File # 16-A12135
Superior Court of Justice
HER MAJESTY THE QUEEN
V.
HAMZE ABDI AHMED
Reasons for Judgment
GIVEN BY THE HONOURABLE JUSTICE R. MARANGER
on February 13, 2019, at OTTAWA, Ontario
APPEARANCES:
C. Lem Counsel for the Provincial Crown (Trial Crown J. Cavanagh) K. Dunham Counsel for the Defendant
Transcript Ordered: January 13, 2019 Transcript Completed: January 14, 2019 Counsel Notified: January 15, 2019
Wednesday, February 13, 2019
UPON COMMENCING
Reasons for Judgment
MARANGER, J. (Orally):
Overview:
[1] Hamze Abdi Ahmed stands charged that on or about the 16th day of August, in the year 2016, in the City of Ottawa, in the East Region, committed the offences of assault with a weapon and aggravated assault against Darrell Jared Kakegamic, contrary to the Criminal Code of Canada. Darrell Jared Kakegamic will hereinafter be referred to as Jared or Jared Kakegamic.
[2] The allegations are that in the early hours of August 16, 2016 Hamze Abdi Ahmed, in an altercation on the street in front of a residence municipally known as 227 Forward Avenue, in the City of Ottawa, stabbed Jared Kakegamic in the lower abdomen/belly with a sharp object, deep enough to pierce his bladder.
[3] That the complainant was in an altercation with the accused, and that he sustained a stab-like injury to the lower left part of his abdomen during the course of that altercation are facts that were undeniable in this case.
[4] The crux of the matter here is, has the Crown established beyond a reasonable doubt that the accused stabbed the complainant, this in the face of the accused’s testimony and other defence evidence that proffered the theory that the stabbing injuries were caused by the complainant’s own hand as he engaged the accused in a fight with a knife while severely inebriated by alcohol.
[5] The accused testified and called three civilian witnesses. He also called two police officers in support of a further defence theory that the crime was under-investigated and that there was a rush to judgment.
[6] As these reasons will demonstrate, there was no rush to judgement, the simplicity of the case and clarity of the evidence did not require the use of further police resources to justify charging the accused with this crime.
Governing Principles:
[7] The core principles in a criminal trial in Canada, that the accused is presumed innocent and that the Crown has the burden of proving an alleged offence, beyond a reasonable doubt, cannot be overstated. It is a heavy onus. To be convinced beyond a reasonable doubt means to be virtually certain that an offence has been made out before convicting someone of the offence (R. v. Lifchus, [1997] 3 S.C.R. 320). A finding of not guilty is required where the evidence convinces the decision-maker that an offence probably or likely occurred.
[8] Reasonable doubt has been defined in the following terms: A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence, in proof of the charge.
[9] The accused testified and called witnesses on his behalf and denied stabbing the complainant. In the decision of R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada set out the manner in which a court is to consider and approach testimony from an accused person and evidence called by an accused: you first ask whether you believe the accused and if you do, you must acquit; if you disbelieve the accused, you must still ask whether his or her evidence nonetheless leaves you with a reasonable doubt about his or her guilt if it does, you must acquit; and finally, even when the accused’s evidence does not raise a reasonable doubt, the court must still consider whether the totality of the evidence has proven guilt beyond a reasonable doubt.
[10] I have considered the credibility and reliability of the testimony of the witnesses. My assessment of credibility and reliability takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years earlier.
[11] I am mindful of inconsistencies and contradictions in the testimony of any witness. Consistency is an element of truthful testimony, but I do not expect perfection in a witness’ testimony. Significant inconsistencies or contradictions, however, can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.
[12] Finally, a trier of fact can accept all, none, or some of a given witness’ testimony.
Uncontroverted findings of fact:
[13] The following findings of fact are based upon the physical evidence, the evidence of the paramedic, the photographic evidence, the 911 phone recordings, and some of the uncontentious witness testimony.
- On August 16, 2016 Jared Kakegamic and his friend Lewis were drinking and partying at the home of Tracy Hultquist, located at 227 Forward Avenue, in the City of Ottawa.
- 227 Forward Avenue is an attached townhome, located in the front of a cul-de-sac.
- Jared Kakegamic and Tracy Hultquist had been friends for some time. The accused and Tracy Hultquist were also acquainted.
