R. v. Abdow, 2011 ABQB 129

Court of Queen ’ s Bench of Alberta Citation: R. v. Abdow, 2011 ABQB 129 Date: 20110304 Docket: 090499237Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Abdikadir M. Abdow and Mohamed Abdilla Awaleh Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] On Sunday, April 26, 2009, around noon, the Edmonton Police found the deceased body of Mohamed Khalif in Hermitage Park in Edmonton, Alberta. Mr. Khalif had been shot in the abdomen.

Earlier that morning Mustafa Warsame had called police from a house near the entrance to Hermitage Park and reported that he and Mr. Khalif had been taken by car to the park by Abdikadir M. Abdow and Mohamed Abdilla Awaleh in the very early morning hours, that Mr. Abdow had shot Mr. Khalif and that he, Mr. Warsame, had run away. 1. The Charges [ 2 ] As a result of the ensuing police investigation, Mr. Abdow and Mr. Awaleh were charged with the following offences:

Mr. Abdow and Mr. Awaleh - charged jointly Count 1 - First degree murder of Mohamed Khalif, contrary to s. 235(1) of the Criminal Code . Count 2 - Kidnapping of Mohamed Khalif using a firearm, contrary to s. 279(1.1) (

a) of the Criminal Code . Count 3 - Kidnapping of Mustafa Warsame using a firearm, contrary to s. 279(1.1) (

a) of the Criminal Code . Count 4 - Robbery of Mustafa Warsame using a firearm, contrary to s. 344 (

a) of the Criminal Code . Count 5 - Robbery of Mohamed Khalif using a firearm, contrary to s. 344 (

a) of the Criminal Code . Count 6 - Careless use of a firearm, contrary to s. 86(1) of the Criminal Code . Count 7 - Possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code . Count 8 - Possessing a firearm when not the holder of a licence to do so, contrary to s. 92(1) of the Criminal Code . Mr. Abdow (charged alone) Count 9 - Pointing a firearm at Mohamed Khalif, contrary to s. 87(1) of the Criminal Code . Count 10 - Pointing a firearm at Mustafa Warsame, contrary to s. 87(1) of the Criminal Code . Count 11 - Using a firearm while committing an indictable offence, contrary to s. 85(1) (

a) of the Criminal Code . Count 12 - Occupying a motor vehicle knowing there was a firearm in it, contrary to s. 94(1) of the Criminal Code . Count 13 - Possessing a firearm when prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code . Mr. Awaleh (charged alone) Count 14 - Possessing a firearm when not the holder of a licence to do so or of a registration certificate for it, contrary to s. 92(1) of the Criminal Code . [ 3 ] At the close of the Crown’s case I granted a non-suit in respect of Count 5. The Crown also stayed Count 14.

2. Evidence of Mustafa Warsame [ 4 ] The Crown’s case relies heavily on the evidence of Mustafa Warsame who, among other things, testified that he was present and witnessed the shooting of Mohamed Khalif. Here is a

summary of his testimony: [ 5 ] Mr. Warsame is of Somalian descent. He was born in Kenya. He was 4 or 5 when he came to Canada. He is now 26 years old. When he was growing up in Canada, his parents spoke Somalian in the home. He can understand spoken Somalian but his ability to speak it himself is limited. [ 6 ] Mr. Warsame met Abdikadir Abdow in June or July of 2008. He met Mohamed Khalif, the deceased, a few weeks after he met Mr. Abdow. He understood that Mr. Abdow and Mr. Khalif had both come to Edmonton from Hamilton, Ontario. [ 7 ] Mr. Warsame did not have frequent contact with Mr. Abdow. He would see Mr.

Abdow and Mr. Khalif once in a while at Mr. Warsame’s brother’s house. His brother is Mohamed Warsame. Friday, April 24, 2009 [ 8 ] On the evening of Friday, April 24, 2009, Mr. Warsame met Mr. Abdow when Mr. Warsame was walking with his brother in the area of the African Safari Restaurant, that is, 106 Avenue and 105 Street in Edmonton. Mr. Abdow was driving a dark blue Buick Century which Mr. Warsame had seen him driving before. There were four people in the car, Mr. Abdow driving, Mr. Awaleh in the front passenger seat, Mr. Khalif and another person (whom Mr. Warsame had not met before) in the back seat.

This was the first time Mr. Warsame met Mr. Awaleh. [ 9 ] The people in the car invited Mr. Warsame and his brother to smoke marihuana with them. Mr. Warsame and his brother got in the car. There were then four people in the back seat of the car. They went to a park and smoked marihuana together. Then they returned to the area of the Safari restaurant. The Warsame brothers went from there to the City Centre Mall. Mr. Warsame stayed there until he had sobered up from the marihuana and then went home by bus. Saturday, April 25, 2009 - Afternoon [ 10 ] The next day, Saturday, April 25, 2009, Mr.

Warsame got up about 10:30 a.m. and, after eating and watching television for a while, walked to a convenience store in the Dover Hotel, which was near his residence, a basement suite in the area of 129 Avenue and 119 Street. He bought cigarettes, some frozen food and a pint of whiskey. His plan was to go back to his residence and hang out there watching television. He expected that he would probably do something with his brother in the evening. [ 11 ] As Mr. Warsame arrived back at his residence, Mr. Abdow, driving the Buick Century, pulled into the driveway. Mr. Khalif, who knew where Mr.

Warsame lived, was with him. Mr. Warsame was not expecting them. Mr. Abdow did not say why they had come to his residence. [ 12 ] Mr. Warsame asked Mr. Abdow if he would drop him off at Northgate Mall. Mr. Warsame wanted to buy a new cell phone because his old one was broken. Mr. Abdow drove him to Northgate Mall as requested. Mr. Khalif was in the front passenger seat. Mr. Warsame was in the rear behind the driver. [ 13 ] At Northgate Mall Mr. Warsame and Mr. Abdow went into Future Shop and purchased a black Samsung flip cell phone. They also went to the Royal Bank where Mr.

Warsame withdrew $300 cash from the ATM. Mr. Khalif stayed in the car. [ 14 ] Mr. Warsame testified that he made the cash withdrawal because Mr. Abdow had asked him to lend him some money. Mr.

Abdow explained that he wanted to purchase a gun. He said he had a rifle that shot single shots but wanted to buy a hand gun. Mr. Abdow was with Mr. Warsame when he made the ATM withdrawal. Mr. Warsame gave Mr. Abdow the $300 as soon as it came out of the ATM machine. [ 15 ] When the business at the mall was finished, Mr. Warsame and Mr. Abdow returned to Mr. Abdow’s car. Mr. Khalif said he was hungry so they drove to a fast food restaurant in the area and Mr. Abdow and Mr. Khalif got something to eat in the drive-through. Mr. Warsame did not eat. Mr.

Warsame opened his pint of whiskey and put some of it in a can of Coke which he also had with him. [ 16 ] Then Mr. Abdow wanted to obtain some marihuana. A call was made. They drove to the south side and got some marihuana from someone who was on the street waiting for them in a residential area. Mr. Abdow paid $30 for the marihuana using part of the $300 Mr. Warsame had given him. Mr. Warsame testified in chief that he did not smoke any of this marihuana. Mr. Abdow smoked it. His evidence did not address where or when.

In cross-examination when referred to the statement he had given to police to refresh his memory he acknowledged that he had told the police that he did participate in the smoking of the marihuana that Mr. Abdow had purchased. [ 17 ] After Mr. Abdow bought the marihuana they returned to the north side and went to an apartment building on 118 Avenue where Mr. Awaleh lived. Mr. Warsame had never been there before. Mr. Awaleh was not home. Mr. Abdow called Mr. Awaleh. They waited for Mr. Awaleh to arrive which he did in about a half hour. He was driving a Buick Regal. This was the second time that Mr.

Warsame had seen Mr. Awaleh. [ 18 ] They – Mr. Abdow, Mr. Warsame, Mr. Khalif and Mr. Awaleh – went into Mr. Awaleh’s apartment. This was the first time Mr. Warsame had been in the apartment. They stayed there for a couple of hours. They watched some television. Mr. Awaleh ate some food he had brought from a restaurant. [ 19 ] While at Mr. Awaleh’s apartment Mr. Warsame received a call on his cell phone from his brother. Mr. Warsame asked Mr. Abdow if he would pick up his brother in his car. Mr. Abdow said he would in a little while. Saturday, April 25, 2009 - Evening [ 20 ] Mr. Abdow, Mr. Warsame and Mr.

