COURT FILE NO.: CR-22-134
DATE: 2023-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Crown
S. Hickingbottom, R. Morrow, and R. Durward, for the Crown
- and -
Salloum Jassem
J. Stephenson and S. Weinstein, for the Defendant
Defendant
HEARD: at Hamilton, Ontario, September 11-28, 2023
The Honourable Mr. Justice J. R. Henderson
REASONS FOR JUDGMENT
INTRODUCTION
[1] The defendant, Salloum Jassem (“Jassem”), is charged with two counts of first-degree murder regarding the deaths of Lynn Van Every (“Lynn”) and Larry Reynolds (“Larry”), who were both killed by a masked gunman at their home at 10 Park Road South in Brantford, Ontario (the “Van Every residence”), on the morning of July 18, 2019.
[2] In addition, Jassem is charged with conspiracy to commit murder regarding the attempted murder of Roger Van Every (“Roger”) on the same day. Roger is the son of the two murder victims. At the relevant time, Roger was out of custody on bail while awaiting trial on drug charges. The terms of his recognizance required him to live with his parents, who were his sureties, at their residence.
[3] Just before 7:00 a.m. on July 18, 2019, a black Chrysler 300 vehicle arrived in the Park Road South neighbourhood. It drove past the Van Every residence several times, occasionally stopping near the residence. At approximately 7:54 a.m., a masked man exited the Chrysler 300, ran toward the Van Every residence and started shooting a handgun at Lynn and Larry, who were outside on the front lawn.
[4] The gunman’s bullets struck and killed both Lynn and Larry. Roger was inside the house at the time and was not harmed. The shooter was unable to gain entry to the residence and quickly fled in the Chrysler 300, which was later abandoned.
[5] The Crown does not allege that Jassem was present at the time of the shooting; rather, the Crown alleges that Jassem hired a person named Kareem Zedan (“Zedan”) to shoot and kill Roger. The Crown submits that Lynn Van Every and Larry Reynolds were innocent victims of a planned attack on Roger.
[6] The issue in this trial is whether the Crown has proved beyond a reasonable doubt that Jassem orchestrated the attempt to kill Roger.
THE THEORY OF THE CROWN
[7] The Crown's theory is that Jassem and his two brothers, Jazzy and Seif, operated an illegal drug business in the Brantford area. Roger was a drug dealer who worked for the Jassem brothers.
[8] In June 2018, Roger was attending Jazzy’s house on Jerseyville Road when police officers raided the residence and found quantities of illegal drugs, including fentanyl. Jazzy, his wife Dee, and Roger were all arrested and detained in custody.
[9] Within a few days, Roger was released from custody on a recognizance pending his trial. Shortly thereafter, Jassem asked Roger to take responsibility for the drugs found in the Jerseyville Road raid in return for payment of approximately $40,000. Roger did not agree with Jassem’s request, which the Crown submits provided a motive for Jassem’s actions.
[10] The Crown's theory is that Jassem contacted Zedan, who was a person known to Jassem through the illegal drug business, and offered him $50,000 to shoot and kill Roger. Zedan collected a crew, that included Malik Mbuyi (“Malik”), to do the job.
[11] The Crown alleges that Jassem provided Zedan with a black Chrysler 300 to use during the job. On the day in question, the Crown says that Zedan and his crew picked up the Chrysler 300 from an address on Champagne Drive in North York, and then they drove the Chrysler 300 and a Hyundai Elantra to Brantford.
[12] The Crown submits that when Zedan and his crew arrived in Brantford, they surveyed the neighborhood and were unsure if they had the correct address. Zedan initially exited his vehicle and approached the residence, but he quickly returned to the vehicle. Zedan later sent Malik to check out the residence. Malik was the masked gunman who can be seen in the video surveillance recordings.
[13] It is the Crown's theory that Malik saw Larry on the front lawn of the Van Every residence and started shooting. Malik shot and killed both Larry Reynolds and Lynn Van Every, but he could not get inside the residence to get to Roger.
THE THEORY OF THE DEFENCE
[14] The theory of the defence is that Jassem had nothing to do with these murders. The defence position is that Zedan and his crew were attempting a home invasion at 10 Park Road South. Zedan carried a backpack that contained a hammer and gloves for that purpose. Zedan’s intention was to steal drugs and/or money from Roger who Zedan knew was dealing drugs out of that residence.
[15] Defence counsel says that Zedan realized that his face had been seen by the video surveillance cameras at the house. Therefore, the defence submits that Zedan sent Malik, wearing his mask, to gain entrance to the house. However, Malik encountered Larry on the front lawn and started shooting.
[16] Defence counsel also submits that the Crown's theory is heavily dependent upon the testimony of Zedan, but that Zedan is an unsavoury, dishonest person who has lied repeatedly about these events. Therefore, defence counsel says that Zedan cannot be believed.
[17] Furthermore, after Zedan was arrested for these murders, Zedan entered into a plea deal with the Crown whereby Zedan agreed to plead guilty to two counts of manslaughter in return for his cooperation and his testimony at this trial. The defence theory is that Zedan falsely told police officers that Jassem orchestrated the attempted killing of Roger in order to lessen his own responsibility for the murders.
THE LAW
[18] It is not necessary for the purpose of my decision today to review in detail the law with respect to murder or conspiracy.
[19] If the Crown proves beyond a reasonable doubt that Jassem hired Zedan and his crew to kill Roger, then the Crown will have established that the defendant orchestrated the planned and deliberate killing of Roger, which resulted in the deaths of Lynn and Larry. If that is the case, then the defendant is guilty of two counts of first-degree murder and one count of conspiracy to commit murder.
[20] If the Crown is unable to prove beyond a reasonable doubt that Jassem hired Zedan and his crew to kill Roger, then the defendant is not guilty on all counts.
