Court File and Parties

COURT FILE NO.: 17-M 7917 DATE: 2022/02/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ALAM BUOC

Counsel: James Cavanagh and Stephen Albers for the Crown Alam Buoc acting in person and James Foord as Amicus Curiae.

HEARD: Over the course of several weeks beginning in July 2019 ending November 29, 2021.

Reasons for Rulings on Trial and Pre-Trial Motions

Maranger J.

Introduction:

[1] In the early morning hours of July 24, 2017, a shooting occurred on Tavistock Road in the city of Ottawa. It took place in a parked white Mazda motor vehicle. Two men were killed, and a third man, despite being shot three times, survived. The surviving victim ultimately told the police that the person responsible for the shooting was a person he had known for years.

[2] On July 27, 2017, Alam Buoc was arrested for the shooting and charged with two counts of first-degree murder in the deaths of Abdulrahman Al-Shammari and Dirie Olol contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46, as well as one count of attempted murder against Talal Al-Shammari contrary to s. 239(1) of the Criminal Code.

[3] On November 29, 2021, following a 12-week trial, a jury returned a verdict of guilty of second-degree murder on counts 1 and 2, and guilty of attempted murder on count 3.

[4] This matter has had a long history. It has been before the courts for well over four-and-a-half years; it required two trials as the original trial heard for five weeks in February and March of 2020 was ultimately mis-tried on account of the COVID pandemic. It is fair to say that the COVID pandemic was the cause of the bulk of the delay in bringing the case to a conclusion.

[5] I have been the trial judge on this case from July 5, 2019 through to the completion of the trial. In that timeframe, numerous rulings on a variety of pre-trial motions were delivered in the form of unpublished written endorsements; they form part of the court record.

[6] Alam Buoc was self-represented, and James Foord acted as amicus curiae throughout the pre-trial motions and two trials.

[7] During the second trial several rulings at various times were given orally with the understanding that more fulsome written reasons would be provided in due course. These are those reasons. Furthermore, this decision will explain in more detail the role that amicus curiae played in assisting the court and the self-represented accused throughout the proceedings.

Procedural Overview and Rulings:

[8] The highlights of the procedural history and rulings already delivered in this case can be summarized as follows:

a) Proceedings before the Ontario Court of Justice:

• From the date of his arrest on July 27, 2017, Alam Buoc was remanded numerous times and at various times had several different defence counsel acting for him, both as counsel of record and as friends of the court, through to the commencement of his preliminary inquiry where he represented himself in October of 2018.
• On November 2, 2018, following a preliminary inquiry, Mr. Buoc was committed to trial.
• In the Ontario Court of Justice significant delays were occasioned by reason of Mr. Buoc specifically requesting adjournments, or by retaining and un-retaining counsel.

b) In the Superior Court of Justice from November 2, 2018 to July 5, 2019:

• On November 27, 2018 trial dates were set for September 2019.
• Judicial pre-trials were held on November 27, 2018 and December 27 and 28, 2018.
• On February 7, 2019 the September trial dates were vacated, and the accused waived his 11(b) rights until the end of the trial set for April 3, 2020.
• Mr. Buoc now wanted to represent himself.
• On March 19, 2019 James Foord was appointed as amicus curiae.

c) Pre-trial motions leading to the first trial:

• July 5, 15, 16 and 24, 2019: Mr. Buoc brought a change of venue application asking that his trial be transferred from the city of Ottawa to the city of Toronto. In general terms, the grounds he put forward were that the Ottawa police, the Crown Attorney’s office, and the judiciary had engaged in a corrupt, unfair prosecution against him including but not limited to the fabrication of evidence against him, and that there was systemic racism in this region which would result in his being incapable of having a fair trial. A written endorsement dated July 24, 2019 was provided denying the application. That endorsement, together with all the other endorsements referenced in this decision, forms part of the court record. They were unpublished rulings.
• September 17 and 18, 2019: the court heard four different applications including Mr. Buoc’s application to exclude statements and evidence from Talal Al-Shammari (the surviving complainant) and his two brothers. The Crown brought an application to have two witnesses testify via closed-circuit television (CCTV), and another asking that the court appoint counsel to conduct the cross-examination of the surviving complainant. A written endorsement was provided on September 23, 2019 denying Mr. Buoc’s application and allowing the Crown’s witnesses to testify via CCTV. The court also denied the Crown’s application to appoint counsel to conduct the cross-examination of the surviving complainant Talal Al-Shammari based on the forceful arguments against the appointment advanced by the accused.
• September 19, 20, 22, 24 and 27, 2019: Mr. Buoc brought seven different charter applications alleging a variety of Charter breaches and requesting the remedy of a stay of proceedings. He further brought an application to quash the committal following the preliminary inquiry and applied to adjourn the trial scheduled to commence on February 10, 2020. A written endorsement was provided on October 17, 2019 denying the applications. However, Mr. Buoc was granted the opportunity to cross-examine certain witnesses by way of discovery, as alternative relief for his application to quash the preliminary inquiry committal.
• January 28, 2020: Mr. Buoc brought a second application to adjourn the trial, a further stay of proceedings application, an application to release exhibits held by the Centre of Forensic Sciences, and an application for an order allowing for the retroactive funding of transcripts. A written endorsement was provided on February 5, 2020 denying the applications except for the funding of transcripts.

