R. v. Marc Issa El-Khoury, 2022 ONSC 629

COURT FILE NO.: CR-18-1857

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

B. McGuire and E. Taylor, for the Crown/Respondent

• and –

Marc Issa El-Khoury

G. Grill and L. Salloum, for the Defendant/Applicant

W. Thompson for the Defendant Marckens Vilme

N. Sachak for the Defendant Brandon Reyes

A.Goldkind for the Defendant Joseph Pallotta

HEARD: Nov. 22 & 24, Dec. 8 & 9, 2021

REASONS FOR RULINGS ON SEVERANCE & HEARSAY APPLICATIONS

BALTMAN J.

[1] The Applicant, Mr. Issa El-Khoury, is one of four individuals charged with first degree murder. His co-accused are Marckens Vilme, Brandon Reyes and Joseph Pallotta. The victim is Michael Deabaitua-Schulde, a full patch member of the Hell’s Angels motorcycle club, who was gunned down on March 11, 2019 as he left the HUF gym in Mississauga.

[2] The Crown alleges that all four defendants were part of a planned and deliberate murder. The Crown’s theory is that Vilme and Reyes were the two shooters, who left the scene in a blue Honda driven by Pallotta. At the time of the takedown, Deabaitua-Schulde was under surveillance by the Ontario Provincial Police (“OPP”) who, covertly stationed outside the gym, immediately became aware of the shooting. They followed the Honda Civic to a nearby second location, on Rymal Road., where the fourth man, admitted to be Issa El-Khoury, was waiting in a black Santa Fe. There, the first getaway car was set on fire, and Issa El-Khoury drove all the men rapidly away in the Santa Fe.

[3] All four defendants live in the Montreal area but made their way to the GTA prior to March 11. Pallotta checked into the Motel 6 in Brampton on March 7. Reyes first appears on the evening of March 10, when he is seen with Pallotta at the Motel 6. Vilme and Issa El-Khoury stayed at an Air BNB apartment in downtown Toronto that Issa El-Khoury and his girlfriend, Jessica Riel, had been occupying in recent months.

[4] The Crown’s case against all four accused is largely circumstantial. However, as Issa El-Khoury has admitted he was the second getaway driver following the shooting (after the first getaway car was lit on fire by the other three co-accused), the only issue in his case is whether the Crown has proven that he knew about the plan to murder Deabaitua-Schulde and that when he drove his cohorts away from Rymal Road, after the first getaway car was lit on fire, he did so with the intention of assisting them in committing the murder and as part of the plan: R. v. Briscoe, 2010 SCC 13, at paras. 13-24.

[5] To address this issue, Issa El-Khoury seeks to sever his trial from that of his co-accused so that he can call Pallotta as a witness, or, in the alternative, have Pallotta’s post-arrest statement to the police on March 17, 2019, admitted as hearsay. In his statement, Pallotta repeatedly refers to Issa El-Khoury as “drunk” in the morning of the shooting. Issa El-Khoury therefore argues that Pallotta’s statement exonerates him or at least reduces his liability.

[6] I heard arguments on the severance issue on November 22 and 24, and dismissed the application, with reasons to follow. I heard arguments on the hearsay issue on December 8 and 9, and dismissed that application as well, with reasons to follow. These are my reasons on both matters.

Pallotta’s Post-Arrest Statement to the Police on March 17, 2019

[7] On March 17, 2019, Pallotta gave a statement to police following his arrest. The statement was recorded in its entirety and was given after Pallotta consulted with counsel and had been cautioned for murder. Pallotta has conceded the statement was voluntary. The Crown has not tendered it as part of its case and Pallotta has declined to testify or call evidence.

[8] In the statement, Pallotta told the police that he was asked by his cousin, Reyes, to help him and his friend, the “black guy” (Vilme) and his friend, “reflector guy” (Issa El-Khoury), by driving Reyes and Vilme to meet an “Arab guy” to “do a transaction” in Toronto.

[9] While Pallotta admitted that he set the first getaway car on fire, he maintained that he did not know that Reyes and Vilme planned to commit a murder and that he only set the car on fire because he had a lighter and Reyes had already doused it in gasoline.

