Her Majesty the Queen v. Mohamud Dirie and Ayub Ali
COURT FILE NO.: CR-18-10000033-0000 DATE: 2018-05-08
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
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 and Anne Marie Morphew, for Ayub Ali
HEARD: April 4, 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By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.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. The Crown brings this application for an order pursuant to s. 715(1) of the Criminal Code admitting into evidence the testimony given at the preliminary inquiry by two witnesses who are not available to testify at trial.
[2] Counsel for Mr. Ali took the lead in opposing this application. Counsel for Mr. Dirie adopted the argument made by counsel for Mr. Ali.
BACKGROUND
[3] Mr. Abdulkhadir was shot five times while standing behind a motor vehicle that was stopped on Bay Street just south of Dundas Street at 2:42 a.m. on August 9, 2015. He died almost immediately. The Crown alleges that Mr. Dirie and Mr. Ali tracked Mr. Abdulkhadir down in a blue Hyundai Elantra and shot and killed him.
[4] This application concerns the evidence given at the preliminary inquiry by Ezzat Boules and Abdullahi Alifarah.
[5] Mr. Boules testified that he was a security guard working at a condominium at 570 Bay Street in Toronto at the time of the homicide, and was an eyewitness to the shooting of Mr. Abdulkhadir.
[6] Mr. Alifarah testified that he leased the blue Hyundai Elantra from the Hertz Rental Company prior to the shooting of Mr. Abdulkhadir, and loaned it to Mr. Ali, who was in possession of it at the time of the shooting. Mr. Alifarah was charged as an accessory after the fact to the murder of Mr. Abdulkhadir. The Crown withdrew this charge a few weeks after he testified at the preliminary inquiry.
ANALYSIS
The Principles
[7] Section 715(1) of the Criminal Code provides that a person’s evidence taken at the preliminary inquiry into a charge against an accused and in the presence of that accused “may be admitted as evidence” at trial in several circumstances, two of which are relevant here. Specifically, such evidence may be admitted if facts are proved on oath from which it can be reasonably inferred that the person (1) is so ill that he is unable to travel or testify; or (2) is absent from Canada, unless the accused proves that he or she did not have full opportunity to cross-examine the witness. Even if the prerequisites of s. 715(1) are met, the use of the word “may” in s. 715(1) confers on the trial judge a discretion to exclude the evidence where its admission would operate unfairly to the accused. However, such circumstances will be relatively rare. The discretion to prevent unfairness is not a blanket authority to undermine the object of s. 715(1) by excluding evidence of previous testimony as a matter of course (see R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, at para. 30, R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 78).
[8] This exclusionary discretion is directed at two principal types of unfairness: unfairness in the manner in which the testimony was obtained, and unfairness in the trial if the evidence is admitted (Potvin, at paras. 34-35; Saleh, at paras. 73-74). In either situation, the discretion should only be exercised after weighing the two competing and frequently conflicting concerns of fair treatment of the accused and society’s interest in the admission of probative evidence in order to get at the truth of the matter in issue (Potvin, at para. 37; Saleh, at para. 88.) This has sometimes been referred to as a cost-benefit analysis (Saleh, at paras. 63; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 56-57).
[9] Necessity plays a role in the exercise of the discretion to exclude preliminary inquiry evidence, particularly where the application under s. 715(1) is based on the witness’s absence from Canada. If the Crown does not make sufficient effort to try to get the witness to testify before the jury where the witness may have done so, the court is more likely to find that although the witness is not in Canada, it is not necessary to read in his or her preliminary inquiry evidence.
[10] In Potvin, the court provided examples of unfairness in obtaining evidence at para. 34:
An example of unfairness in obtaining the testimony might be a case in which, although the witness was temporarily absent from Canada, the Crown could have obtained the witness's attendance at trial with a minimal degree of effort. Another example might be a case in which the Crown was aware at the time the evidence was initially taken that the witness would not be available to testify at the trial but did not inform the accused of this fact so that he could make best use of the opportunity to cross-examine the witness at the earlier proceeding. These kinds of circumstances related to the obtaining of the evidence on the earlier occasion might have been in the mind of the legislator as triggering the judge's discretion with respect to its admission at the trial.
