COURT FILE NO.: CR-21-10000146

DATE: 20210819

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ABDIASSIS HASHI

Karolina Visic for the Crown

Ari Goldkind for the Accused

HEARD via zoom: Aug 9, 10, 11, 12, 13, 16, 17, 2021

GILLIAN ROBERTS J.:

[1] Abdiassis HASHI stands charged with a series of offences relating to an attack on Kitanna Kamaldin in her apartment shortly before 6:40 pm on May 11, 2020, including: attempt murder; aggravated assault; choking; unlawful confinement; and uttering a threat to cause death. In addition, Mr. Hashi is charged with assaulting a police officer during his arrest on May 16, 2020.

[2] Sadly, Ms. Kamaldin died on October 30, 2020, for reasons unrelated to this case, days before she was scheduled to testify at the preliminary inquiry. The Crown sought to tender a series of statements Ms. Kamaldin gave on the evening of the attack for the truth of their contents, the first two as res gestae or spontaneous utterances, the third pursuant to the principled exception to the rule against hearsay:

• recording of the 911 call, beginning at 6:40:53 pm May 11, 2020;
• statement to the SOCO officer PC Guerra at the hospital while her injuries were being photographed and noted;
• statement to PC Pritchard immediately after discharge from hospital, recorded on Pritchard's "in car camera" (I refer to this as the ICC statement).

[3] Counsel agreed that the trial could proceed in a blended fashion. After the Crown called its evidence on both the voir dire and the trial, and I heard submissions from both parties about the admissibility of the hearsay statements, I gave counsel the following bottom line rulings:

• The 911 recording was admissible for the truth of its contents pursuant to the common law exception for spontaneous or excited utterances.
• The comment to PC Guerra about underwear being removed was not admissible, either as a spontaneous or excited utterance or pursuant to the principled exception to the rule against hearsay.
• The ICC statement was not admissible pursuant to the principled exception to the rule against hearsay except for the additional information Ms. Kamaldin provided about her attacker’s appearance and the clothing he was wearing, as I was satisfied that this information was both necessary (as it was not repetitive of information provided in the 911 call), and reliable (as cross-examination about it would be of no moment).

[4] Mr. Hashi did not testify and defence counsel called no evidence. Counsel then made closing argument.

Reasons for my ruling on the admissibility of Ms. Kamaldin's statements

[5] The Crown's principal position was that the ICC statement should be admitted for the truth of its content pursuant to the principled exception to the rule against hearsay. If she was successful in this regard, and the 911 call was also admitted for its truth pursuant to the common law exception, the Crown explained that she would seek to rely on the 911 call only in so far as it showed Ms. Kamaldin’s demeanour, as circumstantial evidence supporting the credibility of her account. It was made clear from the outset of proceedings that Ms. Kamaldin was in no way more credible or reliable because she said the same thing twice. In the alternative, if only the 911 call was found admissible, the Crown would seek to rely on it for the truth of its contents.

[6] Defence counsel acknowledged that the 911 call met the common law test for the admissibility of an excited or spontaneous utterance. The underwear statement, however, did not. The ICC statement was not admissible pursuant to the principled exception because it was not necessary. Nor was it so inherently reliable that it could be said that cross-examination was effectively of no moment, though defence counsel acknowledged that this was true of the portion of the statement where Ms. Kamaldin provided information about her attacker's appearance and clothing.

[7] I will address each statement separately to explain how I reached my conclusions.

The admissibililty of the 911 call

[8] The 911 call was played in court and made an exhibit. I summarize both what is said and my observations about the manner it was said as follows:

• Ms. Kamaldin gives her name and says "someone just tried to stab me in my house". She is then asked for, and provides, her address and phone number and spells her name. Her voice sounds calm at first, but she sniffles audibly at one point and her voice becomes increasingly quivery. Her voice is quavering badly when she spells her name.
• Ms. Kamaldin is asked what happened and responds: "He came over and he just started going-, like he-, everything was fine and then he just started going, um, ballistic for no reason. He took the knife from the counter, there's blood all over the floor, I have slice marks on my arms and there's…a lot of blood." As Ms. Kamaldin describes what happened, she speaks increasingly quickly and her voice becomes increasingly emotional, rising in pitch and emotion to the point it sounds as if she will break down. The operator interrupts to tell her hang on, he is going to get help. He then connects to ambulance.
• Toronto ambulance comes on the line and Ms. Kamaldin has to repeat her address. Her voice is emotional and she sounds like she is just keeping it together as she provides her address, repeating it, her phone number and her name. She sniffles throughout. She is asked again exactly what happened, to which she replies: "Um, I had a guy come over and every-, he, he was acting fine at first and then he, he just-, he went on ballistic for no reason, he took the knife from the counter and started slicing me up and just, just being really, really aggressive and really fucking violent with me, he was threatening to kill me, there's a lot of blood on the floor, I'm really like-, I'm, I'm cut up pretty bad…" Ms. Kamaldin is audibly emotional during this description - her voice is quivering and she sniffles throughout. Her voice rises when she says she is "cut up pretty bad" and she is interrupted by the ambulance operator who assures her help is on the way.
• Ms. Kamaldin is then asked how old she is and when this happened. She replied "just now", and confirmed this when asked again.
• Ms. Kamaldin is asked whether the assailant is still near and she explains that "he went down the staircase by the like the garbage disposal", repeating this when asked what she said. She explained that she "kept on yelling" so neighbours could hear because she could not get to a phone to call 911.
• Ms. Kamaldin is asked if there is "any serious bleeding". She replies: "Yeah, there, there pretty-, the, uh-, there's a lot of blood on the floor, like if the ambulance came, it's, it's pretty bad." Her voice quavers badly.
• Ms. Kamaldin is then asked what part of her body was injured, to which she replies: "My arms, uh, my throat's cut…" Again, her voice quavers badly when she describes her injuries. She is asked whether there is more than one wound and replies "yeah".
• The original operator interjects and asks "who was this guy". She replies "his name is Jamal". She is asked whether he lives in the building. She says no, responding that she has seen him around, and met him through a friend. When asked about his last name she says she does not know, but says "he comes around quite a bit, the security would probably be able to tell you like… a lot about him… She answers the questions without hesitation, and her voice sounds calmer, but her sniffles are still audible.
• Ms. Kamaldin is asked for a quick description, and replies: Somalian; looks like he's in his early 30s; "average build…yeah he's pretty heavy, he's heavy build.” When asked what he was wearing, she replies "uh, fuck, honestly I'm really just shocked…like you'd have to look at the cameras." When prompted about colours, she repeats "I'm really shocked right now. You have to-, you'd have to look on the cameras. He came right out of my apartment just now." When asked whether he still had the knife on him she said "I think so, yeah". When asked about the knife she described it as an average size kitchen knife. She confirmed that her assailant left by the staircase by the garbage disposal. When asked again about clothing she repeats that "security …would have his …legitimate…description on the camera". When asked about a hat or jacket she noted "he was wearing a heavy black jacket".
• The ambulance operator interrupted to give Ms. Kamaldin instructions on how to stop the bleeding. As this was happening Ms. Kamaldin indicated that the Toronto Police had arrived.

