Court File and Parties

COURT FILE NO.: CR-21-1-261 DATE: 20230417

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - SAAID MOHIADIN

Counsel: Tim DiMuzio and David Parry, for the Crown Dirk Derstein and Laura Remigio, for the accused

Heard: April 12-13, 2023

K.L. Campbell J.:

Mid-Trial Ruling

Application to Exclude Bank Records

A. Overview

[1] The accused, Saaid Mohiadin, is currently charged with the first-degree murder of Jerome Belle. The offence is alleged to have taken place in Toronto, on the afternoon of March 19, 2019. The trial proceedings in this matter started on March 21, 2023 and, after some pre-trial motions were resolved, have been unfolding before the jury in the days and weeks since then.

[2] It seems relatively clear from the evidence that Jerome Belle was shot to death on the afternoon of March 19, 2019, at approximately 3:25 p.m., near the intersection of Randolph Avenue and Bloom Street in the city of Toronto, while he was in the company of another individual who was out walking his dog, and who was physically unharmed in the shooting.

[3] It seems equally clear from the evidence that the killer was a man dressed in a “white hoodie” sweater, with the hood pulled up over his head, and the hood drawn tightly around his face so that little of his face can be seen. This individual is, fortuitously, seen getting out of a white Mercedes Benz vehicle parked relatively close to the geographic location of the killing just minutes before the shooting, and then quickly returning to it just minutes after the gun shots were fired, killing Jerome Belle. Indeed, this part of the case was recorded on a surveillance camera attached to a passing TTC “Wheel Trans” bus – but the actually killing happened outside the scope of this surveillance video camera.

[4] The driver of the white Mercedes Benz vehicle is a young woman named Sagal Abdi. So far, Ms. Abdi has provided the only direct evidence in this case clearly identifying the accused as the man wearing the “white hoodie,” and who is seen getting out of, and then getting back in to, her car.

[5] Ms. Abdi has already testified in this matter, over the course of a number of days. She testified, essentially, that she was a close personal friend of the accused at the time of the shooting, and that she communicated with him on a daily basis, and often drove him to and from his nearby home and around to various different locations, around the time of the shooting.

[6] Ms. Abdi also testified that, on the afternoon of March 19, 2019, she picked up the accused at his nearby home, at his request, and she then followed his directions to where she parked her vehicle, near the intersection of Perth Avenue and Randolph Avenue. She understood, from what the accused told her, that he was going home to retrieve something he forgot to bring with him. While Ms. Abdi had offered to drive him home for this purpose, the accused told her to just wait in her car for his return. She did.

[7] According to Ms. Abdi, during their brief time together in her vehicle, before the accused first exited the vehicle, the accused took off his black jacket. Thereafter, he was wearing a “white hoodie” sweater. Ms. Abdi explained that she did not know about the killing in advance of it happening and she testified that she did not even know that Mr. Mohiadin had killed someone after she had heard the “gun shots” from her driver’s seat in her parked car.

[8] Ms. Abdi testified that, after the accused returned to her vehicle (following the shooting), the accused told her to drive away, and he directed her, ultimately, to a parking lot in the area of Jane Street and Finch Avenue, some considerable distance away. Ms. Abdi testified, however, that, during this fairly lengthy drive, they stopped at a Shell gas station. This was Mr. Mohiadin’s idea. While they stopped at a gas pump, they did not get any gas. Apparently, according to Ms. Abdi, Mr. Mohiadin wanted some “cigarettes and Gator Aid,” and he sent Ms. Abdi into the store to get them, as he did not have any identification with him (for the cigarettes). Accordingly, Ms. Abdi got out of the car and went inside the gas station, while Mr. Mohiadin remained in the front passenger seat of her vehicle. Ms. Abdi testified that she used a debit card that belonged to a sister of the accused (Suad Mohiadin) to pay for the purchase, and the accused also gave her the personal identification number (PIN) for the card, as apparently he used this debit card with some regularity. After Ms. Abdi made the purchase from the Shell station, she returned to her vehicle, gave the cigarettes and Gator Aid to Mr. Mohiadin, and then continued to drive him to his ultimate destination.

[9] Needless to say, perhaps, the credibility and reliability of Ms. Abdi as a witness is a hotly contested issue in this trial. Indeed, Ms. Abdi was originally charged with first-degree murder and accessory after the fact to murder, in connection with the killing of Jerome Belle. She was ultimately arrested for these offences on May 28, 2019. While she has always denied any personal involvement in these offences to the police, it was not until December of 2019, that she advised the police that the man in the “white hoodie” in her car on March 19, 2019, was the accused, Saaid Mohiadin.

