COURT FILE NO.: CR-20-50000059

DATE: 20201005

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

Jim Cruess, for the Crown

Magda Wyszomierska, for Mr. Chaudhry

HEARD: September 30, 2020

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON THIRD PARTY RECORDS APPLICATION

[1] The Crown alleges that on October 5, 2017 Zayd Chaudhry shot and killed Abdulkadir Bihi. The Crown also alleges that Faysal Omar and Zakareiye Ali were parties to the shooting. Mr. Chaudhry faces a charge of first-degree murder. He is alone on the indictment. Mr. Ali was murdered five days after Bihi was murdered. Mr. Omar has apparently fled the country.

[2] Mr. Chaudhry wishes to advance a third-party suspect defence. His counsel, Ms. Wyszomierska, contends that the third party is either Mr. Ali or Mr. Omar, or both. To that end, she brings a third-party records application. The original application requested production of:

Occurrence reports, arrest reports, police notes, or any related materials concerning arrests or police involvement relating to [Mr. Ali and Mr. Omar] where he is an accused person, a person of interest or a suspect in the possession of the Toronto Police Service, the Niagara Police Service and the Peel Regional Police Service.

[3] The Crown confirms that Mr. Ali and Mr. Omar did not have criminal records. The Crown also confirms that Mr. Ali did not face any outstanding charges at the time of his death; and that Mr. Omar does not face any outstanding charges. The Toronto Police appear to have records relating to Mr. Ali, but they are youth records. The Toronto Police also appear to have records relating to Mr. Omar as both a youth and an adult. Accordingly, Ms. Wyszomierska concedes that she will have to bring a fresh application to deal with youth records. The Peel Regional Police confirmed by letter that they do not have any records relating to Mr. Omar or Mr. Ali.

[4] The Niagara Regional Police confirmed that they do have material relating to Mr. Omar. A package of material was sent by courier to this Court. That material is in the courthouse. The Crown has not seen it. Accordingly, this application has been narrowed down to a request for production of adult records relating to Mr. Omar from the Niagara Regional Police and the Toronto Police.

[5] Crown counsel, Mr. Cruess, concedes that there is an air of reality to the third party suspect defence. He also concedes that if there are occurrences or arrest reports from either the Toronto or Niagara Regional Police that are capable of showing that Mr. Omar was a suspect or person charged or person of interest in a firearms offence it would meet the test of “likely relevance”. He also concedes that if there are occurrences or arrest reports that are capable of showing that Mr. Omar has a predisposition to violence, that would also meet the test of “likely relevance”. Beyond those parameters, he does not concede that material would meet the “likely relevant” test.

[6] For the reasons that follow, I find that occurrences or arrest reports generated by the Toronto Police where Mr. Omar is an accused, a suspect, or a person of interest should be produced as first party disclosure. I find that occurrences or arrest reports generated by the Niagara Regional Police where Mr. Omar is an accused, a suspect, or a person of interest meet the threshold of likely relevance and will be produced to me for review.

BACKGROUND

[7] I am aware of some of the background and Crown allegations because I was the judge who heard, and dismissed, Mr. Chaudhry’s application for bail.

[8] During the afternoon of October 5, 2018 Abdulkadir Bihi was shot in his car in the parking lot of 263-265 Dixon Road in Toronto. Surveillance video from 263 Dixon Road captured the shooting. Mr. Bihi did not die right away. The video captured him driving his car through the parking lot and hitting the back of a truck. Matthew Cameron was the driver of the truck. He heard gunshots and observed what appeared to be the shooting. Mr. Cameron described the likely shooter as a male with a dark complexion (described as Somali or black) wearing tearaway pants with 3 white stripes on the side, a light grey hoodie, and possibly flip-flops with white socks. The shooter ran towards the wooden pathway, and then re-appeared 4-5 seconds later on Dixon Road. Mr. Cameron saw him get into an orange taxi with a green hood.

[9] A second witness observed a male running towards the pathway after the shooting. She described him as short, thin, younger, wearing a grey hoodie, and darker coloured pants. A third witness observed two young men walking on the footpath towards Dixon Road after the shooting. One was wearing dark pants with a white stripe colour on the side and was wearing a dark hoodie. The other was wearing a white hoodie.

[10] The Crown theory is that Mr. Chaudhry shot Mr. Bihi. He and Mr. Ali then fled along a path near 263-265 Dixon Road, where Mr. Omar had summoned and was holding a cab. Mr. Omar allegedly provided a number to the cab driver to call to see where the other two young men were. After several tries, a male voice answered: “we are coming”. Mr. Ali and Mr. Chaudhry got into the cab a few minutes later.