d) First trial from February 10, 2020 to the declaration of a mistrial on October 13, 2020:

• From February 10, 2020 through to March 13, 2020 the first trial proceeded for about 20 days. On March 13, 2020 the Chief Justice of the Superior Court of Justice ordered that all courts close on account of the COVID-19 pandemic health risks.
• On March 16, 2020 in consultation with all the participants including the 12 members of the jury, the trial was adjourned to August 31, 2020 in anticipation that the courts would reopen by that time.
• Between March 16, 2020 and August 31, 2020, a series of trial management conferences were held, including meetings with government officials, with a view to retrofitting a courtroom that would allow for the safe running of a jury trial during the COVID pandemic.
• The retrofit was not ready until September 21, 2020. On that date, 2 of the 12 jurors were excused for safety reasons as they were over 70 years of age and the risk associated with COVID warranted their being discharged. The accused brought an application for the declaration of a mistrial on September 22, 2020. It was denied.
• Between September 22, 2020 and October 13, 2020 further complications arose, including a juror being injured in a biking accident, another juror indicating the desire to be excused on account of employment opportunities. These events made the continuation of the trial impossible. On October 13, 2020 a mistrial was declared, and new trial dates were set for September 7, 2021 for 10 weeks.

e) Pretrial motions in advance of the second trial:

• On July 9, 2021 and July 12, 2021, Mr. Buoc brought two applications in writing and orally: the first was to have me recuse myself as the presiding justice on the grounds of bias and the apprehension of bias; the second was a renewal of the change of venue application based on pre-trial publicity. A written endorsement was provided on July 21, 2021 denying both applications.
• On September 3, 2021, a ruling was provided with respect to the issue of the questions to be asked and procedure to be followed on three separate challenge for cause questions. The reasons for the ruling were provided in writing in the form of an endorsement and form part of the court record.

The Second Trial: Jury Selection and Rulings:

Ruling 1: Decision Not to Discharge Juror Number Nine:

[9] Jury selection for the second trial began September 8, 2021. Safety protocols put in place because of the COVID pandemic required that the jury panel be spread throughout the courthouse, and that the instructions to the panel be provided via closed-circuit television.

[10] The effect was that when a juror’s number was called, having that juror come forward into the courtroom required a great deal more time than would have otherwise been needed in normal circumstances.

[11] Members of the jury panel waited an inordinate amount of time before being processed.

[12] The method of jury selection employed was that ten people would be processed at a time, and they would be provided a questionnaire in advance that listed the various potential reasons for being excused from jury duty. Included in the questionnaire were the three challenge for cause questions in written form.

[13] The challenge for cause questions concerned pretrial publicity, unconscious bias, and race. The wording of the questions was as follows:

a) Have you heard or read anything about this case before today? Have you formed any opinion on the matter? If so, do you promise to set aside that opinion and render a verdict that is based solely upon the evidence you here at the trial and my instructions as the trial judge?

b) You heard my instructions to the panel on the issue of unconscious bias, do you recognize the existence of such a bias? Do you promise to carefully reflect on this bias, to consider whether you are influenced by it and to the best of your ability set it aside and decide the case on the evidence and my instructions as the trial judge?

c) Ask yourself in this case whether you have any beliefs or preconceived notions about black men. If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence heard during the trial and on the instructions of the trial judge?

[14] At the end of the day on September 8, 2021, 12 jurors and 2 alternates were selected. The trial proper was to commence September 9, and once evidence was called the two alternates were to be discharged and the trial would proceed with 12 jurors.

[15] The trial began with my providing opening instructions to the jury, the Crown then gave a detailed opening address setting out the allegations against the accused, and Mr. Buoc was permitted, at his request, to give an opening statement. The first witness began her testimony, and a recess was called at which point in time the two alternates were discharged.

[16] Prior to reconvening for the balance of the afternoon session, a note was received from juror number nine. The note indicated the following:

Dear Judge,

I would like to disclose that on the morning of September 8, the day of the jury selection, following the disclosure of the case that the jury selection was being performed for, I googled the July 2017 shooting. This led me to reading a series of articles about the case and the fact that the previous trial of 2020 resulted in a mistrial.

When answering the questionnaire prior to appearing in the courtroom for your questions, I accurately answered the questionnaire when asked “prior to today, have you read/heard anything pertaining to this case” (more or less), I answered no, because prior to that day, I had not read/heard anything about the case, to my knowledge.

I mentioned to a co-juror that I had read a few articles about the case on the day of jury selection and some concern was voiced that this should be disclosed to you.

In my opinion, the articles I read have zero impact on my ability to serve as an unbiased member of this jury. Nothing I read leads me to be impartial in listening to the evidence testimonies or reviewing the exhibits provided to us as jurors.

