to argue about the Humaid caveat and the necessity of hearing from Ms. Hassan. I did exactly that, heard further argument, and decided not to permit Ms. Hassan to be called as a witness. I will proceed to explain my reasons for rejecting both arguments advanced by Mr. Dirie in relation to the calling of Ms. Hassan as a witness.

[126] I begin by noting that it is beyond dispute that as part of my trial management power, I have the power to require an offer of proof before embarking on a lengthy voir dire, to defer rulings and to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form. The decision of Rosenberg J.A. in R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 at para. 57, provides support for this power:

I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called.

[127] I do not think that the passage of time has diminished the force of what was said by Gale C.J.O. in R. v. Dietrich (1970), 1970 CanLII 377 (ON CA), 1 C.C.C. (2d) 49 (Ont. C.A.):

But save in rare circumstances, the relevancy or propriety of specific evidence need not be determined by testimony given in advance and in the absence of the jury. By adopting such a procedure the trial is unduly prolonged, the jury is absent from the Courtroom too long, and the continuity of the trial which is so desirable is unduly disturbed, to say nothing of an unfair preview of the evidence that may be afforded to the opposite party. It should not become fashionable to have evidence disclosed by a voir dire without very good reason. On the contrary, it is desirable that whenever possible evidence that is to be challenged be considered in the absence of the jury upon an outline by counsel of the nature of the prospective evidence. In the vast majority of cases the Judge will then be in a position to rule upon its admissibility.

[128] I turn next to Mr. Dirie’s first argument in support of the proposition that he should be permitted to cross-examine Ms. Hassan on this motion: that it is necessary for me to hear Ms. Hassan’s viva voce evidence to determine whether her credibility is so deficient that it robs her out-of-court statements of any potential probative value. In advancing this argument, counsel point to the decision of the Court of Appeal in R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32. In that case, the trial judge admitted an ante-mortem statement made by the deceased to his fiancée. The trial judge made his ruling on the basis of the transcript of the witness’s evidence given at the preliminary inquiry. The accused was convicted. On appeal, he argued that the trial judge erred in failing to consider the witness’s unreliability in his analysis of reliability, relying on the Humaid caveat.

[129] In rejecting this ground of appeal, Blair J.A. emphasized three points:

1. Where the narrator of the hearsay statement is available for cross-examination at trial, the narrator’s credibility is a matter that usually can be left safely to the trier of fact to consider.

2. The circumstances giving rise to the application of the Humaid caveat will be relatively rare.

3. The trial judge in that case was not asked to apply Humaid.

[130] However, Mr. Dirie fastens on an additional comment made by Blair J.A. at para. 53:

At the time of his ruling, then, the trial judge had only the transcript of her evidence at the preliminary inquiry to consider. Viva voce testimony need not be the only mode of proof on a voir dire. However, it would be an exceedingly rare case, in my opinion, where, without the opportunity to see and hear the narrator’s testimony, a trial judge would be in the position to rely on the Humaid caveat and make a “no probative value” finding -- based on the narrator's lack of credibility -- to exclude the statement. This is not one of those cases.

[131] Based on this passage, counsel argues that they cannot advance their Humaid caveat argument without hearing from Ms. Hassan because I will not be in a position to make a no probative value finding based on her lack of credibility without seeing and hearing her testimony. I do not agree for four reasons.

[132] First, accepting this argument would essentially permit counsel, and not the trial judge, to direct the manner in which a voir dire is conducted, at least with respect to whether proof will be adjudicated on the basis of testimony or in some other way, whenever there is some basis to attack the credibility of the recipient of the hearsay. And there almost always is.

[133] Second, I do not think that Blair J.A. was asserting as a principle of law that a trial judge cannot make a Humaid caveat decision without hearing viva voce evidence from the narrator of the hearsay on a voir dire. After all, it is not the task of the trial judge to decide whether he or she believes the narrator of the hearsay. The task is to determine whether the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. Put another way, before excluding otherwise admissible hearsay evidence on this basis, the trial judge must conclude that the narrator’s evidence is not just incredible or unreliable, but “so incredible or unreliable as to necessitate” exclusion. It seems to me that what Blair J.A. was saying was much narrower than what the defence asserts. He did not suggest that a trial judge could not find that a witness does not fall within the Humaid caveat without seeing and hearing the witness. Instead, he was suggesting that it would be the rare case where a judge would exclude a witness’s evidence on this basis without seeing and hearing them.