[11] The taxi driver described the young man who held the cab – allegedly Mr. Omar – as a young male, about 17-19 years hold. He was wearing a grey hoodie. He had no facial hair. He was a dark skinned young man, either Somalian or East African. One of the two young men who arrived later got into the middle of the back seat. The cab driver described him as light-skinned black person, possibly mulatto. He had a beard grown out at the bottom, and a dark coloured hoodie. The police allege that the young man in the middle of the back seat was Mr. Chaudhry.

[12] The taxi driver then took the three young men to 55 Spears Road in Oakville. Surveillance camera footage captured images of the three men coming into the lobby of 55 Speers Road. They are clearly holding their heads down and hiding from the surveillance cameras. A police officer who knows Mr. Chaudhry identified him.

[13] Mr. Chaudhry was the lessee of Apartment 1108, 55 Speers Road. He appears to have filled out an Owner/Resident Information Form to lease the apartment. He provided a telephone number as his contact. It was the same number that Mr. Omar allegedly gave to the cab driver while they waited for Mr. Chaudhry and Mr. Ali.

[14] The police subsequently executed a search warrant on that apartment. They seized two guns, marijuana, and $27,00 in cash. One of the guns was used to kill Mr. Bihi. The police found Mr. Omar’s fingerprints in the apartment.

ISSUES AND ANALYSIS

[15] Ms. Wyszomierska’s position, on behalf of Mr. Chaudhry is that the material she seeks relates to someone alleged to be a party to the murder. The police are obliged to look for and disclose information the material because it is “obviously relevant”. The police must, therefore, obtain (and the Crown disclose) this material without any further steps. In the alternative, if the material is not initial or first-party disclosure, then it is “likely relevant” and falls under the third-party records regime. It should then be disclosed to me, as the reviewing judge, so that I can determine whether the material should actually be produced.

[16] Mr. Cruess’s position is that the material sought by the defence is not first party disclosure. It is not “obviously relevant”. It also fails to meet the test of “likely relevant” (except for material that demonstrates that Mr. Omar is involved with firearms or has a propensity towards violence). The material is not disclosable as a third-party record. To go any further would involve a wide-ranging fishing expedition.

[17] In my view, therefore, there are two questions on this application: Are the materials sought by Mr. Chaudhry first-party disclosure? If not, are the materials “likely relevant” and therefore disclosable to the Court for review?

(a) Are the materials sought by Mr. Chaudhry first-party disclosure?

[18] Ms. Wyszomierska argues that the material is first-party disclosure because there is a reasonable possibility that it might assist Mr. Chaudhry in the exercise of his right to make full answer and defence: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at para. 19. The material is not confined to admissible evidence. Rather, it includes any material that could be of some use to the defence. In this case, there is a reasonable possibility that Mr. Omar’s interactions with the police could be relevant to Mr. Chaudhry’s right to make full answer and defence. Ms. Wyszomierska is aware, from disclosure, that Mr. Omar has had encounters with the police in both Niagara Region and Toronto. Those encounters could be fruitful to cross-examine Mr. Chaudhry if he were to appear and testify – although that is admittedly unlikely. A more realistic prospect is that Ms. Wyszomierska could use that material to raise a reasonable doubt about Mr. Chaudhry’s guilt.

[19] I disagree that the material sought is first-party disclosure from the Niagara Regional Police. I do find that occurrences and arrest reports are first-party disclosure from the Toronto Police.

[20] My finding turns on three facts: first, the Crown has conceded that there is an air of reality to the third-party suspect defence; second, the Crown alleges that Mr. Omar is a party to the murder; and third, the Toronto Police is the investigating agency.

[21] There are, broadly, two regimes for disclosure: the first is the Stinchcombe or first-party disclosure regime; the second is the O’Connor or third-party records regime: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. Under Stinchecombe, the Crown is obligated to disclosure the “fruits of the investigation” to an accused person and other “obviously relevant” material in the hands of the investigating agency: R. v. Jackson, 2015 ONCA 832.

[22] The third-party regime applies to parties that are not the investigating agency, as well as non-pertinent records in the possession of the investigating agency. Th third-party regime has several sub-regimes within it. For example, the disclosure of therapeutic records of victims of sexual assault are governed by the Mills regime: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; s. 278.1 of the Criminal Code. Police disciplinary records are a specific type of disclosure under as set out in R. v. McNiel, 2009 SCC 3.