I am only sharing this information to ensure transparency on my part. I would greatly regret if my actions of reading articles, that have zero impact on my ability to serve as an unbiased impartial juror would somehow lead to a mistrial.

Sincere apologies for any misconduct if it is so deemed on my part prior to being selected as a juror for this trial. I am available to discuss further at any time you would like.

Thank you

Juror number 9

[17] The note was read on the record and photocopies were provided to Crown counsel, amicus curiae, and Mr. Buoc.

[18] Section 644(1) of the Criminal Code stipulates that “Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.”

[19] Other reasonable cause includes ensuring a competent and impartial jury: see Regina v. Holcomb (1973), 12 C.C.C. (2d) 417 (N.B. S.C.), at p. 422, aff’d (1973), 15 C.C.C. (2d) 239 (S.C.C.).

[20] Counsel and Mr. Buoc agreed that an inquiry of the juror was warranted and that the parties would have input as to the questions to be asked and that I would conduct the questioning. The procedure followed in conducting the inquiry was as set out by the Ontario Court of Appeal in the decision of R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para 143:

[143] Juror inquiries under s. 644(1) should take place in open court, on the record, in the presence of the accused and counsel. The inquiry should be conducted by the trial judge. At least so far it relates to the juror(s) affected, counsel should be permitted to suggest questions to be asked of the juror(s) and to make submissions about the decision to be made, but not permitted to question the juror directly: Hanna, at p. 312 C.C.C.

[21] The questions asked of the juror and his responses during the inquiry can be summarised as follows:

a) What did you read? When did you read it? How much did you read? The juror responded that he googled the articles from his iPhone while waiting to see if his number was going to be called and prior to the challenge for cause questions being asked. He indicated that he read a few articles mostly about the arrest of the accused in July 2017 and the mistrial that was declared in October 2020. He did not read the articles in detail.

b) Who amongst the jury did you talk to? What did you tell them? He advised that he told one other juror about it without mentioning the content of the articles, which resulted in his providing the note to the court.

c) Will what you have read affect your ability to give a decision based only on the evidence and my instructions as the trial judge? He indicated that he received far more details about the case from the opening statement provided by the Crown Attorney than from anything he had read. He stated in no uncertain terms that what he read would not affect his ability to try the case impartially on the evidence and on the instructions I would provide as the trial judge.

[22] I found that the juror answered the questions in a forthright and candid manner, he was apologetic for having read the articles and indicated in no uncertain terms that it would not affect his ability to impartially try the case.

[23] The Crown took the position that the juror should not be discharged in the circumstances, Mr. Buoc took the position that the juror should be discharged. He submitted that the juror would not be able to try the case impartially based on having read the articles and on how he answered the challenge for cause question pertaining to pre-trial publicity.

[24] The Court of Appeal in Durant, at paras. 146 to 151, set out the standard and principles to be applied in determining whether a juror should be discharged on the grounds of a lack of impartiality. The principles can be summarized as follows:

a) There is a presumption that a juror will act impartially.

b) The standard that a party seeking to rebut the presumption will depend on the issue to be decided.

c) There must be a realistic potential for partiality.

d) The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons.

e) The test is what would an informed person conclude, viewing the matter realistically and practically and having thought the matter through.

f) A judge deciding a s. 644 application should take into account the juror’s oath or affirmation, the presumption of impartiality, the contents of the instructions to the jury on fundamental legal principles like the need to keep an open mind, how to assess evidence, the relevance of extraneous considerations and the proper conduct of the deliberative process.

[25] After considering the answers provided by juror number nine, the submissions of the parties and applying the governing principles I concluded that the juror should not be discharged for the following specific reasons:

a) The challenge for cause question should have been worded more accurately had it used wording such as “at any time” rather than “prior to today”, I am confident juror number nine would’ve said yes he had read articles and that he would not have formulated an opinion concerning the case based on those articles.

b) The juror came forward early in the proceeding once realizing his potential error.

c) In his note to the court and by his answers during the inquiry, juror number nine strongly asserted that he would not be influenced by this extraneous information.

d) His answers demonstrated that he would approach the case without bias or partiality and base his decision on the evidence and my instructions as the trial judge.

e) The answer to the question of how much information he obtained from what he read being far less than the information contained in the opening statement by the Crown Attorney was telling. It appears to me that the juror clearly understood the difference between an opening statement, media articles, and evidence, in that what he must consider is the evidence and nothing else.

[26] Therefore, I denied Mr. Buoc’s request to have juror number nine discharged pursuant to s. 644(1) of the code.

Ruling 2: Witnesses Being Allowed to Testify Remotely Pursuant to S. 714.1:

[27] The Crown applied pursuant to s. 714.1 of the Criminal Code to have several witnesses provide their testimony by way of video conference/zoom link. The applications were brought both as pre-trial motions and during the trial proper.