[10] The defence contends that Ms. Abdi is wrongly implicating the accused in order to benefit herself. She has already been released from custody on bail, and the first-degree murder charge against her has already been withdrawn by the Crown. Her trial on the outstanding charge of being an accessory after the fact to the murder is now scheduled to take place in June of 2023. The defence contends that Ms. Abdi continues to wrongly identify the accused as the man in the “white hoodie” in hopes that the Crown will ultimately withdraw that charge against her too. Ms. Abdi vehemently denies any such suggestion.

[11] The Crown now seeks to lead evidence, through a witness from the TD Bank, of certain bank records, which show that, on March 19, 2019, at 3:44 p.m., the debit card of Suad Mohiadin, a sister of the accused, was used to purchase some $17.40 worth of goods at a Shell gas station. The Crown generally contends that this evidence proves (at least) that Ms. Abdi is telling the truth about using the accused sister’s debit card to purchase cigarettes and Gator Aid from a Shell gas station as she drove the accused away from the scene of the crime shortly after the killing.

[12] While the defence has known for some time that the Crown wanted to try to establish, through these bank records, that there had been a purchase made on the accused’s sister’s debit card, at a Shell gas station on March 19, 2019, the defence has only, quite recently (on April 10, 2023), been provided with disclosure of the bank records showing the precise time of the purchase.

[13] The defence now seeks, by this application, to prohibit the Crown from leading this evidence as to the timing of this transaction, arguing that the admission of this evidence would be a violation of the accused’s rights under s. 7 of the Canadian Charter of Rights and Freedoms. The defence contends that the late disclosure of the precise time of this transaction has impaired and prejudiced the right of the accused to make “full answer and defence,” as defence counsel might have made the tactical decision to cross-examine Ms. Abdi in relation to this transaction. In the absence of this additional disclosure, defence counsel did not, in fact, cross-examine Ms. Abdi in relation to her evidence concerning this transaction.

[14] I reject this defence argument and, accordingly, dismiss the application brought on behalf of the accused. In my view, the Crown is legally entitled to lead this evidence, about the details of the bank records, through the witness from the TD Bank, and thereby prove that, on March 19, 2019, at 3:44 p.m., the debit card of Suad Mohiadin, a sister of the accused, was used to purchase $17.40 worth of goods at a Shell gas station.

[15] I have already advised the parties of this conclusion. I have also advised them that I would eventually provide them with my reasons for reaching this conclusion. These are those reasons.

[16] I have also already advised the parties that, in order to ensure that there is not, in the future, any potential violation of the right of the accused to make full answer and defence in this case, the Crown will, once again, produce Sagal Abdi, so that defence counsel may cross-examine her in relation to these various bank records, and may elect, as they wish, whether that cross-examination takes place before or after the testimony of the witness from the TD bank who, it is anticipated, will establish the admissibility of the impugned bank records.

[17] I have also told the parties that I would grant any short adjournment of the trial that was necessary for this purpose, and would hear any submissions concerning a potential mid-trial instruction to the jury concerning the necessary re-appearance of Ms. Abdi for further questioning.

B. Analysis

1. The Background Facts – The Timeline of Events

[18] On April 28, 2022, Ms. Abdi first disclosed to the police that, on March 19, 2019, she used Mr. Mohiadin’s sister’s TD Bank debit card to buy cigarettes and Gator Aid for the accused.

[19] On February 2, 2023, the Crown provided the defence with an affidavit (sworn by Alisha Baldwin), a TD Bank employee, in the position of “Production Order Specialist,” appending some 14 pages of true copies of bank records made in the “usual and ordinary course of business” of the TD bank. The attached records were highly vetted records of banking transactions that were made on the bank account of “Miss Suaad Mohiadin.” One aspect of those records showed that, on March 19, 2019, there were a number of transactions on her bank account, one of which took place at a “Shell” station.

[20] On March 6, 2023, the Crown advised the defence, in response to a disclosure request, that the bank records they were seeking to tender at trial had already “been disclosed,” that an “unredacted copy” of the TD bank records was “attached,” and that “no further disclosure [was] forthcoming.” The unredacted records that were attached showed the various banking transactions that were made on the bank account of “Miss Suaad Mohiadin,” a female “student” at “George Brown College.” One aspect of those records showed that, on March 19, 2019, there were a number of transactions on her bank account, one of which took place at a “Shell” station, in the amount of $17.40.