[9] Sgt. Kirby Reddin was the first officer on scene. He knocked and Ms. Kamaldin opened the door. She was very upset; frantic. She was hugging herself and had cuts on her arms which were wet with blood. The cuts appeared deep but not life-threatening. Ms. Kamaldin walked into the bathroom and was checking her body all over. When she came out she showed Sgt. Reddin a small cut on her neck that she advised the suspect caused with a knife. There was what appeared to be fresh blood on the floor of the apartment. No one else was inside the apartment.

[10] Jamie Searay, an experienced paramedic who attended to Ms. Kamaldin on scene, noted that she "acted like any other traumatized victim,” explaining that she was upset, cried a few times, and it took them a while to get out of the apartment; for example, they had to remind her to put on shoes, and then she sent them back inside for various "comfort things" like a book.

[11] PC Kehui Li travelled with Ms. Kamaldin in the ambulance and waited with her at the hospital. He noted that she calmed down while she was waiting in the hospital and seemed fine after a while. The treating physical, Dr. Shih, noted that Ms. Kamaldin was calm throughout his interactions with her.

[12] All the professionals who interacted with Ms. Kamaldin after her 911 call found her lucid. No one noticed any signs of impairment, either by drugs of alcohol. The police officers who dealt with her or observed her, included, in order, Sgt. Reddin, PC Li, PC Guerra, PC Pritchard, and the health professionals, the paramedic Mr. Searay and the treating physician, Dr. Shih. Sgt. Reddin and Mr. Searay, in particular, had decades of experience doing their respective jobs.

The common law exception for excited utterances

[13] Res gestae statements are a long-standing common law exception to the rule against hearsay. The Court of Appeal recently re-affirmed the doctrine and noted that it encompasses statements made under a number of circumstances, including excited or spontaneous utterances:

The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event, thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant's mind remained under the domination of that event. In other words, the trigger mechanism for the statement - the event - was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.) at pp. 300-1: R. v. Camara, 2021 ONCA 79 at paras. 84-86.

Application of the test to the circumstances of this case

[14] As noted above, defence counsel, during submissions, acknowledged that the 911 call is admissible for the truth of its contents pursuant to the common law exception for excited or spontaneous utterances. I agree.

[15] There is no question in my mind that when Ms. Kamaldin made the 911 call her mind was dominated by the attack she had just endured. Although she responded appropriately and lucidly to the questions by the various operators she spoke to, such as her name, address and telephone number, when she was asked what happened, and to describe her injuries, I can hear the fear and emotion rise in her voice. Both operators could too. Each interjects at the point where it sounds like she is going to break down to reassure her that help is on the way. Ms. Kamaldin had no time to reflect or concoct before calling 911 and describing what happened. She did not yet even know the extent of her injuries. When help arrives in the form of Sgt. Reddin the first thing she does is go to the bathroom to check her injuries. When she emerges she shows Sgt. Reddin the cut to her neck.

[16] In sum, I agree with both counsel that the content of the 911 call is admissible for the truth pursuant to the excited or spontaneous utterance branch of the res gestae doctrine.

[17] Further, I am satisfied that the 911 statement is manifestly reliable, and its probative value exceeds any potential it has for prejudice.

Underwear statement to PC Guerra

[18] After Ms. Kamaldin was treated in hospital, PC Joeshenel Guerra photographed and documented her injuries. When they arrived at the injury near her groin, Ms. Kamaldin became very embarrassed because she was not wearing underwear. She explained that her underwear had been removed. The Crown sought to tender this as a spontaneous utterance.

[19] I do not believe that this statement is admissible for the truth of its contents. While the statement may be in response to Ms. Kamaldin's embarrassment, it is not in response to whatever caused the underwear to be removed. In any event, whatever caused the underwear to be removed is, and remains, a mystery.