[11] In R. v. Li, 2012 ONCA 291, 284 C.C.C. (3d) 207, Feldman J.A. added that provisions of the Criminal Code permitting evidence to be taken through the use of audio or video technology outside of Canada may also guide our understanding of the exercise of the discretion in s. 715(1). She stated, at para. 56, that “it is incumbent on a trial judge to include, as a consideration before making the order, the possibility of taking the evidence in a live manner via audio or video technology.”
Application of the Principles to this Case
[12] Based on the evidence called by the Crown on this application, there is no doubt that Mr. Boules is so ill that he is unable to testify, and that the remaining prerequisites in s. 715(1) are met with respect to him. After hearing this evidence, counsel for the accused conceded that the Crown is entitled to adduce his preliminary inquiry evidence.
[13] However, counsel for the accused take issue with respect to the admissibility of the evidence of Mr. Alifarah. Counsel for the respondents concede that Mr. Alifarah’s evidence was taken at the preliminary inquiry in the presence of both accused, and that they had full opportunity to cross-examine him. They argue, however, the following:
The prerequisites of s. 715(1) have not been met because the Crown has not established that Mr. Alifarah is absent from Canada;
I should exercise my discretion to exclude his evidence because of unfairness in the manner in which the testimony was obtained: the Crown has not made sufficient effort to try to get the witness to testify in a live manner via audio or video technology; and
I should exercise my discretion to exclude his evidence because its admission would occasion trial unfairness: the accused could not cross-examine Mr. Alifarah on information disclosed only after the preliminary inquiry and on the subsequent disposition of the charge outstanding against him at the time he testified, and because Mr. Alifarah is a manifestly unreliable witness.
[14] I will consider each of these arguments in turn.
1. Is Mr. Alifarah Absent from Canada?
The Evidence
[15] I will begin with a summary of the evidence relevant to whether Mr. Alifarah is absent from Canada.
[16] Ten days after the homicide, Mr. Alifarah was charged with being an accessory after the fact to the murder of Mr. Abdulkhadir. He was released on a judicial interim release order that required him to reside with his aunt in Ottawa, which he did. The order also prohibited him from possessing a cell phone.
[17] On March 23, 2016, Mr. Alifarah was arrested in Ottawa for breaching the terms of his recognizance. He pleaded guilty the following day, after being interviewed by Toronto homicide Police officers, and was granted a conditional discharge. His release order on the charge of accessory after the fact remained in effect.
[18] On February 16, 2017, Mr. Alifarah testified as a Crown witness at the preliminary hearing in this matter.
[19] On March 7, 2017, the Crown withdrew the charge against Mr. Alifarah on the basis that there was no reasonable prospect of conviction.
[20] On June 6, 2017, Mr. Alifarah was personally served with a subpoena by a police officer in the Ottawa Police Service requiring him to attend this court on February 26, 2018, to give evidence in this trial. Mr. Alifarah failed to appear as required, and I issued a material witness warrant for his arrest.
[21] Asha Ahmed testified on this application. She said that Abdullahi Alifarah is one of her six children. He is 22 or 23 years of age. He went to live with an aunt who was his father’s sister in Ottawa after he was charged with being involved in the murder of Mr. Abdulkhadir, and continued to reside with his aunt in Ottawa after the charge against him was withdrawn. He only came home to visit once after the charge was dropped, and she visited him once in Ottawa.
[22] Ms. Ahmed testified that she learned in February from her sister in Somalia that Mr. Alifarah had recently travelled to Somalia to be with his sick grandmother, Faduma Hidig, who was Ms. Ahmed’s mother. Ms. Hidig had lived in Canada since Ms. Ahmed was a child. She lived with her daughter and her children, and raised Mr. Alifarah. She returned to Somalia eight months ago. Ms. Hidig had one kidney removed many years ago, and was suffering some pain.
[23] Ms. Ahmed did not know in advance that Mr. Alifarah was leaving the country. She did not know where he left from or how he got his airline ticket. He never told her that he wanted to see his grandmother. She did not know where in Somalia she was from. She did not know where in Somalia her mother lived. She said that her mother and sister did not have addresses or telephones. Ms. Ahmed testified that she did not have much contact with her mother. There is a place where Ms. Hidig lives that she can go to and make a telephone call through a public service. Ms. Ahmed last had contact with her mother in this manner three or four weeks before she testified.
