Court File and Parties
COURT FILE NO.: CR-22-511-00 DATE: 2024 01 10 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MALIK ESSUE, ABDULLA KADDOURA, FISEHA GIRMAY HABTEGABIR Defendants
Counsel: D. D’Iorio and T. Kim, for the Crown B. Ross and S. Chuckal, for Mr. Essue H. Aly, for Mr. Kaddoura C. Zeeh, for Mr. Habtegabir
HEARD: October 4, 2023
DECISION ON THE APPLICATION FOR THE ADMISSIBILITY OF ANTE-MORTEM STATEMENTS
ANDRÉ J.
OVERVIEW
[1] The Crown brings an application for a ruling that ante-mortem statements made by the deceased, Sangita Sharma, are admissible either as a traditional exception to the hearsay rule or under the principled approach to the hearsay rule. Counsel for the respondents all oppose the application.
SUMMARY OF THE CROWN’S EVIDENCE
[2] Sangita Sharma was a 56-year-old pharmacist residing in Brampton, Ontario with her husband. She was also a businesswoman who had informally invested millions of dollars in several business ventures with Mian Afzalaqif. Ms. Sharma was fatally shot at her home on August 13, 2020. The police investigation into her death ultimately concluded that it was a contract killing.
[3] Mr. Afzalaqif met Abdullah Kaddoura a few years before the murder through his friend and employee, Shuja Zaman. It is alleged that Mr. Kaddoura, at the request of Mr. Afzalaqif, orchestrated the murder by enlisting Malik Essue and Fiseha Girmay Habtegabir. Mr. Essue is alleged to have driven the shooter to and from the Sharma home. Mr. Girmay Habtegabir is alleged to be the shooter.
[4] Sangita Sharma was killed in her own vehicle as she pulled into the garage of her own home at approximately 6:01 p.m. on August 13, 2020. Home surveillance cameras from Ms. Sharma’s street captured a black Ford Fusion entering the school parking lot across the street from her home and waiting for an hour and forty minutes before Ms. Sharma returned home. As soon as she arrived, a male in a black hoodie, alleged to be Mr. Girmay Habtegabir, exited the Ford Fusion. That male crossed the road to Ms. Sharma’s garage on foot, while the driver of the Ford Fusion, alleged to be Mr. Essue, pulled the vehicle out of the school parking lot on to the road. The male in the black hoodie entered the garage quickly, fired two shots, one of which struck Ms. Sharma in the head and caused a fatal injury.
[5] Immediately after firing those shots, the male in the black hoodie ran to the waiting Ford Fusion and entered the rear passenger-side seat. The vehicle then sped away.
[6] A black Ford Fusion found abandoned in a Mississauga parking lot three days later was identified to be the murder vehicle. The vehicle was registered to Malik Essue who had reported his vehicle as stolen to London Police approximately six hours prior to the murder.
[7] Police investigation into the Ford Fusion led them to a mechanic shop in London called K and A Automotive. Video footage from K and A Automotive from three days before the murder showed the licence plates to the Ford Fusion being switched by employees of the shop, apparently at the direction of Abdulla Kaddoura, who was seen handing a large amount of cash to those who work there.
[8] Once the work was complete, video footage showed a black male (alleged to be Mr. Girmay Habtegabir), wearing a black hooded sweater similar to the one worn by the shooter, enter the Ford Fusion and drive it away.
[9] On August 17, 2020, four days after the murder, Gerald McNamara and another young male, alleged to be Fiseha Girmay Habtegabir, attended George Matti Motorsports located in London and purchased a grey 2013 BMW motor vehicle. The vehicle was registered to Gerald McNamara. The selling price was $13,000 in total. Payment was made in cash.
[10] On October 10, 2020, Mr. Girmay Habtegabir was the subject of a traffic stop by London Police while operating the same grey BMW motor vehicle during which two iPhones were seized. Examination of the phones revealed a number of images and videos dated August and September 2020 depicting Mr. Girmay Habtegabir holding large stacks of cash.