- Jared Kakegamic and Tracy Hultquist were heavy drinkers; their socialization and friendship was founded on heavy drinking.
- On August 16, 2016 Jared Kakegamic had consumed at least six to eight beers.
- The accused is commonly referred to as Omar.
- In the early morning hours of August 16, 2016, the accused, Cory Emmerson, and Dylan Minoli were at Emmerson’s grandparent’s residence at 217 Forward Avenue, playing video games and socializing.
- On August 16, 2016 the accused and Dylan Minoli attended at the Tracy Hultquist’s residence.
- The accused talked to Tracy Hultquist in the kitchen. The evidence supports the proposition that the accused attended the residence on two separate occasions.
- Jared Kakegamic was known for being aggressive and violent towards his girlfriend Zan, who was also a friend, acquaintance of the accused. The accused did not approve of Jared Kakegamic’s behaviour towards Zan.
- On the second occasion at Tracy Hulquist’s residence there was an altercation, argument between Jared Kakegamic and the accused.
- Jared Kakegamic was five-foot, ten-inches and 215 pounds. The accused was considerably smaller.
- The accused and Jared Kakegamic ended up on the cul-de-sac of Forward Avenue, just in front of Tracy Hultquist’s residence and had a very brief altercation.
- During this altercation, Jared Kakegamic sustained a stab wound to the lower left part of his abdomen.
- Immediately thereafter he entered Tracy Hultquist’s residence and told her, “He just stabbed me.”
- Jared Kakegamic was bleeding. Tracy Hultquist contacted 911. Jared Kakegamic spoke to a 911 operator and described that he was stabbed in the belly and that the person who stabbed him was Omar. The 911 call took place at about 6:11 a.m. on August 16, 2016.
- Jared Kakegamic then waited outside for the police and ambulance to arrive.
- Within 25 minutes of the incident the paramedics arrived. The paramedic noted that he was coherent, responded appropriately, said he was stabbed, that he did not appear intoxicated, and knew exactly what was going on.
Main Crown witnesses and comments on their testimony:
[14] The Crown called three witnesses, the complainant Jared Kakegamic, a paramedic, and Tracy Hultquist. Jared Kakegamic and Tracy Hultquist were the two key Crown witnesses and I summarize their evidence and comment upon it as follows:
Jared Kakegamic:
- Testified that after 10 p.m. on August 15, 2016 he was at his friend Tracy’s house, drinking and hanging out with his friend Lewis.
- That Tracy lived not too far from where he lived and that they were friends for about three years and were mainly drinking buddies.
- He testified that over the course of the entire evening, he had six to eight beers, that he felt it but was not wasted, and knew what was going on.
- He said he knew the accused as an acquaintance from the streets, that he had no idea that he was going to show up at Tracy’s house that night.
- He said he never had a prior incident with the accused except one time about six months before the incident the accused pretended to threaten him with a little knife, that he did not think it was a big deal.
- That in the morning hours of August 16, Omar, the accused, showed up at Tracy’s place.
- He was sitting in the living room of Tracy’s residence when Omar came in, that he started talking to Tracy in the kitchen, that he believed the time was about 4 a.m. on the 16th, but he could not say exactly, that he was there for about an hour he guessed.
- Then Tracy yelled at Omar to get out of the house. He did not think he said anything at that point. He heard the yelling, stood up, and watched Tracy kick him out. He did not see any physical contact between Tracy and Omar.
- That he then went out to the front door, that he did not see anyone with Omar, and was wondering why he got kicked out, that Tracy said to him he said something about he wanted to stab him or something.
- The next thing he recalled was ten minutes later, Omar came back to the front door and Tracy said, “Stay out,” that he was yelling at her, that he yelled at him to come outside. Tracy tried to convince him not to go. She was blocking him.
- He went outside, he was not afraid of him, and met him in the middle of the road, face-to-face and then something happened and he felt pain in the abdomen, in the belly.
- He testified that he thought he was just going to fight the guy, that he was not afraid of him because he was bigger than him, that he followed him out, he felt something on the left side of his stomach, a pain right away, he never felt that kind of pain before. He looked and saw blood and Omar ran away. He saw the back of his head.
- He then went into Tracy’s and said to her, “Omar just stabbed me.” He acknowledged that he never saw a weapon, but he saw a lot of blood and did not know exactly what he did it with, but he knew that he was stabbed.