[28] Mr. Buoc in every instance requested that the witnesses testify in person arguing that video testimony would compromise his right to make full answer and defence. He submitted that the jury would not be able to fully appreciate demeanour and body language when assessing the credibility and reliability of a given witness. He further submitted that persons appearing in open court allow for much more effective presentation and cross-examination.

[29] Section 714.1 of the code provides as follows:

714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear personally;

(c) the nature of the witness’ anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused’s right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them if the court were to order the evidence to be given by audioconference.

[30] The provision provides a court with the discretion to allow witness to testify from outside of the courtroom and from anywhere in Canada. The test is one of appropriateness, considering all of the circumstances including the enumerated factors.

[31] The Crown applications were granted in each case based upon the following reasoning:

a) The COVID-19 pandemic had a significant impact on this trial. The configuration of the courtroom was not the same. The jurors sat four feet apart from each other, they wore masks, they were behind plexiglass, as were counsel and any witness who happened to testify in open court. Because of safety protocols and distancing requirements, four, five, or six of the jurors would watch in person witness testimony via a large TV monitor because they could not see the witness from their position in the courtroom. For half the jury, having someone testify in person or via videoconference link was for all intents and purposes indistinguishable. It was a product of our times.

b) Trial courts have learned in the last 22 months that remote trials, even where the decision hinges on the credibility and reliability of a witness’s testimony, do not in any significant way compromise an accused person’s right to a fair trial. Entire judge alone criminal trials have taken place via zoom or closed-circuit television.

c) The courts during the pandemic were advised that the fewer people that were in person in the courtroom the better in terms of reducing the risk of transmission.

d) All of the witnesses in question had valid logistical reasons to testify remotely, particularly in the context of the COVID pandemic. Some of the witness’s testimony was uncontroverted for example: Benjamin Sampson, Ingrid Bugyra, and Tannis Gornal were witnesses from the Centre of Forensic Sciences. They all resided in the area of Toronto. Their travelling to Ottawa to testify in person was not practical, efficient, or logical in the circumstances. Furthermore in their case, the court was made aware of a backlog in their work that could impact on trials nationwide, and consideration was asked to be given respecting the amount of time they would need to present their evidence. The presentation of their evidence via video link did not prejudice in any way the accused’s right to make full answer and defence.

e) Jacob Walker resided in Saskatchewan; travel to Ottawa during the pandemic justified his testifying remotely. Mr. Buoc submitted that his credibility was significantly in question based upon his testimony at the first trial. Jacob Walker testified about something he heard from outside his bathroom window on July 24, 2017, the day of the incident. The accused’s ability to cross-examine on prior statements was not compromised by reason of having Mr. Walker testify remotely.

f) Liseanne Forand is a resident of British Columbia, her evidence was brief and uncontroverted, there was no need for her to testify in person.

g) Robert Costanzo is an employee of Rogers and he resided in Toronto, his evidence was technical and uncontroverted. There was no need to have him physically in the courtroom.

h) Christina Carey was a paramedic who resides in Ottawa, she was advised for safety protocols by her employer to avoid in person contact unless necessary. She was permitted to testify remotely; her evidence was brief and uncontroversial.

i) The case law suggests that the discretion to allow someone to testify remotely under s. 714.1 is justified if there is a good reason to allow that evidence to be presented in that manner. Applying the factors set out in the code and considering the configuration of the courtroom, COVID safety protocols and the danger of travelling during the COVID pandemic all led me to the conclusion that these witnesses should be allowed to testify remotely.

Ruling 3: Section 11(b) Charter Application

[32] Towards the end of the trial, Mr. Buoc brought an application on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed, and the relief he sought was an order staying the proceedings. The application was dismissed; what follows are the written reasons for that dismissal.

[33] The applicable principles and framework to determine s.11(b) applications are set out in the Supreme Court of Canada decisions of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R 659.

[34] I would summarize the essential governing principles or framework to be taken from the Jordan and Cody cases in the following manner:

a) There is a 30-month presumptive ceiling for matters tried in the Superior Court of Justice. The clock runs from the date that the accused is charged and ends with the actual anticipated end of the trial. If that time frame exceeds 30 months there is a presumption that the delay has become unreasonable: see Jordan, at paras. 46-47; Cody, at paras. 20, 24.

b) There is a three-step analysis to be used: first, calculate the delay; second, deduct from the total any delay waived by defence or caused by the conduct of the defence; and third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there were exceptional circumstances. If the Crown fails to do so, a stay must follow: see Jordan, at paras. 66-68; Cody, at paras. 21-24.

c) Defence waiver can be explicit or implicit. It must be clear and unequivocal; a complete understanding of the right and the effect of waiving the right must be demonstrated: see Jordan, at para. 61; Cody, at para. 27.

d) Delay attributable to the Defence would include: conduct that causes or directly contributes to delay; calculated tactics designed to delay the matter, such as frivolous applications or requests; and defence unavailability, so long as both the court and the Crown are ready to proceed. If they are not, the delay will not be found to be caused by the Defence: see Jordan, at paras. 63-64; Cody, at paras. 29-30.