Principled exception to the rule against hearsay

[20] Ms. Kamaldin was taken to Toronto General Hospital by ambulance. She was triaged and then waited to be treated. PC Li was with her the entire time. He noted that she calmed down while she waited. She was then examined, and the wounds on her arms were stitched by Dr. Shih. Her injuries were photographed and noted by PC Guerra. Police then asked Ms. Kamaldin to explain what happened. Her statement is recorded on PC Kyle Pritchard's in car camera (the ICC statement).

[21] Ms. Kamaldin 's ICC statement is consistent with, and largely repetitive of, the contents of her 911 call, but contains additional information about how and why the attack began, what it involved, and further details about the attacker's clothing and appearance (hereafter referred to as the suspect). The Crown prepared a helpful chart comparing the contents of the two statements, and noting the corroboration of each point, which was made exhibit A on the blended voir dire/trial. The additional information in the ICC statement includes the following:

• The suspect wanted her "to be sexual with him". Ms. Kamaldin told him she did not want to do anything like that with him and told him to leave. When she stood her ground, and the suspect was unable to throw her on the bed, he became angry.
• The suspect was "freaking out over crack"…"really cracked out".
• The suspect "choked me out". Ms. Kamaldin struggled and tried to escape into the hall. The suspect grabbed a steak knife from her kitchen counter to try and stop her.
• The suspect was swinging the knife trying to stab Ms. Kamaldin's chest and slit her throat. He kept telling her he was going to slit her throat; he was going to kill her. Ms. Kamaldin noted that the suspect caused the cut on her throat with the knife, and it "could have been just as big as the cuts on my arms". Ms. Kamaldin noted that she was thankful to be alive.
• The suspect has "screwed up eyebrows. Like he shave them…then tried to like draw it back on…he has this like black dot right there (gesturing above her eyebrows)…it could be…a beauty mark….I could be misunders-…it kind of look like it was drawn on like cause I'm in shock right now, but it could be a beauty mark, cause he always has it…on his eyebrow."
• The suspect is about two inches taller than her (she is 5'10").
• The suspect was wearing a black kind of like silk…heavy jacket. And he was wearing jeans that were True Religion jeans…symbol on the back pocket …like a horseshoe or something.
• Ms. Kamaldin met the suspect through Abdul, who lives down the hall. She could not remember his apartment number but noted that he had a different coloured door.

The principled exception to the rule against hearsay

[22] It is now well established that hearsay which does not fall within an accepted common law exception may be admitted into evidence where the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities: R. v. Bradshaw, 2017 SCC 35 at para. 23. Necessity and reliability are not fixed standards. Rather, they are fluid and must be considered together. If an item of evidence exhibits high reliability then necessity can be relaxed and similarly if necessity is high then less reliability may be required: R. v. Baldree, 2013 SCC 35 at para. 72; R. v. Khelawon, 2006 SCC 57 at paras. 46, 78.

[23] "Necessity" is founded on the need to get at the truth; in substance it is a form of the "best evidence" rule. It does not mean "necessary to the adducing party's case". Rather, the key is the unavailability of the evidence contained in the out-of-court statement. It should not be narrowly construed and should be given a flexible meaning capable of encompassing diverse situations: R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 at p. 796. The "necessity" requirement is satisfied where it is "reasonably necessary" to present the hearsay evidence in order to obtain the declarant's version of events: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at 29.

[24] Reliability refers to threshold reliability. The trial judge must determine whether the hearsay statement has sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating its truth: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043 at para.75 It can be established in two ways: procedural and substantive reliability. They are not mutually exclusive, and may work in tandem. However, great care must be taken to ensure that a combined approach does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers: Bradshaw, at para. 32. The scope of the inquiry must be tailored to the particular dangers presented by the evidence, and limited to determining the evidentiary question of admissibility: Khelawon, at para.4.

[25] In this case, the declarant died before the preliminary inquiry. She has never been cross-examined on her ICC statement by anyone, let alone Mr. Hashi’s counsel. In these circumstances I believe procedural reliability is not engaged, and the applicant must establish that the statement meets the test for substantive reliability in order for it to be admissible.

[26] Substantive reliability is established where the circumstances under which statement was made guarantee its trustworthiness such that contemporaneous cross-examination would add little, if anything, to the process. It is assessed by considering all the circumstances surrounding the making of the statement, plus, where relevant, the presence of supporting or contradictory evidence. There is no closed list of factors to consider, but the factors should address the concerns related to hearsay (perception, memory, narration, sincerity) and focus in particular on the essential hearsay danger(s) of the statement (see eg. R. v. Clarke, 2013 MBQB 26 at para 22 for a list of possible factors to consider).

Application of the test to the circumstances of this case

[27] Necessity is not automatically met in this case because Ms. Kamaldin is dead. Rather, necessity must be considered in light of the fact that I have found the 911 call admissible. While much of the content of the ICC statement is not necessary in light of the fact that the same content can be found in the 911 call, the Crown has persuaded me that necessity is met for at least portions of the ICC statement. As set out above, Ms. Kamaldin provides additional information in the ICC statement which will otherwise be lost if the ICC statement is not admitted.

[28] Turning to reliability, the essential hearsay concern at play relates to Ms. Kamaldin's perception of events.

