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EVIDENCE ­– Admissibility - Private communications - Privileged relationships - Spousal communications

Friday, April 09, 2021 @ 8:13 AM  


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Appeal by Al-Enzi from his conviction, by jury at his retrial, for first-degree murder. The victim was found in a field, killed by a single gunshot wound to the back of his head. The appellant and two co-accused were known associates of the victim. The appellant and victim were in a dispute over a firearm. DNA testing of two cigarette butts found near the body matched that of the appellant and Kayem, one of his two co-accused. Cell tower records revealed the appellant and Kayem’s cell phones accessed the cell tower nearest to where the body was located the night before the body was found. The appellant, while not a suspect, told police on two occasions that he was with the victim during the day but was at a bar with his wife on the night of the murder. Security footage from the bar did not show the appellant or his wife in attendance. Intercepted communications recorded several potentially incriminating conversations the appellant had with several others, including his wife. The appellant and his wife subsequently divorced. Khaleyi told police in a recorded statement under oath that the appellant confessed to murdering the victim. At trial, Khaleyi recanted most of his statement. Kayem and Abdul-Hussein, the second co-accused who pleaded guilty to being an accessory after the fact, told the police the appellant was responsible for the killing.

HELD: Appeal dismissed. The circumstances of the appellant’s exculpatory statements to the police constituted independent evidence of fabrication. The trial judge’s failure to provide an instruction outlining the evidence that supported a finding that independent evidence of fabrication existed did not prejudice the appellant and may have inured to the appellant’s benefit. The trial judge did not err in finding the appellant’s statements to the police were voluntary and admissible. She correctly admitted Khaleyi’s statement to the police for the truth of its contents under the principled exception to the hearsay rule. Khaleyi’s statement was necessary and reliable. There was sufficient evidence to leave constructive first-degree murder with the jury. While the trial judge failed to explain to the jury how they could reject planning and deliberation as a route to first-degree murder but still find the appellant guilty by way of constructive murder, the error did not cause a substantial wrong or miscarriage of justice and could be saved under the curative proviso. The trial judge correctly found spousal privilege did not survive the appellant’s divorce and the intercepted communications between the appellant and his wife were not privileged at the time of trial as they were no longer married. The trial judge made no error in upholding the wiretap authorizations.

R. v. Al-Enzi, [2021] O.J. No. 605, Ontario Court of Appeal, M.H. Tulloch, L.B. Roberts and J.A. Thorburn JJ.A., February 5, 2021. Digest No. TLD-April52021007