R. v. Negasi, 2011 ABQB 358

Court of Queen ’ s Bench of Alberta Citation: R. v. Negasi, 2011 ABQB 358 Date: 20110530 Docket: 090815085Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Tesfai Negasi Accused Restriction on Publication: Permission having been given to the jurors to separate, information concerning this portion of the trial may not be published, broadcast, or transmitted in any manner before the jury retires to consider its verdict. See the Criminal Code , s. 648(1).

Editorial Notice: The restriction ended on September 7, 2011. _______________________________________________________ Memorandum of Decision Ruling #2 Ante-Mortem Statements and Character Evidence of the Honourable Madam Justice J.E. Topolniski _______________________________________________________

I. Introduction [1] Mr. Negasi is on trial before a jury of his peers for the alleged murder of his wife and offering an indignity to a human body. He has confessed to the killing and has entered a guilty plea before the jury to dismembering his wife on July 5, 2009.

The jury ’ s deliberations will focus on whether the Crown has proved the requisite intention for second degree murder. [2] This voire dire concerns the admissibility of hearsay accounts of ante-mortem statements and certain evidence of the accused ’ s conduct, which, while not the type of conduct typically considered classic “ bad character ” or evidence of extrinsic misconduct, it could nevertheless be viewed by the jury as reflecting negatively on his character and lead to prohibited reasoning. [3] The Crown urges that the evidence is highly probative to give the jury a contextual framework for the events of July 5, 2009.

The Crown ’ s intention in leading the evidence is multi-faceted: • Painting a picture of the marriage and relationship; • Demonstrating motive and animus; • Showing the accused ’ s state of mind; • Rebutting the notion that the killing was unintentional; and • Challenging Mr. Negasi ’ s credibility should he choose to testify. [6] The ante-mortem statements are prima facie inadmissible as they contravene the hearsay rule and are admissible only if they meet the necessity and reliability thresholds. If so, their probative value must outweigh their prejudicial effect. The necessity test is obviously met - Ms.

Negasi is dead. Remaining is whether the ante-mortem statements meet the requirement for threshold reliability and satisfy the balancing analysis by showing that they are more probative than prejudicial. [7] The admissibility of evidence that might reflect negatively on Mr. Negasi ’ s character hinges on its being more probative than prejudicial. [8] Seven witnesses testified at the voire dire , the Negasi ’ s three eldest daughters (Yodit, Elen, and Eden Negasi), two female friends of Ms. Negasi (Ms. Hdega and Ms. Negassu), and two male friends of the Negasi family (Messrs.

Negassu and Nujase) A notebook with writings made by Ms. Negasi which includes a 2006 entry about the relationship was also tendered in evidence. [9] The voire dire evidence can be grouped into these categories: 1 . Evidence speaking to the Negasis ’ relationship, the Negasis ’ disputes, and the involvement of family and friends in connection to their disputes; It is common ground that this evidence is not subject to any exclusionary rule and is admissible in the ordinary course. 2 . Hearsay accounts of ante-mortem statements made by the deceased concerning the marriage, her desire to divorce Mr.

Negasi, steps she had and was undertaking in furtherance of leaving the marriage including her reasons for doing so as told by her to the three Negasi children and friends; The Defence accedes that hearsay accounts of ante-mortem statements made between Ms. Negasi ’ s return from Eritrea in early 2009 and her death meet the threshold requirements for admissibility and that they are more probative than prejudicial. The contest is about

ante-mortem statements preceding that time frame. 3. Ms. Negasi’s writing found in her notebook. 4. Evidence speaking to Mr. Negasi typically being the aggressor in the Negasis’ many disputes, and about his mistrust, suspicion,and following of Ms. Negasi (the “conduct evidence”). II. The Legal Framework [10] Threshold reliability is concerned with whether the circumstances surrounding the statement itself provide circumstantialguarantees of trustworthiness (R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787, at para. 51, R. v.

Khan, (SCC), [1990] 2 S.C.R. 531). [11] Khan concerned the admission of a young child’s statement to her mother that she had been sexually assaulted. The SupremeCourt of Canada reviewed the circumstances in which the statement was made, ultimately finding that it met the test for thresholdreliability. The court considered these factors to be relevant: 1. There was no motive to lie alleviating the concern about sincerity; 2. The story emerged naturally and without prompting so there was no concern that it came about because of the mother’sinfluence; 3.