[134] Third, even if Blair J. A. was purporting to announce a general principle that witnesses should be heard by the trial judge before a determination is made that they fall within the Humaid caveat, it is necessarily one that allows exceptions, and he said so. Every case is different. In some cases, the basis for exclusion is perfectly clear from the existing record, and can be assessed without additional viva voce evidence. When Blair J.A. made this comment, I am certain that he did not have in mind a case where the narrator of the hearsay had already testified for seven days at the preliminary hearing, and was under cross-examination for three of those days.[^2] In the end, the testimony of Ms. Hassan may not have been as long in substance as it appears, but the fact remains that it was very long indeed.

[135] Fourth, in the particular circumstances surrounding Ms. Hassan’s evidence, I do not need to hear and see her to assess the credibility concerns raised by the defence. I do not only have reference to the length of time Ms. Hassan testified at the preliminary inquiry. I have reference as well to the fact that the credibility concerns of the accused are apparent, and I will not be enlightened by further cross-examination. Those concerns relate to the established inconsistencies in the witness’s evidence, her aggressive response to cross-examination and her refusal to answer certain questions. I do not need to see her face or hear her voice while testifying to understand the issues that have been raised.

[136] In the course of argument, I asked counsel what she expects to accomplish in further cross-examination. She agreed that she did not intend to repeat the questions she asked at the preliminary inquiry, but despite this, she expected her additional cross-examination to take two or perhaps three additional days! The only area of cross-examination that she was able to identify for me was cross-examination of the witness on the inconsistencies between her preliminary inquiry evidence and her video-recorded statement to the police. She conceded that she had the statement in her possession at the preliminary inquiry, but chose not to cross-examine Ms. Hassan on it for strategic reasons. I do not know what those strategic reasons might be, but if it was to save the questions for cross-examination at a voir dire at trial, it was not a wise strategy. An accused cannot entitle him or herself to a voir dire by the simple expedient of withholding cross-examination at the preliminary inquiry. In any event, the transcript of the statement has been made available to me. I do not need to see and hear the witness to be aware of them and assess their potential impact.

[137] After I heard all of the argument on the admissibility of the hearsay evidence and preliminary argument on the right to cross-examine Ms. Hassan, this case was adjourned for several days to permit some additional preparation. I promised counsel that before we resumed, I would advise counsel of whatever hearsay evidence I concluded was not admissible on the basis that it did not fall within a hearsay exception. I did provide counsel with this advice, following which I heard further argument on the issue of hearing Ms. Hassan on a voir dire. In the course of this further argument, counsel further focused the proposed cross-examination. She indicated that it would take less than a day, and its ultimate purpose would be to show me that Ms. Hassan is manipulative, a liar and a perjurer.

[138] I have read the transcript of Ms. Hassan’s cross-examination at the preliminary inquiry with great care. There can be no doubt that Ms. Hassan was a difficult witness for counsel for Mr. Dirie to cross-examine. She was hostile to Mr. Dirie, who she is convinced murdered her son, and in turn was hostile to his counsel. She was angry at times, emotional at times, undisciplined and combative. Counsel for Mr. Dirie argued that if I saw and heard her testify, I would be in a position to conclude that she was manipulative and sought to frustrate the defence, that she committed perjury, and that she is a general abject liar, whose credibility is so deficient that it robs the out-of-court statement of any potential probative value.

[139] I am quite able to assess the manner in which Ms. Hassan behaved from examining the transcripts of the preliminary inquiry, a task I have undertaken with care. I have all the material I need to decide whether or not I would reach the conclusions advanced by Mr. Dirie. I fail to see how I would be better positioned to draw those conclusions after hearing additional viva voce cross-examination, or to determine whether Ms. Hassan’s credibility or reliability is so deficient that it robs the out-of-court statements of any potential probative value.

[140] For these reasons, Mr. Dirie’s argument that it is necessary for me to hear Ms. Hassan’s viva voce evidence to determine whether or not her credibility is so deficient that it robs her out-of-court statements of any potential probative value fails, and I turn to his second argument.