[21] There is one aspect of the law of evidence that is important in this decision. I find that the Crown’s case against Jassem depends largely on circumstantial evidence. Zedan provided direct evidence of Jassem’s involvement. However, as I will discuss later, in order to prove this element of the offence, the Crown relies heavily on circumstantial evidence that supports or confirms Zedan’s testimony.
[22] The law of circumstantial evidence was reviewed in detail in the case of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. At para. 18 and para. 30 of Villaroman, Cromwell J. wrote that in order to convict, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. This evidentiary rule applies where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, as is the case here.
[23] Cromwell J. confirmed at para. 20 that the trier of fact should consider other reasonable, innocent inferences that can be drawn from the circumstantial evidence and decide if those inferences raise a reasonable doubt as to the guilt of the accused.
[24] Further, it is well established that the innocent inferences that may be drawn from the circumstantial evidence do not have to arise from proven facts. At para. 35 of Villaroman, Cromwell J. wrote:
Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[25] On the same issue, the Crown reminds me, correctly, that I must consider the evidence as a whole. That is, if there is a possible innocent explanation for each individual piece of evidence, a consideration of all the pieces of evidence together may still result in a finding that the Crown has proved its case beyond reasonable doubt.
[26] As Watt, J.A. of the Ontario Court of Appeal stated in R. v. Smith, 2016 ONCA 25, at para. 82,
Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt.
FINDINGS OF FACT AND THE EVENTS OF JULY 18, 2019
[27] I next turn to the events of July 18, 2019. Based on several discrete pieces of evidence, I will make findings of fact regarding the events that occurred at the Van Every residence that day, and some of the background facts that led up to the murders.
[28] In making these findings, I rely primarily on the GPS data that was extracted from the Chrysler 300, and the recordings from the video surveillance cameras that were installed at the Van Every residence. Both of those items provide strong objective evidence as to what occurred that day in the vicinity of 10 Park Road South.
[29] I also rely on Roger’s evidence in making these findings. Although Roger engaged in a criminal lifestyle, and he has a criminal record for offences that include elements of dishonesty, I felt that Roger was truthful on the witness stand. Both of Roger’s parents were murdered that morning, and Roger himself may have been the intended target of the murder. Those facts, in my view, caused Roger to be very direct in his testimony. He had no reason to fabricate or embellish his statements.
[30] Also, in making these findings, I rely in a lesser way on Zedan’s testimony. I will elaborate on Zedan's credibility, or lack of credibility, later in this decision. Even though Zedan was generally not a believable witness, I am prepared to use Zedan's evidence, in part, to confirm the location of the vehicle and the identities of the people who can be seen in the video surveillance recordings.
[31] Based on those pieces of evidence, I make the following findings.
[32] From Roger’s testimony, I find that Jassem and his two brothers, Jazzy and Seif, were notably involved in the illegal drug business in the Brantford area. Roger was also a drug dealer in the Brantford area, but at a much lower level in the hierarchy.
[33] In early 2018, Roger was introduced to the Jassem brothers and began to sell drugs for them. From that point until the July 2019 murders, Roger sold illegal drugs exclusively for the Jassem brothers.
[34] Roger’s evidence is that the brothers ran their drug business together, like a family business. I accept his testimony that, as between the brothers, Jazzy called the shots for their illegal operation.
[35] Within a few days of his arrest after the Jerseyville Road raid in June 2018, Roger was released on bail. From the date of his release, Roger lived with his parents at their residence pursuant to the terms of his recognizance. Despite the strict terms of his recognizance, I find that Roger continued to sell illegal drugs out of the Van Every residence until the events of July 18, 2019.
[36] I find that in the early hours of July 18, 2019, two vehicles left Toronto and travelled toward Brantford. One vehicle was a black Chrysler 300 that left the area of Champagne Drive in North York at approximately 5:30 a.m. I find that it was occupied by Malik and Malik’s cousin, Gatchi. I find that the second vehicle was a Hyundai Elantra that was occupied by Zedan, his driver Stacks, and Stacks’ friend.
[37] I find that both vehicles arrived in the Park Road South neighbourhood in Brantford at about 6:30 a.m. Thereafter, I find that the Chrysler 300 began to circle the streets in the vicinity of the Van Every residence. The whereabouts of the Hyundai at that time is not clear. At some point, Zedan exited the Hyundai and got into the backseat of the Chrysler 300.
[38] After the Chrysler 300 passed the Van Every residence for the fourteenth time, at approximately 7:10 a.m., the Chrysler 300 briefly stopped in the driveway of the Van Every residence. Zedan, wearing a Diesel tracksuit and carrying a backpack, exited the Chrysler 300 from the rear passenger door and approached the residence. I find that Zedan saw the video surveillance cameras and quickly returned to the Chrysler 300. The vehicle then drove away.
[39] Then, after the sixteenth pass of the Van Every residence, at approximately 7:18 a.m., the Chrysler 300 stopped on the street in front of the residence. I find that Zedan instructed Malik to scope out the house, but he told him to wear a mask because of the cameras. Malik then exited from the driver’s door, and, wearing his mask, Malik spent several minutes walking around the property and checking the doors. By 7:24 a.m., Malik and the vehicle had left the scene once again.
[40] On that morning, I find that Lynn, Larry, and Roger were all initially inside the Van Every residence. I accept Roger’s testimony that he was awakened just after 7:00 a.m. by knocking on the door. Roger got up and looked out the window where he observed a man walking outside the residence. Roger locked the door and returned to his room to check the surveillance cameras.
[41] Roger told his father that something was going on, but his father ignored Roger’s warning. Larry then went outside to water the lawn and Lynn went outside with him. Roger remained inside the residence and continued to monitor the surveillance cameras.
[42] Between 7:25 a.m. and 7:53 a.m. the Chrysler 300 remained parked on the street behind 10 Park Road South. Again, the whereabouts of the Hyundai at that time is unknown.
