COURT FILE NO.: 21-50000353-0000
DATE: 20230728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KAYNADID ABSHIR
Defendant
Alice Bradstreet, for the Crown
Ron Chu, for the Defendant
HEARD: June 19 to 28, 2023.
JUSTICE S. NAKATSUru
[1] Kaynadid Abshir is charged with attempt murder, discharge a firearm, aggravated assault, and several firearms related offences. In the early morning hours of March 13, 2020, two shooters set upon Mr. Kevin Kusi in the lobby of his apartment building at 40 Falstaff Avenue. They fired at him multiple times. Mr. Kusi miraculously survived.
[2] The Crown theory is Mr. Abshir was the driver of a silver car that brought the shooters to the scene. That car lay in wait for Mr. Kusi’s arrival home from work in an Uber. They followed the Uber to the entrance of 40 Falstaff Ave. The two shooters and a third man burst out of the car to try and kill Mr. Kusi. Meanwhile, the driver of the silver car turned around and waited for the return of their associates-in-crime. Once the men returned, the silver car sped off.
[3] At the end of the Crown’s evidence in this judge alone trial, a procedure agreed to by the parties, an application to introduce hearsay evidence was brought by the Crown. I allowed it in part. I dismissed other parts. As promised, these are the written reasons why.
A. THE HEARSAY STATEMENTS
[4] The Crown alleges that Mr. Abshir rented the car used in the shooting, hours before in the evening of March 12, 2020. About 12 hours after the shooting, Mr. Abshir was stopped by the police driving a Chrysler 200 with licence plate CLEY040 when he was investigated for a Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) offence. He identified himself with his Ontario driver’s licence. His passenger, alleged by the Crown to be one of the shooters, Ismail Aden, fled on foot at the time of the traffic stop. Mr. Aden was arrested the following day and found to be in possession of a loaded firearm and a cell phone. The loaded firearm matched the casings from the shooting of Mr. Kusi. The cell phone contained messages that are the subject of this application.
[5] Extracted from the cell phone are messages between several users in a group chat on the communications app, Snapchat.
[6] Three material aspects of the chats are at issue on this application:
(1) messages allegedly by Mr. Aden admitting he was a shooter in the shooting of Mr. Kusi;
(2) messages allegedly by Mr. Aden that he was with Mr. Abshir during the traffic stop on the afternoon March 13, 2020, when P.C. Walker and P.C. Maurice stopped Mr. Abshir; and
(3) messages allegedly by Mr. Aden that Mr. Abshir rented the Chrysler 200 used by the shooters to be transported to the scene of the shooting.
[7] The Crown seeks to admit the messages into evidence for the truth of their contents. It seeks to do so for two reasons: (1) to prove that Mr. Aden was a shooter and (2) to prove that Mr. Abshir was the driver and that he was aware of and participated in the shooting.
B. ADOPTIVE ADMISSION BY SILENCE
[8] The Crown raised the traditional hearsay exception of the adoptive admission of the hearsay statements by Mr. Abshir through silence. However, Ms. Bradstreet did not press this in argument. It can be readily disposed of.
[9] The Crown position is that the user with the username “3pac” in the group chat is Mr. Abshir. Even assuming that to be the case, there are no messages from “3pac” during the length of the group chat. Put another way, there is no evidence that “3pac” participated in any of the digital conversation. There is no evidence that “3pac” read any of the chats exchanged. Said differently and simply, there is no evidence that “3pac” was “present”, in this digital conversation. Thus, the Crown has failed to prove “3pac” adopted any admissions by his silence.
C. THE PRINCIPLED APPROACH
[10] Hearsay is presumptively inadmissible. The main concern underlying the rule against hearsay is the inability to test the reliability of the evidence: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2. Such evidence is generally excluded to protect the integrity of the truth-seeking function of the trial and to preserve its fairness: see R. v. Dupe, 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 44.
[11] In addition to the traditional categorical exceptions to the hearsay rule, under the principled approach to hearsay, hearsay can exceptionally be admitted when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are proven on a balance of probabilities: see R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. Even when the burden has been met, a hearsay statement still can be excluded when its prejudicial effect outweighs its probative value: see Khelawon, at para. 3.