- He then testified about calling 911 and speaking to someone over the phone, and waiting for the police and paramedics to arrive.
- He ended up spending two days in the hospital because the stab wound punctured his bladder, requiring surgery. Photographs of the injuries were shown to him. They are seen in Exhibit 1, pages 24 through to 29.
- The 911 call, Exhibit 3, was played through him.
- He acknowledges that he and Tracy continue to be friends, but that he had not seen her in a year.
Cross-examination:
- He was cross-examined on his criminal record and on the amount he drinks, including a reference to alcohol consumption in the medical records.
- His memory of that evening, including times and timeframes, was tested. He acknowledged having a poor memory. He said that Omar came at 4 a.m. and reappeared ten minutes later. Then the altercation took place.
- The 911 call at 6:10 a.m. was put to him and he said maybe Omar was there longer.
- He was cross-examined on his testimony concerning a prior incident involving a knife and Omar and that that was not mentioned before.
- He acknowledged he did not see a knife in Omar’s hand and said he did not say it was a knife; he said he got stabbed, that he was not sure what the weapon was, that he did not recall saying it was a knife.
- He agreed that Tracy was inside at the time.
- He did not remember whether Tracy was inside or outside when the police came.
- He was cross-examined about being jealous concerning his girlfriend Zan and Omar, that he did not like her hanging around other men.
- He was cross-examined about a prior inconsistent statement concerning his knowledge of why Tracy kicked Omar out that morning. His response was he did not remember it at that time, but remembered it now, he guessed.
- He was cross-examined on whether he attended at Jim Hollander’s residence together with Tracy at ten o’clock on August 15 and several more times over the course of the early morning hours of August 16th.
- It was put to him that he went there for a specific reason, Zan, his girlfriend, was there. He did not recall any of this. He said he does not think they went anywhere else on the evening in question, except Tracy’s house.
- That he was jealous of Omar and Zan; he had previous beefs about this. He said he was not jealous, more paranoid were his words.
- It was put to him that he was the aggressor, that he went out with a knife to attack Omar and in his drunken stupor he stabbed himself. He said that was just wrong. He said he never had a knife, he did not carry a weapon, he did not need one.
Re-examination:
- He was asked what he remembered most about the evening, given that he did not remember certain things. He said he remembered getting stabbed.
[15] Jared Kakegamic testified in a forthright, straightforward, no-nonsense, understated manner. He came across as a credible individual, simply recounting the events of August 16, 2016. While he may have forgotten various details about the time and timeframes and where he was the day before, or exactly what he and the others may have said, his recollection about being stabbed and the aftermath was clear and unshaken in cross-examination.
[16] Furthermore, while I am mindful of the limits a trier of fact should place on the demeanor of a witness, Jared Kakegamic’s obvious level of incredulity when confronted with the suggestion that he was the aggressor who had the knife and somehow stabbed himself, was about as genuine a reaction as I have ever witnessed in my experience as a trial judge.
Tracy Hultquist:
- She explained that she was drinking buddies with Jared and knew Omar, that Omar had partied at her house on a couple of occasions on Forward Avenue. They were on good terms.
- She explained that she drank all day August 15th and did not remember much about the day, and also drank into the early morning hours of August 16, 2016. She explained that she was a very heavy drinker.
- She explained that in the early hours of August 16, 2016 her friend Lewis knocked on the door and woke her up. She had passed out. This was some time after midnight. She could not be specific about the time, that later Jared showed up, within a couple of hours, that he brought some beer.
- That they were talking in the living room, the three of them, waiting for 8 a.m., to go to Hull to get some more beer.
- She said that Omar showed up some time between 5 and 6 a.m., that she let him into the kitchen at first, that he was with another guy, a blonde white guy. He called her into the kitchen. Jared was in the living room, that he asked for Jared to leave. He whispered in her ear that he did not like Jared and wanted to stab him.
- She said she was put off by this and told him to leave and grabbed him by the shirt to put him outside. He left right away. The guy that was with him followed out the front door.
- She testified that she was not drunk at that time, that she knew what was going on and Jared was also was not very drunk, that her tolerance was better than Jared’s.
- She said that Omar showed up at the door about 15 to 20 minutes later, knocked at the door, she was on the couch and saw him at the door and told him to leave, to, “Get out of here,” that Jared started yelling at him.