[11] The deceased was involved in many business ventures with her business partner, Mian Afzalaqif. They included a restaurant called Naimat Kada, a LED lighting business called Jenco, and a business venture importing COVID masks. Many of these business ventures in which the deceased invested very large sums of money were not documented with business contracts. Rather, they were conducted through verbal agreements based solely on trust.
[12] However, before entering into these agreements, Ms. Sharma consulted with Anil Sinha, an IT and business consultant she met through her faith in Sai Baba. She provided information regarding her various business ventures to Mr. Sinha who in turn provided his professional advice for a fee. She reported her progress in the business deals as they were occurring to Mr. Sinha and sought out his advice whenever she had disputes with Mr. Afzalaqif.
[13] Although denied by Mr. Afzalaqif, according to Mr. Sinha, Ms. Sharma also invested over $1.5 million in total in a telecom business and the purchase of a gas station with Mr. Afzalaqif. Mr. Sinha estimated that the total amount of money Ms. Sharma invested with Mr. Afzalaqif prior to her death was approximately $4 million, of which about $2.5 million was undocumented.
[14] Mr. Sinha’s evidence also reveal that Ms. Sharma had several disputes with Mr. Afzalaqif about her level of involvement in the businesses in 2019 and 2020. For instance, some time after she purchased the restaurant in 2019, Ms. Sharma came to Mr. Sinha’s home after having been at the restaurant. She was very upset and told Mr. Sinha that Mr. Afzalaqif did not treat her like an owner and that she wanted to sell the restaurant. Ms. Sharma explained that she asked Mr. Afzalaqif about the restaurant as things were not going well and instead of answering her questions he insulted her. She was angry at his reaction and she stated, “Okay, you want to run it, run it. Take it. You run it. I’m walking out.”
[15] On another occasion in 2019, a few months after she purchased Jenco, Ms. Sharma told Mr. Sinha that she again had issues with Mr. Afzalaqif. She wished to be on the ground to learn how to operate the business, but Mr. Afzalaqif disagreed, saying that she should not be doing that because she was a lady.
[16] On another occasion, Ms. Sharma grew frustrated at the delay in starting up the Cuba expansion to the telecom business she had invested in with Mr. Afzalaqif. She told Mr. Sinha about this and told him that she wished to sell off the equipment she had purchased for this business.
[17] In the months leading up to her death Ms. Sharma also told Mr. Sinha that she was concerned about the gas station she was to purchase with Mr. Afzalaqif because she was left in the dark about what was happening and did not know when it would be transferred to her name. She expressed this concern a couple of times in 2020.
[18] Ms. Sharma also spoke to her husband Mr. Sharma about one of the business ventures – the COVID mask venture. She required his signature to use $1.2 million that she had in a joint bank account. She explained to him what the money was for and that Mr. Afzalaqif was to repay the money in instalments after two to three months. Ultimately on May 29, 2020, Mr. Sharma, Ms. Sharma and Mr. Afzalaqif all went to the bank together where a bank draft for $1.2 million was given to Mr. Afzalaqif.
[19] The Crown’s position is that Ms. Sharma’s statements to Mr. Sinha and to her husband are admissible at this trial. Some of the statements are not hearsay. Others are hearsay but admissible either via the state of mind exception or “statement of intention” exceptions to the hearsay rule, or pursuant to the principled approach to hearsay.
CROWN’S POSITION
[20] The deceased’s state of mind regarding her business partner is highly relevant in this murder prosecution. Ms. Sharma, understandably, wanted to be actively involved and kept up to date on the status of their many business ventures. She expressed that view to Mr. Afzalaqif, but he was happy to leave her in the dark, even at times actively resisting her efforts to become a documented owner. During some of those disputes Ms. Sharma expressed her desire to withdraw her money or sell certain assets that went against their agreement, thereby undermining Mr. Afzalaqif’ s dominance and control over the businesses and their relationship.
