R. v. Mohamed, 2011 ONCA 260
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Rosenberg and Goudge JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Abdi Omar Mohamed and Mohamed Hassan
Appellants
Apple Newton-Smith, for the appellant Abdi Omar Mohamed
Timothy Breen and Diana Lumba, for the appellant Mohamed Hassan
Lucy Cecchetto, for the respondent
Heard: February 22 and 23, 2011
On appeal from the convictions for second degree murder entered by Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, dated December 20, 2007 and sentences imposed on April 24, 2008.
1The appellants Abdi Mohamed and Mohamed Hassan appeal from their conviction by a court composed of T. Ducharme J. and a jury on a charge of second degree murder. For the following reasons the appeals are dismissed.
THE FACTS
2On August 19, 2004, the victim, Ahmed Ali, was stabbed to death in a Toronto apartment following a brief argument. In all, there were eight persons in the apartment at the time. Most of them had been drinking for several hours. Only one person, Yasmin Kamil, claimed to have actually witnessed the stabbing. The appellants, who are brothers, did not testify.
3The argument that led to the killing began when Mohamed demanded that another of the occupants give him his “do-rag”. When the deceased intervened, Mohamed slapped him and then went out to the balcony. The deceased began throwing beer bottles in Mohamed’s direction but none of them hit him. Hassan and Ms. Kamil intervened to stop the deceased from throwing the bottles. A fight then broke out between Hassan and the deceased. The fight began in the living room but continued into a short hallway leading to the entrance door. According to Ms. Kamil, the fight ended with Hassan and the deceased lying on the hallway floor apparently exhausted. Hassan had a wound to his forearm. The deceased was on the floor on his knees, facing the entrance door. The deceased had a serious wound to his head. The floor of the apartment was littered with broken glass.
4According to Ms. Kamil, Mohamed then came in from the balcony and stabbed the deceased several times in the back. She did not see Hassan stab the deceased and did not see him with a weapon. The appellants fled the apartment. However, Hassan briefly returned, stuck his head in the door and said “that’s how we do it”. The police recovered a knife with the deceased’s blood on it in a nearby park. Immediately after the killing, the appellants purchased bus tickets to Edmonton. They were arrested several hours later in Thunder Bay.
5In all, the deceased sustained 31 sharp force injuries. The most serious wounds, described by the pathologist as “medically significant” in that each alone could have caused death, were three deep wounds to the torso, one to the back and one to the head. The most serious of the wounds to the torso was a deep wound to the heart. The other two serious wounds to the torso cut the liver and the spleen. There was a medically significant wound to the right side of the back and a deep injury extending through the thickness of the scalp and muscles to the surface of the bony skull. There were a number of other sharp force injuries to the torso, face, head and upper limbs. The deceased had defensive wounds to his hands. The pathologist could not say what caused the injuries other than that they were caused by a cutting instrument with a sharp edge and a blunt edge. The ultimate cause of death was blood loss.
6Mohamed’s defence was a simple denial that he stabbed the deceased, although the trial judge put to the jury that they could find Mohamed was acting in defence of Hassan. Counsel for Mohamed also sought to have the trial judge put provocation to the jury. Hassan also denied stabbing the victim and he relied on Ms. Kamil’s testimony, since, as indicated, she saw only Mohamed stab the victim.
MOHAMED’S GROUNDS OF APPEAL
1. The Answer to the Jury’s Question Regarding Consensual Fight
7During a break in the charge to the jury, the jury sent three questions to the trial judge, two of which were as follows:
Are we to understand/accept as fact/evidence that Abdi Mohamed sought to (a) defend his brother from an “unlawful assault” to the exclusion of (b) a consensual fight?
Is the jury permitted to interpret the nature of the initial conflict?
8By this time, the trial judge had charged the jury on the defence of others under s. 37 of the Criminal Code, R.S.C. 1985, c. C-46. In those directions, the trial judge had correctly broken down the elements of the s. 37 defence and told the jury that the first question they had to consider was whether Mohamed reasonably believed that Hassan was being unlawfully assaulted. The trial judge had directed the jury as follows:
An unlawful assault is the intentional application of force, directly or indirectly, by any means, to the body of another person without the other person’s consent. It does not matter whether Mohamed Hassan provoked the assault or even assaulted Mr. Ali first, nor is it necessary that Mohamed Hassan was actually assaulted, provided that Abdi Mohamed reasonably believed that Mohamed Hassan was being unlawfully assaulted.
9While the trial judge initially interpreted the first question as relating to the initial fight between the deceased and Hassan, by the time he came to answer the question he seems to have viewed the question as relating to Mohamed’s actions in relation to the deceased. He told the jury as follows:
With respect to the issue of whether you have to accept that Abdi Mohamed sought to defend his brother from an unlawful assault as opposed to a consensual fight, that’s a good question, because it focuses on an important question you have to consider in terms of the justification of self-defence of others. And that’s question – under Question 3B, which is, Did Abdi Mohamed use force to defend Mohamed Hassan from what he reasonably believed was an unlawful assault, as I told you, that focuses on the purpose with which Abdi Mohamed acted. If he acted to protect his brother, you continue on. If it was a consensual fight, if he just decided that he was going to fight Mr. Ali, then he did not have the intent to protect his brother.
