Court File and Parties

Court File No.: CR-18-10000033-0000 Date: 2018-04-10 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Mohamud Dirie – and – Ayub Ali

Counsel: Joanne Capozzi and Tim DiMuzio, for the Crown Magdalena Wyszomierska and Ariel Herscovitch, for Mohamud Dirie Cydney Israel, for Ayub Ali

Heard: March 6, 2018

By virtue of s. 648(1), s. 645(5) and 551.3 of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

Reasons for Decision

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 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.

[2] The Crown intends to call Ms. Fouzia Hassan, the mother of the deceased, and Ms. Koos Abshir, a cousin of the deceased, as witnesses at this trial. I have already ruled that certain ante-mortem statements allegedly made by Mr. Abdulkhadir to his mother and to Ms. Abshir are admissible in evidence at this trial at the instance of the Crown (see R. v. Dirie, 2018 ONSC 1825). These statements will form a significant, but not exclusive, part of their evidence. However, counsel for Mr. Dirie brought a further application to exclude the evidence of Ms. Hassan and Ms. Abshir pursuant to s. 24(1) of the Charter and the common law duty of trial judges to exclude evidence that would adversely affect the fairness of an accused’s trial. Counsel for Mr. Dirie submits the following:

1. Mr. Dirie’s rights under sections 7 and 11(d) of the Charter were breached by the deliberate failure of the police to record and preserve evidence emanating from group meetings and discussions between Crown witnesses, Ms. Hassan and Ms. Abshir, Detective Sergeant Schertzer and Detective Coulthard, and other members of the Somali community.

2. The failure to keep a proper record of the discussions that occurred in those meetings denies Mr. Dirie the opportunity to effectively cross-examine these witnesses, constitutes an abuse of process, and violates his right to a fair trial and to make full answer and defence.

[3] At the outset of the oral argument in respect of this application, counsel for Mr. Dirie abandoned the motion with respect to the evidence of Ms. Abshir, but continued it with respect to the evidence of Ms. Hassan.

Background

[4] On August 9, 2015, Detective Sergeant Joyce Schertzer and Detective Jason Coulthard, both members of the Homicide Squad of the Toronto Police Service, were assigned to investigate the homicide of Mr. Abdulkhadir. Detective Sergeant Schertzer was the officer in charge, and Detective Coulthard was a lead investigator under her command. They were both very experienced police officers, but Detective Coulthard had only been on the Homicide Squad for a few months at the time.

[5] Later that day, the two detectives met with Ms. Hassan, her husband and other family members at a police station. At the beginning of the meeting, Ms. Hassan told Detective Sergeant Schertzer that she did not want to be recorded. Despite this, and despite the fact that other family members were hesitant about having their discussion recorded, they ultimately consented to having an audio-recorded conversation. Ms. Abshir was also at the police station that day, but she was adamant that she was not going to be on the record, and did not participate in the recorded conversation. At the time of the conversation, Detective Sergeant Schertzer did not know what the value of the information provided by these individuals would be, but she viewed them as potential witnesses. She said that she invited each of them to provide a statement to her, but they all declined.

[6] Ultimately, despite their reluctance to be recorded, Ms. Abshir did give a sworn video-recorded statement to the detectives relating to this homicide on September 14, 2015, and Ms. Hassan did the same on January 3, 2016. Detective Sergeant Schertzer said that when she received a phone call that Ms. Abshir was prepared to provide a statement, she was “over the moon.” In the course of their interviews, Ms. Abshir and Ms. Hassan described many of the ante-mortem statements allegedly made to them by Mr. Abdulkhadir that I have ruled to be admissible at trial. These statements have been disclosed to the defence and are available to the defence for use in cross-examining Ms. Abshir and Ms. Hassan at trial. The concerns raised by Mr. Dirie on this application relate to events that took place after the August 9, 2015 conversation with Ms. Hassan and her family, and before the September 14, 2015 statement of Ms. Abshir.

[7] Ms. Hassan and other members of Toronto’s Somali community met with Detective Sergeant Schertzer as a group several times between August 9, 2015 and September 14, 2015. The first of these meetings took place on August 11, 2015. Detective Coulthard was also present at most but not all of these meetings.

