R v. Jama, 2018 ONSC 954

COURT FILE NO.: 15-RM2312

DATE: 2018/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AHMED JAMA

-and-

HASHEM KHRAIBAH

Anya Kortenaar, for the Crown

Michael Johnston and Matthew Day, for the Accused, Ahmed Jama

Gary Barnes, for the Accused, Hashem Khraibah

HEARD: January 24, 2018

DECISION ON ADMISSIBILITY OF EVIDENCE OF FAILURE TO MAKE A POLICE REPORT

C.D.A. MCKINNON J.

1At issue in this pre-trial motion is the point in time when the right to silence is engaged.

The Facts in Brief

2On October 30, 2015, the accused Ahmed Jama and Hashem Khraibah, students from Algonquin College, aged 18 and 19 respectively, showed up at St. Patrick’s High School on Alta Vista Drive in the City of Ottawa. One thing led to another and eventually the accused became involved in a physical altercation with a group of students from St. Patrick’s High School. It is alleged both accused had weapons and that one of the St. Pat’s students had a weapon. Mr. Khraibah had a piece of metal and Mr. Jama a screwdriver. It is alleged Mr. Khraibah was wearing a mask. During the altercation, it is alleged that Mr. Jama stabbed Likson Joseph, a St. Patrick’s High School student, through his skull with the screwdriver, causing brain injury. The two accused then fled from the scene on foot, and were arrested one week later.

3The defence that will be raised by the accused at trial will be self-defence.

The Arguments

4The Crown wishes to call evidence to the effect that the accused did not contact the police to inform them that they had been assaulted, submitting that such evidence is presumptively admissible and that its probative value outweighs its prejudicial effect, because the jury will have to decide whether the Crown has disproven self-defence beyond a reasonable doubt, and that the credibility and merits of the accused persons assertion that they acted in self-defence will be forefront at the trial.

5The Crown relies on R. v. Peavoy, (1997) 2002 SCC 82, 171 C.C.C. (3d) 226 (Ont. C.A.) at para. 31, where the Court of Appeal addressed the relevance of after-the-fact conduct to rebut a defence advanced by the accused:

31 The conduct of an accused person after the event in issue may also, depending on the circumstances of the case, have some evidentiary value in rebutting defences put forward by an accused…In other words the conduct is not consistent with the actions of a person who had the state of mind now alleged at trial. If the accused's explanation of the after-the-fact conduct is rejected by the jury, it is evidence from which an inference may be drawn that the accused person did have the requisite cognitive mental state, or level of mental awareness, to commit the crime alleged.

6The Crown seeks to tender and rely on the evidence in order to argue that the accused persons behaviour after the fact may be seen by the jury as inconsistent with self-defence by virtue of their failure to report the attack to authorities. The evidence is a fact the jury should be entitled to consider when assessing the credibility of their claim of self-defence.

7The Crown submits that it is not tendering the evidence to support an inference that because the accused persons did not take positive steps to contact police they therefore must have committed a culpable act. Accused persons have a right not to assist police in an investigation and to remain silent. The Crown is not tendering the evidence as relevant to the accused as suspects. Rather, the evidence is tendered to assess the claims that they were victims.

8The Defence responds by asserting that when the accused persons rely on the defence of self-defence, they are both victims and suspects. Thus, a person who invokes self-defence or defence of person wears two hats, that of a suspect and that of a victim. Furthermore, these two hats are not equal in size or style- the person is primarily a suspect, being the person who was investigated and charged, and secondarily a victim, being the person in the altercation whose status as victim was not recognized by the investigators or prosecutors. For this reason, common sense and human experience do not dictate that persons who commit an offence in self-defence or in defence of another person would normally report an altercation to police.

9The Defence submits that as a matter of common law and constitutional right, everyone has the right to remain silent and not make statements to state authorities. As a corollary of this right, the jurisprudence has recognized a common law rule of exclusion, which stipulates that evidence that the defendant in a criminal proceeding remain silent prior to trial is inadmissible: R. v. Turcotte, 2005 SCC 50 at para. 42.

10At para. 51 of Turcotte, Justice Abella stated the following:

51 The Crown argued that any right to silence is engaged only when the accused comes within "the power of the state" and that the right has no relevance when the state has done nothing to use that power against the individual. This, with respect, makes the right's borders too confining. In general, absent a statutory requirement to the contrary, individuals have the right to choose whether to speak to the police, even if they are not detained or arrested. The common law right to silence exists at all times against the state, whether or not the person asserting it is within its power or control. Like the confessions rule, an accused's right to silence applies any time he or she interacts with a person in authority, whether detained or not. It is a right premised on an individual's freedom to choose the extent of his or her cooperation with the police, and is animated by a recognition of the potentially coercive impact of the state's authority and a concern that individuals not be required to incriminate themselves. These policy considerations exist both before and after arrest or detention. There is, as a result, no principled basis for failing to extend the common law right to silence to both periods. [Emphasis added]

11An accused person does not forfeit the constitutional right to silence because he chose to speak about some but not all of the details that he later testified to at trial. An accused person is entitled to speak to police about some details and not others and the fact that the accused person has not spoken about other details cannot be used against him because it undermines the right to silence: R. v. W. L., 2015 ONCA 37, 123 O.R. (3d) 641; R. v. J.S., 2018 ONCA 39.

12It is submitted that Turcotte is not limited to instances where accused persons are in fact being interviewed by the police or being questioned by police as suspects. It arises from the moment that the events in question might give rise to a charge.

Analysis

13I agree with the defence submission that the right to silence precedes any interaction with police authorities and arises at the moment that events occur which eventually give rise to a criminal charge. I believe that the case of Turcotte is dispositive of the issue. Any other conclusion would undermine the constitutional right to silence and render it meaningless.

14I also agree with the submissions of the Defence that in this case, the accused persons were both victims and suspects. Accordingly, the evidence they will be leading at trial, to the extent that they are suspects, means that they absolutely enjoy the right to silence. To the extent that they are victims they may or may not choose to report the events to police, depending upon the circumstances of any individual case.

15An ancillary issue raised during the course of argument was who bears the burden of proof that such evidence is admissible. In my view, it is the Crown who bears the burden of proof when it wishes to call evidence that an accused person invoking the defence of self-defence has an obligation to report the matter to police and a voir dire would be mandated to determine whether such evidence would be admissible on a case by case method.

Conclusion

16In the circumstances, Crown counsel will not be permitted to lead evidence that following the altercation the accused persons did not report the incident to the police.

C.D.A. McKinnon J.