Court File and Parties

COURT FILE NO.: CR-23-10000201-0000 DATE: 2024-04-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Responding Party – and – UMAR ZAMEER Defendant

Counsel: M. Cantlon and K. Simone, for the Crown/Responding Party N. Hasan and A. Heine, for the Defendant/Applicant

HEARD: November 9, 2023

MOLLOY J.

Reasons for Decision (Prior Consistent Statements of a Witness)

A. Introduction

[1] Umar Zameer was charged with first degree murder in relation to the death of DC Jeffrey Northrup on July 2, 2021. His trial proceeded before me, with a jury, commencing on March 18, 2024 and concluding on April 21, 2024. Although charged with first degree murder, I also left with the jury the included offences of second degree murder and manslaughter by unlawful act (dangerous driving). The jury found Mr. Zameer not guilty on all offences.

[2] During a pre-charge conference with counsel, the defence sought a ruling that statements made by Mr. Zameer’s wife to police officers at the time of her husband’s arrest should be admissible as an exception to the rule against prior consistent statements. I did not accept that submission and instructed the jury that the statements were not admissible for their truth. My reasons for that decision are set out below.

B. Factual Context

Background

[3] On the night of July 1, 2021, Mr. Zameer and his wife Aaida Shaikh (who was eight months pregnant) took their two-year-old son to downtown Toronto to participate in Canada Day celebrations. They parked their BMW in the underground parking lot at Nathan Phillips Square. At around midnight, they decided to head home. When they were in their car and about to leave, they were approached by a man and a woman who were strangers to them. Believing they were under attack, Mr. Zameer attempted to drive away by going forward from the parking spot he was in, through the empty parking spot ahead of him, and into a laneway leading to the garage exit. As he did this, the man and woman pounded on his car and windows, ordering him to stop and to get out of the car. A dark van with tinted windows then pulled in front of the parking spot from which he was planning to exit, blocking his passage. Mr. Zameer then reversed out of both parking spaces and into another laneway and headed south towards the exit. The grey van pursued him.

[4] The man and woman who approached the Zameer family car in the underground parking were in fact plainclothes police officers (Officers Forbes and Northrup). There were two other plainclothes officers in the van (Officers Correa and Pais), which was in fact an unmarked police vehicle assigned to the Major Crime Unit at 52 Division. The officers were investigating a stabbing that had occurred earlier that night. Mr. Zameer was not connected in any way to the stabbing, nor did he match the description of the suspect.

[5] Mr. Zameer and Ms. Shaikh testified that they did not know the man and woman who approached them were police officers. I found their evidence to be compelling on this point. I consider it to be implicit from the verdict that the jury also accepted their evidence.

[6] As Mr. Zameer was reversing into the laneway, there was a glancing contact between the front driver side fender of the BMW and Officer Northrup, who had apparently followed the car from the point where it had previously been blocked by the van. An expert witness for the Crown (Det.-Sgt. Bassingthwaite) and an expert witness for the defence (Barry Raftery) both testified that following this contact with the BMW, Officer Northrup wound up on the ground and the BMW subsequently ran over him as it proceeded forward towards the exit. Tragically, Officer Northrup died from the injuries he sustained. Mr. Raftery testified that when Officer Northrup was on the ground, including at the point the BMW ran over him, his body would not have been visible to the driver because of the blind zone in front of the car. The jury must have accepted this testimony given the verdict reached.

[7] When Mr. Zameer arrived at the exit, there were two terminals at which people could pay to exit, both with mechanical wooden arms blocking the exit ramp until the terminal accepted payment. There was a car at both terminals, both of which appeared to be having operational problems processing credit cards. Mr. Zameer’s car was behind one of the cars trying to make payment. The MCU van approached Mr. Zameer’s car, driven by Officer Correa, with Officer Pais in the passenger seat.