The child’s age and the expectation that she would not be expected to have knowledge of sexual acts described by her, giving it a“peculiar stamp of reliability”; and 4. The statement was corroborated by real evidence. [12] The threshold reliability assessment requires a “functional approach and focus on the particular dangers raised by the hearsayevidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers”(Khelawon at para. 93). [13] As in the present case, the issue in R. v.

Moo, 247 CCC (3d) 34, 253 OAC 106, 2009 ONCA 645, leave to the SCC denied409 N.R. 400 (note); Supreme Court of Canada; July 15, 2010; Docket: 33661 was the admissibility of ante-mortem statements by thedeceased concerning the state of her marriage and the nature of her relationship with the accused. Also similar is that some of theevidence recounted prior events involving emotionally abusive conduct by the accused towards his wife, and that the only live issue wasintent. [14] The Ontario Court of Appeal reviewed the authorities, ultimately agreeing with the trial judge’s decision that the evidencewas admissible.

In connection to the evidence of extrinsic misconduct the court said at para. 108: While moral and reasoning prejudice is inherent in any evidence of extrinsic misconduct, its influence may vary significantly from onecase to the next, depending, in part at least, on the nature and extent of the misconduct. Here, the extrinsic misconduct paled bycomparison to the conduct charged.

[15] Moo has been applied in numerous cases, including R. v. Polimac, CarswellOnt 2965, 2010 ONCA 346, 254 C.C.C. (3d)359, 262 O.A.C. 91, R. v. Ali, 2010 CarswellOnt 5193, 2010 ONCJ 286. [16] I glean these considerations from Moo concerning the use of character evidence in a domestic homicide case: 1. While the character rule generally prohibits the use of character evidence as circumstantial proof of guilt, evidence of priormisconduct, which tends to show bad character, may be so highly relevant and cogent that its probative value in the search for the truthoutweighs any potential for misuse (paras. 96-97). 2.

Evidence to show nature of the accused’s relationship with the deceased may disclose misconduct other than that charged, that“not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant toestablish the identity of the deceased’s killer and the state of mind with which the killing was done” (paras. 98 and 100). 3. The risk of prohibited reasoning by the jury can be addressed by appropriate instructions.

This does not apply where the extrinsicmisconduct is offered to demonstrate motive or animus towards the victim (para.100). [17] These factors concerning threshold reliability for ante-mortem statements are gleaned from Moo, Khelawon, and Khan andR. v. Pasqualino, 2008 ONCA 554: 1. Is there a motive to lie? This inquiry is focused on threshold reliability and hence, whether the declarant had a motive to lie. The assessment of whether therecipient has a motive to lie in recounting the statement is a question of ultimate reliability for the jury to decide.

A motive to lie and fabricate creates suspicion, not trustworthiness in the reliability of an out-of-court statement, but it is just one factor,not a factor that is determinative of the issue of threshold reliability (Khelawon citing R. v. Blackman, 2008 SCC 37 , 2008SCC 37 at para. 42). 2. Is the statement a spontaneous outpouring or the result of leading questions or any improper influence by the recipient? 3. Is the statement made during or in contemplation of any legal proceedings? 4. Is the statement made within a reasonable time before the deceased’s death? 5. Is there corroborating evidence? 6.

Is the statement made to a person in a special relationship? The courts have accepted that statements made to persons in “special” relationships can constitute an indicator of reliability. These arestatements made in the context of everyday intimate conversations between close relatives and friends where there was no motive tofabricate (Pasqualino at para. 43).

III. Overview of the Uncontested Evidence [18] A brief overview of some of the uncontested ante-mortem statements and the nature of the parties' relationship provides context for some of the contested evidence. [19] By all accounts, the Negasis ’ almost 30 year marriage was an unhappy one. It was spiked with frequent sparring followed by lengthy periods of co-existence in stony silence. The three elder Negasi children and friends were drawn into the Negasis ’ disputes. At times, the children were asked by Mr. Negasi to take his side. At other times, he sought their aid as arbiters. Mr.