[8] Detective Sergeant Schertzer asked the family to come in on August 11, 2015 to discuss the details of releasing the body of the deceased. She said that both Ms. Hassan and Ms. Abshir refused to be audio-recorded that day. Detective Coulthard also testified that Ms. Abshir refused to be audio or video-recorded that day. He said that they were very lucky to actually sit down and speak to her at all.

[9] The remaining meetings were primarily but not exclusively held in an effort to obtain information relating to the homicide. Detective Sergeant Schertzer did not consider these persons to be witnesses at that time that she had these meetings with them. Ms. Abshir was present at one or two of these meetings. The meetings were neither audio nor video-recorded, and the notes made of these meetings vary in their quality, but in general are not detailed or comprehensive, and occasionally are non-existent.

[10] Detective Coulthard testified that Detective Sergeant Schertzer made the decisions about how meetings and interviews were conducted in this case. When he was asked in cross-examination if it was “one of the basic tenants [presumably the word actually used was tenets] of being an investigator” not to talk to one witness about the evidence in the presence of another, he replied, “yep.” Keeping witness information separate, he agreed, prevents “cross-contamination” and “tainting.”

[11] When asked about these joint discussions, Detective Sergeant Schertzer did not pretend that interviewing family members who are potential witnesses together is a good practice; but she explained that in this case, it was very clear to her early on that the group that she met with was “kind of a package deal.” They came in together, they spoke together and they were grieving together. Detective Sergeant Schertzer testified that she canvassed the witnesses about going on the record multiple times, although she made note of it only once in her notebook, but they declined. She invited Ms. Hassan specifically to put her information on the record several times, but she always refused. Ms. Hassan was reluctant to come forward and be a witness. She conveyed to Detective Sergeant Schertzer that she felt pressure from the community not to be a witness. She said that the Somali community had a distrust of the police. She feared the Dirie brothers and expressed concerns about her own safety and the safety of her children. Detective Sergeant Schertzer wanted to up the group’s comfort level and was trying to broker some trust.

[12] Ms. Abshir also told both Detective Sergeant Schertzer and Detective Coulthard early on that she was not interested in going on the record, and was adamant that she would not testify in court. Detective Sergeant Schertzer said that she had to allow the group to be present to get information from Ms. Abshir.

[13] Ms. Abshir testified at the preliminary inquiry that she was reluctant to have her initial meeting with the police recorded because she was scared of Mr. Dirie. She said that in her community, there are consequences for “telling.” In addition, she received anonymous threats after members of the community learned that she was speaking to the police. She also testified that she asked the police not to record her second meeting with them.

[14] On the other hand, Ms. Hassan testified that at no point did she, or any other attendee at any of the meetings, ask the police not to record the meetings, and Detective Coulthard said that the only instance to his recollection when anyone at any of the meetings asked not to be recorded was on August 11, 2015, when Ms. Abshir made that request. I prefer the evidence of Detective Sergeant Schertzer and Ms. Abshir on this issue. It is highly likely that the persons present at the meetings were reluctant to be recorded out of fear of members of their community and distrust of the police, and expressed their reluctance one way or another.

[15] With respect to note-taking, Detective Sergeant Schertzer testified that Detective Coulthard was tasked to be the note-taker at the meetings, although he was not at all of them. It was his job to create an accurate and reliable record of what was said and by whom, including the questions asked by Detective Sergeant Schertzer. However, despite making his best efforts, his notes of the meetings do not include the questions asked or the precise answers given. They are not verbatim. Detective Coulthard testified that he could not take better notes because the conversations were going too fast and people were speaking over each other. At first, he “did not feel comfortable asking Detective Sergeant Schertzer to slow down.” In later interviews, he did ask her to slow down once or twice, to no effect. He also prepared reports of some of the meetings.

[16] The meeting on August 11, 2015 lasted at least an hour, and perhaps two. Detective Coulthard made eleven pages of notes of that meeting, although his writing was “very, very big.” He noted the important details, but acknowledged that he could have missed one. He testified that there was nothing discussed that was “salient” or of “drastic relevance” that did not make it into his notes. Additional details of the information revealed at the August 11 meeting are contained in a report created by Detective Coulthard and dated August 12, 2015.