[21] On March 27, 2023, the Crown provided defence counsel with the “witness preparation” notes in connection with “Elaine Cushing,” a Production Order Specialist with the TD Bank. This witness preparation meeting appears to have taken place on March 17, 2023. This document indicated, among other things, that Ms. Cushing advised that “they do keep the time of the transactions” and that “should have been sent out” with the bank records, but was not. Ms. Cushing apparently noted that the person who produced the results was “no longer” employed by the TD bank. Ms. Cushing indicated she “would have included it because it’s part of the account statements,” but the former TD bank employee did not so include it.

[22] On Thursday, April 6, 2023, the police received the more detailed bank records from the TD Bank concerning the account of Miss Mohiadin. One aspect of those records showed the precise timing of each of the transactions that took place on this account on March 19, 2019. More particularly, these records showed that, at 3:44 p.m., on March 19, 2019, a purchase was made at a “Shell” station, in the amount of $17.40. These records were, in turn, provided to the Crown at nearly 7:00 p.m. that same day (April 6, 2023). The Crown, in turn, quickly disclosed these same records to defence counsel on “Easter Monday,” April 10, 2023.

2. The Governing Legal Standard

[23] It is well established that, in such circumstances, the applicant bears the burden of demonstrating, on a balance of probabilities, that the right to make full answer and defence has been violated. See: R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 20-24, 26-27; R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at paras. 138, 147; R. v. Donnelly, 2023 ONCA 243, at para. 15.

[24] In R. v. Bjelland, Rothstein J., delivering the judgment of the unanimous Supreme Court of Canada, outlined the approach that a trial judge must take when an accused seeks to exclude evidence as a result of alleged late disclosure by the Crown, at para. 24:

… a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system. Because the exclusion of evidence impacts on trial fairness from society’s perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1).

[emphasis added]

3. The Application of the Governing Legal Standard to the Facts and Circumstances of This Case

[25] As the Crown has fairly conceded, the process of disclosure in relation to the issue of these TD bank records was not ideal. It should have been accomplished more quickly. However, it is easy to look at the process with the 20:20 vision that hindsight always conveniently provides. Disclosure is a human process and is necessarily subject to human frailty. Sometimes the potential significance of a piece of information is not immediately apparent or fully understood. Sometimes other practical issues interfere with the immediate flow of appropriate disclosure materials. The process of disclosure is rarely something that operates with perfection.

[26] In any event, in my view, permitting the Crown to lead this evidence concerning the timing of the Shell station purchase is no violation of any of the constitutional rights of the accused, including his right to make full answer and defence. Further, the defence has simply not established that this is one of those “exceptional” cases where the evidence in issue should be excluded.

[27] To paraphrase the language used by the Supreme Court of Canada in R. v. Bjelland, at para. 24, the late disclosure of the TD bank records in this case: (1) has not rendered the trial process in this case unfair, and any potential unfairness can easily be remedied by now permitting defence counsel to cross-examine Ms. Abdi on the content of those records, as they wish (now that they have received the disclosure); and (2) exclusion of the TD bank records is not necessary to maintain the integrity of the justice system. As Rothstein J. stated in R. v. Bjelland, at para. 24, as the “exclusion of evidence impacts on trial fairness” from society’s perspective insofar as it “impairs the truth-seeking function of trials,” where a trial judge can “fashion an appropriate remedy for late disclosure” that does “not deny procedural fairness to the accused” and “where admission of the evidence does not otherwise compromise the integrity of the justice system,” it “will not be appropriate and just to exclude evidence under s. 24(1)” of the Charter of Rights. See also: R. v. O’Connor, [1995] 4 S.C.R. 441, 103 C.C.C. (3d) 1, at paras. 78, 81.

[28] I am confident that permitting defence counsel to now cross-examine Ms. Abdi on these bank records, as they wish, in accordance with the law, will ensure that there is no unfairness to the accused, no violation of his right to make full answer and defence to the charge before the court, and will not allow any late disclosure of the TD Bank records to “otherwise compromise the integrity of the justice system.”

