R v Mohamed is an Ontario Court of Appeal decision delivered by Strathy C.J.O., Watt and Epstein JJ.A on November 30, 2018. It was on appeal from a conviction entered by McIsaac J. of the Superior Court, sitting with a jury in 2013, and from the sentence imposed that same year.
This case concerned a conviction of second-degree murder. In a darkened laneway outside a banquet hall, where all parties were attending a stag party, Mohand Mohamad shot and killed Arash Bakhtaryani with a .45 calibre semi-automatic handgun. Mohamad was originally charged with first-degree murder after he admitted shooting and killing Bakhtaryani in lawful self-defence, or that the killing was provoked, and thus his crime was manslaughter instead.
The jury, however, found him guilty of second-degree murder. The trial judge subsequently imposed the mandatory sentence of life imprisonment and set the parole ineligibility period at 16 years. Mohamad appealed both his conviction and the period of parole ineligibility. Both appeals were dismissed.
At the time of the shooting, Bakhtaryani lived with Sean McDermott, a crucial Crown witness at Mohamed’s trial and the subject of the first ground of appeal. Throughout the trial, McDermott gave varying accounts of how much he had seen and heard of the shooting.
The ground of appeal that is of importance for this blog post was the trial judge’s decision to admit, under the principled exception to the hearsay rule, the videotaped B(K.G.) statement of McDermott, as well as the evidence he gave at the appellant’s preliminary inquiry. Neither the statement nor the prelim testimony was filed as an exhibit at trial, and thus neither was sent to the jury room for review during their deliberations.
McDermott was a Crown witness who, apart from the principles, was the only person in a position to see the altercation in the laneway between the accused and the deceased. His lack of enthusiasm for testifying was palpable.
The close connection between McDermott and the deceased, McDermott’s prior criminal record, his attitude towards the court process, and the inconsistencies in his testimony led the trial judge to give a Vetrovec caution to the jury in connection with his testimony. A Vetrovec caution is a warning given by a judge where the jury has received evidence from a witness that may be suspect.
Within hours of the shooting, McDermott was interviewed twice by investigators. During each interview he told police that he heard gunshots while he was outside the banquet hall smoking. He went around the corner and found the deceased on the ground. He claimed not to know where the deceased lived, but in fact, McDermott and the deceased were roommates. It was clear from the outset that McDermott did not anything to do with the investigation.
About 8.5 hours after the second interview ended, police interviewed McDermott a third time, which was videotaped and later transcribed.
McDermott then appeared for the Crown at the appellant’s preliminary inquiry. He had failed to appear when subpoenaed and so was arrested and brought into court. He made it clear that he did not want to be testifying and the Crown was required to refresh his memory to elicit details over a dozen times.
McDermott had the same attitude at trial. The Crown successfully applied under s. 9(2) of the Canada Evidence Act to cross-examine him on his prior statement. The main subjects about which McDermott changed his testimony or claimed amnesia were the following: whether the shooter was the same person whom the deceased had followed out of the banquet hall, the circumstances in which the shooting occurred, and whether McDermott had heard any gunshots fired from the shooter’s car as he drove away from the scene.
At trial, the Crown contended that the requirements of necessity and reliability with respect to the principled exception to the hearsay rule had been met with respect to the B(K.G.) statement and McDermott’s preliminary inquiry testimony, such that they could be admitted at trial in order to cross-examine on these prior statements.
On necessity, the Crown submitted that at trial, McDermott had recanted his prior descriptions of relevant events, thus holding those versions “hostage” and making it necessary that they be admitted to obtain a full and candid account of relevant events. The reliability requirement had been met with the B(K.G.) statement because it was videotaped, made under oath, and accompanied with clear and repeated warnings against lying. In addition, McDermott was available for cross-examination at trial. The evidence at the prelim was given under oath, in open court, in the presence of the appellant, and also subject to cross-examination.
Trial counsel for Mohamed argued that neither statement met the necessity requirement because McDermott had not actually recanted what he had said earlier. Defence counsel also challenged the reliability of the B(K.G.) statement on the basis that the administration of the oath and the warnings about consequences of lying after the statement had been made were inadequate to establish procedural reliability.