e) Any conduct by the Defence undertaken to legitimately respond to the charge will fall outside of the definition of Defence delay: see Jordan, at para. 65; Cody, at paras. 31-32.

f) Exceptional circumstances are those that are outside of the control of the Crown. They must be reasonably unforeseen or unavoidable and the Crown must not have been able to reasonably remedy the delay caused in the circumstances. They come into two categories: discrete events and particularly complex cases. Importantly, when such a delay occurs, it is incumbent upon the Crown and the court to do what it can to mitigate the effect of the delay. The seriousness of the offence standing alone will not be considered an exceptional circumstance: see Jordan, at paras. 69-81; Cody, at paras. 44-48, 63-64.

g) In cases that fall below the presumptive 30-month ceiling, stays will be rare and limited to the clearest of cases, the reason being that the ceiling “factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases”: Jordan, at para. 83. Jordan further indicated that stays of proceedings will be difficult to obtain for cases currently in the system that are beneath the presumptive ceiling, given the level of institutional delay tolerated under the previous approach: see Jordan at para. 101.

h) If the period of delay is under 30 months in the Superior Court of Justice, the burden shifts to the Defence to show that the delay is unreasonable. The Defence must show that it took meaningful, sustained steps to expedite the proceeding, and that the case took markedly longer to conclude than it should have: see Jordan, at paras. 298-99.

[35] The COVID pandemic was and continues to be an exceptional circumstance and it is a discrete event outside the control of everyone. As I author this decision, jury trials were suspended until at least the end of the month of February 2022.

[36] Mr. Buoc did not file an evidentiary record in support of his application. The court nonetheless permitted him to proceed. The court’s involvement in the matter since July 2019 afforded sufficient knowledge of the history of the proceedings to allow him to go forward with his application in the circumstances of this case.

[37] Mr. Buoc was arrested on July 27, 2017, his trial and conviction for two counts of second-degree murder and one count of attempted murder was completed on November 29, 2021, and he was sentenced on January 12, 2022 to three terms of life imprisonment without eligibility for parole for 25 years to run concurrently.

[38] The amount of time from arrest until the completion of trial exceeded 52 months. On the face of it, an inordinately lengthy period. That said, the application was dismissed. The dismissal was based upon the following analysis:

a) From July 27, 2017 to November 2, 2018 (15 months): The matter was in the Ontario Court of Justice. There are instances during that time frame where Mr. Buoc caused the delay or by implication waived his s. 11 (b) right. For example, on October 5, 2017 counsel representing the accused and the Crown were seeking three days for a preliminary inquiry and dates were offered in January 2018. Mr. Buoc adamantly refused the dates. Mr. Buoc was going to or had initially retained seven different lawyers to represent him and conduct the preliminary inquiry; the revolving door of lawyers caused some delay. Ultimately, he represented himself at the preliminary inquiry, which proceeded in October 2018. Defence delay or waiver of s. 11 (b) accounted for nine months of this time.

b) From November 2, 2018 to March 16, 2020 (16.5 months): The matter was in the Superior Court of Justice. Originally the trial was scheduled for eight weeks commencing in the month of September 2019. However, the trial dates were vacated at the request of the accused and some of the dates were converted into pretrial motion days. The new trial date was scheduled for completion on April 3, 2020. Mr. Buoc explicitly waived any s. 11 (b) argument resulting from the change in those dates, a timeframe of at least seven months.

c) As of March 12, 2020, the first trial was well underway and the jury had sat through 20 days of evidence from 18 witnesses. Unfortunately, it was around this time that the decision was made to shut down the courts on account of the health concerns associated with the COVID pandemic; absent the pandemic, the trial would have been completed on April 2, 2020. When factoring in waiver and defence delay, the timeframe to complete the first trial would have been approximately 17 months and well below the 30-month presumptive ceiling.

d) March 16, 2020 to October 13, 2020 (six months): This timeframe was occupied by efforts to salvage the first trial, it was originally adjourned to August 31, 2020 for continuation; it was hoped that the pandemic would subside, and that the court rooms could be made COVID safe. Trial management conferences were held with the parties including government officials with respect to the issue of retrofitting a courtroom for COVID safety. The courtroom was not completed on the anticipated August 31, 2020 date and the matter was adjourned for continuation to September 21, 2020.

e) On September 21, 2020 two jurors, aged 73 and 78, were discharged due to COVID related health concerns. On September 22, 2020 Mr. Buoc brought an application for a mistrial. It was denied. The trial did not get underway due to other problems such as jurors or counsel being COVID symptomatic, and a juror being injured in a cycling accident. The court indicated that it would re-visit the mistrial application. The Crown set new trial dates for ten weeks in September of 2021 on the chance the matter was mis-tried. On October 13, 2020 the matter was mis-tried. The court offered to conclude the trial as a judge alone trial, Mr. Buoc as is his right insisted on continuing with a jury. The six months delay to attempt to continue the first trial was caused by the Covid pandemic.

f) October 13, 2020 to January 12, 2022 (15 months): The second trial was successfully completed on November 29, 2021 and Mr. Buoc was sentenced on January 12, 2022. In the year 2021, at various times jury proceedings were suspended on account of the COVID pandemic. Transcripts of the entire first trial were requested initially by Mr. Buoc and then by the Crown; their completion took several months. I find that at least 8 months of this time frame was delay attributable to the COVID pandemic.

g) Finally, I would add that on two separate occasions Mr. Buoc brought applications for lengthy adjournments with the understanding that he would waive any s. 11(b) claims. These adjournment requests were denied, but had they been granted, the trial of this matter would have taken about the same amount of time to complete.