[24] Ms. Ahmed said that her son does not have a cell phone or an email address. He never had a cellphone in Canada to her knowledge. He did call her once in March through the public telephone. He told her that he did not know how long he was staying in Somalia. He said that it depends on how well his grandmother feels. Ms. Ahmed couldn’t say if her son went to Somalia to live or to visit. She said that she has no way of contacting her mother or her son. She just waits for her son to call her. When she spoke to him in March, he didn’t say that he would call her again, and she doesn’t know if she expects him to do so.
[25] Ms. Ahmed found a letter in her home after her son left the country that indicated that he was supposed to be a witness in this case. She called the court and reported that her son was gone. Ms. Ahmed said that she has no way of assisting the police to get in contact with her son. She has no idea when he will return to Canada, and no way of finding out. She agreed in cross-examination that if her son called again, she would tell him that the Crown and defence would like to talk to him, and would provide contact information to him. She also said that if he calls again, she will tell him that he can testify by video link. I confess to being doubtful that these messages will ever be passed to Mr. Alifarah, or that, in the unlikely event that they are, that he will respond. I have heard nothing further about this offer of assistance to date.
[26] Detective Hannah Bartz replaced the officer in charge of this case in late September 2017. She had not previously been involved in the investigation, and spent some time reviewing the file and getting up to speed. She was aware that Mr. Alifarah had been subpoenaed and was an important witness. Detective Bartz was also aware that Mr. Alifarah would not be required as a witness until after April 9, 2018. Because he was residing out of Toronto, she decided to wait until she knew when he would be required as a witness, and to re-subpoena him when he came to Toronto. She also intended to set up a time for witness preparation for him before the trial commenced.
[27] On February 22, 2018, Detective Bartz received a call from the Victim Witness Office, advising her that someone called their office and said that Mr. Alifarah had gone to Africa and would not be attending court. She was not told who had called. As a result, Detective Bartz began looking into his whereabouts. She contacted the Ottawa Police Service, obtained Mr. Alifarah’s last known address in Ottawa and asked Detective Dugal to attend at the address and investigate Mr. Alifarah’s whereabouts. Detective Dugal followed up that same day, and spoke to Aisha Hagi-Aden, one of Mr. Alifarah’s cousins. She told him that Mr. Alifarah had been living there until two days before, when he had left for Africa by air.
[28] Detective Bartz contacted the Canadian Air Transport Security Authority (“CATSA”) and was able to determine that Mr. Alifarah had taken a flight from Ottawa to Montreal, but could not determine whether or not he then flew out of the country without having flight details, because Canada does not track outbound traffic. She later ascertained that because there are no direct flights from Montreal to Somalia, it would be necessary to check the manifest of every flight out of the country to ascertain how Mr. Alifarah left the country, which would be an impossible task. Detective Bartz did flag Mr. Alifarah on CPIC, as well as at airports for inbound flights.
[29] Detective Bartz had a telephone conversation with Mr. Alifarah’s mother on March 7, 2018, and ascertained that Mr. Alifarah was in Somalia. Ms. Ahmed would not provide contact information to her without first speaking to a lawyer. Detective Bartz spoke to her again on March 12, but again Ms. Ahmed did not provide contact information. She asked Ms. Ahmed to contact Mr. Alifarah and tell him that he had to come to court. Ms. Ahmed was irate, and refused to do it. She gave Detective Bartz no information about her son and his whereabouts, other than that he was caring for his grandmother in Somalia.
[30] On March 16, 2018, Detective Bartz attended at Mr. Alifarah’s last known address in Toronto. Mr. Alifarah’s sister, Nadira Alifarah, was there, and confirmed that this was the residence of Ms. Ahmed, who was not home. Once again she was not provided with contact information for Mr. Alifarah. She served a subpoena requiring Ms. Ahmed to attend court to testify on this application.
[31] Detective Bartz also contacted Mr. Alifarah’s previous lawyer, but she had no recent contact information for Mr. Alifarah.