[8] Officer Correa deliberately smashed into the back end of the Zameer vehicle at sufficient force to cause deployment of the van’s front airbags and significant damage to the front end of the MCU van. Both officers, also in plainclothes, then extracted Mr. Zameer and Ms. Shaikh from the BMW at gunpoint and Mr. Zameer was arrested.

The Takedown

[9] The surrounding circumstances and the emotional state Ms. Shaikh was in at the time she made statements to the officers on scene are relevant for the purposes of this ruling. Because this was not the subject matter of the jury’s decision, I will need to come to my own conclusions as to some of the facts, including making limited findings of credibility on some specific aspects of the officers’ testimony.

[10] Both Officers Correa and Pais testified at trial that after they rammed the Zameer vehicle from behind, Officer Correa went to the driver side of the BMW and Officer Pais went to the passenger side. Both testified that they had drawn their service revolvers but were holding them pointing towards the ground beside their leg. Both testified that they did not point their firearms at the occupants of the vehicle. This is untrue.

[11] Mr. Zameer testified that the van rammed the rear of their car and a man immediately appeared from the van and was pointing a gun at him through the driver’s side window and ordered him to get out. He believed these men were from the van that blocked their way earlier and from whom they were fleeing (which in fact was the case). He was afraid he was going to be shot and did not want his child to witness that, so he immediately unlocked his car door. He said he was so afraid that he urinated in his pants. Even at that time, he did not know this was a police officer. He was ordered to the ground, face down, and complied. He could not see what was happening with his wife.

[12] Aaida Shaikh testified that after they were rammed from behind, a man (later known to be Officer Pais) came up to her side of the car and pointed a gun at her head, ordering her out of the car. She complied and he ordered her to lie down on the ground. She was terrified and was trying to tell him that she was pregnant and could not lie down on her front. She was also focused on her two-year-old who had been crying in the back seat ever since the man and the woman had been pounding on their car at their parking space. He was not fully buckled into his car seat because they had left before she had a chance to do that. She could see him starting to climb out of the back seat and into the front seat so that he could get to his mother. This all happened as she was having a gun pointed at her by a stranger.

[13] Officer Pais testified that he approached the car with his firearm drawn but that he never pointed it at Aaida Shaikh. He agreed that he pulled her out of the car by her arm, but said he then took her to the side and denied ever ordering her to the ground. Officer Correa testified that he simply had his firearm “in his hand” when he approached the driver of the BMW.

[14] The occupants of the car immediately in front of the Zameer BMW heard the crash as the MCU van slammed into the back of the BMW. They looked behind to see what was happening. They testified at trial that they had no idea the two men who approached the BMW were police officers. Ms. Galindo (who was in the passenger seat) testified that the two men were yelling at the occupants of the vehicle behind them. The only word she understood was “out.” She heard screaming from the woman seated in the front passenger seat. Mr. Ruiz Velasco (who was the driver) testified he saw both men aiming their firearms at the occupants who were still in the vehicle behind them and yelling “get out.” Both Ms. Galindo and Mr. Ruiz Velasco were in fear for their lives. They smashed through the barrier in front of them and fled. They looked for, but did not see, any police cars where they emerged from the parking lot. They called the police the next day to report the incident.

[15] Officers Pais and Correa proved themselves to be neither truthful nor reliable witnesses. I do not propose to go through all of the ways in which this was demonstrated throughout the trial. Two important examples are sufficient. Immediately after the tragic death of Officer Northrup, Officer Forbes provided statements to two officers who were equipped with body-worn cameras. At that time and also at the preliminary hearing and at trial, she described witnessing the death of Officer Northrup, describing him as standing up in the middle of the laneway with both hands raised at chest level and his palms pointing forward. She testified that Mr. Zameer drove his BMW straight at Officer Northrup, hitting him head-on from the front, and then running over his body as it lay on the ground. Officers Pais and Correa were a few car-lengths away, but they also have consistently described the same scenario: Officer Northrup standing in the center of the laneway, facing the vehicle, with his arms up at chest or shoulder level and palms facing forward; the BMW hitting Officer Northrup head on; and the BMW then running over his body. Officer Pais testified that it looked as though Officer Northrup was holding his badge in his left hand. He said after he was hit, Officer Northrup fell forward over the hood of the BMW. Officer Pais described Officer Northrup as hitting his hands on the hood of the BMW, then going up in the air and bouncing off the hood of the car before landing on the ground and being run over.

