Man’s murder conviction overturned once again
Judge erred in instructing jury in trial of suspect in drug-trade slaying, court rules
A Gatineau man has had his first-degree murder conviction quashed for a second time, which means he could face a third trial in the execution of a local drug dealer who was shot in the heart.
Fadi Saleh, 41, was sentenced to life in prison after being found guilty by an Ottawa jury in November 2015.
In a ruling this week, however, the Court of Appeal for Ontario again overturned that conviction. The appeal court identified four serious errors in the trial judge’s charge to the jury, which together gave rise to “a substantial wrong or miscarriage of justice.”
The court rejected Crown attorney Michael Bernstein’s argument that it should dismiss the appeal despite the mistakes.
The appeal court said such a move would be inappropriate given that the case against Saleh was “not so overwhelming ” and relied heavily on one “discreditable witness,” Mark Yegin, who placed the accused at the scene of Hussein Hassan’s murder.
Hassan, 28, of Ottawa, was shot in a wooded area of west Ottawa in August 2004.
The Crown’s theory in the case was that the ambitious young cocaine dealer had angered Saleh — his primary drug supplier — and a Montreal associate, Shant Esrabian, by going behind their backs to buy cocaine from Saleh’s own supplier, Rafei Ebrekdjian, of Toronto. Ebrekdjian phoned Saleh to describe Hassan’s overture.
One day later, Hassan was lured to a secluded part of Panmure Road, where he was shot dead and buried in a shallow grave.
Three men — Saleh, Esrabian and Yegin — were charged the following year. Yegin accepted a limited immunity offer, gave police a sworn statement, and led them to Hassan’s body in June 2005. Yegin told police Hassan had been shot once in the head by Saleh.
But a police search of the execution scene uncovered three bullet casings. In the face of that evidence, Yegin changed his story to say that Esrabian had shot Hassan twice, after which Saleh had shot him in the head.
Yegin refused to testify at Esrabian’s trial, even though he had given evidence at the preliminary inquiry. Esrabian was convicted of first-degree murder in 2008.
The police rescinded Yegin’s immunity deal and he stood trial for Hassan’s murder. He was acquitted.
At Saleh’s first trial in 2010, Yegin again refused to take the witness stand — he had testified at the preliminary — and was sentenced to four years in prison for contempt of court. Saleh was found guilty of first-degree murder, but his conviction was overturned on appeal, in part because of the judge’s decision to allow the introduction of Yegin’s earlier testimony.
Yegin testified at Saleh’s retrial in 2015. Enrolled by then in the witness protection program, Yegin told court he met Hassan on Aug. 20, 2004, and drove toward what he thought was a meeting to discuss drug distribution problems in Cornwall.
On the highway, near Bayshore, they encountered Saleh and Esrabian in their own car; Saleh waved at Yegin to follow him. The two cars pulled off the highway.
Saleh walked towards his car, Yegin said, and told Hassan he wanted to speak to him. On the roadside, the two men began to argue heatedly in Arabic.
Yegin told court that Esrabian shot Hassan twice at close range. Hassan fell to the ground, Yegin said, and Saleh then shot him in the head. “Hassan was on the ground and I remember a gun pointed right at this head. I remember the blast. I remember seeing blood splattered on his head,” Yegin testified.
Confronted with medical evidence that Hassan had suffered only gunshot wounds to the torso, Yegin stuck to his story. “I remember it like yesterday,” he told court.
After the incident, Yegin said Saleh told him, “It had to be done.”
At trial, the Crown argued that Saleh planned and orchestrated the killing, and was guilty of first-degree murder even though he didn’t fire the fatal shots. The defence said Yegin, an admitted liar, was the only one who could place Saleh at the scene, and should not be believed.
The appeal court said the trial judge failed to properly equip jury members with the legal tools they needed to find Saleh guilty of first-degree murder in the absence of evidence that he had fired the fatal shots.
High-profile defence lawyer Marie Henein represented Saleh before the court of appeal; she could not be reached for comment Wednesday. aduffy@postmedia.com
Hassan was on the ground and I remember a gun pointed right at his head. I remember the blast.