[29] The defence has known, for quite some time, that the Crown has been gathering these relevant TD Bank records concerning the bank account of the accused’s sister. The defence has known that these records show that a purchase was made on her debit card at a Shell station on March 19, 2019. It was entirely predictable, if not inevitable, that the Crown would eventually be able to obtain a more precise record of the purchase, revealing the time the purchase took place on March 19, 2019. While it would have been better, obviously, if disclosure of this addition information had taken place earlier, I am not prepared to exclude this evidence because of the time that it was finally obtained by the Crown and then promptly disclosed to the defence. See: R. v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1.

[30] It is, perhaps, worthwhile recalling in this regard that, according to the “witness preparation” notes concerning the testimony of “Elaine Cushing,” the “time of the transactions” that took place on March 19, 2019 “should have been sent out” to the police with the bank records, as this was “part of the account statements,” but this was not done by the former employee of the TD bank. Accordingly, it seems that the timing of the various transactions on the bank account of Suaad Mohiadin, should have been provided to the police (and the Crown) earlier by the TD Bank, but this did not happen due to some human oversight by a former employee of the bank.

[31] In any event, the timing of this disclosure has simply not impaired or impacted on the ability of the accused to make full answer and defence in this case. The defence was virtually duty-bound to attack the credibility of the complainant, just as it has, and it was entirely predictable that the position of the accused would be that he was not the man in the “white hoodie,” and that Ms. Abdi, in saying that he was, was being untruthful, and was only testifying in this fashion to “save herself.” The defence knew, months ago, that the Crown would be seeking to prove that the financial records of the accused’s sister showed that there had been a debit card purchase at a Shell gas station on March 19, 2019, and also knew that Ms. Abdi would testify that she made that purchase as she drove the accused to the “Jane and Finch” neighbourhood. The precise time of this transaction, while certainly helpful to the Crown in corroborating an important aspect of the trial testimony of Ms. Abdi, could not have come as any real surprise to the defence, nor could it have meaningfully changed the general nature of their cross-examination of Ms. Abdi. See: R. v. T.(L.A.) (1993), 14 O.R. (3d) 378, 84 C.C.C. (3d) 90 (C.A.); R. v. Yumnu, 2010 ONCA 637, 260 C.C.C (3d) 421, at paras. 75-83; R. v. Barra, at paras. 123-131, 136-137, 139-141, 166.

[32] I note in passing that defence counsel was permitted to cross-examine Ms. Abdi at great length upon recently disclosed evidence concerning the apparent contents of her cell phone, expressly suggesting that she was being untruthful in her evidence because of what the apparent contents of her cell phone revealed, and what it did not reveal. In this regard, I overruled the Crown’s objection that this cross-examination could only properly take place once this evidence had been “verified” by the Crown’s expert analyst. It does not seem fair, at least not to me, that defence counsel can conduct such a probing and extensive cross-examination of Ms. Abdi, based largely upon recently disclosed evidence, but the Crown cannot prove that one aspect of her evidence seems to be quite true, according to the objectively reliable bank records that the Crown has been seeking for some time, and which they were finally able to obtain, and ultimately disclose to defence counsel.

[33] To now exclude such evidence would be, in my view, nothing but an unfair, constitutional “windfall” for the accused.

C. Conclusion

[34] In the result, as I have already advised the parties, the application by defence counsel, on behalf of Mr. Mohiadin, to exclude the evidence of the timing of the TD bank records concerning the timing of the various transactions, and specifically the use of Ms. Mohiadin’s TD Bank debit card at the Shell station on the afternoon of March 19, 2019, is dismissed. The Crown, in my view, is legally entitled to lead the evidence of these TD bank records, including the timing of the transactions on March 19, 2019.

[35] I will, however, also make the following coincident order, so as to ensure that there is not, in the future, any potential violation of the right of the accused to make full answer and defence in this case – namely, that the Crown will, once again, produce Sagal Abdi, so that defence counsel may cross-examine her in relation to these various bank records, as defence counsel sees fit – of course within the limits of the law (now that the defence has all of the relevant disclosure of these records) – with the potential for some re-examination by the Crown on these issues.

[36] For purposes of clarity, at the election of defence counsel, this further evidence of Ms. Abdi, can take place before or after the time that the Crown adduces the evidence of the TD bank records. If a short adjournment of the trial is necessary, in the result, I am content to grant any such request by defence counsel, if such a request is made.

[37] I also note that, defence counsel may, if they wish, seek a mid-trial jury instruction about the timing of the disclosure of these bank records and the re-appearance of Ms. Abdi as a witness.

Kenneth L. Campbell J. Released: April 17, 2023