[39] Therefore, the s. 11 (b) application was dismissed. After applying the principles articulated in R. v. Jordan and R. v. Cody, including subtracting defence delay, the periods where s. 11 (b) was waived, and factoring in the delay caused by the COVID pandemic, the timeframe to bring this matter to a conclusion did not infringe Mr. Buoc’s right to be tried within a reasonable time in the circumstances of this case.

Ruling 4: Hearsay Statements by Talal Al-Shammari and the Res Gestae Exception:

[40] This was a crown application to allow into evidence, for the truth of their contents, statements made by Talal Al-Shammari to Mr. Hugh Manson and Mr. Greg Macdonald.

[41] The essence of the statements were “why would my friend shoot me” made firstly to or in the presence of Mr. Hugh Manson in his motor vehicle while he was transporting Talal Al-Shammari to the hospital following his having been shot.

[42] There were similar statements made to Mr. Greg Macdonald, a security personnel at the Carleton Queensway Hospital who heard Talal Al-Shammari repeatedly make that statement while he was being attended to by the emergency hospital staff.

[43] The utterances were allowed as an exception to the hearsay rule by application of the following legal principles to the timeline and triggering event:

a) The doctrine of res gestae permits the evidence of hearsay statements that occurred contemporaneously with the act in question or so substantially contemporaneously as to reduce the possibility of concoction or distortion. In other words, statements made within the time period close to the trigger event are admissible if there was little opportunity for them to be concocted or distorted: see R. v. Slugowski (1985), 17 C.C.C. (3d) (B.C. C.A.).

b) Court of Appeal for Ontario Justice David Paciocco in his text The Law of Evidence wrote that a “statement relating to a startling event or condition. . . may be admitted and entered to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause[d] by the event or condition”: see David M. Paccioco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191.

c) The circumstances of Talal Al-Shammari giving the statements to Mr. Hugh Manson and Mr. Greg Macdonald fall squarely into these types of statements. He was shot through the shoulder, the neck, and the finger shortly before Mr. Hugh Manson escorted him to the hospital. He would have clearly been in a state of shock, the possibility of concoction simply did not exist. That state of mind would have continued seven or eight minutes later when he arrived at the hospital and made similar statements in the presence of Mr. Greg Macdonald.

[44] In the final charge to the jury in describing the use that could be made of the statements, I indicated the following:

During this trial you have heard evidence from witnesses as to utterances made to them by Talal Al-Shammari.

Ordinarily, neither the Crown nor the Accused are entitled to tender through one witness, the out of court utterances of another, for the truth of that utterance. This is what is referred to as “hearsay”.

Hugh Manson and Greg Macdonald’s testimony described utterances made to them by Talal Al-Shammari. The words they say he uttered repeatedly were to the effect “why would my friend shoot me”.

The fact that words were spoken, whether they were true or not, can be evidence of the state of mind of the speaker, and, when tendered for that purpose, are not hearsay.

In this case because of the physical condition of Talal Al-Shammari and the circumstances of when he made the utterances they can be seen to go to his state of mind and can also be considered for the truth of their contents.

However, you cannot use the mere repetition of what was said to support the proposition that what was said was truthful. You should also consider the condition of Talal Al-Shammari at the time and the circumstances he was in when making the statements.

Miscellaneous Rulings:

[45] There were three further rulings where the decision was obvious and did not require a detailed analysis.

[46] The Crown sought leave to call more than five expert opinion witnesses pursuant to s. 7 of the Canada Evidence Act, R.S.C., 1985, c. C-5: there were a total of six expert witnesses called on behalf of the Crown. Detective Paul Hart was the additional expert, he was called on a very discreet issue, in particular the trajectory of a bullet and how it came to be lodged in the glove compartment of the motor vehicle. The necessity for his testimony arose as a result the suggestion made by Mr. Buoc that the bullet in question may have been planted in the vehicle by the police. The benefit of the testimony outweighed its costs.

[47] Mr. Buoc brought an application for a directed verdict at the close of the Crown case. It was denied as it was without merit. There was clearly sufficient evidence to go to the jury on all three counts in the indictment: see R. v. Al-Enzi, 2021 ONCA 81, at paras. 148-150.