- They, Jared and Omar, ended up going outside to the roundabout. She said she was trying to stop Jared from going, that it was not worth it.
- He was yelling at Omar. She said, “If you are going to fight, go fight in the roundabout.”
- She went back into the house.
- Moments later Jared came in and said he was stabbed, that there was blood. Her physical reaction was first to get sick. She could not stand violence.
- She said it happened fast, two to three minutes. He said, “I was stabbed. I was stabbed.”
- She initially indicated that he did not say who stabbed him, then her memory was refreshed with prior evidence where she indicated that Jared had said that, “He stabbed me,” meaning Omar. She adopted that answer as accurate.
- The suggestion that he stabbed himself was put to her. She said that that was absurd.
- She had no memory of looking for Zan with Jared and trouble between them during the day or evening of August 15 or August 16.
- She did recall going to Jim Hollander’s place in the past. She knew that Omar was there a lot and they were friends and that at one time Zan worked for Jim Hollander.
- She could not recall seeing them in the last two weeks before the incident.
- She said she never saw a knife and as far as she knew Jared never carried a knife.
Cross-examination:
- She was cross-examined about her level of impairment, the amount of alcohol she would have had within the 24 hours leading up to the incident. She could not remember exactly how much she drank.
- She was cross-examined on prior inconsistent statements. She could not remember her prior statements, and could not remember why or if she told the police why Omar did not like Jared.
- She was cross-examined about her recollection of the exact time that Omar first came with his friend and how long it was before he came back the second time. She could not be sure of the exact time.
- She could not recall if Omar’s friend was there the second time.
- She denied the suggestion that Jared had left several times during the course of the evening. She said, “I didn’t see him leave.”
- She does not remember Jared going to Jim Hollander’s place and a confrontation about Zan.
- She agreed that they knew Zan and Jim Hollander, but that she really did not remember the previous 24 hours prior to the early morning hours of August 16 because of her level of drinking.
- She was asked about when she found out about the stabbing. She was not outside when it happened.
- She said she went back outside to throw up off the railing in front of the home.
- She admitted to speaking to Jared about the incident afterwards, after he came out of the hospital, but basically just that he got stabbed.
- It was put to her that Omar’s dislike of Jared was connected to Zan. She said they were drinking partners. She did not know anything about that.
- Several suggestions were then put to her, including that when Jared was drunk he got into people’s faces, he picked fights, and he was belligerent, that he was yelling at Omar and was pushing him on.
- That he went out with a knife and that he stabbed himself accidentally in an altercation with Omar.
- The witness forcefully denied that suggestion and immediately stated that Jared did not have a knife, consequently, he could not have stabbed himself.
- She was then cross-examined about her alcohol consumption, her lack of recollection of specific issues.
- She was cross-examined on prior inconsistent statements to the police, about saying that they initially fought in the house when they did not.
- She acknowledged that she had no idea what happened in the street. She did not see what happened in the street.
Re-examination:
- She reiterated that she put Omar out because he wanted to get violent.
- She agreed that Jared could get belligerent and get in people’s faces when he drank, but on that night he was fine with her, he got agitated only when Omar came back and he was not that out of control.
[17] This witness was credible. She gave the impression of simply trying to recount what took place that night. I found her to be straightforward and seemingly honest. With that said, her reliability on specific details seemed to be wanting, due to her level of alcohol consumption leading up to the incident. However, on the key issues of Omar saying to her that he disliked Jared and wanted to stab him, and her reaction to the suggestion that somehow he stabbed himself, came across as very genuine and truthful.
Defence main witnesses:
[18] The accused testified and called three civilian witnesses and two police officers. Three witnesses gave evidence directly on the issue of what happened between Jared and Omar in the early hours of August 16th, 2016 in front of 227 Forward Avenue. They were the accused, Cory Emmerson, and Dylan Minoli. I will highlight the key points of their evidence and I will briefly comment on the balance of the witnesses called by the defence.
Cory Emmerson:
- He testified that he, the accused, and their friend Dylan Minoli were together, playing video games and hanging out in the early morning hours of August 16, 2016. They were at his grandparent’s apartment located at 217 Forward Avenue, near Tracy Hultquist’s residence.
- He testified that from the window of his residence he could see the cul-de-sac in front of 227 and 233 Forward Avenue.
