Court File and Parties

COURT FILE NO.: 19-6278 DATE: 2020/12/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – IDRES ISMAIL Applicant

Counsel: Malcolm Savage, for the Crown Joseph Addelman and Samantha Robinson, for the Applicant

HEARD: September 21, 2020

ALTERNATE SUSPECTS RULING

PHILLIPS j.

INTRODUCTION

[1] Idres Ismail is charged with murder in relation to the shooting death of Mouhamed Serhan which occurred on May 27th, 2019.

[2] Mr. Ismail seeks permission to adduce evidence at his trial that an alternate suspect may have been responsible for the shooting death of Mr. Serhan, specifically, an unknown male in a video.

RELEVANT FACTS

[3] Following Mouhamed Serhan’s homicide, a video was found on his phone which had been viewed by him less than an hour before he was shot to death. The video records a young black male speaking directly into the camera while referencing the September 2017 shooting death of Mr. Serhan’s brother, Hamzeh, who went by the street name “EZ”. A transcript of the video runs as follows:

your homey got smoked my nigga, hmm, I’ve been smok’n on fuck’n easy (EZ) everyday man, nigga, what the fuck you gonna do about that, uhhh? Take it easy before you end up like easy (EZ), good thing I aint with the (UI) my nigga. You want to pull up on me you know where I’m at. What the fuck.

[4] It is fair to call this video threatening. It appears to indicate that the declarant had something to do with EZ’s death. It challenges the viewer: “what the fuck you gonna do about that” and warns him “take it easy before you end up like EZ”. The “you want to pull up on me you know where I’m at” requires no interpretation.

[5] The declarant in the video is someone other than Idres Ismail. There is no evidence that Mr. Ismail is connected to the video in any way. That said, Mr. Ismail looks quite similar to the young man on the video, so much so that the police originally thought it was him. This is important because the defence suggests that the similarity between Mr. Ismail and this unknown male is relevant when assessing the fact that a witness has identified Mr. Ismail as the shooter in this case.

ISSUES AND LAW

[6] Evidence that someone other than the accused may have committed the offence for which he is charged may be admissible if it is capable of giving rise to a reasonable doubt about the guilt of the accused. In order to adduce a third party suspect defence in front of the jury, there must be an evidentiary foundation which gives the defence an “air of reality”, namely that a sufficient connection can be demonstrated between the alternate suspect and the offence such that it casts doubt on the guilt of the accused.

[7] The “air of reality” test was described by the Supreme Court in Grant:

In order for the judge to put a defence to the jury, the accused must point to evidence on the record that gives the defence an air of reality (*R. v. Cinous*, 2002 SCC 29, [2002] 2 S.C.R. 3). The trial judge must determine whether there is some evidence that is “reasonably capable of supporting the inferences required for the defence to succeed” (ibid., at para. 83). The air of reality test applies to all defences, and acts as a threshold to ensure that “fanciful or far-fetched” defences are not put before the trier of fact (para. 84). When applying this test, the trial judge must take the evidence to be true and must not assess credibility or make other findings of fact.

*R v. Grant*, 2015 SCC 9, at para. 20

[8] Evidence which may indicate the innocence of an accused should be admissible as long as it is relevant. “Relevance” in relation to an alternate suspect defence was discussed by the Court in McMillan:

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 ... 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 ...

*R v. McMillan*, [1975] O.J. No. 2247, at para. 23

[9] In order for the evidence to be admissible, therefore, the onus is on the defence to establish that there is a basis upon which a reasonable, properly instructed jury could acquit the accused based on the third-party suspect evidence. It is not intended for this to be a high threshold. In Scotland, the Court gave the following guidance on how to apply the principles for admissibility:

First, the court must exercise its discretion to admit evidence implicating third party suspects in a way that supports the presumption of innocence and gives practical effect to the right to make full answer and defence. These principles and the values underlying them are constitutionally recognized and an integral part of the rule of law in a free and democratic society.

Second, the spectre of a wrongful conviction of an innocent person, tragically a rather common phenomenon in the recent history of our courts, is one that a trial judge should remain cognizant of in applications like this one. It is better to err on the side of admitting such evidence than to risk the conviction of the innocent ….

Third, it is my view that the correct application of the principles of *R. v. McMillan*, supra, requires the trial judge to analyze the admissible evidence for any reasonable interpretation or permissible inference, beyond conjecture or speculation, that supports the defence position. The availability of other reasonable interpretations or permissible inferences inconsistent with the defence position does not defeat the defence. Such an approach would usurp the function of the jury. For an analogous approach in the context of the sufficiency of evidence at a preliminary hearing and the review of orders to stand trial, see *United States of America v. Sheppard* (1976), 30 C.C.C. (2d) 424 (S.C.C.), *R. v. Arcuri* (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) and *R. v. Coke*, [1996] O.J. No. 808 (S.C.J.).

*R v Scotland*, [2007] OJ No 5302 at paras 14-17

ANALYSIS

[10] I am aware that there are important factual disputes about the video and its connection to the deceased. It is far from clear that Mr. Serhan was the intended recipient of the declarant’s words. There are, therefore, different inferences that could be drawn as a result of the video. It might be connected to the homicide in this trial or it might not. This is for the jury to sort out. In any event, it appears that Mr. Serhan found the video sufficiently important to keep and he remained curious enough about it to watch it just an hour before he was shot dead.

[11] This temporal connection is highly significant as it suggests that the deceased was thinking about the threat just before he died. It is plausible to suggest that Mr. Serhan was going to meet a person connected to the video that night and was reviewing it for that purpose.

[12] The video is clearly directed toward someone who might have heightened interest in Hamzeh Serhan’s death. It is reasonable to suggest that his surviving brother, Mahmoud Serhan, might have stepped up as someone with such an interest thereby running afoul of the unknown man. While it could all just be a coincidence, as the Crown suggests, I do see it as reasonable to suggest that there is connection between the video and the shooting death that occurred an hour after its last known viewing.

[13] Unlike in McMillan, the Applicant is not basing his proposal on another person’s propensity or disposition for violence that might make it as likely they could have committed the offence. Instead it is a threat viewed by the deceased proximate to his death that was made by a person other than the Applicant.

[14] The evidence in question does not risk distracting the jury or prolonging the trial to any great extent. The video is only about thirty seconds long and speaks for itself. Evidence about it can be led through cross-examination of central crown witnesses who will be testifying in this trial in any case.

CONCLUSION

[15] The Applicant has succeeded in showing a nexus between the video and Mr. Serhan’s death. More to the point, he has succeeded in showing that an evidentiary basis exists for the proposition that Mr. Serhan was shot by a person unknown. That idea is legitimately connected to evidence and is thus not mere conjecture or speculation.

[16] The alternate suspect application is granted.

Justice Kevin B. Phillips Released: December 18, 2020