[16] This did not happen.

[17] Ms. Shaikh and Mr. Zameer both testified that there was nobody in the laneway when they drove forward. Officer Northrup was 6'3" and weighed 299 pounds. If he was standing in the middle of the laneway, as described by the officers, they would have seen him. Furthermore, there is surveillance video from the parking garage looking straight down that alleyway. Officer Northrup was not standing in that laneway when he was knocked to the ground.

[18] The Crown argued at trial that Officer Northrup could have been hit when standing up behind a pillar, which obscured the video camera view for about one second from when the BMW was moving forward. While that might resolve the problem created by the video evidence that he was not in the middle of the laneway, that would mean that, at the very least, all of the officers were wrong about where he was standing at the time of impact. However, there is a much deeper flaw in that argument. According to the expert evidence at trial, it is not possible that Officer Northrup was hit head-on while standing up.

[19] Det.-Sgt. John Bassingthwaite is an expert in collision reconstruction called by the Crown. He is himself a police officer. He testified that as the BMW was reversing out of the parking space towards the laneway, its front end swung out and there was glancing contact between Officer Northrup and the front driver side fender of the BMW. He said that Officer Northrup then was knocked to the ground or could have stumbled or lost his balance and fallen. There was a “cleaning mark” and fingerprint from Officer Northrup in that location, consistent with the glancing contact. Det.-Sgt. Bassingthwaite was clear that Officer Northrup was already on the ground when he came in contact with the front of the BMW. He ruled out the possibility of Officer Northrup being hit head on while standing because there was no disturbance of the dust on the hood of the BMW and no denting or other marks on the hood or damage to the bumper of the BMW consistent with a frontal impact.

[20] Barry Raftery is an expert in collision reconstruction called by the defence. He is a professional engineer and highly qualified as an expert in this field, with many years of experience. He has been qualified as an expert in court in excess of 150 times in his career. He testified that he agreed entirely with the conclusion of Det.-Sgt. Bassingthwaite as to the mechanism of this collision. He also was clear that Officer Northrup could not have been standing upright when hit by the front of the BMW, citing the same physical evidence as Det.-Sgt. Bassingthwaite. He also testified that if Officer Northrup had been hit while standing, he would have fallen onto the hood of the BMW and would likely have dented the hood and fractured the windshield.

[21] It is clear from the jury verdict that they rejected the evidence of the police officers on this issue, as do I. Witnesses to a traumatic event can sometimes have a very contorted memory of that event. After many years as a trial judge, I have seen honest eyewitnesses be completely mistaken about a memory of an event that they are positive they have remembered correctly. It is possible that Officer Forbes has a reconstructed memory of this event that is simply wrong, but honestly held. [1] However, it is not possible for Officers Pais and Correa to have the exact same image of an event that simply did not happen. While there may be an innocent explanation for Officer Forbes’ faulty memory, in my view no such innocent explanation is possible for Officers Pais and Correa. They lied about having seen this.

[22] It is possible that Officers Correa and Pais did not see what happened, but decided to back up what Officer Forbes said, honestly believing she must have gotten it right. It is also possible that all three of these officers deliberately made up this story because they did not see what happened and thought that this version was logical. More troubling, it is possible they invented this version to put themselves and Officer Northrup in a better light and were indifferent to the implications for Mr. Zameer. There were ample opportunities for these three officers to confer long enough to get this aspect of their story straight. It is also possible that Officers Correa and Pais got Officer Forbes’ version from some other officer who heard it from her, and decided to tell the same story themselves. Perhaps we will never know what they actually saw. The one thing I know for sure, however, is that Officers Pais and Correa did not see Officer Northrup standing upright while being run down by Mr. Zameer. Further, the fact that their versions dovetail so closely with each other and with Officer Forbes leads me to the inexorable conclusion that they not only lied, but they colluded to lie.