[29] Beginning with the other hearsay concerns, I believe the Crown has demonstrated that they are not engaged in the circumstances of this case. Notwithstanding that Ms. Kamaldin was not sworn or affirmed prior to giving the ICC statement, or warned about the consequences of being untruthful, the circumstances in which the statement was provided suggest that she understood that the truth was both expected and required. The statement was taken within hours of the attack, by uniform police officers, immediately after Ms. Kamaldin was treated and her injuries photographed and documented. It was recorded. Ms. Kamaldin was calm and lucid and cooperative. Indeed, she was invested in the process in so far as she was afraid of her assailant and wanted police to catch him. Ms. Kamaldin repeatedly told them how: check the surveillance video; speak to his friends in the building. Many, if not most of the things she says, are confirmed by independent evidence, including the timing of the 911 call, the surveillance video, and the nature of her injuries. There is no evidence that Ms. Kamaldin was impaired, or that the voluntariness of her statement was compromised in any way. The police simply asked what happened; they did not lead her or put any pressure on her.

[30] Perception is a different matter. Ms. Kamaldin told the paramedics and the triage and treating nurses that she smoked crack cocaine with her attacker. The attack itself was deeply upsetting and stressful: I believe that Ms. Kamaldin believed that the suspect was trying to kill her and would have succeeded if she had not struggled and gotten her arms up to protect herself. Given these circumstances, I find that there are other plausible explanations for what exactly happened during the attack, and the intention with which the suspect performed them. The corroborative evidence in relation to the attack, while significant, is not determinative in relation to these issues. In saying this I want to be clear that I am not being critical of Ms. Kamaldin. I believe she behaved bravely and intelligently and may very well have saved her own life. Rather, I say this to explain why I cannot conclude that cross-examination would be of no moment. To the contrary, I believe that cross-examination would add to the process in relation to exactly what the attack involved, and the intention with which it was performed. For example:

• In so far as the complainant's underwear was removed during the attack, that does not fit with the complainant's description of what happened, specifically that she stood her ground, successfully resisted being thrown on the bed, and then struggled with the suspect as he tried to choke her, and dodged his knife as he tried to slit her throat.
• How could the suspect grab the knife while choking her?
• Was the suspect's statement that he wanted to kill Ms. Kamaldin a narration of what he was endeavouring to do or was it a threat to force her to comply with his sexual demands?

[31] In short, the aspects of the ICC statement involving Ms. Kamaldin's description of the details of the attack, and the suspect's state of mind at the time, are not so inherently reliable that cross-examination would be of no moment. As a result, these aspects of the ICC statement are not admissible.

[32] The balance of the statement is not necessary as it is covered by the 911 call. The only exception to this is the additional description of the suspect and his clothing. Defence counsel acknowledged in submissions that cross-examination about these aspects of the statement would be of no moment. As a result, I find these portions of the statement necessary and reliable and thus admissible pursuant to the principled exception to the rule against hearsay.

Ms. Kamaldin's injuries

[33] Sgt. Reddin noticed what appeared to be fresh blood on Ms. Kamaldin's forearms, and what appeared to be blood drops on the floor of the apartment. The paramedic Jamie Searay noted that Ms. Kamaldin's arms were bleeding. He bandaged them as he assessed her and asked her what happened. After paramedics left, the scene was held and SOCO photographs were taken, which showed blood drops on the floor, and some spatter. The largest accumulation of blood was on the floor near the kitchen area. PC Guerra, the SOCO officer, took fingerprints off some tables and shelves, but not from the door handles. She sent them for analysis but did not know whether that was ever done. She did not collect samples of any of the blood because she believed it all belonged to the victim.

[34] Ms. Kamaldin was assessed further and treated at Toronto General Hospital. Dr. Shih observed her to have the following injuries:

• a small abrasion to her right neck that required no treatment;
• a 3 cm laceration to the right volar distal forearm (colloquially a cut to her inner right wrist);
• a 2 cm laceration over the left volar proximal forearm (colloquially a cut to her inner left arm closer to the elbow)

[35] Dr. Shih could not tell how deep the lacerations were, but the edges of the wounds were apart, and he believed they should be stitched closed. He used 4 stitches to close the laceration on the right arm, and 5 stitches to close the laceration on the left arm.

[36] After Ms. Kamaldin was stitched up PC Guerra documented Ms. Kamaldin's injuries. PC Guerra took notes and photographs as Ms. Kamaldin pointed out her various injuries. She noted that the photographs did not always capture the redness she observed in person. The injuries included the following:

• lacerations to both arms, now stitched, described above;
• bruising on each arm in the area of each laceration;
• a small cut in the area of the right wrist;
• bruising and two small scratches in the area of the right inner elbow;
• redness and small scratch of upper right arm;
• small cut to arm near inner right elbow;
• small vertical cut to right side of neck;
• redness on the back of the neck to the front of the neck, and some dried blood which makes it difficult to see the redness;
• vertical scratch or cut to the left side of the face from cheekbone to chin;
• redness in the area of the left elbow;
• small scratches at top of left breast area;
• faint red marks on stomach;
• small abrasion on right hip;
• faint abrasion on back in area beneath horizontal bra strap;
• scratch on upper left thigh near groin.

[37] Ms. Kamaldin was cooperative. PC Guerra was aware that Ms. Kamaldin had complained about being stabbed but never listened to the 911 call, or the ICC statement.