[141] Mr. Dirie argues that it is necessary for me to hear Ms. Hassan’s evidence because there is uncertainty about what she might say when she testifies at trial. The basis of this argument is that there are differences between her police statement and her preliminary inquiry evidence. In support of this argument, counsel relies on the Court of Appeal for Ontario’s decision in R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40 (C.A.). In that case, the Crown asked the trial judge to admit certain similar fact evidence. The accused asked the judge to require the Crown to call viva voce evidence with respect to each incident being tendered as similar fact evidence on a voir dire before ruling on the admissibility of the evidence. He insisted that he had the right to cross-examine all similar fact witnesses before the ruling as to admissibility. The trial judge refused and proceeded on the basis of the evidence of the accused’s guilty pleas to several of the charges and on the basis of the evidence led at the preliminary inquiry. The evidence was admitted, the accused was convicted, and he appealed, arguing, among other things, that the trial judge erred with respect to the procedure he followed to determine the admissibility of this evidence. The Court of Appeal rejected this ground of appeal, stating the following at para. 61:

The appellant submitted before this court that the procedure adopted by the trial judge constitutes an error of law. We did not call upon the respondent on this ground of appeal as, in our view, it is without merit. The procedure adopted by the trial judge was appropriate in the circumstances of this case. This was not evidence (for example, a statement by the accused) where the Crown was required to prove certain facts (voluntariness) as a prerequisite for admissibility. In the circumstances of this case, admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor, was there uncertainty about what the witnesses might say. The trial judge was entitled to adopt a more expeditious procedure that was entirely adequate to test the admissibility of the similar fact evidence: R. v. G.N.D. (1993), 1993 CanLII 14712 (ON CA), 81 C.C.C. (3d) 65 (Ont. C.A.); R. v. Carpenter (1982), 1982 CanLII 3308 (ON CA), 1 C.C.C. (3d) 149 (Ont. C.A.) R. v. Dietrich (1970), 1970 CanLII 377 (ON CA), 1 C.C.C. (2d) 49 at 62 (Ont. C.A.).

[142] Counsel for Mr. Dirie fastens on the comfort the court took from that fact that there was no uncertainty in that case about what the witnesses might say, and argues that in light of the inconsistencies in Ms. Hassan’s evidence, it is necessary to hear her evidence on a voir dire to be certain about what she will say at trial. In my view, the Court of Appeal was not suggesting in this passage that a voir dire is a prerequisite to a determination that evidence is admissible whenever there are inconsistencies in a witness’s account or accounts of the evidence sought to be introduced. That would result in a great many more voir dires being necessary. The court was concerned with the situation where there is uncertainty about thrust of the evidence, not about all of the details.

[143] In addition, I fail to see how hearing Ms. Hassan’s evidence on a voir dire will ensure that we know the details of what she will say before the jury. As anyone with experience in the criminal courts will know, the details of the evidence of even the most honest of witnesses has been known, not infrequently, to change from police statement to preliminary inquiry, from preliminary inquiry to voir dire, from voir dire to examination-in-chief, and even from examination-in-chief to cross-examination.

[144] Here the thrust of Ms. Hassan’s hearsay evidence is not in doubt, based on the transcript of the preliminary inquiry, and that is the evidence that I will rule on. If the witness has something entirely different to say, it will not be admissible without a further ruling.

[145] For these reasons, Mr. Dirie’s second argument that it is necessary for me to hear Ms. Hassan’s evidence because there is uncertainty about what she might say when she testifies also fails, and I will not require the Crown to adduce her evidence on a voir dire.

Is the Probative Value of Ms. Hassan’s Evidence Outweighed by the Prejudicial Effect because of Deficiencies in her Credibility?

[146] It must not be forgotten that this issue falls within the probative value/prejudicial effect analysis. As a result, I begin by saying that the probative value of the hearsay evidence narrated by Ms. Hassan is great. It bears significantly on animus and motive, and in turn on the mens rea of murder and on planning and deliberation. As I have already noted, the Supreme Court viewed such evidence as “highly relevant” in Griffin. Charron J. stated the following at para. 63:

That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused's animus or intention to act against the victim.

[147] She further stated the following at para. 65:

In admitting the impugned statement, the trial judge correctly observed that Poirier's particularized fear of Griffin was evidence that tended to rebut the defence proposition that someone other than Griffin might have had a motive to kill Poirier in January 2003. While Poirier's fear of Griffin was not conclusive on this issue, the evidence was highly relevant to the question of identity. That Poirier was driven into hiding and was fearful for his safety in the weeks preceding his death because of his fear of Griffin, and not because of his fear of someone else as suggested by the defence, could be properly considered as one piece of circumstantial evidence refuting the defence theory that someone other than Griffin may have killed Poirier.