[17] A meeting was also held on August 14, 2015. The notes of this meeting, according to Detective Coulthard, are a “pretty accurate summary.”

[18] Although counsel for Mr. Dirie complain that that they will not be able to cross-examine Ms. Hassan and Ms. Abshir effectively because of the state of the notes, I observe that evidence was given at the preliminary inquiry about the content of these discussions, including whether the following items were discussed:

1. The discord between Mr. Abdulkhadir and Mr. Dirie;
2. The Car Incident that marked a change in the relationship between Mr. Abdulkhadir and Mr. Dirie;
3. The Finch Court Cells Incident;
4. The Adnan Incident;
5. The Scarlettwood Incident:
6. The Shisha House Incident;
7. The sources of the information;
8. The source of Ms. Abshir’s knowledge about the exchange between Mr. Dirie and Mr. Abdulkhadir at the Bar Code on April 9, 2015;
9. The source of Ms. Hassan’s knowledge about the same exchange; and
10. Whether Ms. Abshir told the police that she spoke to Mr. Abdulkhadir in the past about his other problems with Mr. Dirie.

[19] I note as well that with respect to the two most significant incidents that Ms. Hassan says she was told about by her son, the Car Incident and the Finch Court Cells Incident, Detective Sergeant Schertzer testified that Ms. Hassan told her about both of these incidents in their meetings, that Ms. Abshir, who will also testify about these two incidents, was not present when Ms. Hassan spoke about them, and that no one else present at the meetings spoke about them. Detective Coulthard testified that he was not present at any meeting when either of these subjects was discussed by anyone.

Analysis

[20] Mr. Dirie argues that by failing to make and disclose a “meaningful” record of their interviews with Ms. Hassan, either through detailed notes or through audio or video-recording, the police have infringed his right under sections 7 and 11(d) of the Charter to make full answer and defence. He says that the harm occasioned by this violation is greatly increased by the fact that at their meetings with Ms. Hassan, the police permitted other persons to provide information to them related to this homicide in Ms. Hassan’s presence, creating the risk of witness tainting.

[21] Before I analyze the legal implications of the police conduct, I observe that there are two separate concerns raised by the accused about this police investigation: (1) the holding of joint meetings with witnesses; and (2) the failure to create a full record of those meetings. I will say a word about each of them.

[22] With respect to the first concern, it is undoubtedly both sound practice, and the usual practice, for investigators to interview potential witnesses separately. This does not prevent the tainting of witnesses and the cross-contamination of their evidence, but it at least precludes the possibility of the police inadvertently being responsible for it. But this case is unusual.

[23] Detective Sergeant Schertzer had a difficult task. She was attempting to obtain cooperation from within a relatively small immigrant community that, to her knowledge, distrusts the police and fears reprisal for cooperating. Ms. Hassan directly told her that this was the case. In fact, Ms. Hassan told Detective Sergeant Schertzer specifically whom she was afraid of. Detective Sergeant Schertzer hoped to get the information she needed to solve this case by meeting with the people that came forward to speak to her in a group, and building their trust. She succeeded to a degree, but even then, only to a degree.

[24] It is easy to second guess the decision made by Detective Sergeant Schertzer. It could be argued that the success she had in securing the evidence of Ms. Hassan and Ms. Abshir did not justify the risk that the integrity of the evidence she obtained would be challenged successfully at trial. At present it is impossible to say if that is so. But what I can say without hesitation is that Detective Sergeant Schertzer broke the “rule” in the best of faith. While good or bad faith was not at the heart of the argument made by Mr. Dirie, my finding of good faith is not without significance on this application.

[25] I turn next to the second concern raised by the accused: the state of the record of these meetings. Again, I accept without hesitation Detective Sergeant Schertzer’s explanation for her failure to make an audio or video recording of her meetings with Ms. Hassan. It is simply a corollary of her decision to meet these witnesses in a group. It is self-evident that people who are reluctant to meet with the police out of distrust or fear are equally unlikely to want to be recorded cooperating with them. In addition, Detective Sergeant Schertzer was told this directly by both Ms. Hassan and Ms. Abshir. I do not fault Detective Sergeant Schertzer for failing to audio or video-record the meetings, and instead assigning Detective Coulthard to make notes.