Negasi also drew in friends from the Eritrean community to act as arbiters. [20] Around early 2009, Ms. Negasi went to Eritrea to attend a family event. From the time she returned in February or March 2009 until she was killed, the only communication between the Negasis ’ was an occasional “ hello ” . She volunteered to her elder daughters and closest girlfriends that the marriage was unraveling, that she felt trapped, and that she was going to file for divorce. She also volunteered that she wanted to work more shifts to save money, that she was arranging for legal aid coverage and getting a lawyer. Ms.

Negasi told her closest girlfriend that she had stayed in the marriage for the children, but was now prepared to leave the youngest child, Samira, with Mr. Negasi to get out of the marriage if that was what she had to. [21] Ms. Negasi started banking her money in her daughter Elen ’ s account (to which she was a joint signatory). Another daughter, Eden, babysat Samira more to facilitate her mother ’ s working increased hours. [22] The day before her killing, Ms. Negasi told Elen that she had legal aid coverage and a lawyer. She also said “ this must be done ” .

Elen said that her mother seemed sad, and that there was despair in her voice. Then, Elen took her tone as a sign that she was tired. [23] Ms. Negasi had sworn a girlfriend to secrecy about an upcoming appointment with a lawyer, telling her that she would move out before Mr. Negasi was served with divorce papers and saying that way she would be safe. On three separate occasions, the last four days before her killing, she told this same girlfriend that Mr.

Negasi said that he could not live without her. [24] Within days of the killing, the three eldest Negasi daughters found a letter in their mother ’ s purse from her lawyer confirming an upcoming appointment. [25] Several witnesses spoke to the shame of divorce in the Eritrean culture. One family friend called in to mediate a dispute between the Negasi ’ s in 2006 spoke of Mr. Negasi ’ s comment that “ divorce was not an option ” when he suggested that the parties ’ consider divorce. [26] I am told that there is no evidence that Mr.

Negasi knew of his wife ’ s plan to leave him. [27] With that backdrop I turn to the contested evidence. A. Yodit Negasi i. Conduct Evidence [28] Yodit testified that she never saw her father hit her mother. She considered him the aggressor in her parents ’ frequent arguments. She said that he would be upset if a meal was not on time or to his liking, or if he disapproved of Ms. Negasi ’ s method of disciplining Samira.

[29] Yodit testified that her mother never told her about Mr. Negasi following her. She testified that she saw him leaving the house within five minutes of her mother ’ s leaving for work twice a week, and that her mother worked four shifts per week. When this happened, Mr. Negasi told her that he was going out for coffee. Sometimes, he would come home, leave again, and then return within minutes of Ms. Negasis ’ coming in from work. Other times, he would be gone the entire time and return within minutes of Ms.

Negasis ’ return from work. [30] Yodit also testified that her father once told her that he was unhappy in a bad marriage. She described events where Mr. Negasi said things like “ Mom told you she was going to a friend ’ s house, but you don ’ t know that ” and questioned the Negasi girls about their mother ’ s whereabouts when she was out. Some two months before her mother ’ s killing, Mr. Negasi told Yodit that he had pictures of her mother ’ s vehicle at a place other than where she had told Yodit she was going.

a) Ruling [31] This like all of the other conduct evidence is not the type of evidence typically associated with the rule against evidence of extrinsic misconduct - prior criminal acts, prior physical and emotional abuse, or prior threats of physical harm. Nevertheless, it might lead the jury to moral and reasoning prejudice. [32] This evidence goes to the Negasis ’ relationship and the prevailing matrimonial environment. Potentially, it goes to animus, motive, and Mr. Negasi ’ s state of mind. Finally, it may be relevant for challenging Mr. Negasi ’ s credibility should he choose to testify in his own defence.

In these respects it is highly probative. The prejudicial effects of this evidence are outweighed. Subject to the caution against providing a limiting instruction where the evidence goes to motive, the jury can be cautioned about the proper use of such evidence. [33] Ultimately, it will be for the jury to decide what weight, if any, they will ultimately attach to it when considered in the context of the totality of the evidence. [34] For these reasons this and all other conduct evidence referred to hereafter is admissible. ii.