[10] Of particular relevance to this application, Pallotta stated the following:

• He first met Issa El-Khoury and Vilme on the morning of March 11 when they arrived at the Motel 6.
• Both Issa El-Khoury and Vilme were drunk when they arrived.
• Reyes spoke for some length of time with Vilme, but Issa El-Khoury did not talk much because he was lying on a bed “drunked up”.
• The four men left the Motel 6 together, with Pallotta driving the Honda and Vilme driving the SUV; Issa El-Khoury and Reyes were passengers in the SUV.
• At some point after arriving at Rymal Road, Pallotta drove Vilme and Reyes to the HUF gym, leaving Issa El-Khoury in the SUV.
• Prior to the shooting, Issa El-Khoury indicated that he did not want to drive, he was too drunk, and they should hurry up.
• After the three co-accused returned to Rymal Road and set the Civic on fire, Issa El-Khoury did not want to bring Pallotta and Reyes back to the Motel 6 in Brampton.

SEVERANCE APPLICATION

[11] Issa El-Khoury argues that based on the above, Pallotta’s testimony is directly relevant and probative of the following issues:

1. Issa El-Khoury’s lack of knowledge of any plan and lack of intent to aid or abet in any offence;
2. The defence of intoxication negating the mens rea for first-degree murder specifically, and for murder in general; and,
3. The defence of abandonment.

[12] Issa El-Khoury also advised the court that he intends to testify and, therefore, argues that Pallotta’s statement will corroborate his anticipated testimony and enhance his credibility on the W(D) analysis.

Legal Framework

[13] Under s. 591(3) of the Criminal Code, where there is more than one accused, a trial judge may order that an accused be tried separately where they are satisfied “the interests of justice so require.” Where, as here, the Crown alleges that the accused acted in concert, there is a presumption in favour of a joint trial: R. v. Torbiak (1978), 1978 CanLII 2266 (ON CA), 40 C.C.C. (2d) 193 (Ont. C.A.), at para. 21.

[14] Additionally, it is generally in the interests of justice that persons alleged to have acted together will be tried jointly; a single trial conserves judicial resources, avoids repeated attendances by witnesses, and removes the possibility of inconsistent verdicts: R. v. Zvolensky, 2017 ONCA 273, paras. 24-35, 246-254.

[15] In this case the specific issue is whether a joint trial would deprive Issa El-Khoury of Pallotta’s evidence. In R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 28, the Court of Appeal stated that there are two factors that must be addressed by the trial judge when an accused seeks severance based on a claim that his right to make full answer and defence will be prejudiced unless he can compel one of his co-accused to testify.

• ➢ Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?
• ➢ If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?

[16] The Court added at para. 29 of Savoury that even if both factors are met, the trial judge may exercise their discretion against severance if there are other significant factors that outweigh the potential impact on the accused’s right to make full answer and defence if a joint trial were to proceed: “An accused is entitled to a fair trial, but not necessarily the ideal trial from the defence perspective.”

[17] At paras. 32-35, the Court also confirmed that the trial judge’s task is limited to considering whether the evidence of the co-accused could reasonably affect the verdict in a favourable manner for the accused seeking severance. The ultimate assessment of the co-accused’s reliability and credibility is for the jury.

Analysis

[18] The only indication that Issa El-Khoury has provided as to what Pallotta’s evidence might be if his trial is severed is Pallotta’s post-arrest statement to the police on March 17, 2019. However, this statement is a combination of Pallotta’s observations of Issa El-Khoury and things that Pallotta alleges that Issa El-Khoury said. While Pallotta’s observations of Issa El-Khoury would be admissible at his trial if Pallotta was a compellable witness, anything that Issa El-Khoury said to Pallotta is not as it violates the rule against self-serving statements and the general prohibition against an accused introducing out of court exculpatory statements for their truth.

[19] In R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, the Supreme Court set out this rule at para. 24, as follows:

As a general rule, the statements of an accused person made outside court – subject to a finding of voluntariness where the statement is made to one in authority – are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.

[20] Mr. Grill argues that in this case the statements are not hearsay, as they are not being submitted for their truth but rather to show Issa El-Khoury’s state of mind and, in particular, that he no longer wished to participate in the plan to murder. Alternatively, he argues, the statements fall within the res gestae exception to the hearsay rule, as they were made contemporaneously with the activity that preceded the murder.