[26] Unfortunately, note-taking in these circumstances was a Herculean task. Detective Coulthard was attempting to make notes of multiple voices, some in imperfect English, sometimes speaking over each other, and sometimes answering questions that were asked too rapidly for Detective Coulthard’s capability. It is regrettable that Detective Coulthard did not make a stronger effort to get Detective Sergeant Schertzer to slow down the pace, but I doubt that it would have made much difference.

[27] Notwithstanding these problems, Mr. Dirie has a lot to work with when cross-examining Ms. Hassan and Ms. Abshir: the recorded interview of Ms. Hassan on August 9, 2015; a significant quantity of admittedly imperfect notes of the conversations with Ms. Hassan; a detailed understanding of the things discussed at the meetings from the evidence of both detectives at the preliminary inquiry; the recorded interviews of Ms. Hassan and Ms. Abshir; and transcripts of the testimony of Ms. Hassan and Ms. Abshir given at the preliminary hearing.

[28] Despite having all of this to work with, Mr. Herscovitch argued on behalf of Mr. Dirie that without a detailed record of Ms. Hassan’s meetings with the police, counsel for Mr. Dirie would be unable to challenge Ms. Hassan’s credibility and reliability in respect of her account of the deceased’s ante-mortem statements in cross-examination. As a result, he says, unless Ms. Hassan’s evidence is excluded, Mr. Dirie will be unable to make full answer and defence.

[29] More specifically, he argued that without a record of the meetings with the police, he will be unable to challenge Ms. Hassan on three issues: (1) did she hear the information in question from Mr. Abdulkhadir, or from others; (2) was Mr. Abdulkhadir relaying events he heard himself, or from others; and (3) is she truthfully and accurately recounting what he told her?

[30] I will return to this argument later, but first I will review the law in relation to the consequences of witness tainting and of sub-standard police notes.

[31] I begin my analysis of the law with the comment of Moldaver J. in Schaffer v. Woods, 2013 SCC 71, [2013] 3 S.C.R. 1053, at para. 67. He noted that he had little difficulty in concluding that police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable after an investigation. I observe that Moldaver J. was not speaking of note-taking in the context of the police having a conversation with a witness. In my view it would go too far to extrapolate from his statement a requirement that such notes be verbatim. But in any event, as will be seen, a breach of the duty to prepare accurate, detailed and comprehensive notes, unless done deliberately to avoid production, does not amount to a breach of the Charter, and does not give rise to the remedy that Mr. Dirie seeks.

[32] Counsel relied on cases such as R. v. Athwal, 2017 ONSC 96, 373 C.R.R. (2d) 1, where the trial judge excluded a statement made by the accused on a voluntariness voir dire in part because material discussions between police officers and the accused, who was in custody immediately preceding a custodial interview, were not electronically recorded and conventional note-taking to professional standards was not undertaken. But such cases are of no assistance to Mr. Dirie. Where the issue is the admissibility of a statement an accused made to a person in authority, the Crown has the onus of satisfying the court beyond a reasonable doubt that the statement was voluntary. Gaps in the evidence may give rise to a reasonable doubt. Here, the onus is on the accused to establish on a balance of probabilities that his Charter rights were or will be infringed.

[33] Counsel for Mr. Dirie acknowledges the significance of the distinction between this case and cases involving the statements made by accused persons, but points to the discretion a trial judge has to exclude the evidence because it would, if admitted, make the trial unfair, relying on R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 23.

[34] When considering this decision, it must be remembered what a fair trial is. McLachlin J., as she then was, described it this way in her concurring judgment in Harrer, at para. 45:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[35] In considering this issue, my task is made easier by the fact that in no case that I am aware of where the police have not fully recorded meetings with witnesses has the evidence of those witnesses been excluded. I will review some of those cases briefly. I bear in mind that, quite correctly, counsel for Mr. Dirie concedes that this is not a lost evidence case. As a result, for the most part, I will not review cases dealing with that problem.

