Mack's Criminal Law Bulletin
By: Dallas Mack
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R. v. Saleh
, 2013 CarswellOnt 17171
Fadi Saleh was charged with the first-degree murder of Hussein El-Hajj Hassan. Hassan was a drug dealer in Ottawa, dealing primarily in cocaine. Saleh was his supplier — a middle man between Hassan and Rafei Ebrekdjian (a supplier who lived in Toronto). Hassan had not dealt directly with Ebrekdjian in the past — his supply came from Saleh.
In 2004 Hassan decided to "eliminate one link in his supply chain", Saleh. He began to contact and attempt to deal directly with Ebrekdjian. Saleh became aware of this and was "not pleased".
On August 20, 2004 Hassan was lured out to a remote location in the west end of Ottawa. There he was shot and killed; his hand was chopped off and he was buried.
Present at the time of his killing were Shant Esrabian — convicted in a separate proceeding of first-degree murder — and Mark Yegin — acquitted in a separate proceeding of first-degree murder.
The Crown alleged that Saleh was also there. Saleh was charged with first-degree murder.
At trial Mark Yegin was called to testify. He had given a statement to the police and testified at Saleh's preliminary hearing. Subsequent to that testimony he was cross-examined at the preliminary hearing of Shant Esrabian. At trial Yegin refused to be sworn. The Crown brought an application to have his evidence from the preliminary hearing admitted. In response, the defence argued that the admission of the preliminary hearing evidence, from such a crucial witness, would render the trial unfair and that such unfairness could only be remedied by dispensing with the jury and proceeding by way of judge alone. The Crown refused to consent to this request (for a re-election).
The trial judge rejected the defence position and admitted the evidence. In doing so, the trial judge offered the following on the issue of dispensing with the jury under section 715:
. . . our Court of Appeal in R. v. Khan
, 2007 ONCA 779,  O.J. No. 4383 (Ont. C.A.) was met with an argument thatthe appellants should have been granted a trial by judge alone because of highly prejudicial pre-trial publicity combined with potential religious and racial bias against the appellants. At para. 13, Moldaver J.A., writing for the Court, stated:
We reject this submission. In s. 473(1) of the Criminal Code, Parliament has made its intention clear that a person charged with murder, the most serious crime in the Criminal Code, is to be tried by a court composed of a judge and jury absent the consent of both parties. While this provision can be overridden in order to ensure an accused's right to a fair trial, it should not be interfered with lightly.
At para. 15 the Court stated:
. . . In order to avoid the requirement of trial by jury under s. 473(1), an accused must show that, on balance, the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient in the particular circumstances of his or her case.
I conclude that the "time-honoured statutory and common law procedures" contemplate the discretion to refuse to admit evidence under s. 715, as the Supreme Court declared in Potvin
, supra. I regard that as the extent of my jurisdiction. If the admission of the previous evidence would operate unfairly to the accused, then the evidence can be ruled inadmissible. The unfairness analysis does not permit an order dispensing with the jury. In my view, Potvin
, supra, closes the door on such a remedy: R. v. Saleh
, 2010 CarswellOnt 901 (Ont. S.C.) at paras. 19-21 [emphasis added].
Saleh was convicted and appealed.
On appeal Saleh challenged, inter alia, the trial judge's ruling on the admission of Yegin's statement under section 715.
The Court of Appeal ultimately held that the trial judge erred in applying the test for admission of evidence under 715. In doing so, however, the court held that the trial judge did no err in rejecting the request to dispense with the jury as a remedy for unfairness in the application of section 715.
The Court of Appeal noted that, generally speaking, the "authorities recognize a closely circumscribed jurisdiction in a trial judge, on application by an accused, to direct that the trial of a case of murder be held before a judge sitting without a jury" [para 83]. Moreover, a court should only "override" the exercise of Crown discretion not to consent to such a re-election in the clearest of cases [para 83].
In the context of section 715, the court noted that counsel did not discover any cases where there was reliance on "potential unfairness" in the admission of preliminary hearing evidence to support overriding the Crown's discretion [para 85].
In conclusion on this point the Court of Appeal offered the following:
I would not interfere with the trial judge's decision not to order that the trial proceed without a jury despite the absence of the Attorney General's consent under s. 473(1) of the Criminal Code. Even assuming such an order were available based upon trial fairness considerations when s. 715(1) is invoked, no principled reason would support a less rigorous standard than that applicable when the issue arises otherwise. And on this record, in my respectful view, the appellant has not met that standard [para 95].
A few comments about this ruling are noteworthy.
First, while the Court of Appeal did not decide the issue — if the jury could be dispensed with, despite a lack of Crown consent on the basis of "fairness" concerns under section 715 — this issue would seem to be settled; dispensing with the requirement of Crown consent is not an available "remedy" under section 715: R. v. E. (L.), at para. 31; R. v. Potvin.
Second, the Court of Appeal recognized, implicitly at least, that any effort to dispense with Crown discretion and displace the jury requires a constitutional finding of abuse of process or impact on trial fairness. This is consistent with the authorities that have previously considered this issue: R. v. Dell
; R. v. McGregor
; and R. v. Khan
. These authorities further recognize, in the context of an alleged impact on trial fairness, that the court should consider remedies to address the impact short of dispensing with the jury.
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