[43] At approximately 7:54 a.m., I find that the Chrysler 300 again stopped on the street near the Van Every residence. Malik, wearing a mask and holding a handgun, exited the Chrysler 300 and ran toward the Van Every residence. Then, Malik started shooting. Larry was struck by one of the gunshots. He ran back into the house through the front door and fell on the floor. Lynn was able to get inside the house and lock the door, but Malik continued to shoot through the front door, breaking the glass in the door. One bullet struck Lynn in the head, and she fell behind the front door.
[44] Malik attempted to gain entry to the residence, but he was unable to do so. Malik then quickly ran back to the Chrysler 300. At about the same time, the Hyundai drove quickly past the residence. Within thirty seconds of the shooting, both vehicles had left the scene.
[45] Police arrived a few minutes later. Larry and Lynn both died as a result of their gunshot wounds.
THE EVIDENCE OF KAREEM ZEDAN
Zedan’s Testimony at Trial
[46] To prove that Jassem was the person who orchestrated the murders, the Crown relies on Zedan’s testimony that Jassem hired him to shoot and kill Roger. So, I now turn to Zedan’s testimony.
[47] Zedan’s version of events certainly changed over time. I am going to summarize the final version he provided on the witness stand at this trial, and then I will discuss Zedan’s credibility.
[48] Zedan testified that approximately three or four months prior to the murders, Jassem contacted him using Snapchat and asked Zedan to complete a contract in Brantford. Zedan knew that this meant that Jassem wanted him to shoot and kill someone. Jassem offered to pay him $50,000 for the job.
[49] The intended target was a male person named Sago. Jassem gave him a description of Sago as being a white male, 30 to 40 years of age, five foot five inches to five foot eight inches tall, short hair, and blue or green eyes. Zedan testified that Jassem also told him that Sago lived with his girlfriend at 10 Park Road South and sold drugs out of the house.
[50] About three days prior to the murders, Zedan asked his associate, Malik, if he was interested in doing the shooting in order to clear an $18,000 debt, and Malik agreed. On the day of the murders, Malik brought his cousin, Gatchi, with him to the job.
[51] One or two days before the murders, Zedan asked his friend Stacks to be his driver and Stacks agreed. Stacks had a rental vehicle, a Hyundai Elantra, that he had been using, and the plan was to use the Hyundai as a getaway car.
[52] On the night before the murders, Zedan contacted Jassem and told him that he found a guy to do the shooting, but he needed a car. Zedan testified that Jassem told him that he could pick up a car at an address on Champagne Drive in North York, and the keys would be on the wheel.
[53] Zedan, Malik, Gatchi, Stacks, and Stacks’ friend picked up the black Chrysler 300 at the address on Champagne Drive in the early hours of July 18, 2019. The five of them then drove in the two vehicles to Brantford. Zedan, Stacks, and Stacks’ friend were in the Hyundai.
[54] Zedan testified that he knew that Malik was carrying a .40 caliber Glock handgun. Zedan had a Glock 26 handgun in his pocket. He testified that all five men in the two vehicles knew that they were going to Brantford to shoot and kill someone.
[55] When they arrived in Brantford, Zedan got into the backseat of the Chrysler 300 and drove with some of his crew to the Van Every residence. Zedan got out of the Chrysler 300 and approached the house carrying his backpack, but he saw a surveillance camera, so he quickly went back to the vehicle. Zedan was wearing his distinctive Diesel tracksuit at the time.
[56] Zedan testified that he thought that they might have the wrong address because 10 Park Road South looked like a nice house; it did not look like a trap house. He said that he tried to contact Jassem on Snapchat to confirm the address, with no success. Then, he testified that all five of them drove in the two vehicles to 1 Trillium Way, which he knew to be Jassem’s residence. They could not locate Jassem. So, they all drove back to the area of 10 Park Road South.
[57] When they returned to the Park Road South neighborhood, Zedan told Malik to scope out the house, but to cover his face. Accordingly, Malik went up to the house and walked around. Zedan remained in his vehicle.
[58] Zedan testified that the plan was to wait for Sago to exit the house, and then shoot him when he came outside. However, Zedan also testified that as Malik got out of the Chrysler 300 he told Malik to shoot anybody he sees. Zedan said that Malik saw someone who may have been the target and he opened fire.
[59] After the shooting, the five men left the scene in the two vehicles. The Chrysler 300 was abandoned in Brantford. They all drove back to Toronto in the Hyundai.
[60] Zedan testified that Jassem then met with him and Malik in the Kensington Market area of Toronto. He said they explained the murders to him. Jassem told Zedan to meet him later that day in Hamilton at about 6:00 or 7:00 p.m. to get “the rest of the money”.
[61] While Zedan was driving to Hamilton to pick up the money, when he was about halfway to Hamilton, Jassem contacted him by voice call on Snapchat and told him that he had killed the wrong person, and therefore he would not be paid. Zedan testified that he then turned around and went back to Toronto.
Caution Regarding Zedan’s Credibility
[62] As I have already stated, Zedan’s story has changed since he was first arrested, and it has continued to change over time.
[63] I agree with defence counsel that Zedan is an unsavoury witness who has lived a dishonest and criminal lifestyle. He is an acknowledged liar and a killer. He lied to the police officer who interviewed him after his arrest in March 2020; he lied in subsequent police interviews; he lied under oath when he confirmed his agreed statement of facts when he entered his guilty pleas; and he has continued to lie up to and including his testimony on the witness stand at this trial. Because of Zedan’s propensity for lying, and for other reasons I will discuss, I must approach his testimony with great caution.
[64] For clarity, I am going to review some of Zedan’s lies and inconsistencies that became apparent at this trial. There are far too many for me to mention all of them, but I will mention some of the more significant ones.