[36] I begin with R. v. Wicksted (1996), 1996 CanLII 641 (ON CA), 106 C.C.C. (3d) 385 (Ont. C.A.). In that case, as in this one, the accused alleged that his right to make full answer and defence protected by s. 7 of the Charter had been violated. The alleged violation arose from a number of circumstances, including the late disclosure of an audio tape that had potential evidentiary value, and, like here, the investigating officer’s failure to make notes of or record all of the conversations he had with prospective witnesses. The trial judge found that s. 7 had been violated, and entered a stay of proceedings.

[37] This case differs from Wicksted because Mr. Dirie does not seek a stay of proceedings. Counsel for Mr. Dirie acknowledges that it would be overreaching to seek a stay of proceedings in light of the fact that there is other evidence implicating Mr. Dirie in the offence that is entirely independent of Ms. Hassan’s evidence, and seeks only the exclusion of her evidence. Nevertheless, the decision of the Court of Appeal in Wicksted, while not dispositive, is instructive.

[38] The Court of Appeal allowed the Crown’s appeal, and ordered a new trial. With respect to the officer’s failure to make notes of or record conversations with witnesses, the court observed, at para. 42, that counsel were unable to provide them with any Canadian authority in which a stay was granted for the failure of investigating officers to record conversations with important witnesses. In the result, the court ordered a new trial, in part because there was no evidence that the officer “failed to record, with respect to any of the witnesses interviewed by him, any relevant information other than that disclosed to the defence,” or that he “intentionally failed to disclose any information to the defence for the purpose of prejudicing the respondent’s right and ability to make full answer and defence” (para. 44).

[39] This judgment was affirmed by the Supreme Court in brief reasons, without specific reference to the issue at hand (see R. v. Wicksted, 1997 CanLII 370 (SCC), [1997] 1 S.C.R. 307). Sopinka J. stated the following at para. 1:

We agree with the thorough reasons of Goodman J.A. speaking for a unanimous Court of Appeal (1996), 1996 CanLII 641 (ON CA), 29 O.R. (3d) 144, that although there was a breach of the appellant's right to make full answer and defence [an apparent reference to the late disclosure of the audio tape], the trial judge erred in the exercise of discretion in finding that this was one of those clearest of cases in which a stay was the only appropriate remedy.

[40] As I have noted, Wicksted is not dispositive because it is focused on the remedy of a stay of proceedings, and not the exclusion of evidence. Nevertheless, the importance that both the Court of Appeal and the Supreme Court place on the police officer’s intentions in either failing to disclose or to make a complete record is instructive.

[41] I consider next R. v. Boric (1996), 1996 CanLII 1525 (ON CA), 28 O.R. (3d) 737, aff'd 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535. The circumstances in Buric are quite different than in this case, but if anything, the allegation of witness tainting in Buric was far more serious.

[42] Pietrorazio was charged with the first degree murder of Constantini. He pleaded guilty to conspiracy to commit murder and agreed to testify against Buric, Parsniak and Sloma. As a result, those three men were charged with first degree murder.

[43] A first trial of Buric, Parsniak and Sloma ended with a hung jury. On the day that Pietrorazio was called to testify as the Crown’s 36th witness at the second trial, the Crown disclosed that Pietrorazio would testify about a statement made by Sloma admitting that he had killed Constantini. This statement contradicted what Pietrorazio had told the police in an earlier taped interview. The police first learned that Pietrorazio claimed to have heard this new statement in a preparatory interview the night before he was scheduled to testify.

[44] The trial judge held that this late disclosure infringed the accused’s right to make full answer and defence, and ordered a voir dire to determine if there had been witness tampering or tainting.

[45] After hearing evidence on the voir dire, the trial judge concluded that the police had initiated the discussions with Pietrorazio prior to his first statement, hoping to convince him to testify against the three accused, and to that end had shown him copies of statements from other witnesses and notes of interviews with editorial comments. The materials helped convince him to make a deal with the Crown. The trial judge concluded that the witness was tainted, and had tailored his evidence to conform to some of the information he was given.

