2024 ONSC 234
COURT FILE NO.: CR-22-511-00
DATE: 2024 01 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
T. Kim and D. D’Iorio, for the Crown
- and -
Fiseha Girmay Habtegabir, Malik Essue, Abdulla Kaddoura
C. Zeeh and Ms.Conte, for Mr. Habtegabir, Mr. Aly for Mr. Kaddoura, B. Ross and S. Chuckal for Mr. Essue
Defendants
HEARD: October 5, 2023
DECISION ON APPLICATION TO EXCLUDE EVIDENCE FOUND ON MR. GIRMAY HABTEGABIR’S CELLPHONE
ANDRÉ J.
[1] The Applicant, Mr. Girmay Habtegabir (“Mr. Girmay”), brings an application to exclude video evidence recovered from his cellphone pursuant to a judicially authorized search warrant. In another application, I ruled that the search of the cellphone was lawful and, consequently, that the evidence located within it was admissible. The Crown opposes the application.
BACKGROUND FACTS
[2] Ms. Sakida Sharma was murdered in her garage on August 13, 2020. Video and surveillance evidence subsequently linked Mr. Essue and Mr. Kaddoura to the murder. The Crown theorized that the murder was a contract killing orchestrated by Ms. Sharma’s business partner who deposited $6,500 into Mr. Kaddoura’s London bank account three days before the murder. Video and surveillance evidence linked Mr. Essue’s cellphone to Ms. Sharma’s neighbourhood immediately prior to the killing, while other electronic evidence showed the three accused in close conversation with each other on at least two occasions. Furthermore, on September 17, 2020, police recovered five .22 caliber bullets at Mr. Essue’s home, which were similar to two bullet casings recovered at the scene of the murder. Finally, Mr. Girmay’s fingerprint was located behind the driver’s seat of the getaway vehicle where the alleged shooter entered the vehicle following the fatal shooting.
[3] On October 10, 2020, a member of the London Police Services stopped Mr. Girmay while he operated a grey BMW. The officer seized Mr. Girmay’s cellphone at the request of a detective of the Peel Regional Police Services. I ruled that evidence obtained from the phone was admissible in Mr. Girmay’s trial.
APPLICANT’S POSITION
[4] Mr. Girmay submits that the video recovered from his phone in which he is seen holding a firearm with a caption, “One in the head don’t play wit meeeee”, does not constitute a “party admission” or confession as the Crown asserts.
[5] He also submits that the video is presumptively inadmissible since it is irrelevant to an issue at trial, is not subject to the party exceptions to the exclusionary rule and the probative value of its admission is vastly outweighed by its prejudicial effect.
THE CROWN’S POSITION
[6] The Crown submits that the video is relevant to confirm the identity of the shooter. Ms. Sharma died as a result of a fatal head wound allegedly inflicted by Mr. Girmay. He made the video on October 6, 2020, following the murder. The caption constitutes some evidence that he killed Ms. Sharma with a bullet to her head. It is the responsibility of the jury, not the pre-trial motions judge, to ascertain the weight to be placed on this evidence.
LEGAL PRINCIPLES
[7] A “party admission” is defined as “act or words of a party offered as evidence of that party.” Justifications for the admissibility of party admissions does not relate to necessity or reliability: see R. v. Schneider, 2022 SCC 24, 84 C.R. (7th) 223, at paras. 52 – 53.
[8] To be relevant to an issue at trial, the pre-trial judge must determine whether the jury could give “non-speculative meaning” to the utterance attributed to the accused: Schneider, at paras. 64 – 70.
[9] A party is entitled to prove relevant out of court statements an opposing party has made and offer those statements as “admissions” of fact that have been made by that party: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653.
[10] As a general rule, in a joint trial, an “out of court statement or admission made by one accused is not admissible evidence against a co-accused”: R. v. MacDonald, 2010 ONCA 178, 259 O.A.C. 308, at para. 18.
ANALYSIS
Are the lyrics of the rap caption admissible in the trial of Mr. Girmay?
[11] The Crown insists that the video has a temporal connection with the murder and, significantly, the lyrics capture how Ms. Sharma was killed. Mr. Girmay’s counsel submits that the video far from being an admission; these lyrics are that of a popular rap song.
[12] Both parties rely on caselaw in support of their respective positions. The Crown relies on R. v. Mallard, 2023 ONCA 426, 88 C.R. (7th) 263, where the Court of Appeal approved the admission of lyrics in a rap song composed by Mr. Mallard’s co-accused two hours after the victim was cremated. It held that the lyrics of the song were admissible, given the proximity of the making of the song to the murder and its clear reference to the manner in which the victim’s body was disposed.
[13] By contrast, Mr. Girmay’s video was made on October 6, 2020, almost two months following Ms. Sharma’s murder. The Applicant submits that the gap in time makes the video found on Mr. Girmay’s phone inadmissible. Furthermore, while the lyrics capture the manner in which Ms. Sharma was murdered, they may well have been appropriated from a rap song. If that is indeed the case, a trier of fact may well have to determine whether Mr. Girmay has adopted these lyrics because of his involvement in the murder.
[14] Mr. Girmay’s counsel relies on R. v. Sitladeen, 2023 ONSC 5226, where Omara J. denied an application for a ruling that rap lyrics found on an accused’s phone was an admission of involvement in the murder. He also ruled that the prejudicial effect of admission outweighed the probative value of admission of the evidence (at para. 24).
[15] However, the facts in Sitladeen are distinguishable from those in this case. First, the video was created two years prior to the murder. Second, an unknown person posted it following the murder (at para. 22). The lyrics relating to the murder could therefore not be said to be connected to the accused. The court therefore denied the Crown’s application to admit the evidence as part of its case against the accused.
[16] Given the proximity of the video found on Mr. Girmay’s cellphone and the lyrics which relate to how Ms. Sharma was murdered, I conclude that the Crown should be permitted to call this evidence in its case against Mr. Girmay. In my view, the probative value of the evidence outweighs its prejudicial effects. The latter effects could be mitigated by limiting instructions concerning the use of this evidence.
[17] I am mindful that, despite my conclusion that the probative value of this evidence outweighs its prejudicial effects, I nevertheless have a residual discretion to exclude the evidence. I decline to do so in this case given my view that it should be left to the jury, with the appropriate caution, to ascribe whatever weight it wishes to place on the evidence.
[18] The evidence is admissible subject to the following:
a) The defence, as requested, will be permitted to introduce into evidence a picture on the video showing Mr. Girmay pointing a firearm. Mr. Girmay’s counsel submits that the picture is important to show the context in which the rap caption was made.
b) The jury will be cautioned that on a joint trial, an out of court statement is not admissible evidence against a co-accused and therefore, unless an exception to this rule applies, the caption cannot be used as evidence against Mr. Essue and Mr. Kaddoura. The same rationale applies to the bullets recovered from Mr. Essue’s house on September 17, 2020.
c) The jury should not rely on unconscious racial bias when determining the weight to be placed on the rap lyrics. They should not be regarded as proof of a racialized person’s propensity to be involved in gun violence or criminal activity.
André J.
Released: January 10, 2024
2024 ONSC 234
COURT FILE NO.: CR-22-511-00
DATE: 2024 01 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
- and –
Fiseha Girmay Habtegabir, Malik Essue, Abdulla Kaddoura
Defendants
DECISION ON APPLICATION TO EXCLUDE EVIDENCE FOUND ON MR. GIRMAY HABTEGABIR’S CELLPHONE
Andre J.
Released: January 10, 2024