[65] When he was first arrested in Thunder Bay, Zedan gave a detailed interview to a police officer on March 24, 2020. During that interview, Zedan made many statements that were either untrue or inconsistent with other statements he made.
[66] At the beginning of his interview, Zedan denied that he even knew where Brantford was or that he had ever been there. That was a lie.
[67] He was then told by the interviewing officer that the police team had the distinctive Diesel jacket that could be seen in the video surveillance recordings, and it had been determined that Zedan’s DNA was on the jacket. Zedan said that maybe it was his friend’s jacket and that he had put it on. That was a lie.
[68] He was then shown a picture of the black Chrysler 300 and he said he did not recognize it. That was a lie.
[69] He told the officer that he had been at a party in Toronto the night before the murders, and some people were going to give him a ride back to his home in Brampton. He said that he fell asleep and when he woke up, he was in the back seat of a car with these people, and they were in Brantford. The people told him to go to the porch to look for a Purolator package, and he did so. All of that was a lie.
[70] He said that the guy that told him to go to the porch was a person named Sal, and that he had just met Sal the night before. Both of those statements were lies.
[71] He extended his lies by saying that both Sal and his brother were present in the car. That was a lie. He further said that the guy who shot the murder victims was Sal. That was a lie.
[72] About nine months later, on December 22, 2020, after receiving advice from his lawyer, Zedan gave another police interview. The purpose of that interview was to allow Zedan to provide accurate information to the police officers in consideration for his plea deal with the Crown. Therefore, one would expect that Zedan would have been open and honest with the interviewing police officer. He was not.
[73] During the December 2020 interview, he told the officer that he was told to go to Brantford to shoot and kill a person named Ron. That was a lie. On the witness stand at trial he tried to explain this inconsistency by saying that he actually used the name “Roger”, but the transcriptionist got the name wrong. I find that to be a lie.
[74] He also told the officer that he wanted to rent a vehicle for the job, and he found someone who smoked crack, named Smoker Dan, to rent the Hyundai for him. He concocted a detailed story about Smoker Dan. That was a lie.
[75] During the December 2020 interview, he initially said that there were only two people who went to Brantford, namely Zedan and Malik. That was a lie. Eventually he acknowledged that there was a third person who came with Malik, and he gave the officer the name of Ritchie. That was a lie. In fact, there were five people in the two vehicles and none of them was named Ritchie.
[76] Zedan said that he, Zedan, was the person driving the Hyundai to Brantford. That was a lie. We know that it was his friend, Stacks, who was driving.
[77] He told the interviewing officer that only he and Malik knew the reason that they were going to Brantford. The third person was told that they were going there to rob somebody. That was either a lie or an inconsistency.
[78] He was asked by the officer what details he was given about the target of the killing. He said that he was told to shoot “the son” whose name was Ron. The only other detail he had was the address. Later, he added that he had a description of five foot five inches and blue eyes “or something like that.” He did not mention the detailed description that he gave in court.
[79] The December 2020 interview was the basis for the agreed statement of facts (“ASF”) that was read by the Crown at the court proceedings on April 23, 2021, when Zedan entered his guilty pleas. On that day, Zedan took the witness stand and testified under oath as to the truth of the ASF. Again, even his sworn testimony contained statements that were either untrue or inconsistent with other statements he made.
[80] In the ASF, Zedan said that Jassem wanted him to kill a man named Sago. Although we now know that Roger’s nickname was Sago, Zedan never mentioned the name Sago in his December 2020 interview; instead, he called the target Ron.
[81] Also, in the ASF he said that Jassem gave him the detailed description of the target that Zedan gave on the witness stand at this trial. Again, this is inconsistent with what he said in the December 2020 interview.
[82] In the ASF, he said that he was told that Sago lived with his girlfriend at 10 Park Road South and sold drugs out of that house. He did not mention that in the December 2020 interview.
[83] He said in the ASF that he picked up the Chrysler 300 at an address on Champagne Drive. This is inconsistent with his December 2020 interview in which he said that he picked it up near Downsview Park, but he did not remember the address.
[84] Further, in the ASF, Zedan said that Malik was his associate and that Malik owed him $18,500. Zedan asked him to do this shooting for $20,000 to clear his debt. However, in the December 2020 interview Zedan said that Malik was a kid he met hustling downtown. He never mentioned that Malik was an associate or that he owed Zedan any money.
[85] Then, in August 2021, Zedan gave sworn testimony in court at the preliminary hearing of the charges against Malik. Again, there are lies and inconsistencies.
[86] At Malik’s preliminary hearing, Zedan testified that Jassem described Sago as “a middle-aged white guy between 30 and 50”. He denied that he was given a description of the hair or eye colour. He denied that he was given Sago’s height, other than he was “short.” That was either an inconsistency or a lie.
[87] In the December 2020 interview, Zedan said that he was travelling in the Hyundai, and that he was just “bending the corner” at the time of the shooting. However, at Malik’s preliminary hearing, Zedan testified that he was in the Chrysler 300, that he did not watch Malik do the shooting, and that his back was turned away when he heard gunshots. At trial, Zedan testified that he heard gunshots and that he saw Malik do the shooting.
[88] Along the same lines, there were multiple inconsistencies about which vehicle Zedan and his crew occupied when they arrived in Brantford, while they circled the residence, and when they left the scene. It appears as if Zedan placed himself in either the Hyundai or the Chrysler 300 depending upon what seemed to be the best explanation at the time.
[89] Finally, at Malik’s preliminary hearing Zedan made distinct lies under oath about the handguns. He was asked at the preliminary hearing if Malik had a gun and Zedan said, “I can't remember”. That was a lie. Zedan knew that Malik had a .40 caliber Glock. However, Zedan compounded that lie when he was asked by the Crown, “So, if you were giving him that instruction…did you give him a gun?” Zedan said, “Yeah. I did.”. He said that earlier in the day he had given Malik a .22 caliber Taurus handgun with one bullet. That was a lie.