[46] The trial judge also found that the police had not kept proper records of their interviews with Pietrorazio, and that there was no written account of Pietrorazio’s knowledge of the events before he was exposed to the other witness’s statements. As a result, although the trial judge declined to stay the proceedings, he concluded that the appropriate remedy was to exclude the evidence of Pietrorazio in its entirety.

[47] Pietrorazio’s evidence was crucial to the Crown’s case against Buric and Parsniak, and as a result they were both acquitted.

[48] On appeal to the Court of Appeal, the majority held that the trial judge had erred in finding a breach of s. 7 of the Charter and in excluding the evidence of Pietrorazio. Whether there was witness tainting, and whether there was witness tainting to the extent of making the evidence unreliable, were questions of weight, not admissibility. As for trial unfairness stemming from the tainting and the absence of proper records of their interviews with Pietrorazio, the court stated the following at paras. 27-29:

It is difficult to foresee how a trial will unfold when the witness has not yet been heard. It is not clear how the defence would have been restricted or prejudiced in the cross-examination of Pietrorazio. That issue would be much clearer after he had testified before the trier of fact. It must be remembered that Pietrorazio would not have testified with a clean slate. He made statements to the police, there is an intercepted telephone conversation on December 5, 1991 (which may be relevant to tainting) and he already testified at the preliminary hearing, at the first trial and was extensively cross-examined on the voir dire. It is likely that, in light of the purposes for which the trial judge embarked on the voir dire, the evidentiary exploration would be much broader if Pietrorazio testified at trial. In appropriate circumstances, the jury could be alerted to the absence of a pretainting statement, the similarities between his evidence and the statements of other persons, the limited purpose for which these statements may be used, the contradiction with respect to Anna Steduto, his criminal record and his favourable treatment from the authorities. There could also be an appropriate warning from the trial judge as to the dangers of accepting his evidence. The defence is likely to have a great deal of ammunition with which to attack the credibility of the witness. At this stage, I cannot accept that the trial would be unfair. If it were to become unfair, the appropriate relief would still be open to the trial judge.

I would reiterate what I said in Dikah at pp. 313-14:

For future guidance, however, such motions should normally be decided after the trial is completed and a verdict rendered, in accordance with the procedure in R. v. Mack, supra, by analogy and in accordance with the principles discussed in R. v. DeSousa (1992), 1992 CanLII 80 (SCC), 11 C.R.R. (2d) 193 at pp. 200-01, [1992] 2 S.C.R. 944, 76 C.C.C. (3d) 124 at p. 132. This procedure preserves the accused’s opportunity to be acquitted where the trier of fact is not prepared to rely on the evidence which is the product of the alleged misconduct while ensuring that all issues relevant to the trial stage of the proceedings are resolved before the case winds its way through the appellate process.

It has been said many times that modern juries are not unsophisticated. With proper assistance from counsel and from the trial judge, they deal with most difficult issues. In my view, the trial judge underestimated the ability of the jury when he concluded, in effect, that the case was too difficult for them to decide. He was quite able to pick his way through the evidence on the voir dire, he cautioned himself on the danger of accepting the witness’ evidence and he reached his conclusion. I see no valid reason why the jury could not deal with this case in the same way he did. It is also in the best interest of society to have its most serious criminal charge resolved by a jury.

[49] On further appeal to the Supreme Court of Canada, Sopinka J. stated the following for the court at para. 1:

The appeal is dismissed for the reasons of Labrosse J.A. We would only add that reliance was placed on our decision in R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, which was decided by this Court after the judgment of the Court of Appeal in this case was rendered. In our view, the principles in that case have no application by reason, inter alia, that there is no finding by the trial judge nor any evidence which would justify the conclusion that the police failed to make a record deliberately to avoid production.

[50] In Carosella, the Supreme Court of Canada held that the deliberate destruction of evidence that may be relevant to the defence of an accused person – in that case, the evidence was notes of an interview with the complainant before a charge was laid – deprives an accused of the right to make full answer and defence. This may justify a stay of proceedings at the outset of the trial in the clearest of cases.