[23] In Jackson, Watt J.A. at paras. 92 – 93 described the two components of material that the Crown must ordinarily disclose under the Stinchcombe regime. First, the “fruits of the investigation” includes relevant non-privileged evidence that the Crown intends to call against the accused; and second component consists of information that has a reasonable possibility of assisting the accused in making full answer and defence. Watt J.A. then described that second component. That information “may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.”

[24] Criminal records of Crown witnesses are ordinarily first party disclosure, as a witness may be cross-examined on his or her record: R. v. Bonello, 2017 ONSC 4384 at para. 17. Beyond that, the O’Connor regime ordinarily applies to investigative reports and occurrence reports from different police services, or from the same police service involving different incidents: Bonello at para. 20; R. v. Nuur, 2018 ONSC 1308 at paras. 8-11. A witness may be cross-examined on outstanding charges, or unrelated conduct that did not result in a criminal conviction: R. v. Pascal, 2020 ONCA 287 at paras. 108-110. I would add that if Mr. Omar and Mr. Chaudhry were co-defendants on the same indictment (as they likely would be if Mr. Omar were in the country) then they could cross-examine each other on misconduct that fell outside the indictment; the Crown, of course, could not.

[25] The leading case on the third-party suspect defence is the decision of Martin J.A. in R. v. McWilliam (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160, 29 C.R.N.S. 191, 7 O.R. (2d) 750 (C.A.). Justice Martin set out the law at paras. 23-24:

I take it to be self-evident that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: see Wigmore on Evidence, 3rd ed., vol. 1, p. 139. A may prove that B murdered X either by direct or circumstantial evidence.

Evidence that a third person had a motive to commit the murder with which the accused is charged, or had made threats against the deceased, is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value: see Wigmore at pp. 573-76

[26] Evidence that a third person had a propensity to commit the crime in question is relevant: McMillan at para. 27. There must be more than propensity, however. Evidence that a third party committed the crime will only be admissible if there is some nexus between between him or her and the alleged offence: McMillan at para. 27.

[27] In R. v. Grandinetti, 2005 SCC 5, at para. 49 Abella J.A. quoted the trial judge as setting out the proper legal test:

… an accused may adduce evidence tending to show that a third person committed the offence. The disposition of a third person to commit the offence is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence.

[28] The third party suspect in this case is known; the test for an unknown third party suspect does not apply here: R. v. Grant, 2015 SCC 9.

[29] There is no question that in this case there is evidence connecting Mr. Omar to the murder of Mr. Bihi; as Crown counsel concedes, there is also no question that evidence tending to show that Mr. Omar had a predisposition to commit the crime (or a connection to firearms) would be relevant.

[30] In R. v. Pascal, 2020 ONCA 287, the Court of Appeal recently dealt with the question what is “obviously relevant”. A key Crown witness gave a first statement; she gave a second statement months later while preparing for trial. The second statement had more information implicating the accused. Crown counsel disclosed the second statement to defence counsel shortly before the witness testified. Defence counsel did not ask for an adjournment because the accused was in custody. The witness gave evidence that was generally more consistent with her later statement. Defence counsel cross-examined her on the inconsistencies. The trial judge convicted the accused.

[31] On appeal the accused filed a fresh evidence application. The Crown did not disclose the key witness’s criminal record. She had a record at the time she gave the first statement. Between the first and second statement she accumulated several new charges. After the trial she accumulated more convictions. None of that was disclosed to defence counsel.

[32] Watt J.A. noted at para. 106 that the criminal record of the key witness was not part of the fruits of the investigation. Nonetheless, he found at para. 129 that information not within the investigative file was obviously relevant where it related “to an accused's ability to meet the case for the Crown, to raise a defence or to otherwise consider the conduct of the defence.” He further stated at para. 120:

It is difficult to gainsay the relevance of the information at issue here. A criminal record. Outstanding charges. Evidence about the circumstances underlying the relevant charges. Each available for impeachment of a witness called by the Crown. Each a relevant factor in deciding whether to call D.J. as a defence witness in the event she was not to be called by the Crown. Relevance is the controlling principle, not the likelihood of use or prospect of success.

[33] Mr. Omar is not an ordinary Crown witness. He is an alleged party and the Crown concedes there is an air of reality to Mr. Chaudhry’s potential third-party suspect defence. It seems to me that under those circumstances occurrences or arrest reports indicating that Mr. Omar was a suspect, an accused, or a person of interest are obviously relevant. That is because there is a reasonable possibility that these materials could assist him in making full answer and defence.