[21] I disagree. On any sensible analysis, it is clear that the proposed statements are being submitted for the truth of their contents. Mr. Grill wants Issa El-Khoury’s statement that he was drunk admitted in order to prove that he was in fact drunk. Similarly, he wants Issa El-Khoury’s statement that he did not want to drive admitted precisely to prove that he did not want to drive. They are both exculpatory, self-serving statements and therefore inadmissible: R. v. Rojas, 2008 SCC 56, [2008] S.C.J. No. 58, at para. 36; R. v. Cowell, [2006] O.J. No. 2429 (C.A.), at paras. 4-6.

[22] Nor are these statements admissible under the res gestae exception. For a statement to be considered in that category, it must accompany and explain the relevant act: R. v. Sheri 2004 CanLII 8529 (ON CA), [2004] O.J. No. 1851 (C.A.), paras. 109-112. Here, there is no proximity to the acts in question. The alleged statements by Issa El-Khoury of his intoxication were made hours before the shooting. Even if he was drunk at that time, it has no relevance to his intentions and behaviour five hours later, when he drove the shooters away.

[23] Accordingly, Issa El-Khoury’s statements to Pallotta that he did not want to drive, that he was too drunk, and that the others should hurry up are inadmissible through Pallotta, as is anything else Issa El-Khoury allegedly said to Pallotta.

[24] As for Pallotta’s observations of Issa El-Khoury, they are either unfavourable to Issa El-Khoury or are too vague to help Issa El-Khoury in his defence. Specifically, Pallotta’s observation that Issa El-Khoury waited for the others on Rymel Road in the second getaway car and then drove them away after the first getaway car was incinerated strongly implicates Issa El-Khoury. And his observation that Issa El-Khoury was drunk and laid down on the bed when he first arrived at the Motel 6, several hours before Deabaitua-Schulde was shot to death, is both vague (there is no tangible evidence of how drunk he was) and remote in time (several hours before Issa El-Khoury acted as the getaway driver): R. v. Daley, 2007 SCC 53, at para. 44; R. v. Wallen, 1990 CanLII 146 (SCC), [1990] 1 S.C.R. 827, at paras. 6-7.

[25] Mr. Grill’s submission also ignores compelling evidence that at least part of the planning and deliberation for this murder must have occurred before the culprits gathered at the Motel 6 on the morning of March 11^th, and that Issa El-Khoury was part of that plan. Along with Mr. Vilme, he travelled from Montreal to the GTA two days in advance of the murder. He and Mr. Vilme lodged together in a Toronto apartment for two nights. On the morning of the murder, they drove together in the Santa Fe to the Motel 6. By then, someone had acquired the Honda, which was the first getaway car, and there is evidence that the victim’s movements were being traced through a tracking device attached to the underside of his car. Logic suggests not only that the plan had been implemented long before March 11, and was now just at its culminating phase, but that Issa El-Khoury was already part of it. He was certainly not parachuted in at the last minute.

[26] Consequently, even if Issa El-Khoury was drunk in the early morning of March 11, he likely already knew of the plan, and his assigned role in it. Moreover, there is a significant gap in time between 6 am, when Pallotta first observes Issa El-Khoury as “drunk”, and 11:00 am, when the shooting occurs. A jury could accept that Issa El-Khoury was in fact drunk when he first arrived at the motel, but have no basis to conclude that he remained so five hours later.

[27] Finally, there is nothing in Pallotta’s statement that supports a defence of abandonment. Far from indicating, as the Supreme Court has required, that Issa El-Khoury took “reasonable steps” to “neutralize or otherwise cancel” his participation, Pallotta confirms that Issa El-Khoury a) accompanied the other defendants to Rymal Road; b) waited there in the second getaway car after the other three left in the Honda, and c) when the three returned and set the Honda on fire, drove them away from the scene. That he later refused to drive Pallotta back to the Motel 6 in Brampton is remote and irrelevant; by then the deed was done. See R. v. Gauthier, 2013 SCC 32, [2013] S.C.J. No. 32, at para. 50.

Conclusion on Severance Application

[28] For the reasons set out above, I dismissed the severance application.

HEARSAY APPLICATION

[29] This application was opposed not only by the Crown but also by Vilme and Reyes, and as a result I received submissions from their counsel as well.

