COURT FILE NO.: CR-19-50000185-0000 DATE: 20190327 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MOHAMUD BASHIR MOHAMED Defendant
Counsel: Brady Donohue, for the Crown Robb MacDonald, for the Defendant
Heard: March 12 and 13, 2019
MOLLOY J.:
Reasons for Decision
Background Facts
[1] On June 28, 2017, Toronto Police obtained search warrants for two vehicles and an apartment, all associated with Mohamud Bashir Mohamed. The apartment was located on the 28th floor of an apartment building at 700 Humberwood Boulevard. At the time in question, Mr. Mohamed lived there with his common law spouse, Asha Yusuf, and their two young children. Both vehicles (a Toyota Camry and a Toyota Highlander) were registered to Asha Yusuf, but Mr. Mohamed was an insured driver on both, had full access to both, and drove both regularly, as did Ms. Yusuf.
[2] At about 7:30 a.m. that morning, police officers observed Ms. Yusuf leaving the area of the apartment building, driving the Camry. She was on her way to work. As of 6:04 a.m., the Highlander was observed to be in the underground parking garage.
[3] At 8:45 a.m., Mr. Mohamed came out of the apartment with the two young children (aged 4 and 2 at the time) and was arrested. A police officer called Ms. Yusuf at work to tell her about the arrest and to ask about arrangements for the children. Ms. Yusuf left work to come and get the children. The search of the apartment unit was underway and she was not permitted to enter. She asked to take the kids somewhere else, planning to drive them in the Highlander. She was advised that the police would need to search the Highlander before she could take it away. She and the children went to the underground parking with the police.
[4] On the floor of the front passenger side of the Highlander, the police found a large Corona cooler containing: 458 grams of marijuana; a digital weigh scale; a Hi Point 380 calibre semi-automatic handgun; and 19 cartridges of 380 calibre ammunition. They arrested Ms. Yusuf and arrangements were made for her mother to come and pick up the children.
[5] A further search of the Highlander resulted in police finding a large plastic Quick Mass (Muscle Milk) container containing 264 grams of marijuana and four cellphones.
[6] The search of the Camry resulted in the police seizing 78.15 grams of marijuana located in three separate nylon bags in the trunk.
[7] In the washing machine in the apartment, the police found two small pieces of marijuana with a total weight of 2.47 grams. In addition, police seized just over $6000 in cash, some of it from the pockets of a jacket hanging in the closet and the rest in a cosmetic bag in a drawer of a bedside table.
[8] As a result of the search, Mr. Mohamed was charged with: possession of a firearm and ammunition; possession of marijuana for the purposes of trafficking; and possession of proceeds of crime.
[9] Ms. Yusuf was charged with possession of the firearm and ammunition and possession of marijuana for the purposes of trafficking in connection with the items found in the two cars. In December 2017, with the advice of counsel, she executed a statutory declaration in which she stated that she was unaware of the marijuana, scales, firearm, and ammunition and that they did not belong to her. As a result, the Crown dropped all of the charges against her.
[10] Mr. Mohamed proceeded to trial, electing to be tried before a jury. At trial, there was no challenge to the validity of the search warrants and large amounts of evidence were admitted by way of Agreed Statements of Fact. The central contested issues at trial were: whether Mr. Mohamed had knowledge and control of the marijuana and firearms in the cars; whether he had knowledge of the money in his bedroom; and whether that money represented proceeds of crime. The jury was selected on March 11, 2019 and evidence began on March 12. In addition to a few police officers to testify as to routine, largely uncontested matters, the Crown called Ms. Yusuf to testify on the afternoon of March 12. She would have been the last witness for the Crown.
The Evidence of Asha Yusuf
[11] Ms. Yusuf identified photographs of the Camry and Highlander and testified that she is the registered owner of both cars, but that both she and Mr. Mohamed are insured drivers on both cars and both of them drove both cars. When asked how many sets of keys there were for each car, she testified that there were two keys and a spare key for each car. She said that: she and Mr. Mohamed each had a key for both cars; the spare key for the Highlander was kept in a drawer of a nightstand in the bedroom; and the spare key for the Camry was kept in a cupboard in the kitchen.