The trial judge ultimately admitted both statements. The trial judge characterized McDermott’s evidence as an amalgam of recantation and feigned memory loss by a person asserting he was an eyewitness to the shooting death of his roommate. He also displayed an obstructive attitude in the presence of the jury. The combination of these factors insulated the disclosure of true events as captured in the prior statements and thus satisfied the necessity requirement. The reliability requirements were met as they were described by the Crown at trial.
Upon abandoning his written submission that the trial judge’s finding of necessity was flawed, the appellant advanced two arguments in support of this ground of appeal:
- That the trial judge erred in admitting both prior statements, since each was duplicative of each other (calling it “cumulative hearsay”)
- That the trial judge erred in finding that substantive reliability had been established.
Despite having raised the first issue with counsel during the trial, the trial judge did not decide it.
The appellant argued that the B(K.G.) statement and the preliminary inquiry evidence were duplicates. Prior decisions of the Court of Appeal held that such cumulative hearsay should not be received because there is no necessity for further statements that simply recapitulate the substance of a prior statement.
What was involved in the challenge to necessity was a claim that the necessity requirement cannot be met in respect of a second or subsequent hearsay statement that does not differ in substance from one already received under the principled exception. A claim, in other words, that cumulative hearsay fails to satisfy the necessity requirement.
In R. v. Rahayel, 2015 ONCA 377, for example, the trial judge admitted the preliminary inquiry testimony of the complainant who had died before trial. The Crown then tendered a videotaped statement made by the complainant proposing that it be admitted under the principled exception to the hearsay rule. The contents of the videotaped statement were identical in various important points to the preliminary inquiry evidence. Defence counsel consented to the admission of the evidence. The trial judge, satisfied that the requirements of necessity and reliability had been met, admitted the videotaped statement as evidence.
But on appeal from conviction, the court held that the requirement of necessity was not established in connection with the videotaped statement. What the complainant had said in her videotaped statement was not necessary since it was already before the court through her preliminary inquiry testimony. This evidence – the duplicative statement – may have little or no probative value but engender great prejudice. The Rahayel court also considered that the introduction of the videotaped statement offended the rule prohibiting the introduction of prior consistent statements, absent an applicable exception.
On the other hand, different circumstances have resulted in the reception of multiple statements from a hearsay declarant, at least where it has been necessary to do so to obtain a full account from that declarant: see, for example, R. v. Hamilton, 2011 ONCA 399; R. v. Assoun, 2006 NSCA 47; R. v. MacDonald, 2000 NSCA 60.
Apart from the cumulative hearsay argument, the appellant abandoned his challenge to the trial judge’s finding that the necessity prerequisite had been established. As such, the Court proceeded on the basis that, considered individually, necessity had been established for both the B(K.G.) statement and the prelim evidence.
The argument on cumulative hearsay, raised by the appellant, was not raised at trial. But the Court of Appeal found that there was more to it than a simple failure to advance the argument at trial:
“On more than one occasion during the course of submissions on the admissibility issue, defence counsel suggested that both the B. (K.G.) statement and preliminary inquiry evidence should be admitted. This permitted defence counsel to argue to the jury, as he did, that the version of relevant events about which McDermott testified was like a chameleon. Ever-changing, according to the audience. It made McDermott an incredible witness. A purveyor of unreliable testimony.” [para 121]
Moreover, when the trial judge invited defence counsel to take a position about whether the necessity requirement could be satisfied where an additional statement repeated the contents of one already admitted, trial counsel did not respond to the trial judge’s query.
Finally, taking the various precedents together, the Court found it difficult to tease out any bright line rule that enjoins all cumulative hearsay. The principled approach mandates a case-sensitive inquiry to determine whether the prerequisites of necessity and reliability have been established. A more nuanced approach, as opposed to a per se rule, was therefore preferable.
In this case, the B. (K.G.) statement and the preliminary inquiry evidence had much in common. But as the trial judge observed, they are not replicas. And sometimes, as here, the defence saw value in an exposition of the statement history, for example, to demonstrate reliability concerns with the evidence of a tainted witness.
Paragraph 121 of the Court’s decision, quoted above, references defence counsel’s reliance on the statements to showcase McDermott’s shifting version of events. But hearsay is only hearsay if it relies on the truth of the statements’ contents. Instead, defence counsel was relying on the fact of what was said.
The Court did, however, have other reasons to admit the statement, detailed above. And so it seems that the necessity of admitting cumulative hearsay will be fact-dependent going forward.