[23] The second major area of concern is the complete disregard these two officers had about protocols to avoid even the appearance of collaboration or collusion. Officers Correa and Pais both gave statements on the morning of July 2, 2021, before going off duty. They did not complete their notes at that time, although they should have, regardless of the trauma they had been through. They were then on leave for a period of time. Upon returning to duty, the two of them together decided to go back to the parking garage and walk around, purportedly to “refresh” their memories. It is inexplicable that they would do this together, and unbelievable that in the course of doing so they did not discuss what had happened, although both of them said they did not. It was highly improper that they do this together, and as experienced police officers, they would (or should) have known this. They still did not prepare their notes of what had happened. Instead, they did not write up their notes until August 4, 2021. Both testified that they made their notes separately and independently. However, Officer D’Souza testified at trial that on August 4, 2021, all of the officers on the team, with the exception of Officer Forbes, sat down at the same time and in the same room at 52 Division and wrote their notes together. This is another outrageous breach of proper protocol. Interestingly, at the preliminary hearing, Officer Pais testified on a Friday, at which time he was instructed and undertook not to contact Officer Correa until after Officer Correa had testified. Notwithstanding that, he both called and texted Officer Correa the very next day, ostensibly to get the name of a plumber. Neither of these officers can be trusted.

[24] Accordingly, I find both officers lied when they said they did not point their firearms at Umar Zameer and Aaida Shaikh. Both officers pointed their guns directly at the heads of Mr. Zameer and Ms. Shaikh and screamed at them to get out of the car. Mr. Zameer and Ms. Shaikh testified to that effect, and I believe them. Their evidence is corroborated by the two occupants in the vehicle ahead of them. Those two witnesses did not understand Officers Correa and Pais to be police officers, and I fully accept that in that moment Mr. Zameer and Ms. Shaikh did not either. The people in the car ahead of the Zameer family vehicle fled in fear for their lives, without the guns being pointed directly at them. I can only imagine the depth of the fear Aaida Shaikh felt with a gun to her head, a gun to her husband’s head, and her two-year old crying in the backseat. She also witnessed her husband being gratuitously assaulted by Officer Pais as he lay helpless on the ground with his hands cuffed behind him. She was described by her husband earlier as hyperventilating so badly that she could not even pronounce his name properly. She, herself, described trying to close the YouTube screen on the cell phone so that she could call 911 to summon help, but that her hands were shaking too badly to do it. That was the moment when they were rammed from behind by the MCU van. She was crying and hyperventilating when pulled out of the van. I believe her evidence that she was ordered to lie face down on the ground, knowing that she could not do that because she was eight months pregnant, all while hearing her two-year-old crying and trying to climb out of the car. She explained why she could not lie down and asked to go to her child. She was permitted to remain standing and to hold her little boy in her arms. These are the surrounding circumstances and the state of mind in which she made utterances to the police officers at the scene of the arrest.

Statements Made at the Takedown

[25] There were two key utterances. First, upon hearing an officer tell Mr. Zameer that he had run over somebody and showing him the blood on the car, Ms. Shaikh expressed disbelief and asked to be shown the blood. She was not permitted to look. Second, upon first hearing that they were police officers, her immediate response was that she did not know they were police.

[26] The defence sought to have those statements admitted for their truth, relying on the spontaneous utterance exception and the principles established in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161 [2]. The Crown took the position these were prior consistent statements and not admissible to bolster the credibility of a witness. The Crown submitted that the principles in Edgar are only applicable to an accused person.