[32] Detective Bartz contacted the Canadian Border Service Agency, and the Toronto Police Intelligence Unit to see if Mr. Alifarah’s arrival in Somalia could be confirmed. She learned that Canada has no embassy or contact person there, and as a result this cannot be done.
[33] Detective Bartz also tried to contact Mr. Alifarah’s relatives in Ottawa to see if they were in touch with him. Her voicemail messages were not returned. She arranged for Ottawa police officers to attend the residence in Ottawa the day before she testified. They spoke to a woman at the residence but they obtained no useful information. They were given a phone number for Mr. Alifarah, but this turned out to be a car dealership’s number. Detective Bartz also spoke to Ms. Ahmed again, but obtained no more information.
[34] I turn next to the argument made on behalf of the accused, and my analysis of it.
Analysis
[35] Counsel for Mr. Ali argued that the only evidence that Mr. Alifarah is out of the country comes from his mother, who has credibility issues. Counsel said that there is reliable evidence that he flew from Ottawa to Montreal, but nothing more.
[36] I do not agree. While I do not believe that all of Ms. Ahmed’s evidence is both credible and reliable, I do accept her evidence that her son is in Somalia for the following reasons.
[37] The only evidence before me is that Mr. Alifarah is in Somalia. Mr. Alifarah was living with his maternal aunt in Ottawa. Quite clearly, he is no longer there. Ms. Ahmed testified that in February, her sister advised her that Mr. Alifarah had recently travelled to Somalia to be with his sick grandmother. Mr. Alifarah called his mother from a public telephone in Somalia and confirmed that he was there. He told her that he didn’t know how long he would be staying there. The results of inquiries and investigations conducted by or on behalf of Detective Bartz tend to confirm this information. Most specifically, on February 22, 2018, Aisha Hagi-Aden, one of Mr. Alifarah’s cousins with whom he was living in Ottawa, told Detective Dugal that Mr. Alifarah had been living at her family home until two days before, when he left for Africa by air.
[38] While I have strong doubts about the reasons given for Mr. Alifarah’s departure, and about the extent of his mother’s knowledge of his location and means of communicating with him, I do not doubt that he is in Somalia. Indeed, as will be seen, I am firmly of the view that he is there in whole or in part to avoid testifying against the accused in this trial.
2. Should Mr. Alifarah’s Preliminary Hearing Evidence Be Excluded Because the Crown Has Not Made Sufficient Effort to Take his Evidence via Audio or Video Technology?
[39] Counsel for Mr. Ali argued that the failure by the police to pursue the possibility of Mr. Alifarah giving evidence from Somalia by video link amounts to a failure to establish necessity in accordance with the principled exception of the hearsay rule, which, she said, must be read into s. 715(1). As a result, counsel argued, the evidence taken from Mr. Alifarah at the preliminary inquiry should not be admitted. I note, however, that in Li, the Court of Appeal declined to incorporate a requirement of a showing of necessity into s. 715(1). Instead, the court said that it is incumbent on a trial judge, before exercising the discretion in s. 715(1) to admit preliminary inquiry evidence, to consider ordering that the possibility of taking the evidence in a live manner via audio or video technology be pursued (Li, at para. 56.) I approach the issue in accordance with Li.
[40] In my view, in all of the circumstances in this case, the prospect of taking Mr. Alifarah’s evidence live by video link is a fantasy. I do not for a second believe that Mr. Alifarah is a willing witness, prepared to give evidence as required but for the need to care for his ailing grandmother in Somalia. On the contrary, he is an unwilling witness who has absented himself from Canada for the purpose of avoiding his duty. He is likely unaware that his preliminary hearing evidence might be admissible without his presence, but I am sure that that would be a matter of indifference to him. I reach my conclusion for the following reasons.
[41] First, I cannot imagine why Mr. Alifarah would believe that his presence in Somalia to care for his grandmother would be needed. After all, she has, at the least, a daughter in Somalia who undoubtedly would be more capable of providing the assistance his grandmother needs.
[42] Second, nothing in the description of the grandmother’s ailment suggests that she requires exceptional support.