[12] Necessity refers to the need of the hearsay evidence to prove a fact in issue. It does not mean necessary to the prosecution’s case. The concept encompasses many diverse situations that have in common the nonavailability of the relevant direct evidence: see R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 933.
[13] As the gatekeeper in a jury trial, the judge determines the threshold reliability of a hearsay statement. Ultimate reliability remains to be decided by the trier-of-fact. Threshold reliability is met by demonstrating there is: (1) procedural reliability; when adequate substitutes are in place to test the truth of the statement, or (2) substantive reliability; when sufficient circumstantial or evidentiary guarantees exist that the statement is inherently trustworthy: see Bradshaw, at para. 32; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
- NECESSITY
[14] The defence concedes that necessity has been met. Mr. Aden was subpoenaed as a Crown witness to this trial. A material witness warrant was issued when he failed to attend. Despite considerable police efforts, he has not been found. Mr. Aden was previously a co-accused with Mr. Abshir on these charges. Mr. Aden’s charges were stayed due to a violation of his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to a trial within a reasonable time. Given this context and the nature of the testimony sought from him by the Crown, it is safe to assume Mr. Aden is being uncooperative and is deliberately avoiding this trial.
- SUBSTANTIVE RELIABILITY
[15] The Crown concedes that procedural reliability cannot be met. Admission only under substantive reliability is sought. The Crown mainly relies upon corroborative evidence to gain admission of the hearsay texts found in the group chat.
[16] Substantive reliability is gauged by the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: see R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 102.
[17] Corroborative evidence can be considered but it must be considered carefully. In Bradshaw, at para. 57, Karakatsanis J. held that in determining whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:
(1) identify the material aspects of the hearsay statement that are tendered for their truth;
(2) identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
(3) based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
(4) determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
[18] I find that the messages by dg.rx, the username in the group chat used by Mr. Aden[^1] about his involvement in the shooting of Mr. Kusi, meet the threshold reliability test and are admissible under the principled approach. The essential reason for this conclusion is the strong corroborative evidence of Mr. Aden’s involvement in the shooting.
[19] However, I find that the material messages sought under the second and third categories, the chats about Mr. Aden being the passenger in the car during the police traffic stop and the rental of the suspect vehicle in the shooting, do not meet the threshold reliability test and are therefore inadmissible for the truth of their contents in this trial.
The chats of Mr. Aden admitting involvement in the shooting
[20] At the outset, in the assessment of substantive reliability of the hearsay messages of Mr. Aden in all three categories, some significant contextual factors must be considered. First, this is a group chat with 10 different identifiable usernames. The involvement of a significant number of them complicates ascertaining what the sender of the message means and who is being spoken to. Second, the messages are short and cryptic. Typical of such a medium. Third, a lot of slang is used. Emojis as well. In the absence of expert opinion evidence or a witness with knowledge of the meaning and use of such slang, great caution must be exercised in interpreting the meaning of the chats. Even after careful reflection, some terminology used are not decipherable to me. Fourth, a degree of secrecy is being exercised by the members of the group at certain points of the group chat which spans two days. For example, in one exchange, a user cautions the group not to use their phones.
[21] This context elevates the hearsay danger of narration or communication. Bluntly, in the absence of contemporaneous cross-examination of the declarant, accurate comprehension of what the declarant is truly saying is difficult. This danger applies to all three categories of hearsay the Crown seeks admission of.
[22] That recognized, the messages the Crown argues that have Mr. Aden admitting his involvement in the shooting of Mr. Kusi, meet threshold substantive reliability, largely due to the corroborative evidence.
[23] First, the messages can reasonably bear the interpretation urged by the Crown that Mr. Aden was taking responsibility for the shooting of Mr. Kusi. As a result, the hearsay danger posed by mistaken interpretation of the narration is minimized especially when coupled with the corroborative evidence.
[24] Second, in terms of sincerity, there is an absence of evidence of any motive on the part of Mr. Aden to lie about being involved in the shooting. Clearly, he is speaking to a group of close associates. In that situation, the declarant would expect what he says would be kept confidential. I have considered the potential that he is falsely bragging about being involved in the shooting, but again, the corroborative evidence dispels this possibility.
[25] Third, the texts were sent on the afternoon of the day of the shooting. No issue arises regarding the hearsay danger of accuracy in recollection or observation given how recent the shooting was to the chats and the unlikelihood that one would misperceive one’s own participation in a shooting.