Formal Statement Made to the Police at 52 Division

[27] When the Zameer vehicle was rammed from behind by the MCU van, Ms. Shaikh was thrown forward and hit her head on the window. There was also a concern based on the advanced stage of her pregnancy. She was therefore taken by ambulance to the hospital to be checked. She took her two-year-old with her because she had nobody else to care for him.

[28] At the hospital, she was attached to a fetal monitor and had an ultrasound. The baby appeared to be doing well. She was also treated for a mild concussion. She did not have any of her personal belongings, including the diaper bag for her son or her cellphone. She was alone with her child in a hospital room all night. A police officer stood guard outside her room for the entire night. She asked him if she could go see her husband and he told her that there would be a shift change in the morning and another officer would take her to the police station where her husband was.

[29] In the morning, Ms. Shaikh was taken to the police station and asked if she would give a statement. She agreed to do so.

[30] Ms. Shaikh was called as a witness at trial by the Crown. She was asked by Crown counsel what she did to prepare for her testimony and she said she had reviewed her video statement and transcripts provided to her by her own lawyer and had met with her lawyer a few times. She also acknowledged that she had met with Mr. Zameer’s defence counsel. The Crown then questioned her as follows:

Q. Okay. And were you ever asked to meet with the Crown attorneys? A. Yes, I was. Q. And did you meet with the Crown attorneys? A. No, I did not. Q. And were you asked to meet more than once? A. Yes, I was. Q. And just to be clear, did you ever – it’s your choice, but did you ever meet with us? A. With – with the Crown? No, I did not. [3]

[31] Defence counsel did not object to this question, and I did not intervene. On cross-examination, defence counsel asked Ms. Shaikh why she chose not to meet with the Crown. She replied as follows:

A. I gave – sorry – I gave a statement to the police on 2nd July 2021, and I just shared as I just shared, that despite the fact that not only my family but my two-year-old son, our two-year-old son had just gone through this incident and – and as – as I shared, he was hungry, he – he needed a diaper change, and I was like it’s, okay, he can wait. I gave a statement in detail as – as – as much as I remembered, as truthfully to the police.

And then later that evening, I went home to find out that the police – I’m sorry to share this like that, but the police, they gave in the news the complete opposite of what I told them. They said that we knew who the man and the lady were. They said that Umar, he purposely, intentionally did what – he murdered the police officer. I found that out from the news, and I was – I was felt so betrayed. I spoke to them and told them everything and still they did that.

So, I felt that, you know, when the Crown – and I’m sorry to the Crown – that when they wanted to meet me, I thought that my – I will testify the truth, I will tell them what happened that day. And – and to me, they were the lawyers for the police, and I didn’t want to meet them, that’s why. [4]

[32] In answer to a further question on cross-examination, Ms. Shaikh testified that she had not spoken with her husband prior to giving her statement to the police on July 2, 2021.

C. Jury Charge

[33] The necessary implication from Ms. Shaikh’s explanation for why she would not attend for a Crown interview is that the evidence she had just given at trial was the same as what she told the police on July 2, 2021. This evidence was elicited by the defence in cross-examination. I can see that this would be helpful evidence to corroborate the testimony of Mr. Zameer. However, I ruled it inadmissible for its truth.

[34] Had the Crown taken the position that Aaida Shaikh’s testimony at trial was a product of collusion or collaboration with her husband, the fact that she gave the same statement to police on July 2, 2021 prior to any opportunity to speak to her husband might make the statement admissible to rebut that suggestion. However, no such suggestion was made, nor was there any allegation of recent fabrication. Therefore, after reviewing for the jury the general principles making prior consistent statements inadmissible, and the background facts about the statement given to the police, I instructed them as follows:

. . . As a result, when the Crown later asked her to come in for an interview, she said she did not want to talk to the Crown, whom she perceived as being the “lawyers for the police.” She said that she decided she would instead come to court and testify to the truth. There is perhaps an inference there that the evidence Ms. Shaikh gave at trial is consistent with the statement she gave to the police at 7:00 a.m. on the morning of July 2, 2021. All I want to say to you about that is that whether there was a prior consistent statement is irrelevant to your assessment of the credibility and reliability of Ms. Shaikh’s evidence. You must make that assessment based on the whole of the evidence at trial.