[30] After I dismissed the severance application, and before hearing the hearsay application, Issa El-Khoury and his girlfriend, Ms. Riel, testified. The highlights of their testimony that are particularly relevant to this application include:

From Issa El-Khoury

• In the late evening of March 10 and early morning hours of March 11 he consumed the equivalent of a 750 ml bottle of liquor, which was double his usual limit and left him very drunk.
• When he agreed to accompany Mr. Vilme to the Motel 6 (at approximately 6:00 am on March 11), he was still drunk and could not even walk straight.
• When they arrived at the Motel 6 (at approximately 6:45 am), he was still feeling very drunk.
• At 8:45 a.m., when he left the Motel 6 along with his three co-accused, he was not as drunk as before; he was “coming down” and he “stayed down.”
• While he was waiting on Rymal Road for his cohorts to return, he was not very intoxicated.
• By 11:15 am, when his cohorts returned, he was no longer drunk, but he told them he was because he did not want to drive them away.

From Ms. Riel

• On March 11, she returned to the apartment she shared with Issa El-Khoury at approximately 2:30 am.
• She saw that Issa El Khoury and Vilme were on their second bottle of liquor and both appeared drunk.

[31] Their evidence was corroborated by videotapes showing that a bottle of alcohol was delivered to their residence at 10:30 p.m. on March 10, and a further bottle at 2:30 a.m. on March 11, along with a videotape showing Issa El-Khoury’s appearance as he left the residence at approximately 6:00 a.m. on March 11.

Legal Framework

[32] In R. v. Srun, 2019 ONCA 453, at paras. 120-141, the Court of Appeal set out the principles that govern the admission of an out-of-court statement of a co-accused in a joint trial:

1. The general rule is that a statement made by an accused to the police, which is not made in furtherance of any common unlawful design, is evidence for and against only its maker and it cannot be considered in determining the co-accused’s culpability: R. v. Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100 (C.A.) at para. 117, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 583.
2. In some circumstances, an accused in a joint trial may be able to rely on the statement of a co-accused. To do this, the accused who seeks to rely on the co-accused’s out-of-court statement must establish its admissibility for this purpose under the principled exception to the hearsay rule.
3. There is no issue with respect to the necessity requirement of the principled exception to the hearsay rule as the co-accused is a competent but not a compellable witness for the accused seeking to admit the out-of-court statement.
4. The reliability requirement may be established in one of two ways.
5. Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath and under the scrutiny of contemporaneous cross-examination. This can include video recording the statement, administration of an oath and warning the declarant about the consequences of lying. However, some form of cross-examination is usually required.
6. Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process.
7. Procedural and substantive reliability are not mutually exclusive. They may work in tandem to overcome the dangers a statement might present where each, on its own, would be insufficient to establish reliability.
8. Even if the necessity and reliability requirements are met, the trial judge retains a discretion to exclude otherwise admissible hearsay if its probative value is outweighed by its prejudicial effect. However, where the proponent of the evidence is the accused, such discretion should be exercised only when the probative of the statement is substantially outweighed by its prejudicial effect.
9. The trial judge also has the discretion to admit hearsay evidence where necessity and reliability have not been met, provided such evidence is necessary to prevent a miscarriage of justice. However, relaxation of the rule does not mean that the reliability requirement is abandoned.
10. If the “exculpatory” evidence that the accused seeks to rely on is double hearsay, the accused must show the basis upon which each level of hearsay can be admitted.

[33] Finally, in R. v. Bradshaw, 2017 SCC 35, at para. 45, the Supreme Court set out an important stipulation about what evidence could be considered “corroborative” when assessing substantive reliability. The evidence must corroborate the specific part of the statement that the applicant seeks to rely upon:

[…] Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement [citations omitted]. Hearsay is tendered for the truth of its contents and corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that moving party seeks to rely on. Because threshold reliability is about admissibility of evidence, the focus must be on the aspect of the statement that is tendered for its truth. The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove.

[italics original, bold added]

Analysis

[34] In my view, the application fails on several grounds.