[26] Finally, the corroborative evidence is significant.
[27] The material aspect of the statement is Mr. Aden’s admission as being one of the shooters. The hearsay dangers are that of narration and sincerity. Put differently, Mr. Aden may not be talking about the shooting of Mr. Kusi or he may be falsely bragging about it to his friends even though he may not have been involved.
[28] The corroborative evidence rules out these alternative explanations. That evidence is that on March 14, Mr. Aden was in possession of a firearm that was used in the shooting. The corroborative evidence also includes the details revealed by Mr. Aden in his group chat that were confirmed by the circumstances of the shooting and the evidence found at the scene. In the group chat, Mr. Aden references many shots being fired. Many ammunition casings were found at the scene. Mr. Aden references how the “staff” boy was a “goner”. Mr. Kusi was shot at the address of 40 Falstaff Ave. Highly specific and unique to this shooting was Mr. Aden’s reference to and unhappiness about losing a “beam” during the shooting because it was loosely attached. A laser sight for a firearm was found at the scene of the shooting.
[29] These hearsay statements meet the threshold reliability test.
Chats about the HTA stop and Mr. Abshir renting the car used in the shooting
[30] With respect to a different series of chats between Mr. Aden and other members of the group, the Crown seeks their admission for the purpose of showing that Mr. Aden was with Mr. Abshir the afternoon of March 13 in the car allegedly used by the shooters. In addition, the Crown seeks admission of chats that support the Crown theory it was Mr. Abshir who rented the car. These chats must be placed in the context of what was occurring shortly before they occurred.
[31] On March 13, 2020, at approximately 4 p.m., P.C. Walker and P.C. Maurice were operating a scout car near Martin Grove and Finch Avenue West. They observed a silver Chrysler 200 ahead of their vehicle. The vehicle entered the intersection in the left turn lane on a yellow light. It did not turn and appeared to steer towards the right and then stopped again. The light then turned red, and traffic in the opposite direction now had a green light. The Chrysler made a left turn against the red light. P.C. Walker decided to stop the vehicle pursuant to the HTA.
[32] The Chrysler did not immediately stop for P.C. Walker. It pulled into a parking lot at 11 Orpington Drive. As it drove into the driveway, it passed a dumpster on the right. The Chrysler made a right turn beside the dumpster to park. The passenger from the Chrysler quickly exited the vehicle, out of view of the police. The passenger walked quickly from the vehicle and headed on foot into the Orpington complex. The Crown alleges the passenger was Mr. Aden. After a detention of about an hour, Mr. Abshir was given two traffic tickets and the police left.
[33] The Crown alleges that the traffic stop was discussed by the participants in the group chat. In the same series of chats the Crown alleges that the rental of the car was discussed. The Crown factum highlights the following chats:
Date/Time (UTC -4)
Participant
Message
03/13/2020 4:19:07
Dg.rx
Kboy is going to jail
03/13/2020 4:19:14
Dg.rx
This guy almost set me up
03/13/2020 4:19:19
Rworlld
Howw
03/13/2020 4:25:14
Dg.rx
Yo who’s tryna
03/13/2020 4:25:16
Dg.rx
Swap
03/13/2020 4:25:17
Dg.rx
Sticks
03/13/2020 4:27:02
Dg.rx
(437) 247-5986
03/13/2020 4:27:11
Habil_swc Cm$
No phone calls
03/13/2020 4:27:18
Habil_swc Cm$
Get off the phones
03/13/2020 4:42:04
Allboutpesos_4s in4wetrust
Freee 3 pac
Date/Time (UTC -4)
Participant
Message
03/13/2020 5:06:13
Dg.rx
Fam
03/13/2020 5:06:16
Dg.rx
Bare dukes
03/13/2020 5:06:18
Dg.rx
Bare jakes
03/13/2020 5:06:20
Hassanhassan35 yungrichniggv
He got knocked?