[90] Zedan's lack of respect for the truth was very obvious when at this trial he tried to explain the inconsistency between his statement in the ASF that Malik had a .40 caliber Glock and his statement at Malik's preliminary hearing that he gave Malik a .22 caliber Taurus. On the witness stand at this trial, he testified that he did not really know what time period the Crown was asking about. He thought maybe the Crown was asking if he had ever given Malik a gun at any time. In my view, that was a complete fabrication and a feeble attempt to cover up the lies he told at the preliminary hearing.
[91] In addition to the lies and inconsistencies that are very apparent, I also find that Zedan has lived a criminal and dishonest lifestyle that, on its own, should cause the court to be concerned about his credibility. Zedan's criminal record was entered as an exhibit. Zedan testified that his record was “not too long.” I acknowledge that the record is not extremely long, compared to some, but it is significant.
[92] Zedan was convicted in 2015 for obstructing police and in 2015 for robbery. He has a drug possession conviction in 2018 and he has the manslaughter convictions from 2021 that relate to the matter before this court.
[93] In my opinion, one of the most significant prior convictions is Zedan's conviction in May 2021 for identity theft. In the commission of that offence, Zedan arranged, while he was in custody, to assume the identity of another prisoner who was about to be released. As a result, Zedan was mistakenly released from custody. That offence clearly illustrates that Zedan will commit any dishonest act if he thinks he will benefit from it.
[94] Another issue regarding Zedan’s credibility is the presence of a motive to lie. There is no doubt that from the moment Zedan was arrested he was thinking about how he could make a deal to save himself or lessen the sentence that he might serve. Even during the first police interview after his arrest, in response to the officer’s questions, Zedan asked the officer how his answers would benefit him.
[95] I find that Zedan knew that there was strong evidence against him that could result in his conviction for two counts of first-degree murder. He knew that if he could blame someone else for the murders, he could significantly reduce his sentence. So, he told police that Salloum Jassem was the person who had arranged for the murders. As a result, Zedan made a very good deal for himself.
[96] Zedan’s mindset is confirmed by the notes of OPP Officer Foulds, who was with Zedan while Zedan was testifying at Malik’s preliminary hearing by way of a Zoom call. The officer’s notes show that Zedan asked him about perjury, which generated a very brief discussion. Zedan then said to the officer, “All I can tell you is that I got my deal and now I can help Malik, and we will both be good.”
[97] In summary, the lies and inconsistencies, the criminal lifestyle and dishonesty, and the ulterior motive to lie, collectively cause me to be extremely cautious about accepting any testimony given by Zedan.
[98] In the case of R. v. Vetrovec, 1989 CanLII 108 (SCC), [1982] 1 S.C.R. 811, 48 C.C.C. (3d) 161, the Supreme Court of Canada provided some direction as to how a court should deal with the credibility of a witness who may be untrustworthy. As a result, a Vetrovec warning was developed. Most recently that Vetrovec warning was explained in R. v. Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100 (C.A.), at para. 187, and R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37.
[99] As a first step, a judge must determine whether the evidence of a certain witness requires special scrutiny. Clearly, in this case, Zedan’s evidence requires special scrutiny.
[100] If that is the case, the Supreme Court has stated that a trier of fact may rely on the unconfirmed evidence of such a witness, but that it is dangerous to do so. At para. 37 of Khela, Fish J. wrote that the trier of fact should “look for evidence from another source tending to show that the untrustworthy witness is telling the truth”. Put another way, a judge should look for independent evidence that agrees with the important parts of the witness’s evidence and makes the judge more confident that his testimony is true, in whole or in part.
[101] In my view, the Vetrovec warning certainly applies to my consideration of Zedan’s evidence. There is little, if anything, I can believe in Zedan’s testimony without independent corroborating evidence.
THE CORROBORATING EVIDENCE
The Positions of the Crown and the Defence
[102] The Crown submits that there is independent circumstantial evidence that supports or confirms Zedan’s testimony. The Crown says that this circumstantial evidence, when it is considered as a whole, confirms important parts of Zedan’s testimony, to such an extent that it provides significant corroboration. Therefore, the Crown submits that I should find that Zedan’s testimony about Jassem’s involvement in these murders is true. Thus, the Crown submits that the Crown has proved its case beyond reasonable doubt.
[103] The position of the defence is that there are many innocent inferences that can be drawn from the circumstantial evidence, and therefore Zedan’s testimony is largely uncorroborated. Accordingly, defence counsel submits that, because of Zedan’s credibility issues, the Crown is unable to prove its case beyond reasonable doubt.
[104] Because the proposed corroborating evidence is circumstantial evidence, in my view the issue is whether the only rational inferences that can be drawn from the circumstantial evidence are that parts of Zedan’s testimony are true. If so, I must decide whether the extent of the corroboration proves the case against Jassem beyond reasonable doubt.
The Chrysler 300 and the Cell Phone Records
[105] The Crown’s submissions as to corroborating evidence are primarily based on the GPS data from the Chrysler 300 and the cell phone records for two separate cell phones. I find that the GPS data from the Chrysler 300 is strong objective evidence, but there are limitations with respect to the cell phone records.
[106] Officer Ryder testified that the data that was extracted from the GPS module from the Chrysler 300 included latitude and longitude readings from which the officer could determine a point-by-point location for the vehicle whenever the vehicle was in motion. If the vehicle remained stationary for approximately three minutes, there was no GPS data. I accept Officer Ryder’s evidence that the GPS data from the Chrysler 300 is a fairly accurate record of the location of the Chrysler 300 at any given time.