Khalif left Mr. Awaleh’s apartment and picked up Mr. Warsame’s brother from his home in the area of the Belvedere LRT Station and then drove to the area of 107 Avenue. Mr. Awaleh did not go with them. They went in Mr. Abdow’s Buick Century. They stopped and Mr. Warsame bought some beer. He thought Mr. Abdow must have given him some of the $300 back so he could buy it. [ 21 ] Then they went to the house in the 107 Avenue area where a friend whose nickname is “Yellowman” lived. Mr. Abdow dropped Mr. Khalif, Mr. Warsame, and his brother off at this house and left. Mr. Warsame does not know where Mr.

Abdow went from there. [ 22 ] At Yellowman’s house a party was in progress. There were about a dozen people there. Some people were drinking. Mr. Warsame continued to drink from the pint of whiskey he had bought that morning. His brother drank some of the beer that they had brought to the house. He testified that no one was smoking marihuana. They stayed for two or three hours. [ 23 ] Mr. Khalif had Mr. Warsame’s cell phone. He told Mr. Warsame that Mr. Abdow was going to come and pick him up. Mr. Abdow arrived with Mr. Awaleh. They were in Mr. Awaleh’s Buick Regal. Mr. Awaleh was driving. [ 24 ] By the time Mr.

Abdow and Mr. Awaleh arrived at Yellowman’s house, Mr. Warsame wanted to go home. His brother also wanted to leave. They got into Mr. Awaleh’s car, the Buick Regal, with Mr. Awaleh, Mr. Abdow and Mr. Khalif. They dropped Mr. Warsame’s brother off at the nearby Red Cherry Bar. Mr. Warsame wanted to get out too but he did not because Mr. Khalif still had his cell phone.

[ 25 ] Not far from where they dropped Mr. Warsame’s brother off, an older Somalian man came up to the car looking to buy drugs. Mr. Abdow told him they had some drugs to sell him. The man got in the car. Mr. Abdow took some money from him but did not give him any drugs in return. Mr. Abdow produced his gun and the man took off. They departed in the car with the older man’s money. This was the first that Mr. Warsame had seen the gun. Saturday, April 25, 2009 - Sunday, April 26, 2009 - Night [ 26 ] After the robbery of the man, they drove to Mr. Awaleh’s apartment. When they got there, things which Mr.

Warsame considered strange started happening. Thereafter Mr. Abdow carried his firearm with him all the time. He told Mr. Khalif and Mr. Warsame to get out of the car and to walk ahead of him in single file. He was controlling everything. Mr. Warsame asked that he be allowed to leave. Mr. Abdow did not want him to leave. Mr. Awaleh led them in single file to his apartment, with Mr. Abdow at the end of the procession. [ 27 ] When they got to Mr. Awaleh’s apartment they went to the sitting room. The atmosphere was hostile and aggressive. The hostility seemed to Mr. Warsame to be directed more to Mr.

Khalif than to himself, but Mr. Warsame was getting some of it too. Mr. Abdow and Mr. Awaleh pushed Mr. Khalif and assaulted him. They said that he was going to die that night. Mr. Abdow said it first and it was repeated many times. Mr. Warsame testified that he is pretty sure Mr. Awaleh also said that. In cross-examination Mr. Warsame agreed that when Mr. Abdow and Mr. Awaleh said these things, Mr. Warsame was drunk and he did not take them seriously. [ 28 ] Mr. Khalif and Mr. Warsame were instructed to sit together on a two-seater couch. Mr. Abdow and Mr. Awaleh sat on a three-seater couch near it. Mr.

Abdow was very much in control. He was armed with a gun all the time. It was a gun with a long barrel. Mr. Warsame saw him load the gun with large bullets, much larger than would be used in a handgun. [ 29 ] Mr. Abdow and Mr. Awaleh started slapping Mr. Khalif. Mr. Abdow hit him with the rifle - two or three times on his shoulders or upper body. Mr. Khalif cried out in pain. They were slapping him, and calling him names. Mr. Awaleh told Mr. Warsame to hit Mr. Khalif as well. Mr. Khalif pleaded with them to leave him alone. This went on for about 15 or 20 minutes. [ 30 ] Mr. Warsame told them that if Mr.

Khalif owed them money he, Mr. Warsame, would pay it and they could then leave them alone. He did not understand why they were doing these things to Mr. Khalif. [ 31 ] Mr. Warsame tried to calm them down. He said he did not have any money on him but that maybe the next day he could give them the remainder of the money he had. He suggested they go to sleep until the next day. This tact worked to some extent. Mr. Abdow took what Mr. Warsame had in his pockets - his cell phone and the key to his basement suite. Then Mr. Warsame took his sweater and pants off and laid down on the floor to sleep in his shorts. Mr.

Khalif also tried to sleep. Sunday, April 26, 2009 - Early Morning [ 32 ] When Mr. Warsame awoke a short time later, Mr. Abdow was pointing the gun at him. Mr. Abdow was on the three-seater couch. Mr. Awaleh was not in the room. Mr. Khalif was getting dressed. Mr. Warsame was afraid to leave. He was afraid Mr. Abdow would shoot him if he tried. [ 33 ] Mr. Abdow said they were going to go and try out the gun. Mr. Awaleh was not in the room but Mr. Warsame is pretty sure he was still in the apartment somewhere. [ 34 ] As Mr. Warsame and Mr. Khalif got dressed Mr. Awaleh went downstairs to bring the car out.

They proceeded to the car, again with Mr. Abdow behind them holding the gun. They were required to get into the car. Mr. Warsame got in the back seat behind the driver. Mr. Khalif was also in the back behind the front passenger seat. Mr. Awaleh was driving. Mr. Abdow was in the front passenger seat, still holding the gun on his lap.

[ 35 ] Mr. Warsame was not sure in his testimony which car they were in. Initially he testified he thought they were in the Buick Century though he was not sure. Then he testified he thought it must have been the Buick Regal because he remembered later seeing the Regal’s tail light. Still later he testified that he was not at the time paying much attention to which car it was. He then reasoned that it must have been the Century because it was dark in colour and older than the Regal.

He then again testified that he was not sure which vehicle it was. [ 36 ] I ruled that he should be allowed to look at his police statement to refresh his memory. He did so and testified that when he gave his statement he had said that it was the Regal. He was not asked and did not say whether he adopted that evidence. [ 37 ] He identified Mr. Abdow’s vehicle, the Buick Century, in photographs taken by the police. He was not able to identify Mr. Awaleh’s Buick Regal in photographs taken by police. He remembered the Regal being beige in colour. Yet he remembered that when he was picked up at Yellowman’s it was Mr.

Awaleh driving and he assumed it must have been Mr. Awaleh’s vehicle, which he testified was dark in colour. In the police photos the Buick Regal is dark green. He testified the vehicle he got into to go to the park was a dark colour. [ 38 ] Mr. Warsame was not able to testify with confidence as to what time they left Mr. Awaleh’s apartment. It was definitely after midnight. He estimated 3:00 or 4:00 a.m. Mr. Awaleh drove very fast. They headed to Hermitage Park. Mr. Abdow told Mr. Awaleh to speed up, to dodge traffic. Other than that there was not much talking.

Sunday, April 26, 2009 - Hermitage Park - The Shooting [ 39 ] When they got to Hermitage Park, Mr. Awaleh parked on a gravel road not too far from the park entrance. There were no other vehicles or people around. It was still dark. Mr. Abdow got out of the car and ordered Mr. Khalif to get out. Mr. Awaleh and Mr. Warsame also got out on the driver’s side. They went to the back of the car and walked a little further. Mr. Abdow pointed the gun into the air and then he quickly turned and shot Mr. Khalif in the abdominal area. In cross-examination Mr.

Warsame testified that he was taken completely by surprise at this turn of events. He had thought they were going to the park to “goof around”, to shoot the gun in the air and go home. [ 40 ] The shot was fired within seconds of them exiting the vehicle. Prior to the shooting Mr. Abdow did not say anything to anyone. Mr. Warsame heard a big noise. That is when he realized that Mr. Khalif had been hit. Mr. Khalif lost his balance and stumbled. Mr. Abdow bent down to pick up cartridges or something. Mr. Khalif got up again and ran in one direction and Mr.

Warsame ran in a different direction. [ 41 ] At the moment the shot was fired, the four men were positioned at the four corners of a notional square. Mr. Abdow was at one corner with Mr. Khalif at the opposite corner about 8 feet away. Mr. Warsame was on Mr. Abdow’s left. Mr. Awaleh was to Mr. Abdow’s right about the same distance as Mr. Warsame was to his left. In describing these positions in his testimony Mr. Warsame referenced points in the courtroom. The only distance he described in a unit of measurement was the distance from himself to Mr. Abdow which, as indicated, he estimated to be 8 feet. [ 42 ] Mr.