Circumstantial evidence suggesting a particular suspect was the attacker

[38] Surveillance video from the apartment building at 1011 Landsdowne Avenue showed the suspect enter Ms. Kamaldin's apartment about half an hour before the 911 call and leave about a minute before the 911 call:

• After visiting other areas inside 1011 Landsdowne, at approximately 18:11:33 the suspect can be seen arriving on the 11th floor, walk south down the hall to apartment 1117 (Ms. Kamaldin’s apartment), knock, try the door, and then be let inside at approximately 18:11:53.
• At 18:39:24 the suspect can be seen emerging from the south stairwell on the 10th floor, walk north up the hall and turn toward the elevator bank. He appears to be adjusting his pants and belt as he walks along the hall. DC Goss testified that when he initially viewed the surveillance video with security for 1011 Landsdowne he saw a clip showing the suspect leave Ms. Kamaldin's apartment and go into the south staircase. DC Goss believed he obtained the clip but somehow it did not end up on the USB key with the other clips.
• At 18:39:40 the suspect can be seen entering the area in front of the elevators on the 10th floor. He is still adjusting his belt. He enters elevator 3 at 18:40:21 and travels to the lobby.

[39] Surveillance video and police records place the 911 call almost immediately after the suspect can be seen leaving the vicinity of Ms. Kamaldin's apartment. The surveillance video shows the suspect emerge from the south stairwell onto the 10th floor just before the 911 call. This is consistent with Ms. Kamaldin’s statement to the 911 operator that the suspect left by going down the staircase by the garbage chute, closest to her apartment. The surveillance video and 911 call records show:

• At 18:40:49 someone (Ms. Kamaldin) can be seen emerging from apartment 1117 holding what appears to be a phone, and then hold it to their ear. At 18:41:34 the person disappears from view, returning back inside the apartment.
• It is an agreed fact that Ms. Kamaldin calls 911 at 6:40:53 pm on May 11, 2020.
• Floor plans for the building show that the garbage chute is located near the south staircase, closest to Ms. Kamaldin's unit.

[40] Surveillance video shows that the suspect immediately left the building, leaving through the parking lot attached to the back of the building:

• At 18:42:45 the suspect can be seen to emerge from elevator 3 on the ground floor. He walks toward and through the double doors that lead to the garage shared with the building at 730 St. Clarens Street. He disappears from view at 18:42:58.
• The camera for 730 St. Clarens shows the suspect walk through the shared garage and out the "man door" to the small south parking lot on Dupont Street. The suspect can first be seen around 18:37:36. CD Goss testified that the time stamp on the surveillance video for 730 St. Clarens Street was about 5 minutes slow.

[41] Surveillance video shows that the suspect took a circuitous route upon leaving, initially heading east through the car port at 730 St. Clarens Street, before heading south and running west along Dupont street, back in the direction he had just come from:

• At 18:37:40 a door swings open and the suspect emerges. He begins to walk south toward Dupont Street, before turning east and walking toward the carport at 730 St. Clarens Street. As he does so he can be seen taking off his toque. A second camera captures the same thing from a different perspective.
• At 18:38:05 the suspect can be seen to emerge from the car port at the front of 730 St. Clarens St. The suspect walks south toward Dupont Street, stopping briefly to chat with a couple of people on the sidewalk with dogs. He is off-screen at about 18:38:24.
• The same camera that captured the second view of the suspect emerge from the parking garage and walk toward the carport at 730 St. Clarens Street captured the suspect running west westbound along the north sidewalk on Dupont Street at 18:38:37. He is off-screen at 18:38:44.

[42] Throughout the surveillance video the suspect can be seen wearing the following clothing:

• red shirt with white maple leaf and large white lettering above;
• toque worn so the back sticks straight up;
• longer black coat with a silver zipper, with another smaller silver zipper on the left breast, and orange lining;
• light blue jeans;
• black Adidas sneakers with a white rim around the sole and a white half moon design on the heel.

[43] In addition, the following physical features of the suspect are visible at various points throughout the surveillance video:

• prominent mole or mark above his right eyebrow;
• line across his nose about half way down, with the bottom of the nose being broad and curved slightly to the left;
• hair line goes straight up and straight across;
• large stomach.

[44] On the 911 call Ms. Kamaldin described her attacker as a man named Jamal who did not live in the building but "He comes around quite a bit, the security would probably be able to tell you". When asked for a "quick description" she said he was Somalian, early 30s, average build, changing that to heavy build. She was too shocked to think of his clothing, beyond heavy black jacket, but repeatedly suggested that the security camera would help, noting "he came right out of my apartment just now".

[45] Later that night, after she had been treated, Ms. Kamaldin was able to provide further details of her attacker:

• He had "screwed up eyebrows. Like he shave them or then tried to like draw it back on… he has this like black dot right there (pointing above her eyebrows)…it could be…a beauty mark…I could be misunders-it kind of looked like it was drawn on…but it could be a beauty mark, cause he always has it…on his eyebrow".
• He's about two inches taller than me…[I'm] about 5'10".

And his clothing:

• Black kind of like silk kind of like jacket…like a heavy jacket;
• True Religion jeans with a symbol on the back pocket like a horseshoe or something;

Again, Ms. Kamaldin urged police to get the surveillance video from her building.

[46] At the time of the offence, PC Abdullah Karimazada was a neighbourhood community response officer focusing in particular on the building at 1011 Landsdowne Avenue. On May 12, 2020, the day after the attack, he spoke to building management and some residents. He learned that the suspect went by the name "Jamal Abdiziz", and was transient and did not reside in the building but had been around the last few days. One individual indicated that the suspect could be found in the area of Westin Road and Lawrence Avenue.