[148] However, counsel for Mr. Dirie argue that whatever probative value the motive evidence arising out of the Car Incident and the Finch Court Cells Incident may have, it is attenuated by the passage of time, having taken place six years before the homicide. There would be force to this argument if these incidents stood alone. But they do not. There is more recent evidence of a continued animus toward the deceased on the part of Mr. Dirie in the time period proximate to the shooting. Most significantly, there is evidence that the six-year old animus had not faded on the very night of the homicide. As I have described, Mr. Abdulkhadir is said to have told Ms. Abshir that he said to Mr. Dirie, “let bygones be bygones and let’s move on with our lives. It’s been six years.” Finally, the fact that Mr. Dirie spent a significant amount of time in custody during the six-year period is significant. In all of these circumstances, the probative value of the earlier incidents remains high.

[149] I turn then to prejudicial effect. Here the asserted prejudicial effect would be the prejudice of permitting the jury to hear the evidence of a witness whose credibility is so deficient that it robs the out-of-court statement of any potential probative value.

[150] As I said, I have read the transcript of Ms. Hassan’s cross-examination at the preliminary inquiry with great care. Once again, there can be no doubt that Ms. Hassan was a difficult witness for counsel for Mr. Dirie to cross-examine. Counsel have also taken me through a series of instances where she refused to answer questions asked by the defence (the preliminary inquiry judge did not force the issue), or avoided answering them. Many of these refusals related to the naming of persons who were present when she spoke to the police or who gave her information. If I had to decide, which I do not, I would view these refusals as far more likely to have been the result of legitimate fear than dishonesty. In addition, some of the refusals or evasions were in response to highly intrusive and marginally relevant matters. For the most part, at times as a result of more effort than should have been necessary, the cross-examination questions were answered. All of this, if it is repeated, will be for the jury to consider in respect of Ms. Hassan’s credibility, assuming I do not exclude her evidence. But none of it leads me to conclude that she was “manipulative to frustrate the defence, committed perjury, and is a general abject liar” or that her credibility is so deficient that it robs the out-of-court statement of any potential probative value. In reaching this conclusion, I also take into consideration that Ms. Hassan’s account of Mr. Abdulkhadir’s statement about the Finch Court Cells Incident is almost entirely corroborated by an independent witness.

[151] This is not the relatively rare case where I conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of her evidence based on the exercise of my residual discretion.

Should some of the Hearsay Evidence Be Excluded because it Discloses Prior Disreputable Conduct on the Part of Mr. Dirie?

[152] I repeat that the probative value of all of this evidence is great. It bears significantly on animus and motive, and in turn on the mens rea of murder and on planning and deliberation. I will not repeat what I said previously about the decision in Griffin and the significance of the gap in time between the Car Incident and the Finch Court Cells Incident and the homicide.

[153] I turn next to prejudicial effect. When considering prejudice in this context, a court must examine what was referred to in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 as moral prejudice and reasoning prejudice. I had occasion to consider the meaning of these two categories of prejudice in R. v. Dalzell, 2004 CanLII 5100 (ON SC), aff’d 2010 ONCA 590. I stated the following at para. 8:

The judgment of Binnie J. in Handy also provides guidance with respect to the assessment of prejudice. Specifically, Binnie J. divided the considerations to be taken into account when examining prejudice into four categories, namely:

1. Moral prejudice – this relates to the risk of an unfocussed trial and of a wrongful conviction in a criminal case arising from the improper inference of guilt from evidence of general disposition or propensity. The concern is that a conviction, or a finding, may be based on prejudice rather than proof.

2. Reasoning prejudice – this relates to a concern about distracting the jury from their proper focus. The distraction can flow from:

(a) Inflammatory evidence;

(b) The creation of a distracting side issue; and

(c) The undue consumption of time.

[154] In this case, there is no suggestion of any reasoning prejudice that might flow from the reception of the ante-mortem statements in evidence. The evidence is not inflammatory, any distraction it might cause will be inconsequential, and the time necessary to hear the evidence will not be undue.

[155] The defence, however, argues that the reception of evidence suggesting discreditable conduct will result in moral prejudice. I have already removed from consideration several hearsay statements that disclose the most serious discreditable conduct sought to be adduced in evidence by the Crown, including the following: the “Adnan” statements, the Scarlettwood Court incident, the “Shisha House” incident and the gang statements.