Warsame stumbled as he ran. He hit his elbows and knees. He was disoriented. He ended up landing in a pond of water. He did not know where Mr. Khalif ended up. [ 43 ] At this point in his recitation of the narrative in his testimony, Mr. Warsame said that there was something he had forgotten to mention. After Mr. Abdow shot Mr. Khalif he heard Mr. Awaleh say, “Shoot him again”. He said this in Somali. He estimated that when Mr. Awaleh said these words, he, Mr. Warsame, was about 15 feet away from Mr. Awaleh. He was running for his life. He was not looking. He did not hear any response from Mr.

Abdow. [ 44 ] In cross-examination by Mr. Royal, Mr. Warsame acknowledged that when he related the details specific to the shooting in the park to Constable Gabucci on the day of the events, his account at page 22 of the transcript did not include any mention of Mr. Awaleh saying anything. He did not at that point in the interview tell Constable Gabucci that Mr. Awaleh had said “Shoot him again”. Explaining this omission Mr. Warsame testified, “That detail was not important to me I guess. . . . It doesn’t register as an important

detail. I guess it’s important to you guys but it isn’t too important to me”. Mr. Warsame agreed that he did not mention Mr. Awaleh’s words until page 32 of the Gabucci interview. Sunday, April 26, 2009 - After the Shooting - Call to Police [ 45 ] Mr. Warsame was in the pond for a while – it seemed to him a long time. He stayed low. Then, while still in the pond, he saw the car’s tail lights as it left the park. [ 46 ] While in the pond Mr. Warsame could also hear Mr. Khalif moaning in pain. Mr. Khalif was not too far away but Mr. Warsame did not know where. [ 47 ] After the car left Mr.

Warsame got out of the pond. He was afraid to go in the direction the car had gone. He thought there was another way out of the park. He walked on a trail for a while but he did not come to an exit from the park. He was lost. So he walked back the way he had come. [ 48 ] He arrived back in the area of the shooting about a half hour after he had left it. Again he heard Mr. Khalif moaning and crying for help. He walked up the hill toward some houses. He went up to a house to seek help. No one answered the door. He went to a second house where he was refused help.

Then he went to a third house where a couple came out. They called the police and an ambulance came. The people in the third house gave him a bottle of water. [ 49 ] The police came very quickly. He met them on the road outside the house from which the 911 call had been placed. He told the police what had happened - that Mr. Khalif had been shot in the park. He said he didn’t know where the body was. He was taken to the police station in North Edmonton. The police interviewed him. Then they took him to his brother’s house where he took a shower, got changed, and slept.

His wet and muddy clothes were put in a plastic bag. The police never asked for them. Later the police returned and told him the body had been found. He went with them to police headquarters in downtown Edmonton where he was interviewed by a detective. [ 50 ] Mr. Warsame testified that at some point the police took him to the park, but his evidence was not clear as to when this was. He also testified that the police took him to find Mr. Awaleh’s apartment.

Future Shop Security Video and Royal Bank ATM Security Video [ 51 ] During his testimony he was shown the security video of his visit to the Northgate Mall Future Shop and Royal Bank ATM. He identified himself and Mr. Abdow in both videos. The details shown in the videos are described at paragraphs [100] and [101] below. Mr. Warsame testified that he thought he left his bank card in the ATM machine or that he dropped it later. Identification of Key and Cell Phone [ 52 ] Mr. Warsame identified a key with a sticker on it that says “BSMT” as the key which Mr. Abdow took from him before he went to sleep at Mr.

Awaleh’s apartment. The key was found by police on the coffee table when they searched Mr. Awaleh’s apartment. [ 53 ] Mr. Warsame also identified a cell phone, cell phone charger and the bag they came in as being the cell phone and charger he bought at Future Shop that day. The Crown evidence was that at least the cell phone was found in the possession of Mr. Awaleh when he was arrested later on Sunday, April 26, 2009. Mr. Warsame’s Identification of Accused in Photo Lineups

[ 54 ] Mr. Warsame was shown two photo lineups by police. In the first photo lineup he identified Mr. Abdow. [ 55 ] The second lineup included the driver’s license photo of Mr. Awaleh. In cross-examination Mr. Warsame was shown the video recording of the second photo lineup process. When shown the first photo in the lineup he said, “I think that’s Mohamed”. Then when he was shown the sixth photo he said, “Oh man it looked like this guy, the first guy and this guy look alike. I think it was this guy”. At the end of the process he said, “The guy I chose earlier I got confused with the other guy”.

In cross-examination he confirmed he had made a mistake identifying the first picture as being Mr. Awaleh. Mr. Warsame’s State of Sobriety [ 56 ] Mr. Warsame testified that on that Saturday he drank alcohol from the pint of whiskey he had bought that morning. There was about one-quarter of the bottle left when he stopped drinking whiskey. At Yellowman’s he had shared the whiskey with others. He had brought beer to Yellowman’s and had himself drank one or two cans of beer there. Initially in his testimony, he did not think he smoked marihuana on the Saturday evening.

After refreshing his memory from his statement to police he accepted that he had smoked marihuana that day. He testified in cross-examination that by early evening that Saturday he would have had a “bit of a buzz” given the alcohol and marihuana he had consumed. Mr. Warsame’s Mental Health [ 57 ] Mr. Warsame testified that in April 2009 he was taking medication for schizophrenia. He had been diagnosed as having schizophrenia sometime in mid 2008. He was supposed to take the medication every night before bed. He had taken it on Friday, April 24.

He testified that he could go 4 or 5 days without taking the medication. He also testified that alcohol and marihuana interfered with the effectiveness of the medication and that, at the time, his schizophrenia was drug-induced. He received AISH at the time, about $1000 to $1200 per month paid directly into his bank account. [ 58 ] As to the effects of his schizophrenia, Mr. Warsame testified that he would hear voices, whispers, and had mild auditory hallucinations. He did not see things – he heard things.

He acknowledged in cross-examination that in 2008 he had been an involuntary patient – that he had gone into hospital against his wishes. 3. The Arrest of the Accused [ 59 ] As a result of information and assistance provided by Mr. Warsame the police conducted surveillance on Mr. Awaleh’s apartment, 9327 - 118 Avenue, starting about 2:00 p.m. on the afternoon of Sunday, April 26, 2009. During the three hours that followed neither Mr. Awaleh nor Mr. Abdow were seen at or in the immediate vicinity of Mr. Awaleh’s apartment. [ 60 ] At about 5:00 p.m. police saw Mr.

Abdow in the Buick Century westbound on 118 Avenue at 52 Street. A “high risk stop” involving a police tactical unit, several police vehicles and the deployment of a diversionary “flash noise device” was quickly organized. The Buick Century was stopped. The police issued verbal commands to the three occupants of the car. When compliant response was not immediate, police shot a hard rubber bullet at the back window of the vehicle which shattered. [ 61 ] Mr. Awaleh was driving. Police requested that he exit the vehicle and he complied. He was taken to a police vehicle. He was searched at the scene of arrest.

Among the items found in his possession was a cell phone. [ 62 ] The front seat passenger, Mr. Abdow, was told to exit via the driver’s side front door. He hesitated. After several commands he got out, was handcuffed and taken into custody. When he was searched a small bag of marihuana was found in his possession.

[ 63 ] The rear seat passenger was Jama Said Ali, known as “Yellowman”, whose residence Mr. Warsame, his brother and Mr. Khalif had visited the night before. [ 64 ] Mr. Abdow and Mr. Awaleh were taken to police headquarters separately. They were lodged in separate cells. Police sought to take their clothes and samplings from their skin to be tested for gunshot residue. Mr. Awaleh cooperated with the police requests in that regard. Mr. Abdow resisted. His clothes and the samplings from his skin were taken by force.

A video recording of the process (without sound) was put in evidence. [ 65 ] Though samplings were taken from both men for gunshot residue testing, the samples were not tested because they had been taken more than 12 hours after the shooting. Police policy is that testing for gunshot residue from skin after 12 hours is not worthwhile. 4. Alibi Evidence Presented on Behalf of Abdikadir Abdow [ 66 ] The Crown presented 39 witnesses in addition to Mr. Warsame. I will discuss the evidence of many of these witnesses later in these reasons.

However, it will be convenient at this point to discuss the defence evidence that was presented by Mr. Abdow. [ 67 ] The evidence presented in Mr. Abdow’s defence consisted of the testimony of his younger brother, Zakarya Abdow and his mother, Nurto Noor. Testimony of Zakarya Abdow [ 68 ] Zakarya Abdow is currently 19 years old. At the time of the events in question he was 17. [ 69 ] In April 2009 he was living with his mother, sister and four brothers in an apartment in northeast Edmonton. The family had lived there for about three months. The apartment had two bedrooms.