[12] Ms. Yusuf further testified that in June 2018, she was six months pregnant. She said that some of her family members were around her apartment to help her and to run errands. She said that her three siblings and Mr. Mohamed’s two brothers had all borrowed the Highlander at various times during June 2018, including her brother having borrowed it the night of June 27th. However, she said nobody had borrowed it on June 28. Ms. Yusuf testified that various family members and members of the community would also borrow the Camry from time to time. Ms. Yusuf said that the Highlander was usually parked in their allocated parking spot #55 in the underground parking garage and that the Camry was parked in various different visitor’s parking spots in the underground. She said that on the morning of June 28, 2018 she woke up at between 5:30 a.m. or 6:00 a.m. and left for work at 7:30 a.m. driving the Camry, which she said she retrieved from the underground parking. She said she left the children with Mr. Mohamed who would be driving them to school and day care.
Prior Inconsistent Statements
[13] Prior to the completion of the examination-in-chief of Ms. Yusuf, Crown counsel, in the absence of the witness and jury, sought leave to allow the witness to refresh her memory based on a statement she had given over the lunch hour that same day with the officer in charge of the case, D.C. Jeeva. I ruled that this could not be done. Ms. Yusuf had never seen the officer’s notes and had not adopted them. The interview with D.C. Jeeva had been mere hours before Ms. Yusuf testified and did not relate to an earlier memory that had been recorded. After that ruling, the examination-in-chief of Ms. Yusuf continued.
[14] Not long after this, the Crown again made submissions in the absence of the witness and the jury, this time seeking to cross-examine Ms. Yusuf based on her prior inconsistent statements to D.C. Jeeva, relying on s. 9(2) of the Canada Evidence Act. I conducted a voir dire to determine the nature and extent of any prior inconsistent statement. D.C. Jeeva testified that he and the Crown met briefly (for nine minutes) with Ms. Yusuf over the lunch hour prior to her being called to testify that afternoon. D.C. Jeeva took notes of that interview. He said he had a good recollection of what Ms. Yusuf said, but had not taken verbatim notes and some of what Ms. Yusuf said was not in his notes at all.
[15] D.C. Jeeva testified that he asked Ms. Yusuf how many sets of keys there were for the two cars and she said that there were two sets for each car: one set each for her and for Mr. Mohamed for both cars. He did not record this in his notes but had a clear recollection of it.
[16] D.C. Jeeva recalled Ms. Yusuf saying that nobody had borrowed the car on June 28, but he could not recall whether there were follow-up questions about that or whether she was asked about other dates, and he had no note of it.
[17] D.C. Jeeva testified that Ms. Yusuf told them that on the morning of June 28th she had taken the Camry from the spot where it was parked in the outside visitor’s parking lot and driven to work. He asked her if there was visitor parking in the underground parking and she told him there was not. This was recorded in his notes.
[18] At the conclusion of D.C. Jeeva’s testimony, I heard submissions from counsel about the right to cross-examine on the prior inconsistent statements under s. 9(2) of the Canada Evidence Act. By this point in time, it was the end of the afternoon and I had already discharged the witness and the members of the jury for the day. After hearing argument, I ruled that Ms. Yusuf’s statement to D.C. Jeeva was inconsistent with her testimony at trial about the number of keys that existed for the two cars and about where the Camry had been parked on the morning of June 28 before Ms. Yusuf took it to go to work. I ruled that the Crown could cross-examine her on those two statements.
[19] Immediately after leaving the courtroom I had second thoughts about this ruling and consulted some case authority upon returning to my office. Having looked at the law, I was concerned that s. 9(2) could only be used where the prior inconsistent statements were in writing.
[20] The next morning prior to the jury or the witness being brought into the courtroom, I raised this concern with counsel. After hearing briefly from counsel, I rescinded my earlier ruling. I was satisfied that Crown counsel was not entitled to cross-examine her own witness on a prior inconsistent statement under s. 9(2) of the Act unless the statement, in the language of the section, “had been reduced to writing.” Further, it has been conclusively determined in the case law that an officer’s notes of a statement do not constitute a written statement or a statement that has been reduced to writing within the meaning of that legislation. [1]
[21] I further advised counsel that I was leaving open the issue of whether the crown might be entitled to cross-examine Ms. Yusuf by seeking to have her determined to be an adverse witness under s. 9(1) of the Evidence Act, but that such an application should only be brought after the Crown had completed its examination in chief of the witness in all respects of her proposed testimony, which had not yet been done.
[22] Ms. Yusuf was then called to complete her testimony in chief before the jury.
The Continued Evidence of Ms. Yusuf in Chief
[23] Ms. Yusuf testified that her husband was there when she woke up on June 28, 2017 and that he did not go out before she left at about 7:30. When she left, the two children remained with Mr. Mohamed.