[21] The ante-mortem statements also establish that Ms. Sharma was involved in many more business ventures involving a lot more money than Mr. Afzalaqif is willing to admit. Ms. Sharma invested large sums of her money with Mr. Afzalaqif with no business contracts, based only on trust. This trust began to deteriorate as Ms. Sharma demanded to be a more active and involved partner, a move Mr. Afzalaqif resisted.
[22] This evidence, along with other evidence, provides a link in a chain of proof for which a financial motive on the part of Mr. Afzalaqif to harm the deceased can be inferred. Motive helps to establish identity which is a central issue in this trial.
RESPONDENT’S POSITION
[23] The respondents do not dispute that the proffered evidence is probative. However, they maintain that under the principled approach to the hearsay rule, the Crown has failed to establish that the requirements of procedural or substantive reliability have been met. The statements were given years after they were made. Furthermore, the Crown’s evidence indicates that Mr. Sinha, who the Crown seeks to rely upon, is not a reliable witness given that he was involved in questionable conduct. Furthermore, it is unknown when the conversations were made and the context in which they were made. Additionally, there is no corroboration of Mr. Sinha’s statement.
[24] The respondents’ counsel also submit that the statements are not required to prove the identification of those involved in the murder, neither are they required to provide the motive of the alleged perpetrators.
[25] Furthermore, Ms. Sharma’s state of mind is irrelevant in the trial. Finally, the prejudicial effect of the evidence significantly outweighs any probative value they may have.
GOVERNING PRINCIPLES
[26] Out of court statements made by a declarant who is not subject to contemporaneous cross-examination can be either hearsay or non-hearsay. Statements that give rise to an inference about the declarant’s state of mind are not hearsay. They are original, circumstantial evidence that permits an inference about the declarant’s state of mind and do not engage the exclusionary rule against hearsay. The only bar to admissibility is relevance and materiality: R. v. Candir, 2009 ONCA 915, 257 O.A.C. 119, at para. 56, and R. v. P. (R.) (1990), 58 C.C.C. (3d) 334, at paras. 16, 23-25.
[27] If the statements are explicit statements of a state of mind and mind and are being admitted for the truth of their contents, they are hearsay but admissible as exceptions to the hearsay rule. The traditional exception of “state of mind utterances” exists where the hearsay evidence demonstrates the declarant’s state of mind and the statement was not made under circumstances of suspicion. Such statements are admissible as long as they are relevant and their probative value outweighs its prejudicial effect: Candir, at para. 56; P.(R.), at paras. 16, 23-25; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 59; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 22.
PRINCIPLED APPROACH TO HEARSAY
[28] A statement may also be admissible under the principled approach to hearsay if necessity and reliability are established on a balance of probabilities: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.
[29] As explained by Code J. in R. v. Millard, 2017 ONSC 5701, at paras. 15-16:
The state of mind exception to the hearsay rule, as discussed in P.(R.), is closely related to another traditional common law exception for statements of intention. In addition, statements asserting a present bodily feeling or emotional condition have been admitted at common law on the basis of similar reasoning. Finally, statements of the deceased that accompany and explain the doing of some relevant act have been admitted. In all these instances, the hearsay utterance is necessary (because of the deceased’s absence as a witness) and generally reliable (mainly because of the contemporaneity of the statement to the state of mind, intention, bodily condition, or accompanying act).
The above authorities make it clear that it is only the declarant’s contemporaneous state of mind, emotion, condition, or intention that is admissible and not “past acts or events referred to in the utterances” or some “anterior factual assertion” underlying the present state of mind or intention, as Doherty J. and Lamer C.J.C. put it in P.(R.), supra at p. 344 and in Smith, supra at pp. 266-7. These “past acts or events” or “anterior factual assertions” can only be admitted for their truth by going beyond the scope of the traditional common law exceptions, that is, by relying on the modern principled exception to the hearsay rule. The necessity criterion for the principled exception is not at issue in this case, given that Ms. Babcock is clearly not available as a witness. The only issue is whether the threshold reliability criterion can be satisfied because the statements are “procedurally reliable” or “substantively reliable,” or a combination of both, as those terms are understood in the recent case law concerning the principled exception. [Citations omitted.]