[43] Third, Mr. Alifarah clearly left Canada, at least in part, to avoid testifying. He is well aware of the requirement that he testify. He did so at the preliminary hearing. He has been subpoenaed. He left a letter concerning the requirement to testify in his mother’s home in Toronto. But instead of notifying the police or the Crown that he was required in Somalia, he left Canada as stealthily as possible. He not only failed to inform the authorities, but, if Ms. Ahmed is to be believed, he failed even to tell his mother that he was leaving. I am inclined to the view that this is not the truth, and that she is merely covering up for his stealthy departure. But whether or not she was complicit in his departure is of no moment. Either way, his departure was for the purpose, at least in part, of evasion.
[44] Fourth, there is no prospect that Mr. Alifarah’s mother would facilitate an effort to get her son’s cooperation in testifying electronically in light of the following absurdities: his mother doesn’t know where in Somalia she was born; doesn’t know where in Somalia her mother lives; insists that her mother doesn’t have an address; insists that her mother has no phone and that her son has no cell phone; and insists that she has no way of contacting her son and relies solely on him to contact her.
[45] Fifth, even if I am wrong, and his mother truly cannot communicate with her son, video testimony simply is not a realistic possibility. I say this bearing in mind that Canada has no embassy or residential representative in Somalia, which, as a matter of common knowledge, is a dangerous country where the rule of law is virtually non-existent.
[46] Based on all of these considerations, it is plain that Mr. Alifarah will not cooperate with any invitation that he testify electronically, and even if he might, there is no realistic means of requesting his cooperation, or organizing the taking of such evidence in an independent manner.
[47] As a result, I will not order that the possibility of taking the evidence via audio or video technology be pursued before admitting Mr. Alifarah’s preliminary inquiry evidence. Nor will I exclude the preliminary hearing evidence on the basis that insufficient efforts have been made by the police to take Mr. Alifarah’s evidence via audio or video technology.
3. Should I Exercise My Discretion to Exclude Mr. Alifarah’s Preliminary Hearing Evidence Because Its Admission Would Occasion Trial Unfairness?
[48] This was the principal argument made by counsel for Mr. Ali. As I have already noted, this argument necessitates a cost-benefit analysis. I am obliged to weigh the two competing and frequently conflicting concerns of fair treatment of the accused and society’s interest in the admission of probative evidence in order to get at the truth of the matter in issue.
Benefits
[49] I begin with the benefit side, that is, the extent to which the admission of this evidence enhances society’s interest in the admission of probative evidence in order to get to the truth of the matter in issue. Unquestionably, Mr. Alifarah’s evidence is probative. He places Mr. Ali in control of the motor vehicle at the time when the homicide took place and from which, the Crown alleges, the killer emerged. Indeed, it goes to the heart of the case against Mr. Ali. Crown counsel says that Mr. Alifarah’s evidence is highly relevant to the identity of the killers in this case, and is also evidence that Mr. Ali was the user of a particular phone. Counsel for the accused does not challenge the Crown’s position, and I need say no more about it. Clearly Mr. Alifarah’s evidence has the potential to be of real significance in getting at the truth in this case.
Costs
[50] I turn to the cost side, that is, a consideration of the fairness to the accused of admitting this evidence. As I have said, counsel for Mr. Ali in particular make two fundamental points. They say that (1) Mr. Alifarah’s evidence is manifestly unreliable, and (2) that while they had the opportunity to cross-examine Mr. Alifarah at the preliminary hearing, they could not cross-examine him on material that was disclosed only after that hearing, and on the subsequent disposition of the charge outstanding against him at the time he testified. I will examine these concerns in turn.
(i) Is Mr. Ali’s evidence manifestly unreliable?
[51] Counsel for Mr. Dirie argues that Mr. Alifarah is a manifestly unreliable witness for the following reasons:
He had a motive to favour the Crown in hopes of having his outstanding charge withdrawn.
He could not remember pertinent details at the preliminary inquiry, and said that his memory was poor because of his avid marihuana smoking.
He repeatedly qualified answers with the words “I think” and “probably.”
He was asked leading questions by Crown counsel, who also repeated certain questions and misquoted the evidence.
The Crown will ask the jury to reject certain aspects of his evidence.
He gave inconsistent answers to some questions.