One of them was shared by his mother, sister and two youngest brothers. [ 70 ] The other was shared by the three eldest brothers: Abdikadir (then 22), Zakarya (then 17), and Ellas (then 15). There were three beds in this room. Zakarya Abdow testified that his bed was closest to the door and Abdikadir Abdow’s bed was very close to his. [ 71 ] Zakarya Abdow testified that he arrived home at about 5:30 p.m. on Saturday, April 25, 2009. His mother was about to go to a gathering held in connection with the death of a woman who was a member of the community. Abdikadir Abdow drove his mother to this gathering.

A few hours later, at 9:00 or 10:00 p.m., they returned. Abdikadir Abdow then took a shower and went to bed in the room the three eldest brothers shared. Zakarya Abdow also went to bed in the same room. [ 72 ] Zakarya Abdow testified that he is a very light sleeper. He also testified that the bedroom door makes a noise when it is opened. As soon as anyone touches the door he would hear it, look up and see who was going out. He did not hear or see any such movement that night. [ 73 ] The next morning his mother woke him at 5:00 a.m. to pray and to go to soccer.

When he awoke his brother Abdikadir Abdow was sleeping in his bed. Zakarya Abdow left for soccer. He did not see Abdikadir Abdow again. [ 74 ] Zakarya Abdow testified that Abdikadir Abdow would never stay out past 9:00 or 10:00 p.m., 11:00 p.m. at the latest. His habit was to go to bed very early most of the time, before Zakarya. He would leave the home at about 10:00 a.m. He was not working in April 2009. He last worked in 2007. He was a good helper for their mother. He was a father for the younger children.

[ 75 ] Zakarya Abdow testified that he was playing soccer a lot in April 2009. He had a game once a week and practices three times a week. Sunday morning practices were at 5:00 a.m. His coach would pick him up and drive him to the practice. That morning, Sunday, April 26, 2009, he testified, he had been anxious to get up and be ready to go without keeping his coach waiting. His testimony suggested there had been a problem in that regard on prior occasions. He testified, however, that he was not in a rush, that on waking up he prayed while still in the bedroom, and saw both of his brothers sleeping.

He saw his younger brother get up and go to the washroom. He saw Abdikadir Abdow sleeping in his bed. [ 76 ] Zakarya Abdow testified that he wondered where his brother was on the Sunday night and Monday morning. His mother said she did not know. It was on the Wednesday that he learned his brother had been arrested. [ 77 ] In cross-examination Zakarya Abdow was asked when the first time someone asked him about what happened that day was. He said it was “the lawyer” that asked. He did not know when. He estimated that it was three months after the event.

He was asked whether it was about the time of the affidavit that he had signed. He agreed it was, “Nobody asked me before that”. In redirect examination he agreed that he had first been asked about these matters in February 2010. [ 78 ] He also testified that the deceased, Mohamed Khalif and his brother, Abdikadir, were close friends. They were like brothers. Testimony of Nurto Noor [ 79 ] Nurto Noor is Abdikadir Abdow’s mother. She testified in Somalian through an interpreter. [ 80 ] In April 2009 she was living with six of her children in a two-bedroom suite in northeast Edmonton.

The family had moved into that suite at the end of March 2009, less than a month before her son was arrested. She and the three youngest children slept in one bedroom and the three eldest sons slept in the other bedroom. There were three beds in the boys’ bedroom. Each son slept in his own bed. [ 81 ] Ms. Noor testified that in April 2009 she owned a Buick Century. She did not, however, drive it. Abdikadir Abdow drove it. [ 82 ] On April 25, 2009, between 5:00 and 6:00 p.m., Abdikadir Abdow drove Ms. Noor to a funeral or memorial gathering. It was in a residence. Abdikadir Abdow waited for her there.

He watched TV in the residence while he waited. He took her home at about 10:00 p.m. When they arrived at home all the other children were there. Zakarya Abdow was taking care of them. Abdikadir Abdow went into the washroom. When he came out, they ate a meal. At least Ms. Noor ate a meal and Abdikadir Abdow sat at the table. She was not sure if he ate. Then Abdikadir Abdow went to his room. She testified in cross-examination that she saw him in his bed asleep before she went to bed at about 11:00 p.m. [ 83 ] On Sunday, April 26, 2009, she awoke at 5:00 a.m. and went into the boys’ room to wake them for prayer.

Abdikadir Abdow was sleeping there. She woke up the other two boys. She did not wake Abdikadir Abdow. At 7:00 a.m. she left the house. As she was about to leave she again saw Abdikadir Abdow asleep in his bed. Her son Ellas also left the home at 7:00 a.m. [ 84 ] Ms. Noor left the house to go to visit someone in the area of Southgate. Someone was going to pick her up to take her there, but they did not come. So she took a bus. She returned home at 4:00 or 5:00 p.m. She heard from her son Abdikadir Abdow soon after she arrived home. [ 85 ] In cross-examination Ms.

Noor was asked whether she considered asking Abdikadir Abdow to drive her to her friend’s place near Southgate. She answered that he did not know the address where she was going. Neither did she. So she went to ask somebody who knew the location she was going to and then took the bus. The person she went to ask did not answer her door. Ms. Noor’s answer provided no explanation for her not asking her son to drive her to her southside friend’s place in her car.

[ 86 ] In cross-examination Ms. Noor testified that her car was normally parked at the back of her apartment building. When she left on the Sunday morning she left by the front door of the apartment so she did not see the car. She volunteered, however, that before she left she had seen the car keys in their usual place on the kitchen table. She acknowledged that when the police questioned her about her evidence, they had asked her whether she had seen her car that morning and she told them she had not because she left by the front door.

She also acknowledged that she did not tell the police she had seen the keys in their usual place on the kitchen table. She explained that the police had not asked her about the keys. Of course, no one asked her about the keys at trial either. Her evidence about the keys was given in reply to a question about whether or not she had seen the car that morning. [ 87 ] When asked in direct examination when she first talked to her son’s lawyer about this case she said she did not remember but that it was maybe in February 2010.

In cross-examination she testified that she thought it was December 2009 when she first told someone that Abdikadir Abdow had been in his bed that morning. Credibility of Alibi Witnesses [ 88 ] For the following reasons I have concluded that I do not believe the evidence of these two defence witnesses and that it does not leave me with a reasonable doubt. [ 89 ] Strictly speaking, the evidence of Ms. Noor does not provide an alibi for Mr. Abdow. It is possible that the crucial events in which, according to Mr. Warsame’s testimony, Mr. Abdow was involved occurred sufficiently after 11:00 p.m.

April 25, 2009 and before 5:00 a.m. April 26, 2009 and that he was in fact in his bed at both of those hours. [ 90 ] I note that the evidence about Mr. Abdow driving his mother to the funeral or memorial gathering is consistent with the evidence of his having left the Warsame brothers and Mr. Khalif at the party at Yellowman’s and having picked them up later. Indeed Mr. Mohamed Warsame testified that he understood that Mr. Abdow left them at Yellowman’s in order to undertake an errand for his mother.

No alibi arises from this aspect of the evidence of the two defence witnesses either. [ 91 ] Also strictly speaking, the strength of the alibi provided to Mr. Abdow by the testimony of his brother Zakarya Abdow depends upon it being accepted that he is such a light sleeper that Mr. Abdow could not have left his bed after 11:00 p.m. April 25, 2009 and returned to it before 5:00 a.m. April 26, 2009 without his brother being aware of it. I am not prepared to accept Zakarya Abdow’s testimony as establishing that he is that easily awoken. I note that Ms.

Noor was not asked whether her son Zakarya was known to be a light sleeper. [ 92 ] However, I do not rely on that analysis of proffered alibi evidence in concluding that it must be rejected. Rather, I reject it because I do not believe it. [ 93 ] Obviously both witnesses have a significant reason to fabricate their evidence. But more significant than that is the fact that neither came forward with their evidence for many months after their son and brother was arrested. Their evidence was not precise as to when they first advised anyone that Mr.

Abdow had been in bed on the night in question when they testified he was in bed. However, the earliest either of them testified they told anyone their version of events was December 2009, when Abdikadir Abdow had been in custody for at least seven months charged with first degree murder. Neither was asked why they did not come forward with this crucially important information earlier. In my view this feature of their testimony does great damage to their credibility. [ 94 ] Zakarya Abdow testified that his brother invariably went to bed between 9:00 p.m. and 10:00 p.m. This seems extremely unlikely.

I note that Ms. Noor was not asked about Abdikadir Abdow’s bedtime routine. Nothing in her evidence confirms the existence of the routine Zakarya Abdow described. [ 95 ] Ms. Noor’s credibility was further damaged by her avoidance of the cross-examination question as to why she had not asked Abdikadir Abdow to drive her to the southside Sunday morning. The response she gave to that question provided no answer at all. It seems unlikely that a mother whose 22-year-old unemployed son had gone to bed before 11:00 a.m.