[156] What remains, at least of arguable significance, are the Car Incident, and the Finch Court Cells Incident. Both of these incidents, if believed, demonstrate that Mr. Dirie has been physically violent in the past, but with his fists, not with a weapon, far less with a firearm. The Finch Court Cells Incident also discloses that he has been arrested and held in custody. In addition, there is the evidence that the Crown wants to lead that Mr. Dirie was in custody for a significant period of time during the period from the Car Incident to the homicide.

[157] As Doherty J.A. stated in R. v. L.B. (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 24, an assessment of the prejudicial effect of discreditable conduct should take into consideration matters such as the following:

1. The degree of discreditable conduct disclosed by the evidence;

2. The extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

3. The extent to which the evidence may confuse issues; and

4. The ability of the accused to respond to the evidence.

[158] The evidence of inflicting two beatings, while discreditable, is not particularly serious. There is nothing in this evidence that suggests that Mr. Dirie is the kind of person that would commit what amounts to an assassination. The evidence does not confuse the issues, and Mr. Dirie can readily respond to it. The prejudicial effect is slight in this case, and will be the subject of a caution to the jury. The evidence that Mr. Dirie was in custody at the time of the Finch Court Cells Incident is even less problematic, for similar reasons.

[159] As for identifying the time period that Mr. Dirie was in custody during the six years preceding the homicide, the prejudicial effect depends on how this evidence is presented to the jury. I am satisfied that it can be presented in a way that significantly mutes its prejudicial effect. Counsel have worked cooperatively on a number of matters in this case, and I am hopeful that they can agree on the way this evidence can be admitted to reduce its prejudicial force. If they cannot agree, then of course I will decide the issue.

[160] As a result, I am satisfied that the probative value of all this evidence substantially outweighs its prejudicial effect, subject to a resolution of the manner in which Mr. Dirie’s time in custody is presented. I will not exclude any of the evidence on this basis beyond what I have excluded earlier in these reasons.

DISPOSITION

[161] The following evidence is admissible in evidence before the jury:

1. The Car Incident statements to Ms. Hassan and to Ms. Abshir

2. The Finch Court Cells Incident statements to Ms. Hassan

3. Mr. Abdulkhadir’s statements to Ms. Hassan about returning to live with her upon Mr. Abdulkhadir’s release from custody except for his statement about Monopoly’s friends and family

4. Statements made after the death of Mohamed Dirie to Ms. Hassan

5. The If I Die Statements to Ms. Hassan and Ms. Abshir

6. The Ducking Down Incident statement to Ms. Hassan

7. The Night of the Shooting statements to Ms. Hassan

8. A limited statement about leaving Scarlettwood Court to Ms. Abshir

9. The Penthouse Incident statement to Ms. Abshir

10. The Bar Code statements to Ms. Abshir

[162] The following evidence is inadmissible:

1. Mr. Abdulkhadir’s Arrest statements to Ms. Hassan when in custody

2. The “Adnan” statements

3. The statement to Ms. Hassan about Monopoly’s friends and family arising out of the statements about returning to live with Ms. Hassan upon Mr. Abdulkhadir’s release

4. The Scarlettwood Court Incident statements except for a limited statement about leaving Scarlettwood Court to Ms. Abshir

5. The “Shisha House” Incident statements

6. Gang statements

[163] I note the obvious. Counsel must take care in crafting their questions of Ms. Hassan and Ms. Abshir in cross-examination to avoid inviting answers that would otherwise violate this ruling or open the door to revisiting any part of the ruling.

M. DAMBROT J.

RELEASED: April 6, 2018

COURT FILE NO.: CR-18-10000033-0000

DATE: 20180406

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

MOHAMUD DIRIE

– and –

AYUB ALI

REASONS FOR DECISION

DAMBROT J.

RELEASED: April 6, 2018

[^1]: In their factum, and at the outset of this motion, counsel for Mr. Dirie sought the exclusion of Ms. Abshir’s evidence as well. However, in the course of the hearing of the motion, they restricted this argument to Ms. Hassan’s evidence. There is simply no basis to exclude the evidence of Ms. Abshir.

[^2]: In saying this, I acknowledge that not all of these days were full ones. In addition, a substantial amount of time during the examination-in-chief was taken up with objections by counsel and lengthy interjections by the preliminary inquiry judge. And while the cross-examination was very searching and at times repetitive, its length had also to do with the witness’s need for health breaks and her combative attitude.