03/13/2020 5:06:22
Dg.rx
This kid is a hediot
03/13/2020 5:06:23
Hassanhassan35 yungrichniggv
Fam
03/13/2020 5:06:24
Allboutpesos_4s in4wetrust
Jakes kawalin
03/13/2020 5:06:25
Dg.rx
For not running
03/13/2020 5:06:25
Hassanhassan35 yungrichniggv
Whos rental
03/13/2020 5:06:26
Dg.rx
With me
03/13/2020 5:06:26
Hassanhassan35 yungrichniggv
Is it
03/13/2020 5:06:31
Hassanhassan35 yungrichniggv
Whos it under
03/13/2020 5:06:39
Allboutpesos_4s in4wetrust
Him
03/13/2020 5:06:50
Hassanhassan35 yungrichniggv
Yooo dg
03/13/2020 5:06:54
Allboutpesos_4s in4wetrust
But yo show 3pac
03/13/2020 5:06:56
Hassanhassan35 yungrichniggv
Whos name the car under
03/13/2020 5:06:57
Allboutpesos_4s in4wetrust
Jus cut
03/13/2020 5:06:58
Hassanhassan35 yungrichniggv
Bro
03/13/2020 5:07:07
Hassanhassan35 yungrichniggv
Cut where did u lost it
03/13/2020 5:07:14
Allboutpesos_4s in4wetrust
Is he’s not being arrested he can leave
10
03/13/2020 5:07:26
Hassanhassan35 yungrichniggv
Yo dg whos name
03/13/2020 5:07:29
Hassanhassan35 yungrichniggv
Car under wtf
03/13/2020 5:07:39
Dg.rx
His name bro
03/13/2020 5:07:42
Hassanhassan35 yungrichniggv
Ok
03/13/2020 5:07:46
Hassanhassan35 yungrichniggv
U paid?
03/13/2020 5:07:48
Dg.rx
He’s neat wid da car
03/13/2020 5:07:50
Dg.rx
I paid
03/13/2020 5:07:51
Dg.rx
For it
03/13/2020 5:07:52
Dg.rx
Yeah
03/13/2020 5:07:52
Allboutpesos_4s in4wetrust
Yrn thinks he. Lawyer
03/13/2020 5:07:53
Hassanhassan35 yungrichniggv
Kk bless
03/13/2020 5:07:55
Hassanhassan35 yungrichniggv
What company
03/13/2020 5:08:05
Dg.rx
It’s da company beside dh
03/13/2020 5:08:12
Hassanhassan35 yungrichniggv
Kk pretty surr he’s bless
03/13/2020 5:08:14
Hassanhassan35 yungrichniggv
Unless dey have
03/13/2020 5:08:17
Hassanhassan35 yungrichniggv
Description
03/13/2020 5:08:22
Hassanhassan35 yungrichniggv
Of last night
03/13/2020 5:08:23
Dg.rx
Dats probably
03/13/2020 5:08:24
Dg.rx
All Dey have
03/13/2020 5:08:25
Hassanhassan35 yungrichniggv
But fuck inshallah not
03/13/2020 5:08:33
Hassanhassan35 yungrichniggv
Fam why do they still have da man
03/13/2020 5:08:34
Dg.rx
But I know for sure
03/13/2020 5:08:37
Dg.rx
If they
03/13/2020 5:08:39
Hassanhassan35 yungrichniggv
Ya like tf
03/13/2020 5:08:39
Dg.rx
Had da plates
03/13/2020 5:08:42
Dg.rx
He would be in jail
03/13/2020 5:08:42
Dg.rx
Rn
[34] Other group chats relevant to the two issues are sought to be admitted for their truth. However, the Crown focuses on the chats outlined above. They also illustrate their nature.
[35] I will address the question of threshold substantive reliability separately for each category of hearsay the Crown seeks admission of.
The chats indicating Mr. Aden was the passenger in the car
[36] While the Crown argues that the material aspect of the chats tendered for their truth is that Mr. Aden was the passenger in the car stopped during the HTA investigation by P.C. Walker and P.C. Maurice, realistically viewed, the Crown request is not limited to isolated or discrete statements relevant to this factual issue. The breadth of the chats, of which I have just extracted a portion of, include other issues that admission for their truth is being sought. This must be taken into account in determining threshold reliability.