Evidence showing that the suspect is the accused Mr. Hashi

[47] Around midday on May 16, 2020, police believed that the suspect was in the area of a coffee shop near Westin Road and Lawrence. The manager of the coffee shop was familiar with the suspect and had notified police. PC Josh Baksh was watching the coffee shop and saw an individual whom he believed to be the suspect walk in. PC Baksh walked in after the man and asked "Are you Abdi?". The man replied "No Jamal". The coffee shop owner cocked his head and made a physical gesture that the man was the suspect police had asked him about. PC Baksh took the man outside and placed him under arrest. When PC Baksh searched the suspect incident to arrest, he found a paper in his breast pocket in the name of Abdiassis Hashi.

[48] When Mr. Hashi was arrested, he was wearing the following clothing:

• true religion jeans with a horseshoe logo on the back pocket;
• a red t-shirt with a white maple leaf on the front, beneath the word CANADA in white letters. To my eye it looks the same as the T-shirt worn by the suspect during the surveillance video from May 11, 2020. I note that Mr. Hashi refused to permit police to photograph this T-shirt after he was arrested. Police eventually seized it from the TSDC.
• black and white Adidas sneakers with white soles and a white half moon shape on the heel consistent with the sneakers the suspect is wearing in the surveillance video.
• the booking sheet described Mr. Hashi as Somalian.

[49] Mr. Hashi has a distinctive mole above his right eye, and a straight hairline. He has a relatively large stomach.

[50] When I consider all these circumstances, I find they overwhelmingly establish that the suspect is the accused, Mr. Hashi.

[51] To this body of evidence I can add that when I look at the booking photographs of the accused taken on previous arrests, admitted on consent, and at Mr. Hashi's appearance via zoom video before me, his appearance is consistent with the man captured on surveillance video entering Ms. Kamaldin's apartment not long before the 911 call, and leaving along the 10th floor immediately after it. Specifically, I could see the distinctive mark above his right eye, and the straight hair line. In the booking videos I can also see the horizontal line half way across his nose, with the lower half being flatter. When Mr. Hashi stood up in the video room at various points, I could see he has large stomach.

[52] In addition, I can add the additional details that Ms. Kamaldin provided in her ICC statement to police about her attacker’s appearance - that he had a mole that looked like it was drawn on or like a beauty mark because it was always there near the start of his eyebrow; and the clothing he was wearing - a black silk like jacket and New Religion jeans with distinctive markings on the pocket. But it is not necessary for me to add either my own observations or the additional description Ms. Kamaldin provides in her ICC statement to be satisfied beyond a reasonable doubt that Ms. Kamaldin's attacker was the accused Mr. Hashi.

Has Crown proven the offences arising from Mr. Hashi’s attack on Ms. Kamaldin beyond a reasonable doubt?

[53] It is trite law that the burden of proof rests on the Crown and never shifts to the defence. There is no burden on the defence to prove anything. The standard of proof is beyond a reasonable doubt; I must be sure that the Crown has established all the essential elements of an offence in order to convict.

[54] Mr. Hashi did not testify or call any evidence. Nor is there any exculpatory evidence before me. This simply means that I can effectively go directly to the third step of R. v. D.W., 1991 CanLII 93 (SCC), [1991] 1 SCR 742: does the admissible evidence called by the Crown, bearing in mind the cross-examinations conducted by defence counsel, establish the essential elements of the offences beyond a reasonable doubt?

[55] In light of my hearsay rulings, the Crown no longer seeks to proceed on counts 3 and 4, which charge choking and unlawful confinement.

[56] For his part, defence counsel did not submit that the offences of aggravated assault or utter threats had not been proven. He focused on the count of attempt murder and argued forcefully that the specific intent to kill had not been proven beyond a reasonable doubt. Even if I were to find that Ms. Kamaldin believed that Mr. Hashi was trying to kill her, and she was in a struggle for her life, that is different than finding that Mr. Hashi had the requisite intent to kill. Defence counsel argues that this very high specific intent simply cannot be made out on the totality of the evidence: Mr. Hashi was taller, heavier, stronger than Ms. Kamaldin; if he wanted to kill her he could have. Instead, the wounds he inflicted were not life-threatening, and he left while she was very much alive.

[57] I will begin with the easier counts to analyse- aggravated assault and threatening. In order to establish aggravated assault, contrary to s.268 of the Criminal Code, the Crown must prove beyond a reasonable doubt both the physical (actus reus) and mental (mens rea) elements of the offence. The actus reus requires that the Crown prove that Mr. Hashi applied force to Ms. Kamaldin, without Ms. Kamaldin's consent, which wounded Ms. Kamaldin. The mens rea requires that Mr. Hashi intended to apply the force which wounded Ms. Kamaldin, knowing Ms. Kamaldin was not consenting to it, and that some kind of bodily harm was an objectively foreseeable result of the intentional application of force. There is no suggestion of consent here, but even if there were, it would have no application as the law prevents consent to bodily harm. To wound simply means to injure in a way that breaks or cuts or pierces the skin. It has to be more than trifling, fleeting or minor, such as a scratch.

[58] I am satisfied beyond a reasonable doubt that the Crown has established all the essential elements of the offence of aggravated assault. The only evidence before me is that Mr. Hashi attacked Ms. Kamaldin with a knife while they were alone together in her apartment, causing a number of injuries, including two penetrating stab wounds to her inner forearms. The wounds caused a fair amount of blood in the apartment and needed to be stitched closed. The wounds appear defensive to me, consistent with being caused to Ms. Kamaldin's arms as she held them up to protect herself, but I do not need to make any finding about this. Defence counsel is candid that there is no evidence that Mr. Hashi was acting in self-defence. In all the circumstances I find Mr. Hashi guilty of aggravated assault of Ms. Kamaldin.