[51] I take from the brief reasons of the Supreme Court in Buric the following two points: (1) the Court of Appeal was correct in concluding that an allegation of witness tainting is an issue of weight for the trier of fact, and not an issue of admissibility; and (2) the failure of the police to make a full record of their meetings with the allegedly tainted witness does not justify a pre-trial Charter remedy absent a showing that the failure was deliberate, in order to avoid production.

[52] I turn next to R. v. Grant, 2007 MBQB 154, 217 Man. R. (2d) 208, a drug trafficking case in which the accused sought a stay of proceedings on the basis that, unbeknownst to the police, a police agent had deliberately avoided recording some of the interactions he had with the accused that were unrelated to the charges. Scurfield J. dismissed the application. At para. 20, he observed that “no court has ever suggested that there is an obligation to collect all available evidence or to record all evidence in the most probative manner.” He went on to say the following at para. 21:

… The failure to collect or fully record probative evidence is commonly used by defence counsel as an argument that undermines the strength of the Crown’s case. In criminal law, there are frequently deficiencies in the investigation which have to be assessed by the trial judge or the jury. The failure of police officers to take proper notes or the failure to collect evidence from a crime scene are common examples. However, criticisms as to the quality of the evidence gathered by the police are properly directed to the fact finder.

[53] Scurfield J. went on to say that had he found that the agent failed to record these interactions in order to suppress evidence favourable to the defence, it might have provided the basis for entering a stay of proceedings.

[54] I turn finally to R. v. Tse, 2010 BCSC 474 (aff’d R. v. Tse, 2013 BCCA 121; R. v. Doan, 2013 BCCA 123; R. v. Soux, 2013 BCCA 124; and R. v. Nguyen, 2013 BCCA 125, without reference to this issue). Counsel in Tse made an argument remarkably similar to the argument Mr. Dirie makes in this application. In Tse, three individuals were kidnapped, held for a lengthy period of time and ultimately released. They were each taken to an RCMP detachment that evening where they were interviewed without being segregated, and then were moved to a hotel room where they spent a full month together in protective custody. The police did not make detailed notes of all of their communications with the three witnesses, and sometimes did not take any notes. In addition, the police took a description of the capture house from one of the witnesses in the presence of another of the witnesses. The three witnesses were together in the hotel for almost a full month. This is only a smattering of the improprieties alleged against the police in this case.

[55] After summarizing the evidence in detail, the trial judge stated the following at para. 239:

(8) Moreover, the proposition that the failure to follow generally prudent investigative procedures to prevent collusion will constitute a breach of an accused person’s Charter right to a fair trial that must be remedied by the exclusion of tainted evidence is at odds with decided Charter jurisprudence. Absent extreme circumstances, none of which are present in this case, issues of collusion and taint are not matters of admissibility or exclusion; they are matters of weight for determination by the trier of fact. See: R. v. Buric (1996), 1996 CanLII 1525 (ON CA), 28 O.R. (3d) 737, 106 C.C.C. (3d) 97 (C.A.), aff'd 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535 [Buric] at paras. 24-25; and R. v. Bartkowski, 2005 BCSC 944 [Bartkowski], at paras. 23-24.

(9) I also find that any failure of Sergeant Chung to fully detail all of his interactions with the complainants in his notes did not constitute a breach of any Charter rights and did not result in an unfair trial. In that regard I adopt what was said by Scurfield J. in R. v. Grant, 2007 MBQB 154, 217 Man.R. (2d) 208, aff'd 2009 MBCA 9, leave to appeal to S.C.C. ref'd [2009] S.C.C.A. No. 94 [Grant], at paras. 20 and 21. …

(10) Perfect note-taking by the police during an investigation is not a constitutional imperative (Grant, at para. 25).

[56] He concluded as follows in the same paragraph:

… as with all other issues of alleged collusion and taint raised by the accused, all issues relating to the photo-pack or other identification of the accused are not matters of admissibility or exclusion; they are matters of weight for consideration by the trier of fact.