Before leaving that issue, there is a further point I want to make. There is absolutely no obligation for any person to agree to attend for an interview with the Crown Attorney, or the police, for that matter. Ms. Shaikh was fully entitled to decline to attend and you must draw no inference from her decision in that regard. It has nothing to do with any issue you have to decide in this case. [5]

[35] Likewise, I ruled that the utterances made by Ms. Shaikh to Officer Pais at the time of her husband’s arrest were not to be used as a factor enhancing her credibility, as follows:

You heard testimony from Officer Pais about statements made to him by Aaida Shaikh after he removed her from the BMW. If she had made any statements to him that were inconsistent with her testimony at trial, that would be a factor affecting both the reliability and credibility of her evidence. There were no such inconsistent statements. However, I must caution you against the reverse reasoning. The fact that Ms. Shaikh said some of the same things at the scene as she said at trial, is not a factor that enhances her credibility. The fact that a person said the same thing on multiple occasions does not make it more likely to be true. You must judge Ms. Shaikh’s evidence based on her testimony at trial, without reference to what she said to Officer Pais. [6]

D. Analysis

[36] In advance of the trial, I heard a number of pretrial motions, including an application by the defence to introduce into evidence three statements made by Mr. Zameer to the police on July 2, 2021 as admissible for their truth. For reasons issued on January 4, 2024, I found the two statements made by Mr. Zameer to officers at the scene of the takedown and arrest to be admissible pursuant to the Court of Appeal for Ontario decision in R. v. Edgar, 2010 ONCA 529, but only if the accused testified in his own defence at trial. [7] However, I found the formal statement of Mr. Zameer given at the police station later that same morning did not fall within the Edgar exception, or any other exception to the rule prohibiting prior consistent statements. I held that the later formal statement was not spontaneous, or made reflexively, as part of a surprised reaction because of the separation in time from the arrest and to the time the statement was taken. In my view, the same reasoning applies to the statement given by Ms. Shaikh at the police station.

[37] In my final charge to the jury, I included an instruction on prior consistent statements. I explained the reason for the usual rule excluding prior consistent statements as follows:

Normally, evidence that a witness made a prior consistent statement is not admissible at trial. The purpose of the rule is to prevent the jury from applying the faulty reasoning that if a witness said the same thing more than once, it is more likely to be true. Of course, that makes no sense. A lie told five times is still a lie. It does not become more credible merely because it is repeated. A witness is therefore prohibited from testifying that they told the same story on multiple occasions. This rule stands in direct contrast to the prior inconsistent statement rule. It is always relevant to consider whether a prior inconsistent statement made by a witness is something that undermines his or her reliability or credibility. Again, this is simply an exercise of logic. As with almost every rule of evidence, there are exceptions. [8]

[38] I reviewed with the jury the evidence at trial about the statements made by Mr. Zameer to two separate officers at the time of his arrest, including the emotional state he was in at the time. I then instructed them as follows:

As I told you earlier, prior consistent statements made out of court are generally not admissible at trial. However, there is an exception for spontaneous statements made by a person in the face of an accusation of a crime or an arrest. The person’s immediate reaction in such circumstances may be a factor relevant to whether he committed the offence. The earlier statement is not, strictly speaking, admissible for its truth but as evidence of the reaction of the accused, which is relevant to his credibility and is a piece of circumstantial evidence that may have a bearing on his guilt or innocence. It is relevant for you to consider the emotional state of Mr. Zameer at the time, and whether he would have had the time or mental wherewithal at that time to fabricate an exculpatory story. You should consider what he said at the time of his arrest, along with his mental state at that time, and his testimony at trial in determining his overall credibility. [9]