[59] In order to establish the offence of "utter a threat to cause death", contrary to s.264.1(1)(a) of the Criminal Code, the Crown must prove beyond a reasonable doubt:

• Mr. Hashi threatened to cause death to Ms. Kamaldin (considered objectively and in context);
• Mr. Hashi intended the threat to intimidate Ms. Kamaldin or be taken seriously by Ms. Kamaldin.

[60] I am satisfied beyond a reasonable doubt that the Crown has established the essential elements of uttering a threat to cause death to Ms. Kamaldin. Ms. Kamaldin told the 911 operators that Mr. Hashi "was threatening to kill" her while "slicing" her up and "being really, really aggressive and really fucking violent with me". I am satisfied that Ms. Kamaldin's statement is credible and sufficiently reliable and I can place weight on it. It was made very shortly after the attack, while Ms. Kamaldin was bleeding heavily, and very scared that she had received a life-threatening injury. It has other hallmarks credibility and reliability, such as Mr. Kamaldin’s candour that she was in too much shock to provide a detailed description of her attacker but she urges police to check the surveillance video. The surveillance video confirms her statement. In the circumstances, I am satisfied beyond a reasonable doubt both that Mr. Hashi made the threat, and that he intended Ms. Kamaldin to take the threat seriously. I find him guilty of uttering a threat to cause death.

[61] The difficult issue before me is whether the Crown has proven beyond a reasonable doubt that Mr. Hashi had the necessary intent to kill required to establish attempt murder by stabbing, contrary to s.239. This offence is a specific intent offence with a very high mental element. The Crown must establish that when Mr. Hashi stabbed Ms. Kamaldin, he intended to kill her.

[62] I have found that Mr. Hashi stabbed Ms. Kamaldin and threatened to kill her. I am also satisfied that Ms. Kamaldin believed that Mr. Hashi was trying to kill her, and she was in a struggle for her life. The fear in her voice on the 911 call is palpable, particularly when she is describing her injuries, and how much blood there is in the apartment. The first thing she did when help arrived in the form of Sergeant Reddin was check her injuries in the bathroom, showing him the cut to her neck when she emerged. She described the death threat being made in the course of the knife attack. There is also evidence of a struggle. The apartment was in disarray and Ms. Kamaldin had wounds to her forearms consistent with getting her arms up in front of her face and body to protect herself during a knife attack. Ms. Kamaldin's fear for her life is a circumstance which sheds some light on what happened, which in turn may shed light on Mr. Hashi's intention. But it is only one circumstance.

[63] I cannot find the after the fact conduct of assistant on the question of the mental intent for attempt murder. I accept that Mr. Hashi did a number of things which suggest he was conscious of having done something wrong, including taking a circuitous route from Ms. Kamaldin's apartment, heading down the stairs and then accessing the elevator from the 10th floor, leaving from the back of the building through the underground parking garage, rather than the front which was closer to the direction in which he was ultimately headed, and turning east before turning back and running west along Dundas, and resisting allowing the police to photograph the red T-shirt he was wearing at the time of his arrest. However, I cannot conclude that these circumstances point to the wrong being attempt murder rather than simply aggravated assault. In fairness, the Crown only seeks to rely on these circumstances to show that, notwithstanding the evidence in the medical records that Mr. Hashi and Ms. Kamaldin were smoking crack together, Mr. Hashi appeared to be able to think rationally. If anything, Mr. Hashi's speedy departure through the back of 1011 Landsdowne Avenue following the attack suggests to me that he did not intend to kill Ms. Kamaldin: he knew he left her alive and upset and liable to call police who would most likely enter the front of the building.

[64] At the same time there are a number of circumstances which suggest that Mr. Hashi did not have the specific intent to kill Ms. Kamaldin. Mr. Hashi was taller and heavier than Ms. Kamaldin, and armed with a knife. If he intended to kill Ms. Kamaldin it is reasonable to conclude he would have continued with the attack. Ms. Kamaldin told the 911 operator that she "kept on yelling" because she could not get to a phone during the attack. However, Mr. Hashi did not continue the attack. Instead, he left the apartment while Ms. Kamaldin was very much still alive.

[65] Ms. Kamaldin's injuries do not give rise to an inference of an intent to cause death. If anything, they suggest the contrary. The wounds to Ms. Kamaldin's forearms were deep enough to require stitches, but far from life-threatening. The wound to her neck was a superficial scratch. Sgt. Reddin described it as not even requiring a Band aid.

[66] In all these circumstances I cannot find that Mr. Hashi had the very high specific intent to kill Ms. Kamaldin. As a result, I find him not guilty of attempt murder.

Assault police

[67] After Mr. Hashi was arrested on May 16, 2020, he was taken to 11 Division. DC Alexander Hwang was working at the division in plain clothes and was asked to fingerprint and photograph Mr. Hashi. He attended the booking hall together with DC Rekki, who was also in plain clothes, PC Tolunay, who was in uniform, and the booker. DC Hwang did not believe that he identified himself to Mr. Hashi, or explained his role, or even spoke directly to Mr. Hashi. DC Hwang did not take the lead in dealing with Mr. Hashi. DC Hwang agreed that civilians also work in the police station. Mr. Hashi refused to be photographed or fingerprinted and told them to come back. They left and re-attended. Eventually Mr. Hashi agreed to allow DC Rekki to fingerprint him. Mr. Hashi was yelling and appeared irate as the three officers escorted Mr. Hashi to his cell and lodged him inside. As they were leaving Mr. Hashi spit at the officers through the hatch in his cell door. Spit landed on DC Hwang's left forearm, and the right side of his T-shirt and pants. DC Hwang estimated the among of spit as being about the size of a dime on his pants and T-shirt, and about the size of a quarter on his right forearm. DC Hwang then left to "de-contaminate" himself and his clothing with hand sanitizer. He did not send his clothing for forensic analysis, nor did he look at the video that monitored the area to see if the spitting was captured. DC Hwang believed that Mr. Hashi intended to spit on police, though not necessarily on him, as he had little direct dealing with Mr. Hashi. DC Hwang did not believe the spitting was an accidental result of Mr. Hashi “frothing” in anger and agitation.