[107] The cell phone records are less reliable. The records obtained by production orders from Rogers Communications include phone numbers and subscriber names for each of the relevant cell phones, along with the dates and times that the cell phones were in use. These records also include the addresses of the cell sites that were engaged whenever the cell phones were connected to them.
[108] There are several limitations to the cell phone records. First, a cell phone only connects to a cell site when that cell phone is actually in use. So, the records will only provide a cell site address when the cell phone is being used to make or receive a call or a text message. For any period during which the cell phone is not being used, it will not be connected to a cell site, and therefore there will be no information as to the location of the cell phone.
[109] Second, the address of the cell site does not provide the exact location of the cell phone device even if the cell phone was connected to that cell site. The records only establish that the cell phone was within the range of the cell site at the time it was connected. That range could be as much as one kilometre in every direction.
[110] Third, the cell phone records only provide information that relates to the cell phone device. The records cannot identify the person who is in possession of the device at any time.
[111] There is another concern in this case regarding the records for the cell phone with a phone number ending in 5968. The Crown submits that this was Jassem’s cell phone. However, that submission is not clear on the evidence.
[112] The subscriber’s name in the Rogers Communications records for this phone number is Hank Jones. To establish that the cell phone records for the Hank Jones phone are relevant to determining Jassem’s location, it is incumbent on the Crown to call evidence to show that Jassem owned, possessed, or used this cell phone. No one gave that evidence. Further, there is no surveillance evidence to show that Jassem was using a cell phone at a specific location while the Hank Jones cell phone was connected to a cell site near that location.
[113] In support of its position that the Hank Jones phone was Jassem’s phone, the Crown relies, in part, on the fact that the Contacts list found in the cell phone of Nathan Howes (“Howes”) included the Hank Jones phone number listed under the name of “Sally”. Unfortunately, Howes never testified that the Hank Jones phone number was his contact number for Jassem. In fact, Howes was never called as a witness at this trial.
[114] The Crown submits that its case is assisted by the testimony of Jessica Marsh (“Marsh”) who was Howes’ girlfriend at the time. Marsh testified that Howes told her to use this phone number to call “Sal” after Howes was arrested in Wingham. Marsh did so, but Marsh clearly testified that she did not know who she was calling, and she could not identify the person to whom she spoke. This does not advance the Crown’s case.
[115] Because the creator of the Contacts list was not called as a witness, I find that the contents of the Contacts list should be given little weight.
[116] The Crown also relies on the fact that the cell site records for the Hank Jones phone show that this cell phone regularly connected to a cell site that was near 1 Trillium Way in Brantford, which was Jassem’s residence. Again, we know that the address of a cell site does not pinpoint the location of a cell phone; it just confirms that the cell phone was being used within approximately one kilometer of the cell site. I can take notice that many people live, work, or visit multiple locations that were within the range of that cell site. Also, we know that other members of Jassem’s family lived at 1 Trillium Way.
[117] Overall, regarding the Hank Jones phone, I accept that the cell phone records provide some circumstantial evidence that Jassem was one of many possible users of this cell phone and that he could have been the user of the Hank Jones phone at times when it was within range of certain cell sites. However, there are many innocent inferences that could be drawn from this evidence, such as the possibility that Jassem did not ever use this cell phone, or that Jassem did not have exclusive possession of this cell phone. Therefore, I find that the connection between the Hank Jones phone and Jassem’s location at any given time is a weak one.
[118] Regarding the records for the cell phone with a phone number ending in 2163, the Crown submits that this was a cell phone that was used by Zedan at the relevant times. I find that this submission is stronger than the submission regarding the Hank Jones phone.
[119] The subscriber’s name for this cell phone is Ahanelle Louiss. On the witness stand, Zedan testified that he used his girlfriend’s phone, and that his girlfriend’s mother’s name is Ahanelle Louiss. Although there is no evidence that Zedan had exclusive use of his girlfriend’s phone, I accept that the Louiss cell phone records provide circumstantial evidence of Zedan’s location, subject to the general limitations on the cell phone records that I have discussed.
Analysis of the Corroborating Evidence
[120] I now turn to my analysis of the specific pieces of circumstantial evidence from which the Crown says I can infer the existence of facts that corroborate Zedan’s testimony.
[121] First, the Crown submits that there is evidence from which I can infer that Jassem was in possession of the Chrysler 300 and that Jassem provided it to Zedan.
[122] I accept the evidence that the Chrysler 300 was forcefully stolen from Bruce Matthias (“Matthias”) by Howes and Kevin Jellis (“KJ”) in May 2019. Thereafter, the GPS data shows that the Chrysler 300 remained mostly in the Brantford area until approximately May 28, 2019, when it was driven to Toronto.
[123] The Crown says that Marsh’s testimony shows that Howes sold or gave the Chrysler 300 to Jassem in the few days prior to May 28. However, I find that Marsh’s evidence on this point is weak. Marsh did not identify Jassem as the person who came to Howes’ residence to pick up the Chrysler 300. She merely testified that she was introduced to a person named Sal who was there about the car. She provided the court with a description of the person she met, but that description does not match the defendant’s description. Further, on the witness stand at this trial, Marsh said that she did not see the person to whom she was introduced in the courtroom.
[124] The Crown further submits that I can infer that the Chrysler 300 was in Jassem’s possession because the GPS data shows that from May 25 to May 28, 2019, it was located at or near 1 Trillium Way. I accept that this is some circumstantial evidence that Jassem may have had the use of the Chrysler 300 for a few days in Brantford, but again I note that there were other family members who lived at 1 Trillium Way. Further, the GPS data also shows that, during those few days, the Chrysler 300 was also located at Howes’ residence, and it made trips to Paris and Hamilton.