He was described by the preliminary inquiry judge as a “totally unreliable witness” and a “terrible witness”.
[52] Even accepting that all of the foregoing is accurate, the fact remains that substantial parts of Mr. Alifarah’s evidence were corroborated, and the preliminary hearing judge’s criticism of him had mostly to do with his view that Mr. Alifarah knew more than he let on, and feigned to have little memory of things that were not confirmed by other evidence.[^1] Even accepting counsel’s critique of Mr. Dirie, I do not see him as a manifestly unreliable witness. He may be a poor witness in some respects. He may be a difficult witness. But he is a witness who gave relevant evidence that may assist the jury to arrive at the truth, and in respect of whom the jury will have plentiful tools with which to assess his credibility and reliability.
(ii) Is it unfair to receive this evidence without a further opportunity for cross-examination?
[53] While the accused had the opportunity to cross-examine Mr. Alifarah at the preliminary hearing, they say that it is unfair to admit this evidence at trial without the opportunity for the accused to cross-examine the witness about material that was disclosed only after that hearing, and on the subsequent disposition of the charge outstanding against him at the time he testified. I will examine these concerns in turn.
[54] First, the accused raised the issue of late disclosure. The accused had been provided with redacted phone records, including an extraction report and call detail records for Mr. Alifarah’s phone. These records have subsequently been “unredacted.” As a result, counsel for the accused were unable to fully cross-examine Mr. Alifarah at the preliminary hearing about whether he deleted any calls and messages prior to the seizure of his phone, about his patterns of use and contacts, and similar matters. In addition, the police interview of Mr. Alifarah after he was arrested for breaching his recognizance was not disclosed until after Mr. Alifarah testified at the preliminary inquiry. Counsel have been unable to satisfy me that any of this is of much moment. Indeed, in oral argument, counsel for Mr. Ali candidly conceded that if this issue stood alone, she would not be arguing against the admissibility of the evidence.
[55] In my view this concern is of little significance, and can be substantially remedied by permitting the defence to lead whatever evidence arises from the phone records that might call into question Mr. Ali’s evidence about his cell phone use, that might undermine whatever inferences the Crown may seek to draw from the evidence or that might otherwise enhance the case for the defence. Similarly, they may, if they wish, lead the relevant content of this police interview of Mr. Alifarah. My approach to this issue is supported by the decision of the Court of Appeal in R. v. Lewis, 2009 ONCA 874, 249 C.C.C. (3d) 265, which I will discuss shortly.
[56] Next, the accused raised the issue of the subsequent withdrawal of the charge against Mr. Alifarah. The Crown advised me that the charge of accessory after the fact against Mr. Alifarah was withdrawn by other Crown counsel, not those counsel assigned to this prosecution, and without consultation with them, on the basis that there was not a reasonable prospect of conviction. Counsel for the accused did not challenge this, but made the point that their concern was what was in the mind of Mr. Alifarah: whether he was inclined to tailor his evidence to assist the Crown in hopes of getting favourable treatment with his outstanding charge. They argue that it would be unfair to deprive them of the opportunity of cross-examining him on this issue.
[57] Certainly the fact that a witness testifies with a criminal charge outstanding against him or her raises legitimate credibility concerns, and would require, at the least, a sharp warning to the jury to scrutinize the witness’s evidence with great care. But the concern raised by the accused about Mr. Alifarah favouring the Crown when he testified at the preliminary hearing existed at the time. The accused were fully entitled to explore the issue in cross-examination. In addition, I will give them whatever leeway they require to place before the jury the outcome of the proceedings against Mr. Alifarah.
[58] A similar issue arose in Lewis. In that case the trial judge presiding over a second degree murder trial admitted the preliminary inquiry evidence of an eye witness who no longer resided in Canada pursuant to s. 715(1). On appeal from conviction, the decision to admit the evidence of the witness was challenged on several grounds. One of these is pertinent. The witness was charged with robbery arising out of an incident that was related to the murder. He was released on bail, but later was arrested for breaching his bail. The Crown intended to oppose his re-release, but agreed to consent to bail if he testified at the preliminary hearing of the accused. The witness did in fact testify. Through inadvertence, the bail agreement was not disclosed to counsel for the accused at the preliminary inquiry.