- He said that he was a friend of Omar’s for the last four years, that he knew who Jared was but did not know him.
- He testified that on the night and early morning hours of August 15 and August 16, 2016 he, Dylan Minoli, and the accused were at his grandparent’s apartment playing video games, that at about 5:45 a.m. Omar and Dylan went to a Quickie Confectionery Store to get some snacks and cigarettes. The store was five minutes away.
- After they came back they said they wanted to bring a couple of cigarettes to Tracy, at her house.
- He then said that he looked out the window of his grandparent’s apartment and that he saw the accused running north on Forward Avenue and Jared running after him, that he heard Jared say, “I’m going to fucking kill you nigger,” that he was holding his side as he was running with something in his hand. It looked like sharp object, that he could see the handle, that Jared then stopped running and sat on the porch and then the ambulance came.
- He testified that he never told anyone about seeing this until the Crown finished calling its case and he decided to clear his conscious, that he never told the accused that he saw this at any time up until the close of the Crown’s case.
- He testified that later that later on the day of the incident, the police suggested to him that he was hiding the accused and they threatened to kick in his grandparent’s door if he did not tell them his whereabouts. He offered this as the reason why he decided not to say anything to the police about what he said he saw happen on August 16, 2016.
Cross-examination:
- He was cross-examined about his encounter with the police, indicating that they were dressed in helmet and tactical gear when he encountered them. He said it was about eight or nine at night, but he could be wrong about the time, that this was in front of the pizza shop. He maintained that the police threatened to kick down his grandparent’s apartment door if he did not disclose where the accused was.
- He was cross-examined about the timing of his disclosure of seeing Jared holding his side and running after the accused.
- About there being absolutely no obstruction to his view.
- He was cross-examined about why he did not call the accused to tell him what he saw.
- He said he knew that the accused did not stab Jared, that Jared stabbed himself, that it was a false accusation.
- He acknowledged he never told the accused about seeing Jared with a knife, that he only told the accused’s lawyer, that it was a coincidence that this took place at the close of the Crown’s case and the day before presenting his evidence.
Hamze Abdi Ahmed:
- He testified that he is commonly known as Omar and that he worked for the Orange Art Gallery.
- He said he did not stab Jared and that he did not have a weapon on his person on the evening in question.
- He knows Tracy Hultquist. He especially knew her son and he considered her to be a friend. He also knew Jared had socialized with him through mutual friends.
- He testified about the abusive nature of Jared’s relationship with his girlfriend Zan and to actually seeing physical abuse perpetrated by Jared on her.
- He testified that he had a friendship with Zan.
- He then testified about the events of August 16, 2016, that he was at Cory Emmerson’s house together with his friend Dylan, that in the early hours of the morning they went to the confectionery store to purchase snacks and cigarettes.
- That on the way they saw that Tracy’s door was open so he decided to check in on her. They entered and he said he saw Jared and another guy lying down on a couch.
- He said that he and Tracy talked in the kitchen about life in general, that it was after 5 a.m., that Jared just said, “Hey,” that he made no comments to Tracy about wanting to harm Jared, that they were there for about five minutes, left to go to the store and said they would come back with smokes.
- He said that they went back to Cory Emmerson’s house and dropped off the snacks and then returned to Tracy’s house to give her some cigarettes.
- Once entering the house, he said that Jared pulled a 360 and flipped off on him, that he was jealous and told him to stay away from his girlfriend, accusing him of sleeping with his girlfriend. His response was, “No, I had nothing to do with her. She wasn’t my type.” Then he started egging him on, so he decided to be a smart aleck, that Jared said, “I’m going to kick your ass.” The accused said he sarcastically responded, “Well then I might as well be with her,” that this triggered something and he became very angry, to which he responded he was going to leave.
- He testified that it was about 6 a.m. on the second occasion. He said he had no interaction whatsoever with Tracy, that he said that she was drunk. He also said that Jared was very drunk, that he had seen him drunk often, that on this occasion he was more wasted than usual.
- He said that Dylan was about halfway down the steps, that he followed him outside the house, that as he was walking away Jared followed him, that he said he responded, “Fuck off. Leave me alone.”
- That as he turned around Jared took a swing at him, that he saw something metal in his hand, that they were in the middle of the cul-de-sac, that he swung from the right side, facing his front, that he missed, that he deflected it off, that as he stepped away he used Jared’s own weight against him, that he swung about four times, that he twice moved away and twice deflected, that he could not make out what was in Jared’s hands.