Saturday night would not ask him to get up to drive her, in her car, to a friend’s house clear across the city on the Sunday morning – if he was there to provide that assistance.

[ 96 ] Further, Ms. Noor’s credibility suffered greatly when she added the previously unmentioned but very significant detail that though she had not seen her car that morning because she had gone out the front door of the apartment, she had seen the keys. [ 97 ] I have considered whether in assessing the evidence of these two witnesses I have given proper allowance for the fact, particularly in Ms. Noor’s case, that she does not speak English well, and that differences between the culture she is most familiar with and the culture in which she now lives might explain some of these deficiencies in her evidence.

I am satisfied that I have done so. [ 98 ] I reject the evidence of these two alibi witnesses. I do not believe it. Neither does it leave me with a reasonable doubt as to whether Mr. Abdow was at his family home and in his bed at the time that Mr. Warsame says he was engaged in the conduct which gives rise to the charges before the Court. I do not believe he was at his family home and in his bed at the relevant times. 5. The Rest of the Crown Evidence The Northgate Mall Future Shop and Royal Bank ATM Transactions [ 99 ] As mentioned, Mr. Warsame testified that when Mr. Abdow and Mr.

Khalif came to his house on the morning of Saturday, April 25, 2009 he asked Mr. Abdow to drive him to Northgate Mall so he could buy a new cell phone to replace his broken cell phone. Mr. Warsame testified that while at the mall, he and Mr. Abdow went to the Royal Bank ATM and Mr. Warsame withdrew cash. [ 100 ] Security video recorded at the Northgate Mall Future Shop on April 25, 2009 is in evidence. The video shows Mr. Abdow and Mr. Warsame approach a cash desk. Mr. Abdow is holding a package. Mr. Warsame is walking slightly behind him talking on a cell phone. Mr.

Abdow nearly passes the cash desk but stops to show the clerk the package he is carrying. He sets the package down on the desk. There appears to be a piece of paper on it. The clerk examines the piece of paper and writes something on it. Mr. Abdow picks the package up again and proceeds out of view, with Mr. Warsame still behind him slightly and still holding a cell phone to his ear. It appears as though the purchase had been paid for before they arrived at that particular cash desk and the clerk’s function was merely to check that that was the case. They are in view on the video for about 25 seconds.

When they first come into view the video time shows 12:48:22. [ 101 ] Security video recorded at the Northgate Mall Royal Bank on April 25, 2009 is also in evidence. The video shows a bank of three ATM machines. It shows Mr. Warsame and Mr. Abdow approach one of the machines. Neither is carrying any packages. There is a green flashing light above the slot where one inserts one’s bank card. Mr. Abdow initially stands a bit back of Mr. Warsame. Mr. Warsame appears to insert a bank card into the ATM and appears to make the necessary entries for a transaction. While the ATM processes the transaction, Mr.

Abdow appears to talk to Mr. Warsame. When the ATM delivers cash, Mr. Abdow takes the cash from the machine. Mr. Warsame appears to take the receipt from the machine. It is not clear that he also retrieves his bank card. As they walk away from the machine the green light at the bank card slot does not resume flashing. [ 102 ] Another customer, who can be seen waiting while Mr. Warsame’s transaction is underway, walks up to the machine. She fumbles the papers she is carrying and drops several on the floor. Eventually she stands in front of the machine and appears to operate it.

After a very short time she turns from the machine holding what appears to be a bank card and walks away in the direction that Mr. Warsame and Mr. Abdow had walked when they left the machine. A few seconds later she returns to the same machine. She appears to insert a bank card and try to operate the machine three times. The first two times it appears she is unsuccessful. The third time it appears she completes a transaction. When she leaves the machine the green light at the bank card slot is flashing. [ 103 ] The time on the Royal Bank video when Mr. Warsame and Mr.

Abdow are seen walking up to the ATM is 12:39:19. They are in the video picture until 12:39:38. [ 104 ] The Crown called a Royal Bank officer with specific knowledge as to the operation of ATM machines. She observed the ATM video in Court. She concluded from doing so that Mr. Warsame had not taken his card from the machine. She suggested that the next customer to use the machine may have taken the card.

[ 105 ] The main significance of these videos is that they confirm Mr. Warsame’s evidence that he and Mr. Abdow were in the Future Shop and at the Royal Bank ATM around noon that day. They also confirm to some extent, Mr. Warsame’s evidence that the withdrawal from the ATM was for Mr. Abdow’s benefit since it is he who took the cash from the machine. They also confirm to some extent that Mr. Warsame left his ATM card in the machine. [ 106 ] Mr. Warsame’s evidence, at least initially, was that the transaction at the Future Shop preceded the ATM withdrawal. He said that after leaving the Future Shop Mr.

Abdow threw away the box the cell phone came in. This explained why neither was carrying a package in the ATM video. In cross-examination, Mr. Warsame stated that he was not sure as to the order of the two transactions. [ 107 ] By the time stamps on the two videos, the ATM preceded the Future Shop transaction. The Crown called two Future Shop employees to testify as to the accuracy of the time stamp on the Future Shop security video. The first testified that in April 2009 the time shown on the video security system was 8 to 10 minutes fast.

In cross-examination he himself testified that he recalled observing that there was a discrepancy but that he had been informed by others that the discrepancy was that the video time was 8 to 10 minutes fast. The second employee testified that there was a difference of 8 to 10 minutes between the video time and real time in April 2009. He had observed the discrepancy of that degree himself. He could not, however, recall if the video time was 8 to 10 minutes ahead of or behind real time.

There was no evidence as to the accuracy of the time on the ATM video. [ 108 ] Assuming the Future Shop video time is 8 to 10 minutes fast and the ATM video time is accurate, the two men were at the Future Shop and the ATM at approximately the same time which is obviously impossible. If the Future Shop video time was 8 to 10 minutes slow, and the ATM video time is accurate, the ATM transaction was as much as 20 minutes before the Future Shop transaction. [ 109 ] The evidence leaves the question of which transaction preceded the other uncertain. However, the video evidence does confirm Mr.

Warsame’s evidence that the two transactions occurred. The Future Shop video confirms that the two men were in that store around noon and that a purchase was made. The ATM video confirms that the two men were present at an ATM, that Mr. Warsame ordered a withdrawal and that Mr. Abdow took the money when the machine delivered it, and, according to the evidence of the Royal Bank employee, that Mr. Warsame could have left his ATM card in the machine. The New Cell Phone [ 110 ] The Crown called a security employee of Telus, Corinne McNish. Ms.

McNish’s job is to produce telephone records when law enforcement agencies require them. In response to a production order issued under the Criminal Code , Ms. McNish searched the Telus customer billing databases to determine the name of the subscriber associated with a particular telephone number, 780-999-0485, between March 1, 2009 and March 1, 2010.

The search indicated that Mustafa Warsame was the subscriber on that number from January 23, 2009 to May 23, 2009 which period includes April 25, 2009, the day relevant to the charges before the Court. [ 111 ] The database search also revealed that from January 23, 2009 to April 25, 2009 a cellular phone with serial number 0182103032 was associated with the number. That cell phone was deactivated on April 25, 2009. A second cell phone, serial number 01811491962 was activated on April 25, 2009 on 780-999-0485 and remained activated until May 23, 2009. [ 112 ] This evidence provides confirmation of Mr.

Warsame’s evidence that he acquired a new cell phone on April 25, 2009 and activated it that day on the same number that had previously applied to his old cell phone. [ 113 ] As mentioned, when Mr. Awaleh was arrested, a cell phone was found in his possession. The evidence establishes that it was the cell phone that Mr. Warsame bought at Future Shop on Saturday, April 25, 2009 and which Mr. Warsame testified that Mr. Abdow took from him in Mr. Awaleh’s apartment at the same time he took the key to Mr. Warsame’s residence.

Evidence of Mohamed Warsame [ 114 ] Mohamed Warsame, Mustafa Warsame’s older brother, also testified. He is currently 36 years old. In April 2009 he lived in Edmonton and would see his brother Mustafa frequently, usually on weekends.

[ 115 ] Mohamed Warsame testified that on Saturday, April 25, 2009 he had been working. After work Mustafa suggested they go to their cousin’s place to watch a basketball game on television. Mustafa came with three friends, Mr. Khalif, Mr. Abdow and another fellow, to Mohamed Warsame’s apartment. They were in a blue Buick Century. Mohamed Warsame knew it to be Mr. Abdow’s vehicle. He had previously ridden in it a couple of times. Mr. Abdow, who Mohamed Warsame had known for about a year, was driving. He had also known Mr. Khalif for about a year.