[57] All of the cases I have reviewed seem to take a consistent approach to the sort of issue raised in this case. In my view the law is very clear:

1. The failure of the police to follow generally prudent investigative procedures to prevent witness tainting does not constitute a breach of an accused person’s Charter right to a fair trial and does not justify the exclusion of the evidence of a potentially tainted witness; and
2. Similarly, the failure of the police to fully detail all of their interactions with material witnesses, even potentially tainted witnesses, in their notes or by means of video or audio-recording does not constitute a breach of an accused person’s Charter right to a fair trial and does not justify the exclusion of the evidence of those witnesses, absent a finding that the police failed to make a record deliberately to avoid production.

[58] In this case, there is no suggestion that the police deliberately failed to make a full record of their meetings with Ms. Hassan to avoid production.

[59] However, if I am in error and it is necessary for me to undertake a pre-trial assessment of the impact of the manner of the police note-taking on the fair trial rights of Mr. Dirie, I would still not grant the remedy he seeks. I reach that conclusion because, on the state of the record presently before me, I am far from satisfied that the manner of note-taking will result in an unfair trial, having regard to the abundant material in the possession of the accused to challenge Ms. Hassan’s evidence. To repeat, counsel for Mr. Dirie have all of the following: the recorded interview of Ms. Hassan on August 9, 2015; a significant quantity of admittedly imperfect notes of the conversations with Ms. Hassan; a detailed understanding of the things discussed at the meetings from the evidence of both detectives at the preliminary inquiry; the recorded interviews of Ms. Hassan and Ms. Abshir; and transcripts of the testimony of Ms. Hassan and Ms. Abshir given at the preliminary hearing. In addition, the failure of the police to make a full record of their meetings with Ms. Hassan will provide an additional tool for the defence to challenge her reliability.

[60] Despite having all of this to work with, as I have already noted, Mr. Herscovitch argued on behalf of Mr. Dirie that without a detailed record of Ms. Hassan’s meetings with the police, counsel for Mr. Dirie would be unable to challenge Ms. Hassan’s credibility and reliability in respect of her account of the ante-mortem statements of the deceased in cross-examination. As a result, he argues that unless Ms. Hassan’s evidence is excluded, Mr. Dirie will be unable to make full answer and defence.

[61] More specifically, he argued that without a record of the meetings with the police, he will be unable to challenge Ms. Hassan on three issues: (1) did she hear the information in question from Mr. Abdulkhadir, or from others; (2) was Mr. Abdulkhadir relaying events he heard himself, or from others; and (3) is she truthfully and accurately recounting what he told her?

[62] I fail to see how a better recording of the meetings would provide much assistance to counsel for Mr. Dirie in challenging Ms. Hassan on the second or third issue mentioned by Mr. Herscovitch. In my view, having a better record of the meetings would only accomplish one thing for Mr. Dirie. It would allow him to know with greater certainty whether other witnesses spoke about the information she attributed to Mr. Abdulkhadir in her presence, and in turn whether they could have been the true source of her knowledge of that information. If so, it would undoubtedly be useful in cross-examination. But a better record could not be used to establish that other witnesses actually were the true source of her knowledge. Furthermore, whatever better notes might show, those other witnesses were Ms. Hassan’s friends and relatives, and could easily have exposed her to the same information outside of the meetings with the police regardless of what was said in the meetings.

[63] Having regard to all of these circumstances, and bearing in mind that a fair trial must not be confused with the most advantageous trial possible from the accused’s point of view, and must not be conflated with a perfect trial, I am unable to conclude that the manner of note-taking in this case will result in an unfair trial for Mr. Dirie.

Disposition

[64] I am of the view that it is not open to me to exclude the evidence of Ms. Hassan because of the failure of the police to fully detail their interactions with Ms. Hassan absent a showing that the police failed to make a full record deliberately to avoid production. No such showing has been made. In the alternative, if it is open to me to exclude the evidence of Ms. Hassan on the basis that failing to do so will result in an unfair trial, I decline to do so because I am unable to conclude that the manner of note-taking in this case will result in an unfair trial for Mr. Dirie.

[65] Accordingly, the application is dismissed.

M. DAMBROT J.

Released: April 10, 2018