Finally some good news

By John L. Hill

Law360 Canada (February 21, 2023, 1:18 PM EST) --
John Hill
John L. Hill
Two recent news stories give hope for those who have been wrongly convicted that there will be improvement in the workings of our criminal justice system. Justice Minister David Lametti introduced a bill dubbed “David and Joyce Milgaard’s Law” to establish an independent commission to review, investigate and decide if convictions should return to court and possibly rectified.

A second story concerned students and staff at the University of Toronto law school establishing a wrongful convictions database to point out flaws that cause people to be unjustly found guilty, such as false guilty pleas. These initiatives will assist the work that has been ongoing for years by the Association in Defence of the Wrongly Convicted (AIDWYC) now renamed Innocence Canada.

On Feb. 15, 2023, there was one more reason to rejoice. The Ontario Court of Appeal released its decision in R. v. Mohamed 2023 ONCA 104. A three-judge panel dismissed a Crown appeal where Mohamed Mohamed and his co-accused Nedeljko Borozan were found not guilty of murder by a jury in 2018. The brutal gunning down of the victims, Najdi and Mohsen, in Ottawa in 2016 involved a multi-party conspiracy that included someone referred to as A.A.

Police arrested six people alleged to be involved in the conspiracy. After intense grilling, police extracted a statement from A.A. that accused Mohamed and Borozon of the murders. The Crown chose to proceed by direct indictment precluding the defence from cross-examining witnesses at a preliminary hearing. Eventually four of the six pleaded guilty and received sentences from 10 to 12 years imprisonment. In return for lenient dispositions, the four provided identical statements implicating Mohamed and Borozon.

The Crown felt confident it could secure first-degree murder convictions. There was DNA evidence implicating some of the accused. There were cell tower pingings that suggested Mohamed was in the vicinity. Best of all, there was the statement of A.A. accusing the two remaining defendants of the crime.

The jury was not convinced and returned a not guilty verdict. The Crown appealed saying that the trial judge had been sloppy in instructing the jury. The Court of Appeal disagreed. Justice David M. Paciocco, writing for the majority, noted that the charge to the jury need not be perfect but in this instance it was not so flawed as to order a new trial. It was a simple case of the Crown neglecting to advance a case strong enough to meet the standard of beyond reasonable doubt.

A.A. tendered hearsay evidence and was the sort of witness who could not be trusted to tell the truth, commonly referred to as a Vetrovec witness (R. v. Vetrovec [1982] 1 S.C.R. 811). In R. v. Bradshaw 2017 SCC 35, Justice Andromache Karakatsanis stated that, “[g]iven that a Vetrovec witness cannot be trusted to tell the truth, even under oath … establishing that hearsay evidence from a Vetrovec witness is inherently trustworthy will be extremely challenging.” Under some circumstance such hearsay can be admissible.

Moreover, A.A.’s statements were internally inconsistent. In the course of recording his 322-page interview transcript, A.A. had provided three different versions of events.

No meaningful cross-examination had occurred. In taking the shortcut of using a direct indictment, defence was never given the opportunity to test A.A.’s credibility at a preliminary hearing.

The Crown argued vigorously that A.A.’s statement ought to have been allowed under the principle enunciated in Bradshaw: Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth. However, it can be admitted under the principled exception if the criteria of necessity and threshold reliability are met on a balance of probabilities.

Yet the Court of Appeal concluded it could not get over that threshold of reliability to allow the statement to be considered.

Essentially the Crown was urging the taking of a shortcut. A murder has been committed and somebody has to pay.

Canada’s experience with taking shortcuts such as relying on plea bargains despite actual truth or relying on untested expert opinion has corrupted the concept that no one should be found guilty unless the case is proven beyond a reasonable doubt. We should be grateful that there appears to be movement challenging wrongful convictions, and we can count on our courts, as in this case, in upholding our principles.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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