He did not know the name of the third person though he had met him before. He later learned the person’s name was Mohamed Awaleh. [ 116 ] This group arrived at Mohamed Warsame’s place at about 6:00 or 6:30 p.m. Mohamed Warsame got in the car and they went to his cousin’s place. His cousin lived in a house at 107 Avenue between 92 and 93 Street with two roommates, one of whom was Mr. Jama Ali (who Mustafa Warsame referred to as Yellowman). Only Mustafa, Mohamed and Mr. Khalif went into the house to watch the game. Mr. Abdow and Mr. Awaleh left. They watched the basketball game - an MBA playoff game.

It was over by 10:00 p.m. [ 117 ] Mohamed Warsame testified that none of the group he was with brought anything to the house. While they watched the game they drank beer. Nobody smoked marihuana. There were about five other people there when they arrived. Everyone watched the game. [ 118 ] Mohamed testified that Mustafa appeared normal that night. He had three or four beers. He did not appear to be troubled or worried about anything. Mohamed had no difficulty understanding him. He appeared to be enjoying himself.

He was joking and laughing. [ 119 ] Mohamed Warsame had arranged to meet a work friend at a bar after the game. Mustafa and Mr. Khalif also decided to leave. They called Mr. Abdow to come and get them. He came sometime after 10:00 p.m. Mr. Awaleh was with Mr. Abdow. They were in the Buick Century. Mr. Khalif and the Warsame brothers were in the back. Mr. Awaleh was in the front passenger seat. [ 120 ] They drove to a bar at 107 Avenue and 109 Street and dropped Mohamed Warsame off there.

Mohamed Warsame did not see his brother again that day. [ 121 ] The next morning around 8:00 a.m. four police officers brought Mustafa Warsame to Mohamed Warsame’s residence. The police officers told him what had happened. They asked if Mustafa could stay there while they went and did some work. They said they would return for him. Mustafa was dirty. He was wrapped in blankets. His shoes and pants were wet. There was mud all over his shirt. He was shivering with cold. [ 122 ] Mohamed told his brother to take his clothes off and to have a shower. He gave him fresh clothes.

Mohamed put Mustafa’s wet and dirty clothes in the garbage. The police came back and picked him up at about 2:00 p.m. [ 123 ] Mohamed Warsame testified that it did not appear to him that Mustafa Warsame was under the influence of alcohol or drug that day. Mustafa was scared. He was talking fast. [ 124 ] Mohamed Warsame was aware that his brother had been diagnosed with schizophrenia, that it was drug-induced, that he had been admitted into hospital on a mental health warrant when he had a breakdown and crashed their mother’s car.

This was more than a year before April 2009. [ 125 ] In cross-examination Mohamed Warsame testified that a week or so after these events the police showed him photo lineups and he identified both accused in them. The police and Crown have no record of this occurring. [ 126 ] In broad outline the evidence of Mohamed Warsame confirmed the evidence of Mustafa Warsame as to the visit to Yellowman’s on the evening of Saturday, April 25, 2009. There were, however, some differences with regard to detail. These included:

- Mustafa testified that when they went from Mr. Awaleh’s apartment to pick up Mohamed Warsame, Mr. Awaleh did not go with them. Mohamed testified Mr. Awaleh was there. - Mustafa testified that he bought beer to take to Yellowman’s. Mohamed testified that none of them took anything. When told of Mustafa’s evidence in that regard he said he did not see him take beer. - Mustafa estimated that there was a dozen people at Yellowman’s. Mohamed testified there were 5 people there before he, Mustafa and Mr. Khalif arrived. - Mustafa testified that when Mr. Abdow and Mr. Awaleh picked them up at Yellowman’s it was in Mr.

Awaleh’s Buick Regal and that Mr. Awaleh was driving. Mohamed testified it was in Mr. Abdow’s Buick Century and that Mr. Abdow was driving. Evidence of Jama Said Ali - Yellowman [ 127 ] Jama Said Ali, whose nickname is Yellowman, testified that on Saturday, April 25, 2009 there were people at his house from about 11:00 a.m. until late at night. People came and left. He had known Mohamed Warsame for 3 or 4 years at that time. Mohamed was there that night. He also knows Mustafa Warsame but not as well as Mohamed and does not know if he was there that night. He had also known Mr.

Khalif for 3 or 4 years but did not know if Mr. Khalif had been at his house that night. He does not remember if Mr. Abdow or Mr. Awaleh were at his house that night. [ 128 ] People were drinking and smoking marihuana that night at his house. By 9:00 or 10:00 p.m. he would have been quite drunk having started to party at around 11:00 a.m.

He testified he would be surprised if anyone who was at his house that night said that nobody was smoking marihuana there. [ 129 ] He recalled that Mohamed Warsame brought him some beer that night. [ 130 ] On Sunday, April 26, 2009 he went to the home of a friend, Yasin, which was located at 56 Street and 118 Avenue. He got there about noon. When he got there three people were already there – Yasin, Mr. Abdow and Mr. Awaleh. At Yasin’s he drank beer and smoked marihuana. He testified that either Mr. Abdow or Mr. Awaleh drank beer and the other smoked marihuana. Mr.

Awaleh left for about an hour and came back with some food. Conversation was mostly in Somalian though there was some English. He does not remember any particular conversation. They did not discuss Mr. Khalif’s death. [ 131 ] Towards 5:00 p.m. Mr. Abdow and Mr. Awaleh said they were leaving. Mr. Ali asked for a ride home. When they left Yasin’s they said they had to go to the police station before they took him home to report an accident that had occurred earlier in the day. He testified that he had seen a dent in the front of the car.

They said that was what they were going to report. [ 132 ] Not long after they left Yasin’s place, the police takedown, described above, occurred. [ 133 ] There is little in Mr. Ali’s testimony which confirms or contradicts the testimony of either Mustafa or Mohamed Warsame. One exception is his evidence that people were smoking marihuana at his house on Saturday which contradicts both Mustafa and Mohamed Warsame’s evidence that nobody was doing so. Evidence of Hermitage Road Residents [ 134 ] Mustafa Warsame testified that after he saw Mr. Abdow and Mr. Awaleh leave the park and failed in his attempt to find a

different way out, he walked to some houses that were near the park entrance and tried to find someone to help him. Two residents of houses immediately outside the park entrance testified. [ 135 ] Marcey Jo Hallam lived in the house closest to the park entrance. She testified that on Sunday, April 26, 2009 at about 4:45 a.m. she heard her doorbell ring. She went to answer the door but by the time she got there the person was walking away from her house and toward the next house.

She saw the time on the kitchen clock. [ 136 ] She saw a car slowly driving out of the park which she thought strange because the park was supposed to be closed at that time. The car was a 4-door and was dark in colour. She thought it was similar to a Chev Cavalier or a Pontiac. [ 137 ] The next day she saw the police at the park entrance and went over to talk to them. [ 138 ] James Dormody lived a few houses away from the park entrance. He testified that on Sunday, April 26, 2009 at about 4:00 a.m. or so, someone knocked on the door of his house. He went to answer. There was a man there. He was all wet.

He said he needed to call 911 because his friend had been shot. [ 139 ] Mr. Dormody called 911, gave the man some water and waited for the police to arrive. The police arrived and took the man with them into the park. [ 140 ] Mr. Dormody testified that the man was dripping wet. He looked afraid. He looked over his shoulder and out the window nervously. Mr. Dormody understood him to be afraid that the people who shot his friend would come after him. He was afraid for his life. Mr. Dormody testified that he had never seen anyone that scarred before. [ 141 ] Mr.

Dormody said he had no difficulty understanding the man. He had a bit of an accent but spoke perfectly clearly. He seemed sober and wide awake to Mr. Dormody. [ 142 ] It was established by admission that the call to 911 was made at 5:23 a.m. First Police Responder [ 143 ] Constable Craig Gabucci was dispatched in response to the 911 call. He got to Mr. Dormody’s address at 5:30 a.m. [ 144 ] Constable Gabucci testified that he met Mustafa Warsame there. He was wet and muddy, he smelled like he had been in a pond, he was raddled. He told Cst. Gabucci what had happened, that his friend had been shot.

He directed Cst. Gabucci into the park to show him where the shooting happened. Mr. Warsame thought he knew where the scene of the shooting was but they could find nothing at the place he identified. [ 145 ] While they were in the park an ambulance which Cst. Gabucci had called for Mr. Warsame came to check Mr. Warsame out. At about 6:15 or 6:30 Cst. Gabucci took Mr. Warsame to the police station and interviewed him. [ 146 ] After Cst. Gabucci’s interview Mr. Warsame spent 20 to 30 minutes talking to Detective Charles Prince about what had happened. Det.