[37] What I mean by this is that that the material aspects of the hearsay statements include not only that Mr. Aden was the passenger in the car, but also that Mr. Aden was saying either expressly or by implication that Mr. Abshir was a knowing participant in the shooting of Mr. Kusi. When one assesses all the chats the Crown seeks admission of, it is obvious to me that it is this hearsay implication that the Crown also seeks to rely on. To put it into the context of the chats, the argument goes something like the following: Mr. Aden was a passenger in the HTA stop. He is angry with Mr. Abshir for not running with him to avoid the police. He is angry with Mr. Abshir because he suspects that Mr. Abshir will “rat” him out to the police or say something that will inculpate him in the shooting. Mr. Abshir could only do that if he was a knowing participant in the shooting of Mr. Kusi. That he was the driver of the vehicle that brought the shooters to the scene.
[38] This is how the Crown interprets the chats and seeks to use them. This is the practical reality of the success of the Crown application. It goes far beyond the scope of Mr. Aden merely being present at the scene of the HTA stop.
[39] There are several hearsay dangers. One is of narration. Mr. Aden only refers to this person as “Kboy”. The Crown also submits that this person went by the username “3pac” in the group chat. As previously noted, “3pac” was silent throughout this group chat. However, the data extraction shows he is a member of the persons linked into the group chat.
[40] The Crown is not required to establish that “Kboy” or “3pac” is Mr. Abshir on a threshold reliability assessment. Ultimate reliability of whether Mr. Abshir is being referred to will be for the trier of fact to decide.
[41] However, within the chats themselves, contrary chats suggest that Mr. Aden is not referring to Mr. Abshir when referencing this person. This ambiguity does not only come from the cryptic and slang language used by all those involved, although this certainly contributes to the problem, but also from some of the contents and contexts of the contrary chats. For instance, at one point, Mr. Aden messages that “3pac” was in a “highspeed…chase…with the askar (police)” during the group chat on this topic. The video surveillance of the HTA stop and the testimony of P.C. Walker indicates anything but a “highspeed” chase. The officers just followed the car into a parking lot after seeing it make an improper left turn. At no point was there any speeding or a police pursuit. This raises the question of whether Mr. Aden was speaking of this incident or another incident involving “3pac”. Even if he was referring to the HTA event, such a comment raises issues of honesty and accuracy in Mr. Aden’s description of this event.
[42] In addition, there are questions about whether “3pac” is indeed Mr. Abshir based upon the contents of the group chat. First, if “3pac” is indeed Mr. Abshir, it is puzzling that the group would speak so negatively about him and indeed, physically threaten him, when he is a member of the Snapchat group and no doubt could access these messages. Second, in chats exchanged before the HTA stop, another member of the group, “Nocapoceek” messaged that “3pac was dumping a clip”. Mr. Aden appeared to agree by messaging “Fam wallahi yesterday…Was wild…49 shots…In da air”. The Crown does not allege that Mr. Abshir shot at Mr. Kusi. Again, this raises not only an uncertainty of the identity of “3pac” but also issues of honesty and accuracy.
[43] Another aspect of the hearsay dangers arises. Mr. Aden speaks about being “set up” by “Kboy” and that “he would be in jail” if they “had da plates.” On March 14, Mr. Aden messages that “this Kboy is a certified rat” and complains the police were at his door questioning him about the shooting the day after they talked to him. The clear implication from these messages is Mr. Aden is saying “Kboy” ratted him out in the shooting. This along with the rental hearsay the Crown seeks admission of, as analyzed next, points the finger at Mr. Abshir as a participant in the shooting of Mr. Kusi. But even aside from the issue of whether “Kboy” is Mr. Abshir, a great deal of uncertainty and ambiguity arising from the messages heightens the danger of accuracy. The messages imply a possible involvement by Mr. Abshir in the shooting but do not directly implicate a knowing involvement. In this context, in these circumstances, cross-examination is truly essential. There is no guarantee of inherent trustworthiness about these messages that make them sufficiently reliable to meet the threshold substantive reliability test.
[44] Moreover, by this point in the history of the chats, I do not agree with the Crown that Mr. Aden has no motive to lie. He is no longer simply speaking about his own involvement in the shooting. Something that, aside from false braggadocio, he would have no motive to lie about to close friends and associates. By contrast, clearly, he is now angry at “Kboy”. Angry at him for not following him. Angry at him for potentially “ratting” Mr. Aden out to the police. Angry enough for Mr. Aden to threaten him and say he is going to die. In the context of chatting with close associates of his to whom he previously had no issue with admitting his involvement in a shooting, his anger could easily have translated into him exaggerating or lying about Mr. Abshir’s participation in the shooting to justify his anger at Mr. Abshir’s conduct. Moreover, Mr. Aden’s desire to garner support in his crusade against “Kboy” from these associates heightens the danger of insincerity. Even raw anger alone and a selfish concern for his own welfare could lead a person in Mr. Aden’s situation to say irrational and untruthful things as he lashed out.