[30] Necessity is clearly achieved when the declarant is deceased: Candir, at para. 57.
[31] Reliability is focused on threshold reliability, not ultimate reliability. Threshold reliability may be satisfied by either procedural reliability or substantive reliability or both approaches working together. Procedural reliability is concerned with adequate substitutes for testing the truth and accuracy of the statement while the substantive reliability is concerned with the circumstantial guarantees of trustworthiness of the statement: Khelawon, at paras. 62-63; Bradshaw, at paras. 26-28, 30, 32, 39-40.
[32] The reliability requirement will be fulfilled where the circumstances in which the statement came about provide sufficient comfort in its truth and accuracy. There is a circumstantial guarantee of the statement’s trustworthiness where it was made under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken: Khelawon, at paras. 62 and 70.
[33] As outlined by Molloy J. in R. v. Burnett, 2015 ONSC 2282, at para. 25, factors that may be considered in assessing threshold reliability are:
- The circumstances in which the statement was made;
- The person to whom it was made;
- When the statement was made in relation to the events to which it relates;
- Whether there is any reason to doubt the truthfulness of the statement;
- Whether there is a motive for the declarant to lie;
- Whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember the events;
- The condition of the declarant at the time the statement was made;
- The spontaneity in the statement;
- The demeanour of the declarant at the time the statement was made;
- The amount of detail in the statement;
- The extent to which there is other extrinsic evidence tending to confirm the statement.
MOTIVE
[34] While motive is generally not an element of criminal offences it can nonetheless be important in proof of criminality. As explained by Dickson J., as he then was, in R. v. Lewis, [1979] 2 S.C.R. 821, at para. 36,
Evidence of motive is merely circumstantial evidence like any other circumstantial evidence, which may or may not be of importance, depending upon the facts of each case. But motive as a legal concept is not a necessary element of the case to be proved by the prosecution and the prosecution is free to adduce such evidence or not.
[35] The nature of the relationship between a deceased and accused is relevant to motive and motive is in turn relevant to identity. The Supreme Court said at paras. 60 and 63 of Griffin:
As stated earlier, the sole issue at trial was the identity of Poirier’s killer. Although Poirier’s state of mind may have no direct bearing on the resolution of the identity of his murderer, it is well established that a deceased’s mental state may be relevant to the question of an accused’s motive. As Doherty J. explained in the oft‑approved judgment in P. (R.), at p. 339:
. . . the deceased’s mental state may bear no direct relevance to the ultimate issue of identification, but it will none the less be relevant to that issue if it is relevant to another fact ( e.g. , motive) which is directly relevant to the ultimate issue of identification.
That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), 17 B.C.A.C. 71, aff’d , [1996] 1 S.C.R. 757. This is not to say that a deceased’s state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased’s state of mind is one piece of evidence that may be relevant to the issue of motive.
ANALYSIS
[36] The Crown seeks an order that many statements made by Ms. Sharma to Mr. Sinha, her advisor, are admissible either as an exception to the hearsay rule or under the principled approach to the admissibility of hearsay evidence. I will deal with each of these statements in turn.
HOTEL
[37] Mr. Sinha’s testimony regarding Ms. Sharma’s statement with him after she spoke to business partner Mr. Afzalaqif concerning a restaurant they had purchased. Mr. Sinha testified that Ms. Sharma complained that Mr. Afzalaqif had gotten upset with her. She was angry at his reaction and had told him that he could run the restaurant on his own and that he could take it. Ms. Sharma wasn’t interested in trying to resolve the matter with Mr. Afzalaqif and had then gone to her home.
[38] In my view, these utterances attributed to Ms. Sharma are admissible either as a state of mind exception to the hearsay rule or under the principled approach to the admission of hearsay evidence.