[68] PC Josh Tolunay was tasked with photographing Mr. Hashi's clothing after he was arrested. He was in uniform at the time and identified himself to Mr. Hashi. He was assisting DC Hwang and DC Rekki who were not in uniform. PC Tolunay noticed that Mr. Hashi had a red T-shirt under the orangish T-shirt he was wearing. Mr. Hashi was asked to remove the outer T-shirt so that they could photograph the red T-shirt. Mr. Hashi refused. They were trying to persuade Mr. Hashi to let them see and photograph the red shirt. The more they tried, the more agitated and aggressive Mr. Hashi became and they decided to return him to his cell. As the three officers were putting Mr. Hashi into a cell, he spit at DC Hwang through the rectangular hatch in the door used to feed prisoners. Mr. Hashi continued to swear after spitting. The hatch is located roughly in the middle of the door approximately at the height of the Mr. Hashi's waist. Mr. Hashi would need to crouch and face the hatch in order to get his spit through the hatch. PC Tolunay recalled a large amount of spit landing on DC Hwang's forearm and dripping down. He only recalled a single spit. He did not recall hearing the sound of someone spitting. He did not believe the spit resulted accidentally from frothing due to how agitated Mr. Hashi was.

[69] The offence of assault peace officer engaged in the execution of his duty, contrary to s.270 of the Criminal Code, requires the Crown to establish an assault of a police officer engaged in executing a duty, and that the accused was aware that the person assaulted was a police officer: R. v. Kresko, 2013 ONSC 1159; R. v. Vlcko (1972) 1972 CanLII 1354 (ON CA), 10 C.C.C. (2d) 139 (Ont.C.A.). More specifically, the actus reus requires:

• the accused must assault a person;
• that person must be a public officer or a peace officer;
• the officer must be, at the time of the assault, engaged in the execution of a lawful duty.

The mens rea requires:

• the intentional application of force to another, knowing they do not consent (an accidental or careless application of force, such as spitting with no intended target, will not suffice: Kresko, para.246; R. v. Starratt (1971), 1971 CanLII 541 (ON CA), 5 C.C.C. (2d) 32 (Ont.C.A.))
• the accused knows that the person is a police officer.

[70] There is no question that intentionally spitting on someone, without their consent, amounts to an assault. The issue in this case is whether the spitting was intentional or accidental "collateral damage" resulting from frothing due to Mr. Hashi's very agitated state. Even if the spitting was intentional, however, defence counsel also argues that DC Hwang was not in uniform, and had not introduced himself, thus there is a reasonable doubt whether Mr. Hashi knew DC Hwang was a police officer.

[71] When I consider all the circumstances, I am satisfied beyond a reasonable doubt that Mr. Hashi knew that the officers ushering him into his cell were police officers and he intentionally spit on them. While I cannot find that Mr. Hashi targeted DC Hwang in particular, I do not need to; it is sufficient if Mr. Hashi intended to spit on a police officer or officers engaged in a duty. The circumstances include the following:

• While DC Hwang was working in plain clothes, and did not introduce himself, he was assisting DC Rekki and PC Tolunay process the arrest, specifically, fingerprint and photograph Mr. Hashi. PC Tolunay did introduce himself and was wearing a uniform. All three were working together, engaged in processing a legal arrest.
• In order to spit through the hatch in his cell door, Mr. Hashi needed to crouch down and face the hatch.
• The spit involved considerable volume. DC Hwang and PC Tolunay described the spitting differently: DC Hwang testified it hit his arm, shirt and pants; PC Tolunay testified it hit DC Hwang's arm and dribbled off. PC Tolunay confirmed there was one occasion of spitting. DC Hwang was not asked whether there was one spit or more than one, but it is clear from his evidence that he was describing a single occasion of spitting. He was asked whether the spitting could be accidental due to Mr. Hashi’s agitated state. He strongly disagreed. I find there was a single occasion of spitting, and it was a lot of spit.

[72] Mr. Hashi is guilty of assault police officer engaged in the execution of his duty.

Conclusion

[73] In sum, the Crown position and my conclusions with respect to the indictment are as follows:

Count 1 – attempt murder by stabbing – not guilty;

Count 2 – aggravated assault – guilty;

Count 3 – choking – to be marked withdrawn at the request of the Crown;

Count 4 – unlawful confinement - to be marked withdrawn at the request of the Crown;

Count 5 – uttering a threat to cause death – guilty;

Count 6 – assault police – guilty.

GILLIAN ROBERTS J.

RELEASED: August 19, 2021

COURT FILE NO.: CR-21-10000146

DATE: 20210819

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ABDIASSIS HASHI

REASONS FOR JUDGMENT

GILLIAN ROBERTS J.

RELEASED: August 19, 2021