[24] Ms. Yusuf described being called at work that morning after her husband was arrested and going back to the apartment to get her children. She said that when she got to the floor where there apartment was located, the children were running around in the hallway and there were police officers there. She wanted to take the children into the apartment but the officer would not allow her to enter. She testified that she wanted to leave in the Highlander, which had the two car seats in it for the children. She said the officer told her that if she wanted to leave she had to sign a piece of paper so they could search the Highlander. She said she signed a page in the officer’s notepad that had nothing else on it. She also said she did not know the significance of what she was signing, but that she signed it because she was required to do so in order to take her children.
[25] Ms. Yusuf testified that all of the cash seized in the bedroom was hers and that she was saving it in order to pay for her son’s dental surgery, which she said was going to cost $7000 or so and had to be paid for up front. She said she kept the cash in two places: (1) in a cosmetic bag under the bed; and (2) in the pockets of a gray Zara jacket hanging in the closet. When asked why she chose to put the cash in her coat, she said that it was because it was a winter coat. She said she had saved the money a little bit at a time, sometimes amounts received from family members, sometimes from Mr. Mohamed, and sometimes taken out of the bank’s ATM machine. She confirmed that she was a full-time teacher with the Toronto District School Board and as such received full benefits.
[26] Ms. Yusuf testified before the jury that she and Mr. Mohamed are still together as a couple, although he resides elsewhere as a condition of his bail.
Adverse Witness Application
[27] At the conclusion of her direct examination of Ms. Yusuf, Crown counsel sought to have Ms. Yusuf declared an adverse witness and leave to cross-examine her on various points.
[28] Section 9(1) of the Canada Evidence Act states:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
[29] It is well-settled that for a witness to be found “adverse” within the meaning of s. 9(1) it is not necessary to show the witness to be “hostile” to the party that called her. Rather, a witness may be considered “adverse” if she is “unfavourable in the sense of assuming by [her] testimony a position opposite to the party calling [her].” In determining adversity, it is relevant to consider a prior inconsistent statement, which under this section is not required to be in writing, as well as testimony that is contrary to other evidence in the trial. [2]
[30] In addition to the existence of prior inconsistent statements, in determining adversity it is relevant to consider the entirety of the witness’s evidence (including general untruthfulness), the demeanour and attitude of the witness while testifying, the relative importance of any inconsistent statement, the circumstances in which it was made, the reason for the inconsistency, and a motive to support the other side. [3]
[31] Even if a witness is found to be adverse, it is not automatic that cross-examination should be permitted. The trial judge retains a discretion to refuse to permit cross-examination if there is a real risk that trial fairness would be undermined. [4] Of particular concern is the risk that the jury might conclude from the cross-examination not only that the witness is lying, but that this reflects as well on the credibility and likely guilt of the accused. However, such risk can at least partially be alleviated by limiting the scope of the cross-examination and giving a clear instruction to the jury as to the use they may make of any findings of credibility in respect of that witness and a caution that such a finding cannot be used in determining the guilt of the accused. [5]
[32] The Crown in this case did not seek a free-ranging cross-examination at large, but rather focused on specific issues.
[33] Having reviewed the evidence, the legal principles and the submissions of counsel, I concluded that Ms. Yusuf was an adverse witness within the meaning of s. 9(1) of the Canada Evidence Act. I based that conclusion on the following:
(a) Ms. Yusuf testified that she signed a blank page in the officer’s notebook without really understanding what she was signing and that she did so because it was the only way the police would permit her to take her children. She was vague and evasive about whether she gave permission for the search of the Highlander. Her position at trial is inconsistent with the clear statement in the Statutory Declaration she signed in December 2017, as a result of which all charges against her were dropped. In that statement, after she had the benefit of legal advice from her own lawyer, she swore under oath, “When I arrived back at my address, I gave the police permission to search the Toyota Highlander.” [6] Further, it is in conflict with an Agreed Statement of Facts based on what would be the evidence of Sgt. Frederick that Ms. Yusuf provided her consent to the search of the Highlander, but not the Camry and that she told Sgt. Frederick that the Highlander was her car and Mr. Mohamed drove the Camry. The Statutory Declaration was a formal document with important implications. Ms. Yusuf had legal advice before she signed it. In this context, and particularly in light of what was found in the Highlander, this