Prince testified that he has considerable experience with people who are under the influence of alcohol or drugs and in his opinion Mr. Warsame was not under the influence of either. [ 147 ] When the interview was finished Cst. Gabucci, who was at this point joined by Cst. Dragan Vulic, drove Mr. Warsame to find the apartment where he said he had spent the night. They drove along 118 Avenue until Mr. Warsame recognized the building at 9317 - 118 Avenue as the apartment building in question.

[ 148 ] Mr. Warsame pointed out a blue Buick Century license plate RYV 817 parked in the building’s parking lot. He said it belonged to Mr. Abdow. On seeing the car, Cst. Gabucci testified, Mr. Warsame got very scared and tried to hide in the police car. Cst. Vulic testified that it was about 9:45 a.m. when they were first at the apartment building. [ 149 ] From there the officers took Mr. Warsame to his brother’s residence because he had asked to be taken there. Cst. Vulic testified that Mr. Warsame was afraid to go to his own residence because Mr. Abdow still had his keys. They left Mr.

Warsame at his brother’s place. [ 150 ] After dropping Mr. Warsame at his brothers, the officers returned to the 118 Avenue apartment. The blue Buick Century was gone. In its place was a green Buick Regal license plate REY 810. Neither officer testified as to the time when they returned to the apartment building and saw the Buick Regal. [ 151 ] Cst. Gabucci testified that Mr. Warsame did not appear to him to be under the influence of alcohol or drugs when he dealt with him that morning. He testified that Mr. Warsame became significantly calmer as the morning progressed. Cst.

Vulic testified to the same effect. [ 152 ] Later in the day, the officers returned to Mr. Warsame’s brothers residence, picked Mr. Warsame up and took him to police headquarters. Ambulance Attendants [ 153 ] As noted, Cst. Gabucci called an ambulance to Hermitage Park when he was there with Mr. Warsame. He was concerned because Mr. Warsame had spent considerable time in a pond and was cold and wet. Paramedic Kristin Gerwing took steps to warm Mr. Warsame up and assessed his condition. He had no injuries. He did not appear to be under the influence of anything. She had no difficulty understanding him.

He responded appropriately to her questions. She tested his blood pressure, heart rate, oxygen saturation, and blood sugar and no concerns arose from those tests. She noted that he appeared anxious when he talked, was not sitting still and was talking fast. She was with him for at least half an hour. She determined that he did not require treatment and returned him to Cst. Gabucci. [ 154 ] Paramedic Lee Dombrosky was with Paramedic Kristin Gerwing. His testimony was consistent with hers. He too did not notice anything about Mr. Warsame to suggest he was under the influence of alcohol or drugs.

He confirmed that Mr. Warsame told the paramedics that he had been diagnosed as schizophrenic and that he had been prescribed two drugs for that condition. He also confirmed that Mr. Warsame advised them that he had taken marihuana and alcohol the previous night. Discovery of Mr. Khalif’s Body [ 155 ] As mentioned, when Mr. Warsame returned to the park with Cst. Gabucci, though he thought he knew the spot where the shooting had occurred, Mr. Khalif’s body was not there. Det.

Prince testified that searches conducted later that morning also were unsuccessful though a police dog and the police helicopter had been used. At about noon two police officers who had been assigned to continue the search found Mr. Khalif’s body in the park. [ 156 ] They found the body on a path that lead from the side of the park road to a small pond. In the immediate area there were two small ponds on one side of the road, including the pond on the path to which the body was found. There was also another larger pond, a third pond, on the other side of the road. [ 157 ] Mr. Khalif was lying on his stomach.

There was pool of blood in the area of his abdomen.

Medical Examiner [ 158 ] Dr. Graeme Dowling conducted an autopsy on April 29, 2009. His qualifications to vie the expert opinion evidence he gave were acknowledged by counsel and accepted by me. [ 159 ] Dr. Dowling observed that on Mr. Khalif’s body, there was a shotgun entry wound over the right side of the abdominal wall, just below the rib cage and to the right of midline. There was a central oval wound with a maximum dimension of about one inch. It was surrounded by several smaller wounds which were less than one-eight of an inch wide. There was no soot or gun powder residue.

There was no stippling, an injury produced when gun powder strikes the skin. Defects corresponding to the wounds were found on the outer clothing. No soot could be seen on the clothing. There was damage to the inner organs in the area of the wounds. [ 160 ] Dr. Dowling recovered some bird shot pellets and some pieces of plastic shotgun shell wadding from the body. [ 161 ] The only other injury Dr. Dowling observed was a scrape on the left buttock which could have occurred minutes or hours before Mr. Khalif’s death. There was no bruising on Mr. Khalif’s body. [ 162 ] There was no evidence of disease.

The active ingredient of cannabis was in the blood. Given the level, Dr. Dowling was of the view that it had been recently ingested, within hours of his death, and that Mr. Khalif would have been under the influence of the cannabis at the time of his death, though it was not possible to say the extent of that influence. [ 163 ] Dr. Dowling testified that in his opinion Mr. Khalif died as a result of a shotgun wound to the abdomen. Dr. Dowling testified that it was possible that he survived about 20 minutes after being shot, though he was careful to note that was a guess. It would also have been possible for Mr.

Khalif to run after having been shot though it was not possible for Dr. Dowling to say whether or not he had done so. [ 164 ] Dr. Dowling was of the opinion that Mr. Khalif was 3 to 8 feet away from the gun when he was shot and explained how he came to that conclusion. [ 165 ] Dr. Dowling testified that if someone is punched or struck he would expect to find a bruise. But it could take several hours for a bruise to appear after the punching or striking.

And whether or not a bruise appeared could depend on the part of the body struck, and other circumstances like the nature of the clothing the person was wearing, whether there was hair in the area struck as well as the force of the striking. Bruises appear more rapidly in some parts of the body than in others. It is possible, Dr. Dowling testified, for someone to be punched in the shoulder and two hours later not show signs of bruising. Dr.

Dowling also testified that if someone had been slapped in the face in the couple of hours before his death he would expect to see evidence of that on autopsy depending on the amount of force used and the part of the face slapped. Search of Mr. Awaleh’s Apartment [ 166 ] After the arrests of Mr. Abdow and Mr. Awaleh police obtained a warrant authorizing a search of Mr. Awaleh’s apartment. The search was conducted beginning near midnight on Sunday, April 26, 2009. [ 167 ] Mr. Awaleh’s apartment consisted of a kitchen with eating area, a living room, one bedroom, a bathroom, and a storage room.

There were two closets in the bedroom, a closet outside the bathroom and a closet between the bedroom and living room. [ 168 ] In the living room were two couches. One with two seats and one with three seats. There were also two coffee tables, a television and a light mattress on the floor next to one of the couches.

[ 169 ] In the bedroom there was a single bed, a dresser and a small television. In the midst of the room was a large cardboard box. [ 170 ] Documents found in the apartment indicated that Mr. Awaleh was the resident. [ 171 ] Three components of a shotgun were found in the apartment. The barrel was found on top of the kitchen cupboard inside a box. The barrel had been cut off. The forestalk was found in the oven drawer of the stove.

The third component, the rear stock receiver including the trigger and the trigger guard, were found covered by clothing in the cardboard box on the bedroom floor. [ 172 ] On one of the coffee tables in the living room police found a key labelled “BSMT”. Searches of the Buick Century and the Buick Regal [ 173 ] Pursuant to warrants, the police conducted searches of both Mr. Abdow’s Buick Century and Mr. Awaleh’s Buick Regal. [ 174 ] The Buick Century was registered in the name of Mr. Abdow’s mother, Nurto Noor. This is the vehicle in which Mr. Abdow and Mr. Awaleh were driving when they were arrested.

The back window had been shattered by the rubber bullet fired by police during the arrest. Documents addressed to Mr. Abdow were found in the vehicle. Surfaces in the vehicle were tested for fingerprints. A fingerprint of Mr. Khalif was found. There were no other forensically significant findings. [ 175 ] The Buick Regal was registered in the name of Mr. Awaleh. Documents addressed to him were found in it. In a pocket pouch on the back side of the driver’s seat police found an unexpended shotgun shell. Fingerprints identified as having been placed by Mr.

Abdow were found on the outside of the front passenger side window. [ 176 ] Gunshot residue testing was done on the Buick Regal. A combined sample was taken from several surfaces in the front passenger side area of the vehicle. The evidence did not establish the nature of all the surfaces sampled, that is whether they were hard smooth surfaces from which gunshot residue would, according to the evidence of the expert who testified, quickly dissipate, or fabric surfaces which would trap gunshot residue causing it to remain in place for a long time.