- Then he ran back towards Cory’s backyard and turned left on Forward Avenue. He said Jared did not pursue him. He took a couple of steps. He had no idea how Jared got injured.
- That he did not go back to Corey or Tracy’s house after the altercation. He went home. He said he was surprised to find out that Jared had been stabbed and that he was shocked to find out that he was wanted for the stabbing.
- He saw a lawyer and turned himself in. He never gave a statement as the police never interviewed him.
Cross-examination:
- He acknowledged that Jared was a bigger man than he was. He said he was a good friend of Jim Hollander’s, that he was employed there, that everyone in the neighbourhood was aware of Jared’s shenanigans with Zan. He said she’s a nice lady and a good friend of Jim Hollander’s, that she was a small lady, 5-foot-four, 110 pounds.
- He agreed that the small lady needed protection from the big man, but that it was not a situation where he was protecting anyone.
- He testified to having a good relationship with Tracy Hultquist. They were friends, that they would sometimes have drinks together, that he knew her son quite well. He agreed with the proposition that they would have still been friendly on the night in question.
- He testified that the interaction they had that night was consistent with the friendship.
- He agreed with the position that Dylan, his friend, would have been outside when Jared aggressively attacked him.
- He explained that after the incident he had not spoken to Dylan for a long time and had not see him in almost two years.
- It was put to him that Dylan could have given a statement to the police and prove his innocence. He said he did not. He said he found out that he had issues of his own.
- It was put to him that the described heated detailed conversation with Jared (the accusations of sleeping with his girlfriend, his pulling a 360, his saying, “I’m going to kick your ass,” etcetera), was never put to Tracy Hultquist in cross-examination. He indicated that Tracy Hultquist was simply wrong. He categorically denied every having a conversation with Tracy Hultquist about causing harm to Jared or about not liking Jared because of how he treats his girlfriend. She was 100 percent wrong, was the position taken.
- He agreed he never went back to Cory Emmerson’s place, never went back to talk to him, and never mentioned any of this to him at any point in time. He agrees Corey Emmerson never mentioned to him, at any time prior to the trial, seeing Jared running after him, holding his side, with something in his hands.
Dylan Minoli:
- Like Cory Emmerson, he testified as, so-to-speak, a last-minute witness as he was subpoenaed after the close of the Crown’s case and was not expected to testify while the Crown witnesses presented.
- He said he did not want to be involved and never spoke to anyone about what he saw on August 16, 2016.
- He said he knows Omar and has known him for two and a half to three years, considers him a friend. He just did not see his role in the situation. He does not know Jared or Tracy and never met them prior to the incident.
- He testified to being at Cory Emmerson’s on the evening of August 15, 2016 and early morning hours of August 16, 2016, together with the accused, playing video games and socializing. While he did not drink any alcohol, he testified to smoking two to three grams of marijuana.
- He recalled leaving Emmerson’s residence with Omar in the early hours of August 16 to go to the store to purchase snacks and cigarettes. Emmerson stayed behind. He testified to going straight to the store and not stopping at Tracy’s house. He said they stopped at Tracy’s house on the way back, just down the street from where Cory Emmerson resided. He had no idea why they stopped. It was not his idea.
- They went into the house, that they walked into the hallway. Omar went in to talk.
- A man followed him out. He described him as a Native American man, that he was on the porch and he saw a scuffle, that they broke it up, and he and Omar simply walked away. He believed the woman was beside him when this happened.
- He did say that Omar was speaking to someone in the house, but that he did not hear anything. He could not explain why they left the house. He described the porch facing the street, in the middle of the cul-de-sac. He believed someone else stayed in the house. He could not be sure if anything was said. He described it as a scuffle. He did not see anything.
- He did not see a weapon. He did not see anybody get injured. He said it was a three to four minute altercation. He could not describe or be sure as to how it ended.
- He said that he and Omar then simply walked away and that he did not see any other altercations that night.
Cross-examination:
- He indicated that after the scuffle they went back to Cory Emmerson’s house.
- He could not recall what was being said in the house. He said there was not any yelling. He did not know why the scuffle started. He did not recall the exact words that were exchanged.