[125] Still further, there is evidence that Jassem, if he did have possession of the vehicle, did not have exclusive possession. His sister was observed using the vehicle in North York in the early evening of May 28, 2019, when the video surveillance cameras at the York Regional Police Station recorded her attending at the police station in the Chrysler 300. In addition, there was DNA evidence from a Kleenex located in the Chrysler 300 that matched the DNA of Jassem’s brother, Seif.
[126] I also note that when the Chrysler 300 was driven from Brantford to Toronto on May 28, 2019, the cell phone records show that the Hank Jones phone remained in the Brantford area.
[127] Based on all of this evidence, I find that at most there is some circumstantial evidence that Jassem may have used the Chrysler 300 at some point between May 25 and May 28, but it certainly does not confirm that Jassem had sole possession or exclusive use of the Chrysler 300. On the contrary, there are many innocent inferences that could be drawn from this evidence, including inferences that Jassem never used the Chrysler 300, or that Jassem did not have exclusive possession of the Chrysler 300.
[128] Second, the Crown submits that there is a connection between Jassem and the Chrysler 300 and the address at 355 Champagne Drive in North York. I accept that the GPS data from Jassem’s ankle bracelet shows that Jassem regularly attended the Champagne Drive address in late 2018 and early 2019 up until the time the ankle bracelet was removed on April 15, 2019. I can infer that Jassem had some connection to that address; however, there is no evidence as to the nature of Jassem’s connection. The only information provided to the court is that 355 Champagne Drive may be the address of a towing business.
[129] Further, the GPS data shows that the Chrysler 300 remained at 355 Champagne Drive without moving from May 29 until late in the day on July 17, and did not leave the property until the early hours of July 18. During that time, the Hank Jones phone connected to a cell site within the range of 355 Champagne Drive on only three occasions, May 30, June 18, and July 16. This only shows that someone with the Hank Jones phone, not necessarily Jassem, was within approximately a one-kilometre radius of the cell site that is near Champagne Drive on those dates.
[130] Therefore, I find that there is no strong evidence that Jassem was at 355 Champagne Drive at any time after April 15, 2019. The strongest adverse inference that could be drawn is that Jassem was in possession of the Hank Jones phone while he was in the vicinity of 355 Champagne Drive on three occasions while the Chrysler 300 remained stationary, but that is of little value. In addition, there are other innocent inferences that can be drawn from the evidence, such as an inference that someone other than Jassem had the Hank Jones phone, or that a person with the Hank Jones phone lived or worked or visited a location somewhere in North York, other than 355 Champagne Drive.
[131] On this point, I accept that the Chrysler 300 remained on Champagne Drive until the early hours of July 18, 2019, and thereafter was driven to Brantford. That is, I accept that the GPS data from the vehicle confirms Zedan’s evidence that he was aware of the location of the Chrysler 300, that he picked it up on Champagne Drive, and that his crew drove it to Brantford in the early hours of July 18, 2019.
[132] Third, the Crown submits that the cell phone records showing the use of the Louiss phone to make a short voice call while connected to a cell site near 1 Trillium Way on July 18 at 7:36 a.m. confirms Zedan’s testimony that he drove to 1 Trillium Way to look for Jassem at about that time.
[133] The difficulty for the Crown with this evidence is that Zedan testified that he and his crew drove both the Chrysler 300 and the Hyundai to Jassem’s residence at that time, but in fact the Chrysler 300 GPS data shows that the Chrysler 300 remained in the Park Road South neighbourhood and was not in the vicinity of 1 Trillium Way when the Louiss phone connected to the nearby cell site. To overcome that difficulty, the Crown submits that I should find that Zedan made a mistake on the witness stand about driving both the Chrysler 300 and the Hyundai to 1 Trillium Way.
[134] In my view, it is not logical to suggest that the only way this evidence confirms Zedan’s testimony is if I find that Zedan testified in error. That is, it is not confirmatory of Zedan’s evidence if I must find that the evidence is only confirmatory because Zedan’s evidence is wrong.
[135] Fourth, the Crown relies on the cell phone records to confirm the post offence meeting of Zedan and Jassem in Toronto. I accept that both the Louiss phone and the Hank Jones phone connected to the same cell site in the Kensington Market area of Toronto at approximately 12:40 p.m. in the afternoon of July 18, 2019.
[136] Thus, subject to the general limitations that I have already discussed, I accept that this is circumstantial evidence that supports Zedan’s testimony that he met with Jassem in Toronto after the murders. Again, there are also innocent inferences that can be drawn from this piece of evidence, such as an inference that Jassem was not in possession of the Hank Jones phone at the time, or that the two cell phones were not at the same precise location.
[137] Fifth, the Crown relies on the cell phone records to confirm Zedan’s testimony about driving to Hamilton to pick up the money later in the day on July 18. I acknowledge that the cell phone records show that both the Louiss phone and the Hank Jones phone were connected to the same cell site in downtown Hamilton at approximately 5:00 p.m. However, this circumstantial evidence contradicts Zedan’s testimony on the witness stand that he never arrived in Hamilton. Zedan testified that while he was driving to Hamilton, and when he was about halfway there, he received a call from Jassem that caused him to turn around and go back to Toronto.
[138] Again, the Crown says that I should find that Zedan was mistaken. However, again, it is illogical to suggest that this circumstantial evidence confirms Zedan’s testimony, but only if I find that Zedan testified incorrectly on the witness stand. Further, I repeat that both the Louiss phone and the Hank Jones phone were not necessarily in the exclusive possession of Zedan and Jassem, and the two cell phones were not necessarily at the same precise location.
[139] Next, although the Crown did not make this submission, I want to be clear that the evidence from the video surveillance cameras at the Van Every residence is not evidence that confirms Zedan’s testimony. I find that Zedan became aware of this video surveillance evidence long before he informed the police officers of his movements and actions in or around 10 Park Road South. Thus, it is very likely that Zedan adjusted his testimony to correspond with what he observed in the video surveillance recordings.