[59] The trial judge admitted the preliminary inquiry evidence of the witness, but also permitted the defence to adduce evidence of the bail “deal.”
[60] On appeal, in relation to this issue, Moldaver J.A., as he then was, stated for the court that the failure to disclose this evidence did not mean that the accused did not have a full opportunity to cross-examine the witness, one of the prerequisites to an order under s. 715(1). He did recognize that a failure to disclose could be a factor to consider in assessing whether the evidence should be excluded on trial fairness grounds. However, in the much more troubling circumstances of Lewis, the court concluded that the preliminary hearing evidence was properly admitted. On this issue, Moldaver J.A. stated the following, at paras. 79-82:
As for the “bail for testimony” inducement, once again, the jury was made aware of all of the circumstances surrounding it, including its lack of formality and amorphous nature. While I do not doubt that it could have been the subject of cross-examination, it must be remembered that Mazur was cross-examined about his motivation for implicating the appellant as the shooter. The jury heard his explanations, which it could weigh against the backdrop of the “bail for testimony” inducement and Mazur's failure to mention it. As with the circumstances surrounding the breach charge, what the jury lacked was Mazur’s explanation for not referring to it in his testimony. This too, could only have inured to the appellant's benefit, especially since Mazur's testimony tracked what he told the police on April 4, several weeks before the issue of “bail for testimony” had even been broached. And while it is true that Mazur only physically identified the appellant for the first time at the preliminary inquiry, according to the investigating officer, he did so verbally in his April 4 statement.
All of this is to say that the worth of the purported inducement, as a measure of Mazur's overall credibility, was arguably not all that great.
Be that as it may, trial counsel for the appellant was not deterred from raising the bail for testimony issue with the jury. Indeed, he devoted the better part of five pages of his closing address to the matter, urging the jury to find that Mazur falsely identified the appellant at the preliminary hearing so that he could be released on bail and regain his freedom. The trial judge, in her charge, which was both fair and thorough, reviewed the pertinent evidence surrounding the issue of bail and reiterated defence counsel's position in relation to it.
[61] Of course, every case is different, but in Lewis, the witness was actually given an incentive to testify favourably for the Crown; here, Mr. Alifarah was not. In addition, the position taken by counsel for Mr. Ali about Mr. Alifarah undermines their argument that he might have been influenced to lie by the hope of lenient treatment. In their factum they adopt the following comment made by the preliminary hearing judge about Mr. Alifarah:
… this man is trying to walk the line where it’s pretty difficult to walk the line. He’ll admit only what he knows he’s caught red handed (sic). Yes, I rented the car. Yes, that’s my signature. Everything else, because fuelled by his addiction to marihuana, he’s got no memory about anything.”
[62] This is hardly a description of a man shading his evidence to favour the Crown in the hopes of lenient treatment.
[63] In the end, the accused will have the opportunity to place before the jury the fact that the charge against Mr. Alifarah was withdrawn after he testified for the Crown, and to make use of that fact in support of the argument that Mr. Alifarah’s evidence is unreliable. The defence will not be burdened by the witness’s denial that he was influenced by this consideration, or an explanation about why this is so.
[64] I conclude on this issue that while it is of course possible that the defence could benefit from a cross-examination of the witness about the late disclosure material and the withdrawal of the charge, the loss of the opportunity to cross-examine on these issues is more than adequately compensated for by granting to the defence leeway in leading evidence that explores these issues.
Balancing the Benefits and the Cost
[65] Having regard to the analysis I have undertaken, I am firmly of the view that the very limited effect that the admission of Mr. Alifarah’s evidence might have on the fairness of this trial is outweighed by the cost that excluding the evidence would have to society’s interest in the admission of probative evidence in order to get at the truth of the matter in issue.
[66] Mr. Alifarah’s preliminary inquiry evidence will be admitted.
M. DAMBROT J.
RELEASED: May 8, 2018
COURT FILE NO.: CR-18-10000033-0000 DATE: 2018-05-08
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: May 8, 2018
[^1]: I am doubtful, in any event, that another judge’s obiter opinion of the quality of a witness’s evidence is a proper consideration for me on an application under s. 715(1) of the Criminal Code.