[39] Contrary to Mr. Aly’s submission that Ms. Sharma’s state of mind is not relevant to any issue in the upcoming trial, I rely on Griffin for the proposition that the deceased’s state of mind is relevant to motive which in turn is relevant to the identity of her killer(s). The Crown’s theory is that Mr. Afzalaqif paid Mr. Kaddoura to have Ms. Sharma murdered. He deposited $6,500 in Mr. Kaddoura’ s bank account on August 7, 2020. His phone records show that he travelled to London, Ontario where Mr. Kaddoura worked as a mechanic. Three days later, Mr. Kaddoura is seen, along with Mr. Essue and Mr. Habtegabir, who are also linked to Ms. Sharma’s murder. Mr. Essue is identified through surveillance video evidence as the driver of the vehicle while Mr. Habtegabir’s fingerprint was recovered in front of the back passenger seat where the shooter enters the Fusion after Ms. Sharma was shot in her driveway.
[40] In my view, Ms. Sharma’s state of mind is relevant to the issue of the motivation for her killing. This motivation connects Mr. Kaddoura and the evidence that ties them to the murder.
[41] The utterances are also admissible under the principled exception to the hearsay rule. There is no dispute that the necessity requirement has been met. Given that the utterances which Mr. Sinha attributes to Ms. Sharma were not recorded, the procedural reliability component of the reliability component have not been met. Mr. Aly submits that the substantive reliability component has also not been met given that Mr. Sinha appears to have been involved in some dishonest dealings with Ms. Sharma and that he received $65,000 from her for a business appraisal he was not qualified to have done.
[42] However, at this stage, I am only concerned with the threshold reliability as opposed to ultimate reliability. Mr. Aly submits that the utterances are not reliable because Mr. Sinha was asked about the statements “years after the fact.” However, as explained by Code J. in Millard, at para. 15, the reliability of the statement partly stems from the “contemporaneity of the statement to the state of mind, intention, bodily condition or accompanying act.” In this case, Ms. Sharma advised Mr. Sinha about her state of mind regarding the restaurant on her way home from a meeting with her business partner who later deposited $6,500 in Mr. Kaddoura’ s account.
[43] Any of the reliability factors set out in Burnett, have been met in this case. These are:
a) The statements were made to Mr. Sinha shortly after a meeting with her business partner; b) She had no motive to lie; c) She would have had no difficulties to perceive or remember the events; d) Ms. Sharma was obviously upset when she made the statements to Mr. Sinha; e) The statements were made to a person who Ms. Sharma trusted given his religious beliefs and his business knowledge.
[44] Mr. Aly submits that the statements should not be admissible because they have no relevance to Mr. Habtegabir in that:
a) There is video and fingerprint evidence, in addition to his association, with Mr. Essue linking him to the murder; b) Motive is not required to prove Mr. Habtegabir’s involvement in the murder and that; c) The Crown does not need this evidence to establish Mr. Habtegabir’s identity.
[45] Mr. Ross, on behalf of Mr. Essue, adopts Mr. Aly’s submissions regarding the inadmissibility of the ante-mortem statements.
[46] Regarding these submissions, I note the following:
a) It is not my role to limit any admissible evidence the Crown intends to call in its case against the three accused; b) Motive may be required to prove Mr. Habtegabir’s involvement in the murder in that he is part of a chain of events, according to the Crown’s theory commencing with a business relationship gone bad, the alleged hiring of a contract killer who in turn recruits two persons, Mr. Essue and Mr. Habtegabir, to do the dastardly deed, make utterances relevant to the Crown’s case against all the accused.
[47] Finally, defence counsel will be able, in the trial, to cross-examine Mr. Sinha at length, about his police statement. To that extent, the accused will not be prejudiced by the admission of this evidence.
[48] To that extent, the statements attributed to Ms. Sharma are admissible.