[140] Considering the circumstantial evidence as a whole, I find that it is possible to infer that Jassem may have had the use of the Chrysler 300 for a few days in May 2019; that Jassem may have been at or near 355 Champagne Drive two days prior to the murders; that the vehicle was picked up from 355 Champagne Drive on the morning of the murders; and that Jassem may have met Zedan in Toronto after the murders. However, the circumstantial evidence, both individually and collectively, is not strong. There are many innocent inferences that can be drawn from this evidence, which I have discussed herein.
[141] Therefore, for most of the circumstantial evidence, I do not agree that the only rational inferences that can be drawn are that important parts of Zedan’s testimony are true. I find that the circumstantial evidence, considered as a whole, does not corroborate Zedan’s testimony to any significant extent.
IS THERE A RING OF TRUTH TO ZEDAN’S TESTIMONY?
[142] There is one further issue regarding Zedan’s credibility. In submissions, defence counsel suggested that some of Zedan’s testimony did not make sense. I prefer to consider whether Zedan’s testimony has a ring of truth to it. I find that there are some aspects of Zedan’s testimony that do not ring true and for which there is no logical explanation.
[143] In particular, I question why Zedan would gather a crew of four people, and two vehicles and two guns, and then drive to Brantford to kill a target if he did not have a good description of the target or a photograph of the target. The sole purpose of Zedan’s trip to Brantford, according to Zedan, was to kill Sago. It is not logical that he would embark on that mission without precise information that he could use to identify Sago.
[144] Along the same lines, I wonder why Jassem, if he wanted to kill someone, would not give the killer he hired to do so a picture of the target or provide him with some clear, unique information from which he could easily identify the target.
[145] Also, if Zedan’s contract was to kill Sago for money, why did Zedan send Malik, the gunman, to the house on Park Road South with instructions to shoot “anybody he sees.” According to Zedan, Zedan was not sure that Sago was in the house or that he even had the correct address. If that were the case, why would Zedan want to kill anyone who was seen at the house?
[146] The Crown is not required to provide answers to these questions, but the questions raise concerns about why Zedan and his crew were at the Van Every residence.
MOTIVE
[147] That brings me to the Crown’s theory as to Jassem’s motive for wanting to kill Roger. Based on Roger’s testimony, I find that shortly after Roger was released from custody, Jassem requested that he take responsibility for the drugs that were found in the Jerseyville Road raid in return for approximately $40,000. It is the Crown’s theory that Jassem was upset with Roger because Roger refused Jassem’s request. The Crown, in effect, suggests that Jassem wanted retribution against Roger, and he chose to have Roger killed.
[148] The difficulty with the Crown’s theory is that there is no evidence that Roger’s decision to not take the fall for the Jerseyville Road drug raid caused Jassem to be upset with him. Roger testified, and I accept, that he never told Jassem that he was refusing his request. Rather, when he was approached by Jassem with the request, Roger told him that he would think about it. Then, after talking to a lawyer, Roger decided it was not a good idea, but he never got back to Jassem.
[149] More importantly, Jassem’s request to Roger was in June 2018, one year prior to the murders at 10 Park Road South. If Jassem was seeking retribution, why would he wait one year to carry it out?
[150] Further, I also accept that during that year Roger continued to sell drugs as usual for the Jassem brothers. Until the day his parents were murdered, Roger believed that he was on good terms with Jassem. Roger said he did not think there was any problem between himself and Jassem, and he described Jassem as a “good friend.”
[151] To be fair, Roger did say that he became concerned when his friend Coby Carter was killed about two weeks prior to the murders. He wondered if Jassem thought that he knew too much.
[152] Still further, defence counsel raised the possibility that Zedan and his crew were at 10 Park Road South to carry out a home invasion. The defence does not have to establish an alternate motive for the murders, but the defence can certainly raise questions about why Zedan and his crew were there.
[153] Specifically, the evidence is that Zedan initially went to the house carrying a backpack that contained, among other things, gloves and a hammer. When he was asked on the witness stand why he brought the backpack, Zedan simply said, “You never know.” In my view, this was Zedan’s way of avoiding the question.
[154] The law is clear that the Crown is not required to prove a motive in order to prove the offence. However, a proved absence of a motive is a factor that favours an accused person: see Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821.
[155] In this case, I find that there are questions about whether there was or was not a motive. There is neither a proved motive nor a proved absence of motive. In my view, that does not favour either the Crown or the defendant.
CONCLUSION
[156] In conclusion, I find that the Crown relies heavily on the testimony of Zedan to support the Crown’s theory that Jassem orchestrated or directed the attempted murder of Roger, which resulted in the murders of Lynn Van Every and Larry Reynolds. The only direct evidence that ties Jassem to these murders is the testimony of Zedan.
[157] I find that Zedan is an untrustworthy, discreditable witness. His word should not be believed without corroboration. The Crown relies on circumstantial evidence, primarily the GPS data from the Chrysler 300 and the cell phone records, to corroborate Zedan’s testimony.
[158] However, the circumstantial evidence offered by the Crown to confirm Zedan’s testimony is, in my opinion, very weak. There are many inferences that can be drawn that are innocent explanations for the evidence. The circumstantial evidence does not make me confident that Zedan is telling the truth.
[159] In addition, there remain several unanswered questions about how and why the events that occurred at 10 Park Road South on July 18, 2019, unfolded as they did. Further, there are serious questions as to Jassem’s alleged motive, and about why Zedan and his crew were present at that residence.
[160] In summary, the evidence in this case makes one wonder about Jassem’s involvement in these events, but the evidence does not prove the charges against Jassem beyond a reasonable doubt.
[161] For these reasons, I find the defendant, Salloum Jassem, not guilty on all counts.
Justice J. R. Henderson
Date Released: November 23, 2023