[34] The police alleged that Mr. Bihi was a gang member. Indeed, he had recently been released from prison after a criminal organization conviction. The police found a bag of cocaine in his car after the murder. There may well be a gang aspect to this case. I agree with Ms. Wyszomierska that in these circumstances the disclosure should not be limited to occurrences involving firearms or violence.

[35] Thus, occurrence reports or arrest reports unrelated to the murder of Mr. Bihi in the hands of the Toronto Police where Mr. Omar is accused person, a person of interest or a suspect should be produced as first-party disclosure.

[36] That said, as a practical matter, there must some limits on what is produced. Otherwise, (to mix metaphors) police forces could become bogged down in producing irrelevant material as a result of fishing expeditions. A key limit is that in the case of a third-party suspect defence, there must be an air of reality. That has been met here.

[37] I would also restrict the first-party disclosure to non-privileged occurrences and arrest reports where Mr. Omar is a suspect, an accused, or a person of interest. “Any related materials” and “police notes” as set out in the Notice of Application is too onerous. It could amount to ordering disclosure of all investigative material relating to Mr. Omar in unrelated investigations. What if, for example, Mr. Omar had been a target of a large, complex wiretap drug trafficking investigation? It would be inconceivable that the police would be required to produce wiretap transcripts, witness statements, or police notes from that investigation. If any occurrences that are disclosed as a result of this ruling lead to further disclosure requests, then they can be dealt with on their own merits.

[38] Some cases also call for temporal and geographical limits. In this case, however, Mr. Omar is a very young man. His adult records cannot possibly go back that far. I leave for another day how to deal with older, more experienced alleged criminals who may have records going back decades in different places.

[39] I also think first party disclosure has to be limited to the investigating agency, at least in this case. I take a different view of the material from the Niagara Regional Police. Ms. Wyszomierska is aware that the Niagara Police arrested Mr. Omar at some point. Besides that, there is no evidence that the Niagara Regional Police had anything to do with the investigation into the murder of Mr. Bihi. The Niagara Regional Police are a third party for the purposes of this case.

(b) Are the materials sought by Mr. Chaudhry from the Niagara Police “likely relevant”?

[40] Under the O’Connor regime, the accused must establish a basis that could enable a judge to find that there is material in existence that might be useful in making full answer and defence. That burden is not onerous but is required to screen out fishing expeditions. The accused need not demonstrate the precise manner in which the material will be used. The material will pass the likely relevant threshold “only if there is some sound basis for concluding that the statements have some potential to provide the accused with some additional information not already available to the accused, or have some impeachment value”: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.) at para. 72; R. v. B.(P.), 2015 ONCA 738 at paras. 77-85.

[41] In this case, material that would be likely relevant under the O’Connor regime would be the same type of material that is producible under the Stinchcombe regime, and for the same reasons: it could assist the accused in making full answer and defence where the Crown has conceded an air of reality to the third-party suspect defence.

[42] Where a judge finds that material is “likely relevant” he or she must review it to determine if it should be produced to the defence. He or she should only order production where the material has significant probative value, and the value is not substantially outweighed by the risk of prejudice to the proper administration of justice, privacy rights of the witness, or privilege: B.(P.) at para. 86. Watt J.A. set out the relevant factors a judge must consider at para. 87:

i. the extent to which the record is necessary for the accused to make full answer and defence;

ii. the probative value of the record;

iii. the nature and extent of the reasonable expectation of privacy vested in the record;

iv. potential prejudice to the dignity, privacy or security of the person of the individual who is the subject of the record; and

v. the effect on the integrity of the trial process of producing or failing to produce the record…

[43] Counsel informed me that the Crown, at the request of the defence, inquired of the Niagara Police whether records existed. The defence was aware that Mr. Omar has been arrested in the Niagara Region. In response, the Niagara Regional Police sent a package of material to the Court in Toronto. I assume that the material in the package is responsive to the request.

[44] Accordingly, I ask that Crown counsel make arrangements to have the package delivered to my office through Judge’s Administration. I will review the material to determine whether it should be produced.

Released: October 5, 2020

COURT FILE NO.: CR-20-50000059

DATE: 20201005

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

REASONS FOR JUDGMENT ON THIRD PARTY RECORDS APPLICATION

R.F. Goldstein J.