[48] Mr. Buoc also applied to have a Vetrovec warning given to the jury with respect to the testimony of Talal Al-Shammari: see Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at p. 823, 831. The witness was clearly not the type of witness that warranted a Vetrovec instruction. He had no criminal record and he was not of an unsavoury character.

Role of Amicus Curiae:

[49] Alam Buoc was self represented. He was adamant in his desire to represent himself. In fact, he strenuously objected to the Crown’s application to appoint a lawyer to conduct the cross-examination of the surviving complainant Talal Al-Shammari. The court allowed him to conduct the entirety of his defence, including the cross-examination of Mr. Al-Shammari.

[50] In March 2019, James Foord, an experienced criminal defence lawyer, was appointed as amicus. His appointment in the circumstances of this case was to assist the court in assisting Mr. Buoc in the conduct of his defence.

[51] This was a difficult trial. The difficulties were exacerbated by the onset of the COVID-19 pandemic. Extraordinary issues for the judge, lawyers and the self represented accused, such as developing safety protocols for the participants and how to retrofit a courtroom so it was COVID-19 safe but functional, became part of the exercise.

[52] In the recent decision of R. v. Kahsai, 2022 ABCA 12, the Court of Appeal for Alberta succinctly set out the trial judge’s duty to a self represented accused. At para. 70, they indicated the following:

[70] The trial judge’s duty to a self-represented accused is to “aid the accused in the proper conduct of his defence” and “guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect”. But the exercise of this duty is context-dependent and limited by the judge’s role as an independent arbiter. The self-represented accused’s “need for guidance” will vary “depending on the crime, the facts, the defences raised and the accused’s sophistication”. What kind of assistance a trial judge should provide to an accused is a matter of judicial discretion. A trial judge is prohibited from providing the “kind of advice that counsel could be expected to provide,” nor can they “conduct the type of cross-examination that would be expected from defence counsel”. The trial judge must “remain neutral and cannot intervene in the active ways that defence counsel can intervene, such as by taking over cross-examination and by providing strategic advice”. [Citations omitted.]

[53] In Kahsai, at paras. 74, 76, and 77, the role of amicus curiae was also described in some detail. The court set out the principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“CLA”), together with some of the jurisprudence since CLA that distinguished it on the basis that the concerns raised about the role of amicus didn’t apply to the facts of a given case:

[74] In CLA, both the majority and dissent issued reasons warning against the appointment of an amicus to a role akin to defence counsel, holding that “once clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a ‘friend of the court’”: CLA majority at para 49, quoting from the dissent at para 114. The majority held that when “the terms for the appointment of amici mirror the responsibility of defence counsel, they blur the lines between these two roles, and are fraught with complexity and bristle with danger”: CLA at para 50. This warning was motivated by five reasons:

i) The appointment of an amicus to a defence-like role may conflict with the accused’s constitutional right to represent himself: CLA at para 51.

ii) An amicus assuming such a role may defeat the judicial decision to refuse to grant state-funded counsel following an application invoking the accused’s fair trial rights under the Charter: CLA at para 52.

iii) The inherent tension between the duties of an amicus who is asked to represent the interests of the accused, especially where counsel is taking instructions, and the separate obligations of the amicus to the court. This tension may become a potential conflict if the amicus’ obligations to the court require legal submissions that are not favourable to the accused or are contrary to the accused’s wishes: CLA at para 53.

iv) The use of an amicus to assist the accused on all matters goes beyond the assistance that could be provided by a trial justice and thereby enables the justice to do indirectly something that she would not be permitted to do directly: CLA at para 54.

v) Appointing amici to such a role will undermine the provincial Legal Aid scheme: CLA at para 55.

[76] Since CLA, courts have appointed amici to defence-like roles in exceptional situations. In R. v. C.M.L., 2016 ONSC 5332, the court decided to appoint an amicus to a defence-like role on the basis that CLA failed to address particularly challenging situations, “such as where the accused is mentally ill, but nevertheless fit to stand trial; where the accused refuses to participate in the trial for whatever reason; or where there is a real risk of wrongful conviction as a result of the manner in which an unrepresented accused is presenting his or her case.”: CML at para 68. In such cases, there may be a danger of a miscarriage of justice. Additionally, none of the reasons listed in CLA as to why an amicus in a defence-like role may be dangerous applied to the circumstances of the case at hand: CML at paras 70-75.

[77] Cases have followed the same reasoning as CML. In R. v. Mastronardi, 2015 BCCA 338, the appellant had repeatedly delayed trial by discharging his counsel. To remedy this problem, the trial judge appointed as amicus the defence counsel who had just been discharged and had them conduct the accused’s defence. The British Columbia Court of Appeal held there was no danger of a miscarriage of justice and the CLA reasons for not appointing a defence-like amicus were not relevant in the circumstances: Mastronardi at paras 42-46.