Ante-Mortem Statements [35] The deceased told Yodit that when she was pregnant with Samira in 2003, Mr. Negasi told her that he did not believe he was the father.

a) Ruling [36] The evidence is unrevealing of any motive on the deceased ’ s part to lie to Yodit about Mr. Negasi not believing that he was Samira ’ s biological father. It was a spontaneous outpouring to a person in a special relationship that occurred when there were no legal proceedings contemplated. There is no corroborating evidence. The timing of the statement is six years before Ms. Negasi ’ s killing. That is too remote in time. This feature alone favours its exclusion. B. Elen Negasi [37] Elen, a lawyer, referred to Mr. Negasi as “ the Defendant ” throughout her testimony.

She described her relationship with him as having always been volatile. It was a difficult relationship that worsened after he kicked her out of the house in October 2005. She described a physical altercation she had with Mr. Negasi in 2008. i. Ante-Mortem Statements

[38] During the 2010 Christmas season, Elen ’ s mother told her that Mr. Negasi threatened her, saying that if she tried to leave him she would never see Samira again. Then, Elen interpreted the threat to mean that there would be a custody battle over Samira.

a) Ruling [39] This evidence does not reveal any motive by Ms. Negasi to lie to Elen. It was a spontaneous outpouring to a person in a special relationship. It occurred when legal proceedings were contemplated. There is no corroborating evidence. The timing of the statement is close in time to the killing. Weighing these features, the statement meets the requirement of threshold reliability. [40] The statement is, as evidenced by Elen ’ s own initial reaction to it, consistent with a threat to obtain custody of the child.

The jury could engage in prohibited reasoning, and the prejudice of admitting the statement outweighs its probative value. It is excluded. C. Eden Negasi i. Conduct Evidence [41] Eden described Mr. Negasi as a volatile and controlling person who stifled expressions of opinion and emotion. She said that he “ kept tabs ” on where she, her sisters, and her mother were.

a) Ruling [42] For the reasons previously stated, this evidence is admissible. D. Haimanot Negguse i. Conduct Evidence [43] On her return from Eritrea, Ms. Negasi volunteered that Mr. Negasi had followed her twice per week, explaining that she saw him in her rear view mirror and that he parked beside her at their house after following her home from her night shifts.

a) Ruling [44] For the reasons previously stated, this evidence is admissible. E. Yhdego Hdega i. Conduct Evidence [45] Ms. Negasi volunteered to Ms. Hdega that Mr. Negasi had a “ bad mouth ” , called her names, and was very controlling with money. She said something like “ he seems nice on the outside, but is not when you look inside ” .

[46] Within the week of her killing, Ms. Negasi volunteered that Mr. Negasi had followed her more than once, explaining that she sees him in her rearview mirror. The next day Ms. Hdega phoned Ms. Negasi and was told that she would call her right back so that Mr. Negasi could not hear them, later advising Ms. Hdega that he did not trust her.

a) Ruling [47] For the reasons previously stated, this evidence is admissible. F. Beyene Negusse [48] Over the years, Mr. Negusse was summonsed by Mr. Negasi to arbitrate the Negasis ’ disputes. On one such occasion in 2006, Mr. Negusse counselled Mr. Negasi to correct his mistake or divorce his wife. With his head down, Mr. Negasi responded “ If I get a divorce it will be the end of the world ” . i. Ruling [49] I do not accept the proposition that this evidence fits within a “ conduct evidence ” designation. It can be admitted and tested in the ordinary course of the trial.

Even if I am wrong in that regard, it would nevertheless be properly admissible as “ conduct evidence ” for the reasons previously discussed. A limiting instruction to the jury, including the temporal link to Ms. Negasi ’ s killing would inoculate against prohibited reasoning. G. The 2006 Notebook Entry [50] This written statement identified by Elen as her mother ’ s writing speaks to the marital environment at the time. It refers to Mr. Negasi following Ms. Negasi. i. Ruling [51] There is nothing to suggest that Ms. Negasi had a motive to lie when she made the entry in the notebook. It is uncertain if Ms.

Negasi was contemplating legal proceedings when she made the writing. There is no corroborating evidence. The timing of the statement is some three years before Ms. Negasi ’ s killing. This scenario does not meet the requirement of threshold reliability. The writing is excluded. Heard on the 26 th day of May, 2011. Dated at the City of Edmonton, Alberta this 30 th day of May, 2011.

J.E. Topolniski J.C.Q.B.A. Appearances: Tania Holland For the Crown Peter Royal, Q.C. For the Accused