[45] There is another possible reason for Mr. Aden’s anger. Mr. Aden was arrested the next day on March 14, 2020, by the police for breach of a house arrest condition on his bail order. Mr. Aden was seen by P.C. Walker, who recognized him, out on his own in the Orpington Drive housing complex. If Mr. Aden was the passenger in the Chrysler, his upset with Mr. Abshir during the chat exchange could also be a result of his belief that Mr. Abshir may have told the police his identity and thus subjecting him to investigation or arrest for a breach of his bail conditions.
[46] There is then the corroborative evidence. The Crown relies on the video and the circumstances of the HTA stop to corroborate Mr. Aden being the passenger; in particular, Mr. Aden in his chat describes “Kboy” as being an idiot for not running with him. I will not go through the various evidence such as the video surveillance and the phone records that the Crown relies upon to corroborate the hearsay statements. Suffice it to say there is a body of evidence that does corroborate the statement that Mr. Aden was the passenger. If this statement was the only hearsay statement the Crown sought admission of, the analysis may have been different. However, as previously observed, it is not. The Crown seeks admission of a larger body of hearsay statements whereby the Crown seeks to implicate Mr. Abshir more directly than just an association with one of the shooters in the car some 12 hours after the shooting. Regarding these, the Crown has not on a balance of probabilities proven that the corroborative evidence and circumstances rules out alternative explanations such as Mr. Aden lying or being inaccurate or referring to something else. The HTA stop evidence that can corroborate that Mr. Aden was the passenger does not corroborate those statements made by Mr. Aden allegedly implicating Mr. Abshir in the shooting.
[47] I find insufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. Hence, it is not admissible.
Chats indicating Mr. Aden rented the Chrysler 200 used by the shooters
[48] The Crown seeks to introduce Mr. Aden’s hearsay statements that it was Mr. Abshir who rented the car used in the shooting. The same hearsay dangers noted above exist here.
[49] The hearsay danger of narration is especially high. When Mr. Aden is first asked who’s rental the car was, it is someone other than Mr. Aden, a “In4wetrust”, who states “Him”. When asked again who’s name the car was under, Mr. Aden says “His name bro”. At no point, does Mr. Aden name who he is. While it is clearly arguable that Mr. Aden means “Kboy” rented the car and “Kboy” refers to Mr. Abshir looking at the context of the messages and the surrounding circumstances, it remains a serious issue that in the absence of cross-examination, the trier of fact may interpret this in a way that the out-of-court declarant did not mean. In other words, Mr. Aden did not mean Mr. Abshir when he said “His name bro.”
[50] Other messages add to the confusion. Another user during this this exchange references “3pac”. This is hard to interpret. At another point during the chat when another user asks if “U paid”, Mr. Aden responds, “He’s neat wid da car” and says “I paid…For it…Yeah.” Is Mr. Aden saying he rented the car or he just fronted the money?
[51] Additionally, sincerity is an issue. As previously observed, Mr. Aden is very upset at “Kboy” and has a motive to be untruthful in accusing him in front of his close associates.
[52] Finally, the independent admissible evidence is inconsistent with any allegation that it was Mr. Abshir who rented the car. Mr. Kevin Thomas testified that he rented the vehicle alleged to have been used in the shooting, the Chrysler 200, sometime in March 2020 from his car rental shop. He did not directly rent it, but his business partner did. His business partner rented it to four or five young black men who rented the car late at night. Once the price was agreed upon, Mr. Thomas brought the car and handed over the keys. Mr. Thomas testified that he usually takes a photo of the driver’s licence but this time he did not. He thought the car was rented for a week. He did not know who returned the car. No rental agreement was signed. He has been in the rental car business for 12 years and he never creates a written rental agreement. He admitted that he had seen a photo of Mr. Abshir’s licence before, one that was given over to the police, but could not recall if he gave that to the police. A handwritten agreement given to the police was not adopted by him in his testimony.