[54] The role of Amicus in this case included but was not limited to the following:

a) At my request, and in the early stages, Mr. Foord together with one of the Ontario Superior Court law clerks prepared a 43-page guide to the conduct of a criminal trial. The guide was comprehensive, easy to understand and included information about the particulars of a jury trial, the elements of the offence of first-degree murder and attempted murder, the test before defences could be put before a jury, and courtroom decorum. It was filed as an exhibit in the first trial.

b) Throughout the proceedings Mr. Buoc was given several versions of the Criminal Code of Canada, a copy of any statute/legislation he requested, any case law he requested, and frequently transcripts when requested. The amicus also provided him with a laptop whenever he was in the courtroom.

c) Whenever Mr Buoc raised an issue, where appropriate, the amicus would provide Mr Buoc with written material outlining the law in that area.

d) During pretrial motions and at the two-trials, Mr. Buoc sought the advice of Mr. Foord daily. This included the manner of and appropriateness of questioning during cross-examination. It also included advice on any unforeseen issues or applications that were brought by the Crown. Finally, it included offering advice on how he may want to present his closing arguments to the jury.

[55] To be clear, Mr. Buoc was always his own lawyer. Whatever advice the amicus provided him was something he could take or leave. In essence, the assistance that was provided allowed for a fair and as efficient as possible trial.

[56] The best example of Mr. Buoc being the master of his own defence took place during the cross-examination of the surviving complainant, Mr.Talal Al-Shammari. The witness had given five prior statements to the Ottawa Police Service. The statements were either audio-recorded or audio and video recorded, and Mr. Buoc insisted they be played before the jury in their entirety during the cross-examination. They were ostensibly used for the purposes of eliciting prior inconsistent statements, and as a means of suggesting that the police coerced/coached the witness into testifying against him.

[57] The court and the amici suggested to him that this might be improvident, in that some of the statements arguably contained prior consistent statements that could be prejudicial to the accused. The suggestions were ignored at both the first and second trial.

[58] The playing of the statements necessitated a mid-trial and final jury instruction concerning the use that could be made thereof. Those instructions were as follows:

With respect to the five out-of-court statements made by Talal Al-Shammari that were played during his cross-examination, three audio recorded statements at the hospital on July 24 and July 25-26, 2017, and two audio video recorded on August 15, 2017 and September 26, 2019. They have been filed as exhibit 94-A to E. During the cross-examination, excerpts from prior testimony were also often referenced.

The following instruction concerns what use you can and cannot make of these statements.

• The statements can be used as evidence as to when, where and the circumstances of how they were made.
• For the fact of what was said at the time compared to what was said at this trial as circumstantial evidence of whether there was any coercion or coaching.
• As evidence of Talal Al-Shammari’s health and medical condition and his ability to recall events following the shooting.

During the playing of the statements you also heard the police say certain things. Their words and comments are evidence of the narrative of the process of the taking of the statements, however what they say about the case is not evidence. You should disregard any comments they made about the law. Specifically the comments by Detective Séguin and Sgt O’Brien about the state of the law.

You must only follow the instructions on the law that I provide.

Prior inconsistent statements and prior statements generally:

When a witness says one thing in the witness box, but has said something you find to be different about the same event or thing on an earlier occasion, your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’s testimony.

The first thing for you to decide is whether Talal Al- Shammari, or any witness for that matter, in fact, gave an earlier and different version from his testimony about the same event or thing.

If you do not find that Talal Al-Shammari or a given witness gave an earlier and different version of the same event or thing, you must not use that earlier version in deciding how much or little you will believe of or rely upon Talal Al-Shammari’s or a particular witnesses evidence in deciding this case, or for any other purpose.

If you find, after you’ve heard all the evidence, that Talal Al-Shammari or a given witness gave an earlier and different version of the same events or thing, you should consider the fact, nature, and extent of any differences between the versions in deciding whether or how much you will believe of or rely upon Talal Al- Shammari’s testimony in deciding this case. You should bear in mind that not every difference or omission will be significant and you should also take into account any explanation the witness gives for any differences or omissions.

You must not use the earlier statements as evidence of what actually happened unless you are satisfied that Talal Al-Shammari accepted or adopted the earlier version as true in testifying at trial. Even if he accepted the earlier version as true when testifying before you, it is for you to say, as it is with the evidence of any witness whether or how much you will believe of and rely upon that statement he accepted as true in reaching your decision.

As well in this case, you must not utilize the mere repetition of information made in prior statements as a means of enhancing the credibility or reliability of a witness.

[59] The court owes a debt of gratitude to Mr. Foord, his work was always excellent.

Conclusion:

[60] The long road to a verdict in the Alam Buoc case was certainly an arduous one. I would be remiss if I didn’t commend all the criminal justice participants involved in this matter, including the Crowns (particularly Mr. Cavanagh who was lead Crown on both trials), Mr. Foord, the court services officers, the registrars, the court reporters, the jurors (in both trials), the lead investigators, and the local manager of court operations and her staff for their hard work and dedication to help bring this matter to a conclusion.

Released: February 15, 2022 COURT FILE NO.: 17-M7917 DATE: 2022/02/15 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – ALAM BUOC Reasons for rulings on TRIAL and pre-trial motions Maranger J. Released: February 15, 2022