[35] First, Pallotta is a highly unreliable source. He is an admitted fraudster, who has in the past used false I.D. to commit crimes. Before this crime he signed into the Motel 6 under a false name. He is also a regular, heavy cocaine user, and admits he was “on crack” at the time of these events. Further, his statement is replete with lies, including denying that he possessed a phone (video evidence shows him with a phone on several occasions); asserting that the Honda was rented (he retrieved it from a soccer field); and, denying that he acquired the yellow construction gloves found in the burnt Honda (video evidence shows him stealing them from a gas station hours before the shooting). He also has a significant motive to minimize both his role and Issa El-Khoury’s role in the murder, as they are both alleged to be drivers and, therefore, similarly situated in the plot. Given Pallotta’s position that he was unknowing dupe, it makes sense for him to allege that of Issa El-Khoury as well.

[36] Second, aspects of Pallotta’s statement that Issa El-Khoury seeks to rely upon are double hearsay; namely, things that Issa El-Khoury allegedly said to Pallotta. This includes Issa El-Khoury’s alleged comments that he “didn’t wanna drive”, that he would “wait” for them “in the car” and “hurry up”, as Issa El-Khoury is seeking to introduce those statements not merely to show that he said those things but that they were true when he said them. Otherwise, they have no probative value and cannot assist him in his defence.

[37] For anything that Issa El-Khoury said to Pallotta to be admissible as part of Pallotta’s statement, Issa El-Khoury must show that what he said to Pallotta is also admissible as hearsay. However, as discussed above in response to Issa El-Khoury’s severance application, this violates the rule against self-serving statements and the general prohibition against an accused introducing out-of-court exculpatory statements for their truth, as set out in Simpson.

[38] Third, there is little corroboration for the remaining part of the statement that Issa El-Khoury specifically seeks to rely on, namely that he was drunk when the murder was being planned and/or when he drove the accused away from Rymal Road. As I observed above, the dynamics of this murder plot make it clear that it was conceived well before the morning of March 11^th. Ignoring any bias Ms. Riel may have in favour of Issa El-Khoury, her observations supporting his alleged intoxication relate only to the early morning hours of March 11^th. The same applies to the video evidence. Even if, as Issa El-Khoury maintains, he was never part of the earlier planning and was only roped in on the morning of March 11^th, Pallotta’s statement only speaks to Issa El-Khoury’s intoxication when they met up at the Motel 6 at approximately 6:45 am. That was several hours before 11:15 a.m., when Issa El-Khoury drove the three other men away from the shooting.

[39] Issa El-Khoury’s own evidence makes it clear he was not intoxicated when he drove his cohorts away from the scene. He testified that at 8:45 a.m., when the four men left the Motel 6, he was not as drunk as before – he was “coming down” and he “stayed down”. By that point, he was astute enough to realize this was not an innocent outing. Given that there were now four persons and two vehicles involved, he was “kind of suspicious” and thought his cohorts were “probably going to shake somebody” or “ask for money” or “use a little bit of intimidation.” Between 10:00 and 11:00 am, while he was waiting at Rymal Road for his cohorts to return from their escapade, he was “not very intoxicated”. And at 11:15 a.m., although he told his cohorts he was too drunk to drive them away from Rymal Rd., he testified that was “not true” – he only said it because he did not want to drive. And then he drove superbly, getting them from Rymal Road and Tomken Ave. to downtown Toronto in 14 minutes.

[40] Fourth, this application was vigorously opposed by both Vilme and Reyes, both of whom argued – compellingly – that admission of the statement would be highly prejudicial to them. At numerous points Pallotta implicates both Vilme (“the black guy”) and Reyes as the shooters, including attributing various statements to them. Aside from again raising the problem of double hearsay, those areas deserve extensive cross-examination, which would not be available if the statement was admitted for its truth. Further, I agree with these defendants that a jury instruction would be insufficient to remedy the potential prejudice where, as here, the hearsay statement suggests they had an active or central role in a conspiracy: R. v. Figliola, 2011 ONCA 457, paras. 100-104.

Conclusion on Hearsay Application

[41] For those reasons I dismissed the hearsay application.

Baltman J.

Released: January 28, 2022

COURT FILE NO.: CR-18-1857

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Crown

• and -

Marc Issa El-Khoury

Defendant

REASONS FOR RULINGS ON SEVERANCE & HEARSAY APPLICATIONS

BALTMAN J.

Released: January 28, 2022