- He testified that after the incident they hung out at Cory Emmerson’s for a half an hour to 45 minutes and then he went home and Omar was gone. He left very shortly before him. Never saw a weapon. What he testified to was a small scuffle, people walking away, and going back to Cory Emmerson’s residence, and never seeing a weapon on anyone.
- That he never met the police, never talked to the police. He did not want to get involved. He testified to being at Jim Hollander’s once or twice before, but does not recall ever seeing Jared or Tracy there.
Other defence evidence:
[19] Jim Hollander also testified on behalf of the accused. The accused works for him and his sister, running an art gallery. He knows both Tracy and Jared. He knows Jared through his girlfriend Zan.
[20] His testimony was with regard to the actions of Jared on August 15th or 16th of 2016. He testified that he knew that Jared and his friend were on a bender, that Jared beat up Zan that evening around midnight, that he let her in his apartment after the beating and that Jared came around two o’clock in the morning, yelling and banging on the door of his apartment on August 16, 2016.
[21] He then testified that both Jared and Tracy came by at 5:30, 6 a.m. on August 16, 2016, banging on the door, that Jared seemed very drunk, that he was really slurring his words, Jared was the only one talking, that he made threats, that then they left, that he did not return after this.
[22] In cross-examination it came out that Mr. Hollander was an opiate addict, that despite the threats on that evening, he never called the police.
[23] I will only say this with respect to Mr. Hollander’s evidence, somebody is mistaken with respect to the evening that this took place and when I look at the totality of the evidence it seems to me that Mr. Hollander, while attempting to be truthful, may have honestly been mistaken that the events he described took place on the 15th and not the 16th of August. I say this because based on the objective evidence Jared and Tracy could not have been at his residence at 5:30 or 6 a.m. on the 16th because they were clearly at Tracy’s.
[24] The evidence of Jim Hollander was meant to impeach the credibility of Jared and Tracy. As indicated, they may have been somewhat confused about specific dates, times and activities, but on the key issue, the stabbing and its aftermath, their evidence was highly credible, in my estimation.
[25] The defence also called two police officers. The evidence was adduced to demonstrate that the investigation was wanting, that the weapon was never found or for that matter, looked for carefully, that there were no fingerprints, forensic evidence, DNA testing, or anything of the like on anybody’s clothing, including the accused, that the accused was supposed to be interviewed or attempted to be interviewed, but never was, that this was a rush to judgment.
Analysis and conclusion:
[26] This is a case where I reminded myself to be very careful about turning the matter into a credibility contest. In circumstances such as these, where the testimony presented two separate versions of an event, the trier must harken back to W.(D.) and the reasons for that analysis.
[27] Harris J. in R. v. J.M., 2018 ONSC 344 explained the issue at paras eight and ten of that decision:
[8] The three stage W.(D.) instruction was designed for only one very specific purpose: to avoid the natural tendency to decide a criminal credibility case by simply choosing between the complainant and the accused’s versions. A W.(D.) error lowers the criminal burden of proof resting on the Crown and, simultaneously, places an onus on the defence to prove innocence. The net effect is that the civil burden of a balance of probabilities is substituted for the criminal beyond a reasonable doubt standard: R. v. R(J.), 2014 QCCA 860, [2014] Q.J. No. 3957, at para. 38.
[10] In the case of diametrically opposed versions of events, like the case before me, realistically, one person is telling the truth while the other is not. In our everyday lives, we resolve these types of irreconcilable factual conflicts by choosing which one we believe. Trial judges have often fallen into the trap of applying this ordinary way of deciding factual disputes, omitting the beyond a reasonable doubt legal overlay which constitutes the protective “fundamental rule of the game” for the accused: Sopinka J. dissenting in W.(D.), at para. 38.
[28] The onus is at all times on the Crown, the onus is to prove the alleged crime beyond a reasonable doubt. I have to be certain that the accused stabbed Jared, the accused does not have to prove he did not stab Jared. The Crown has to satisfy me beyond a reasonable doubt that that is the only reasonable conclusion based on the totality of the evidence. If the accused’s testimony and evidence raises any reasonable doubt about the commission of the offence, I must acquit.
[29] In the specific circumstances of this case, despite the testimony of the accused and of Cory Emmerson, I am satisfied beyond a reasonable doubt that the accused stabbed Jared on August 16, 2016. On the key issue of the stabbing, I reject both his evidence and Cory Emmerson’s evidence categorically. Furthermore, their evidence has not raised a doubt in my mind about the events of that evening.