JENCO LED LIGHTS STATEMENTS
[49] In late 2018, Ms. Sharma invested in Mr. Afzalaqif’s LED light business called Jenco. Mr. Sinha advised her to find out the value of the business before investing in it. He valued it at $1 million and advised her to pay $500,00 for a 50% stake. Mr. Sinha’s name was used to deceive Mr. Afzalaqif’s partner. In the transaction, as a result, Mr. Sinha “purchased” a 50% interest in the property which was then transferred back to Mr. Afzalaqif and Ms. Sharma. Mr. Sinha testified that Ms. Sharma complained to him a few months after the transaction that she had some problems with her partner because he was opposed to her learning to operate the business.
[50] Are these statements admissible under the state of mind exception or principled approach to the hearsay rule? In my view, they are, based on the reasons I have noted with respect to the utterances attributed to Ms. Sharma in the previous section.
TELECOMMUNICATION BUSINESS
[51] Mr. Sinha testified that Ms. Sharma consulted him about investing in a telecom business in Cuba with Mr. Afzalaqif. Mr. Sinha testified that Ms. Sharma told him that she had paid Mr. Afzalaqif $350,000 for 50% ownership in the business and a further $175,000 for a router to be sent to Cuba. He also testified that Ms. Sharma had become frustrated that this business was not being set up in Cuba as quickly as she had expected and that she wanted to sell her share of the business.
[52] In my view, these utterances attributed by Ms. Sinha to Ms. Sharma are admissible pursuant to the state of mind exception to the hearsay exception rule and under the principled approach to the admissibility of hearsay evidence. They suggest Ms. Sharma’s frame of mind with respect to her dealings with her business partner. They are relevant to the issue of why Mr. Afzalaqif may have deposited $6,500 into Mr. Kaddoura’s account and the chain of events captured by surveillance and forensic evidence. The ultimate reliability of this evidence will be determined by the jury. However in my view, threshold reliability has been met.
GAS STATION
[53] Mr. Sinha also testified that Ms. Sharma invested in a gas station with Mr. Afzalaqif, likely in 2019. She asked him to review the $1.8 million deal. He advised her that it was good. She formed a company with Mr. Afzalaqif to purchase the business and contributed $900,000 to that end. Ms. Sharma later told Mr. Sinha that she was left in the dark about the transaction and did not know when it would be transferred to her name. She twice complained to Mr. Sinha about this in 2020.
[54] Yet again, this evidence is admissible under the state of mind exception of the hearsay rule and under the principled approach to the hearsay rule. Statements attributed to Ms. Sharma constitute evidence of her growing discontent with her business partner. There is no apparent reason why she would not be truthful about the information relayed to Mr. Sinha. The concerns were raised in the very year she was murdered. It also, as with the previous statements already assessed, provides information regarding huge sums of money which Ms. Sharma stated that she paid to her business partner. This information is relevant to the Crown’s theory that Mr. Afzalaqif placed a bounty on Ms. Sharma’s life and that he hired others to carry out his plan. I should again mention that the defendants will have a full opportunity to cross-examine Mr. Sinha on this evidence.
COVID MASK VENTURE
[55] Mr. Sinha testified that Mr. Afzalaqif and himself were running a mask importing venture and needed to raise $4 million for the first assignment. Ms. Sharma told him that she contributed $1.9 million to $2 million towards the venture and that he realized a profit on her investment. Mr. Sharma confirmed that he accompanied his wife to a bank where she made a bank draft in the amount of $1.2 million in the name of a company provided by Mr. Afzalaqif.
[56] These statements attributed to Ms. Sharma are admissible under the state of mind exception to the hearsay rule or under the principled approach to the admission of hearsay evidence. It is further evidence of the financial dealings between Mr. Afzalaqif and Ms. Sharma and are relevant to the issue of motive which in turn, is linked to the overarching issue of the identity of those involved in Ms. Sharma’s murder. The transaction occurred a few months prior to the murder. Bank records can corroborate Mr. Sharma’s anticipated evidence concerning this transaction.
[57] For the above reasons, these utterances regarding the COVID mask venture are admissible.
CONCLUSION
[58] The ante-mortem statements referred to above are admissible in the trial for the reasons provided.
André J.