[53] While the Crown relies on other evidence to prove Mr. Abshir rented the Chrysler 200 including surveillance video and phone records, in my view, given Mr. Thomas’s evidence, the totality of the evidence does not rule out any plausible alternative explanations for the hearsay statement on a balance of probabilities. Even if I assume that Mr. Aden is referring to Mr. Abshir as the “him” who rented the car used in the shooting, when the evidence is considered as a whole and in the circumstances of the case, it does show that it is more likely than not that the only explanation is the declarant’s truthfulness or accuracy about this material aspect of the statement.
[54] An alternative explanation that someone else rented the shooter vehicle and Mr. Aden is being neither forthright or reliable about it, is a sound and reasonable explanation. Indeed, it may well be that Mr. Aden rented the vehicle himself and he is trying to deflect responsibility on that act to “Kboy” given his animosity to him. Moreover, if there were other shooters involved in the group chat, Mr. Aden may have wanted them to incorrectly believe that “Kboy” rented the car so that he remained blameless in their eyes if the police investigated them in the future.
[55] In addition, another reasonable alternative explanation is that while “Kboy” did rent the vehicle, he had no knowledge of the shooting that was to take place. This scenario could have occurred if Mr. Aden was not conveying the real situation (1) reliably due to inaccurate or ambiguous language used by him or (2) truthfully given his pique at being potentially inculpated by what “Kboy” may have told the police.
[56] Any corroborative evidence does not rule out these alternatives. Put differently, the only remaining likely explanation for the statement is not just the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
[57] I conclude that there are insufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. Hence, it is not admissible.
- PREJUDICE VS. PROBATIVE VALUE
[58] Even if a hearsay statement meets the test of necessity and reliability, I have a residual discretion to exclude the statement in my gatekeeping role to ensure the probative value of the evidence outweighs the prejudice.
[59] First, with respect to the messages of Mr. Aden admitting involvement in the shooting, I find that the probative value of the evidence outweighs the prejudice of its admission.
[60] Clearly, this evidence is probative of determining factually whether Mr. Aden was a shooter. But this is Mr. Abshir’s trial. The probative value of that evidence is that part of the Crown’s case against Mr. Abshir is his proximate association with Mr. Aden. As well, the Crown relies upon communications between Mr. Aden and a cell phone number alleged to belong to Mr. Abshir during the material events leading up to, during, and after the shooting. Thus, by proving Mr. Aden’s culpability in the shooting, the Crown can more easily prove Mr. Abshir’s involvement.
[61] There is minimal prejudice. There is no unfairness to the trial process. The meaning of the messages is clear. Mr. Abshir’s ability to make full answer and defence in these circumstances is not negatively impacted. The messages are few. This is not a distracting issue. Lastly, there is minimal moral prejudice. While evidence of association with an alleged shooter has some prejudice, given its direct relevance to the proof of Mr. Abshir’s culpability in the offences that he is charged with, that type of moral prejudice is inevitable.
[62] Although it is not necessary to address this issue given I have found that threshold reliability has not been met for the other categories of hearsay statements, I would nonetheless have found the prejudice of its admission outweighs its probative value. The probative value is not at all high given the difficulties alluded to about narration and meaning. The interpretation of the chats will involve a degree of reasoning prejudice that outweighs its minimal probative value. In this regard, I observe that the extraction of the data from the cellphone appears incomplete. There are breaks in the group chat where no content was found to be available. If the content was available, this could very much change the meaning of or the weight to be attributed to the messages. These are not isolated occurrences. There are ten breaks in the string of chats that the Crown seeks admission of with 95 “messages with no content available”. Given this, the admission of the chats would introduce a significant element of unfairness and distraction.
[63] For these reasons, the Crown application is granted only in part.
Justice S. Nakatsuru
Released: July 28, 2023
COURT FILE NO.: 21-50000353-0000
DATE: 20230728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KAYNADID ABSHIR
Defendant
HEARSAY RULING
NAKATSURU J.
Released: July 28, 2023
[^1]: Henceforth in these reasons, I will refer to dg.rx as Mr. Aden. I am satisfied based on the whole of the evidence that dg.rx is Mr. Aden. The defence does not argue otherwise.