[30] I have come to this conclusion based upon the following analysis of the evidence at this trial:
- Jared Kakegamic was no doubt stabbed on August 16, 2016. The how was the sole issue. It was either the accused who stabbed Jared or Jared who stabbed himself while attacking the accused with a sharp weapon.
- The 911 telephone call immediately after the event, the Crown submitted that 911 call that followed the event could be admitted into evidence as a res gestae exception to the hearsay rule. This to support the testimony of Jared, that the accused stabbed him. I agree with this proposition. The 911 call was recorded, it followed the event, there was no opportunity for concoction, it took pace within minutes of the event. Filling all of the criteria for inclusion: R. v. Brown, 2015 ONSC 4121, 2015 O.J. No 4125: paras. 31 to 34. I have reviewed the 911 call numerous times. It was compelling. It supports the complainant’s testimony.
- The testimony of Tracy Hultquist and her description of what happened just prior to the stabbing and shortly thereafter was credible. She described the accused as aggressive and showing animosity towards Jared. I believe that is exactly what took place. The accused’s explanation of why he was at Tracy Hultquist’s, the conversation he had with Tracy, the way the altercation unfolded did not make any sense. He described a casual friendly conversation with Tracy and Jared simply becoming angry for no particular reason. Ms. Hultquist had no reason to lie. She was friendly to both the accused and the complainant. The accused agreed that she was friendly to him.
- The accused’s testimony concerning the level of intoxication of Jared was disproved by objective evidence. The very drunk description of Jared testified to by the accused was to buttress his version of what happened as an additional explanation for someone stabbing themselves. The 911 call and Jared’s conversation with the 911 operator shows someone who is in possession of his senses, is not slurring his words, and is simply angry because he just got stabbed. Furthermore, the evidence of the paramedic who attended to Jared shortly after the event testified that he was not intoxicated and that he knew what was going on.
- The timing of Cory Emmerson’s testimony: Cory Emmerson’s description that Jared was holding his side with something in his hand, running down Forward Avenue, yelling swear words at the accused came to light only after the Crown’s case was closed. He never contacted the police, he never told anyone in the two and a half years leading up to the end of the trial this very important information, including his friend, the accused. This is beyond suspicious. Furthermore, his reasons for doing so sounded concocted. He described misbehaviour by the police, including threats to kick in his grandparent’s door. The story made no sense.
- The significant differences in the testimony of the three main witnesses for the defence: Cory Emmerson, Dylan Minoli, and the accused gave different versions of what was supposed to have taken place that evening. The accused did not corroborate the testimony of Cory Emmerson concerning being chased by and yelled at by Jared, nor did Dylan Minoli. Dylan Minoli did not corroborate the accused’s testimony about four swings being taken at him by Jared, nor did he corroborate Jared having a knife. It was as though Minoli, an eye witness for the accused, was not even there.
- The version of events testified to by the Crown witnesses was inherently more reasonable and probable based upon the uncontroverted facts. The complainant was stabbed in the lower abdomen. Moments before this he was in an altercation on the street with the accused. He had some drinks that night, but he was not stumbling down drunk. He immediately reported to others that the accused had just stabbed him. The police and other first responders were immediately called.
[31] While the notion that someone could stab themselves while intoxicated in an altercation is possible, in this case, based on the totality of the evidence, i.e. the fact and nature of the injury, the objective level of intoxication of the complainant, the 911 call, the testimony of the ambulance driver, the testimony of Tracy Hultquist, the timing and stark differences in the evidence of the main defence witnesses, make that occurrence virtually impossible in my mind. Which as a consequence leaves the only reasonable conclusion to be that the accused stabbed Jared Kakegamic.
[32] Therefore, I find the accused guilty on both counts.
The Honourable Justice R. Maranger
FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)
I, Carolyn Ivanoff certify that this document is a true and accurate transcript of the recording of R. v. Hamze Abdi AHMED, in the Superior Court of Justice, held at 161 Elgin Street, Ottawa, Ontario, (Courtroom 22), on February 13, 2019, taken from Recording No. 0411_CR22_20190213_122528__10_MARANGRO.dcr, which has been certified in Form 1.
February 14, 2019