[39] However, I did not provide a similar instruction with respect to Ms. Shaikh, but rather instructed the jury that her prior consistent statements could not be used in assessing her credibility. I confess that, as an exercise of logic, this conclusion does not sit well with me. It seems to me that the same rationale for introducing the prior statements of Mr. Zameer apply to the circumstances in which Ms. Shaikh made her statements to Officer Pais. She was in a highly emotional state as a result of her husband’s arrest and her own detention. She was also concerned about the welfare of her child and her husband. She had been in the car with Mr. Zameer, and although not the driver, was involved firsthand in whatever had occurred. She had been through the same experience he had been through. Her immediate statement that they did not know these people were police officers was made spontaneously at the first suggestion that this was the case. Likewise, her reaction of surprise and disbelief upon being told they had run over somebody was made spontaneously and reflexively. She had no time to concoct either of these statements. Ms. Shaikh testified as a witness at trial so concerns about admitting the statements through police officers without the safeguard of cross-examination also arises. In short, the same considerations that supported the application of the Edgar exception for Mr. Zameer’s statements are equally persuasive with respect to Ms. Shaikh.

[40] In Edgar, counsel for the appellant had argued that time had come to reassess the rule against prior consistent statements by taking a principled approach to admissibility, relying on necessity and reliability. Further, counsel submitted that in light of recent trends in cases from the Supreme Court of Canada, the admissibility of the evidence should be guided by admitting all evidence for which the probative value outweighs any prejudicial effect or some clear ground of law or policy.

[41] In response to that submission, Sharpe J.A. wrote:

I agree with the submission that the gradual abandonment of the traditional "black letter rule – list of exceptions" approach to the law of evidence in favour of the principled approach invites reconsideration of the law relating to the admissibility of an accused's prior consistent statements. However, in recent decisions, the Supreme Court appears to have maintained the traditional approach to prior consistent statements: see R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at paras. 36-37. This is neither the right court nor the right case to reassess the broad issue of the treatment to be accorded prior consistent statements generally. [10]

[42] The Edgar exception to the rule against admitting prior consistent statements is narrowly and carefully defined. It applies only to spontaneous statements made by an accused person upon arrest or upon being confronted with an accusation. The Court of Appeal for Ontario considered whether to expand the law to encompass broader exceptions, and specifically decided not to do so. I was not referred to, and am not aware of, any binding authority since the Edgar decision that extends its application to statements by a witness other than an accused person.

[43] Logically, it seems wrong to me to exclude evidence that has these circumstantial indicators of reliability and could be important to the defence. However, I concluded that this would not be an appropriate situation to veer off the well-worn path. Hopefully, the issue will arise again at the appellate level and further guidance will be forthcoming.

MOLLOY J.

Released: April 29, 2024

COURT FILE NO.: CR-23-10000201-0000 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – UMAR ZAMEER Defendant REASONS FOR DECISION Molloy J. Released: April 29, 2024

[1] This is not to say that she was a credible witness, but merely that her evidence on this point may simply be unreliable.

[2] R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161 [Edgar].

[3] Trial Transcript, Examination In-Chief of Aaida Shaikh (April 2, 2024), at p. 8, lines 3-12 [Shaikh Examination In-Chief – April 2].

[4] Trial Transcript, Cross-Examination of Aaida Shaikh (April 2, 2024), at p. 123, lines 8-29 [Shaikh Cross-Examination – April 2].

[5] Jury Charge, at p. 59, paras. 3-4 [Jury Charge].

[6] Ibid at p. 33, para. 6.

[7] R. v. Zameer #3, 2024 ONSC 91; Edgar, supra note 2.

[8] Jury Charge, supra note 5, at p. 58, para. 1.

[9] Ibid at p. 63, para. 14.

[10] Edgar, supra note 2, at para. 22 [emphasis added].