The list of surfaces sampled included items that could be of either description. Particles of gunshot residue were found in the sample taken from more than one surface. The evidence does not permit a conclusion as to how long it might have been there. Subsequent Searches in the Park [ 177 ] In reaction to information obtained by police but which is not in evidence, police returned to Hermitage Park nine days after the body was found there to search for a discharged shotgun shell casing. One officer who searched in the area of the pond near which Mr.

Khalif’s body had been found located some blue plastic shotgun shell wadding in that area. [ 178 ] A member of the EPS volunteer Search and Rescue group who had been asked to participate in the search found a blue coloured shotgun shell casing a few feet off shore in the water of the larger pond which was across the road from the pond near which Mr. Khalif’s body had been found. Another officer paced off the distance between the area where Mr. Khalif’s body was found and the place where the shell casing was found. He measured 33 paces. Firearms Expert Evidence [ 179 ] Mr.

John Marshall’s qualifications to give expert opinion evidence on the subject of the forensic analysis of firearms and ammunitions, including firearm identification, the identification of fired ammunition components as well as ballistics and toolmark

identification, was admitted by counsel for the accused and accepted by me. [ 180 ] Mr. Marshall testified that he had taken the three parts of a firearm found by police in Mr. Awaleh’s apartment and put them together. They formed a complete single shot break action shotgun with a sawed-off barrel. He had no difficulty putting it together. He did so in seconds. [ 181 ] Mr.

Marshall performed various tests on the gun, including a trigger pull analysis which would determine whether the gun could easily be discharged by accident and concluded that the gun was in normal operating condition. [ 182 ] The gun was a single shot break action shotgun. This means that it could only hold one shot shell at a time. After one shot had been discharged, the shooter would have to manually get the expended shot casing out of the gun and reload in order to fire a second shot. [ 183 ] In his written report which was put in evidence, Mr.

Marshall stated: The shotgun . . . is a firearm within the meaning of

Section 2 of the Criminal Code of Canada , in that it is a barrelled weapon from which a shot or projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and furthermore it is a prohibited firearm within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is a firearm that is adapted from a shotgun, by sawing or cutting, and that as so adapted is 660 mm or greater in length and has a barrel less than 457 mm in length. [ 184 ] Mr. Marshall fired the shotgun shell which had been found in the pouch on the rear of the driver’s seat of Mr.

Awaleh’s Buick Regal from the shotgun. [ 185 ] The two shotgun shells, the one found in Mr. Awaleh’s car and the one found in the pond, were both capable of being fired from the shotgun (indeed, as noted, Mr. Marshall himself fired the former from the shotgun). The shotgun shell found in Mr. Awaleh’s car and the expended shotgun shell casing found in the pond were not made by the same manufacturer. They would not have been originally acquired in the same batch. [ 186 ] The wadding and pellets recovered from Mr.

Khalif’s body were consistent with labelling on the shotgun shell casing found in the pond. [ 187 ] The wadding found in the park was not consistent with the labels on the casing found in the pond. As I understand Mr. Marshall’s evidence, he is of the view that it was from a different shotgun shell which contained pellets of a smaller size than those recovered at the autopsy. 6. The Primary Offences Charged - First Degree Murder and Kidnapping [ 188 ] There are twelve counts in the indictment which must be addressed.

However, the first three counts which charge first degree murder and kidnapping are of primary concern. It will be convenient to deal with them for each accused before dealing with the other counts. The Elements of First Degree Murder [ 189 ] Homicide is defined by the Criminal Code, s. 222:

(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being, (

a) by means of an unlawful act, . . . [ 190 ] The offence of murder is defined in the Criminal Code, s. 229: Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; . . . [ 191 ] The offence of first degree murder is defined in the Criminal Code, s. 231:

(1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate. . . .

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: . . . (

e) section 279 (kidnapping and forcible confinement) . . .

(7) All murder that is not first degree murder is second degree murder. [ 192 ] In order for an accused person to be found guilty of first degree murder, the Crown must prove beyond a reasonable doubt that: 1) The accused caused the death of another person. 2) The accused caused the death of the other person by means of an unlawful act. 3) The accused either meant to cause the death, or meant to cause bodily harm that he knew was likely to cause death and was reckless about whether or not it caused death. And either that:

4) The murder was planned and deliberate. (s. 231(2)) Or that: 5)

a) The accused is guilty of one of the underlying offences listed in Criminal Code s. 231(5).

b) The accused’s participation in the murder was such that his actions were a substantial cause of the death.

c) There was no intervening act of another which resulted in the accused no longer being substantially connected to the death of thevictim, and

d) The underlying crime listed in s. 231(5) and murder were part of the same transaction, that is to say, the death was caused whilecommitting the underlying offence as part of the same series of events. [193] As to element 4 of first degree murder (that the murder was planned and deliberate) “planned” means arranged beforehand. Aperson plans to murder if he forms in advance a design or scheme to murder. “Planned” does not mean the same thing as “intentional”. A person can intentionally kill another person without having planned to do so in advance.

The plan can nonetheless be simple. [194] “Deliberate” means “carefully thought out”. It means the opposite of hasty, rash or impulsive. A person who deliberatelycommits murder does so after thinking about it with some care. They commit murder after real consideration. It is not deliberate if themurder is committed on the spur of the moment, suddenly or impulsively under the influence of some emotion or passion. [195] In the context of element 5(

b) of first degree murder it is important to appreciate that a substantial and high degree ofblameworthiness, above and beyond that of murder, must be established in order to convict a person of first degree murder. A personmay be convicted of first degree murder under s. 231(5) if the Crown establishes that the actions of the person are of such a nature thatthey must be regarded as a substantial and integral cause of the death. The substantial cause test requires that the accused have played avery active role in the killing of the other person.

The requirement is stricter than the requirement of element 1 of first degree murder,that the accused’s acts have been a significant and more than a trivial cause of the victim’s death. [196] In most cases, that will mean that the accused’s own actions physically caused the death of the other person, although thereare some instances where the accused’s actions will be regarded as the substantial cause of death, although they have not physicallycaused the death. Cory J. gave examples in R. v.

Harbottle (SCC), [1993] 3 S.C.R. 306 at para. 36: For example, if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accusedwho confined the victim might be found to have caused the death of the victim pursuant to the provisions of [s. 231(5)].

Similarly anaccused who fought off rescuers in order to allow his accomplice to complete the strangulation of the victim might also be found to havebeen a substantial cause of the death. [197] Though s. 231(5) contemplates that the death be caused while the accused is committing or attempting to commit one of thelisted underlying offences, it is not required that the underlying offence and the murder occur simultaneously. It is sufficient if themurder and the underlying offence are connected and form part of the same transaction. R. v. Paré (SCC), [1987] 2S.C.R. 618.

The Elements of Kidnapping [198] The offence of kidnapping using a firearm which is charged in Counts 2 and 3 of the indictment is created by the CriminalCode, s. 279:

(1) Every person commits an offence who kidnaps a person with intent

(

a) to cause the person to be confined or imprisoned against the person’s will, (

b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (

c) to hold the person for ransom or to service against the person’s will.

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence . . . . . .

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did notresist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force. [199] Morrow J. A. of the Alberta Court of Appeal, in R. v. Oakley, (1977) 1977 ALTASCAD 118 , 4 A.R. 103 tracedthrough the authorities and concluded that the following quotation correctly stated that legal meaning of the term “kidnap”: [Bishop’s New Criminal Law, 1892, T. H.

Flood and Company, Chicago, 8th ed., Vol 1. para. 553] Kidnapping and false imprisonment, two offenses against the individual, of which ordinarily the latter is included in the former, arepunishable by the common law. False imprisonment is any unlawful restraint of one’s liberty, whether in a place set apart forimprisonment generally, or used only on the particular occasion, and whether between walls or not effected either by physical force,actually applied, or by words and an array of such forces. Kidnapping is a false imprisonment aggravated by conveying the imprisonedperson to some other place. [200] Morrow J.

A. concluded from this that “. . . kidnapping . . . as known to the common law, was false imprisonment aggravatedby carrying the imprisoned person to some other place.” [201] In order for an accused person to be found guilty of the crime of kidnapping under s. 279(1.1)(

a) of the Criminal Code, theCrown must prove beyond a reasonable doubt that: 1) The accused caused another person to be moved from one place to another. 2) The accused used either force or fraud to cause the person to be moved from one place to another. 3) The accused’s purpose and intention was to confine the person against the person’s will. 4) The accused used a restricted or prohibited firearm in committing the offence. 7. Credibility and Reliability of Mustafa Warsame’s Evidence [202] The case against both accused relies heavily on the evidence of Mustafa Warsame.

[ 203 ] I found Mr. Warsame to be a credible witness. There was nothing about his demeanour which caused me concern as to his truthfulness. He was not defensive in cross-examination. He acknowledged differences between recollection of some detai

[…]