was a significant point. (b) Ms. Yusuf testified that she got up between 5:30 a.m. and 6:00 a.m. and that Mr. Mohamed was there then and until she left. However, this is contradicted by video surveillance evidence showing that the Highlander did not enter or leave the underground parking garage after 2:20 a.m. on June 28, but is then seen entering the parking garage at 6:01 a.m. Within two minutes of the Highlander’s arrival, Mr. Mohamed is seen entering the elevator lobby from the parking garage and getting on the elevator. I find Ms. Yusuf’s testimony to be inconsistent with this video evidence. (c) Ms. Yusuf testified that the reason she needed to take the Highlander was because it had car seats for the children in it. However, photographs taken of the interior of the Highlander demonstrate that there were no children’s car seats in it. (d) I found D.C. Jeeva to be a reliable witness as to what Ms. Yusuf told him in the brief interview he had with her within an hour or so of her giving evidence. D.C. Jeeva testified that Ms. Yusuf told him that she took the Camry from the outside parking lot that morning when she left for work. In her evidence at trial she said it was in the underground parking lot. What parking lot the Camry was in is not a crucial issue, although there might have been some significance to Ms. Yusuf having access to the Highlander in the underground parking garage before she left. This inconsistency standing alone would not lead me to find Ms. Yusuf adverse, but it is relevant to consider it along with all of the other circumstances. (e) Ms. Yusuf’s evidence at trial that there were spare keys to both vehicles, which were kept in the apartment, and that they loaned both cars to many other people was important evidence, pointing to the idea that Mr. Mohamed and Ms. Yusuf did not have exclusive access to and control of these vehicles. Given what was found in both vehicles, this was an extremely important issue at trial. Ms. Yusuf’s evidence in that regard conflicts with her statement to D.C. Jeeva that there were only two keys to each vehicle. (f) Ms. Yusuf’s testimony about the source of the cash in the apartment is completely contrary to the Crown’s theory that this money represented proceeds from the sale of marijuana by Mr. Mohamed. Also, her testimony that she kept the cosmetic bag full of cash under the bed is inconsistent with the police evidence that it was found in the drawer of a bedside table. (g) Ms. Yusuf and Mr. Mohamed have three children together and are still in a spousal relationship. She would have a motive to assist him in his defence.
[34] The Crown sought leave to cross-examine Ms. Yusuf with respect to: (1) her prior inconsistent statements as to the number of keys, the location of the Camry in the morning when she left, and her consent to the search of the Highlander; (2) Mr. Mohamed’s movements at around 6:00 a.m. in the underground parking, as compared to her evidence about him being in the apartment; and (3) the car seats in the Highlander.
[35] I found Ms. Yusuf to be somewhat evasive in her evidence, but she was polite and cooperative throughout and I would not characterize her as “hostile” in the sense that she would say anything the defence wanted or anything that was contrary to the Crown’s position. That said, her testimony was in many respects adverse to the Crown, including on crucial points. The prior inconsistent statements were also important issues that should be explored with the jury if they were to have a full appreciation of her credibility and how much they could rely on her testimony. Accordingly, I found her to be an adverse witness.
[36] Permitting the Crown to cross-examine in the limited areas requested would not, in my view, undermine trial fairness. The jury charge would include the standard instruction about the use that can be made of prior inconsistent statements by a witness other than the accused, and in particular that unless the prior statement was adopted by the witness, any inconsistency could only be used for the purpose of assessing credibility. I also included in the final charge the following instruction:
Finally, and most importantly, whatever you may find about Ms. Yusuf’s credibility or reliability relates only to her testimony. In particular, you must not equate any lack of credibility or reliability in her evidence as reflecting badly on the accused, the character of the accused, or on whether he is guilty or more likely to be guilty of the offences charged. That is an impermissible line of reasoning. If you do make any negative findings with respect to Ms. Yusuf’s credibility or reliability—which is solely a matter for you – you are only permitted to use those findings in determining whether you accept her evidence; nothing else.
[37] With these limitations on the cross-examination and limiting instruction to the jury, I was satisfied that there was trial fairness and was not jeopardized.
MOLLOY J.
Released: March 27, 2019
Footnotes
[1] R. v. Handy (1978), 45 C.C.C. (2d) 232 (B.C.C.A.); R. v. Cassibo (1982), 39 O.R. (2d) 288, 70 C.C.C. (2d) 498 (C.A.). [2] R. v. Cassibo, supra Note 1; citing, Wawanesa Mutual Ins. Co. v. Hanes, [1961] O.R. 495, 28 D.L.R. (2d) 386 (C.A.), [1963] S.C.R. 154. [3] R. v. Riley, 2018 NSSC 94, and cases referred to therein. [4] R. v. Figliola, 2018 ONCA 578 at paras. 52 and 58. [5] Ibid, at paras. 52, 56-59, and 75-76. [6] Statutory Declaration, Exhibit E on the Voir Dire, para. 6.