Now, keep in mind, don’t confuse, if you decide – you don’t want to conflate the two issues in the sense that if Mr. Ali decides to fight or – sorry. If Abdi Mohamed decides to fight Mr. Ali, that doesn’t necessarily make it a consensual fight. You have to consider why he’s doing that. If he’s doing it to protect his brother, that’s the issue.
10The trial judge immediately then excused the jury at the request of Mohamed’s trial counsel (not Ms. Newton-Smith). Trial counsel objected to one aspect of the trial judge’s answer because, in summarizing the Crown and defence positions, he had suggested that defence counsel’s position was that Mohamed was acting to protect his brother. Defence counsel’s objection was to suggest that his position was that Mohamed was acting to defend his brother when in fact Mohamed’s defence was a complete denial that he stabbed the victim. When the jury returned, the trial judge clarified defence counsel’s position. Defence counsel raised no objection to the trial judge’s answer to the question about the consensual fight.
11On appeal, Mohamed now submits that, in answering the question, the trial judge erred in failing to focus on the initial fight between the deceased and Hassan and to define for the jury the difference between an unlawful assault and a consensual fight. In particular, counsel submits that the trial judge should have instructed the jury that, as a matter of law, individuals cannot legally consent to an assault causing serious hurt or non-trivial bodily harm. Thus, counsel does not submit that the trial judge’s instructions were legally wrong, but rather the trial judge erred in failing to introduce into the jury’s deliberation another issue, namely, the definition of a consensual fight.
12We would not give effect to this submission. The trial judge’s answer to the question refocused the jury’s attention to Mohamed’s intent in stabbing the deceased and, in particular, whether he was acting to protect his brother. The s. 37 defence was a weak one at best. By the time Mohamed stabbed the deceased, the fight with Hassan was over and there was no evidence that Hassan was in fact in any danger. The only possible way that Mohamed could rely on the s. 37 defence was if the jury had a reasonable doubt that he was using force because he reasonably believed Hassan was being unlawfully assaulted. A diversion into issues about whether in fact the fight between Hassan and the deceased could have been consensual would not have assisted Mohamed.
2. Failure to Leave Provocation
13Although, as indicated, Mohamed’s defence was a complete denial, his counsel nevertheless urged the trial judge to put the defence of provocation to the jury on the basis that the deceased had thrown beer bottles in Mohamed’s direction. The trial judge held that there was no air of reality to provocation. On appeal, counsel submits that there was an air of reality to provocation based on the throwing of the beer bottles and the fight between the deceased and Hassan. We agree with the trial judge that there was no air of reality to provocation. In R. v. Tran (2010), 2010 SCC 58, 261 C.C.C. (3d) 435 (S.C.C.), at para. 23, Charron J. adopted the following summary of the elements of the provocation defence:
First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool.
14There was simply no evidence of a wrongful act or insult sufficient to deprive an ordinary person of self-control. While the deceased may have thrown beer bottles in Mohamed’s direction, he was not hit or injured in any way. He went out to the balcony and did not respond to the incident. It is unclear how the fight between Hassan and the deceased could amount to a wrongful act or insult that was sudden and unexpected and would have deprived an ordinary person of self-control. Mohamed had started the incident by slapping the deceased, but he then left the area. When he returned, the fight was over. The element of acting on the sudden in response to a wrongful act or insult is simply missing.
3. Rolled-up Charge
15Mohamed submits that the trial judge did not sufficiently direct the jury on the issue of intent for murder. Counsel submits that even if provocation was not available as a defence, the various acts such as the throwing of the beer bottles and the fight with Hassan were relevant to the question of intent and should have been “rolled-in” to the charge on intent. Counsel submits that these incidents could have clouded Mohamed’s judgment and caused him to act instinctively without considering the consequences of his actions.
16In our view, the charge to the jury on intent was correct and sufficiently alerted the jury to the need to consider all the circumstances in deciding whether the appellant had the requisite intent for murder. The trial judge told the jury to consider all of the evidence in dealing with the question of intent. While he focused particularly on alcohol consumption as that might affect the question of intent, he did not do so to the exclusion of other relevant factors. For example, the trial judge told the jury to consider how the fight started, the description of the fight and the speed with which the events occurred. The following passage, near the end of the directions on intent, specifically dealt with the question of whether Mohamed acted instinctively:
And again, I remind you, Yasmin Kamil described Abdi Mohamed’s involvement as happening very suddenly and taking place very quickly.
You should consider this evidence, not just with respect to intoxication, but along with other evidence that might suggest that either Abdi Mohamed or Mohamed Hassan acted instinctively in the sudden excitement of the moment, without thinking of the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Ahmed Ali murder.
If you have a reasonable doubt about either Mr. Mohamed -- Mr. Abdi Mohamed’s or Mr. Mohamed Hassan’s state of mind, you must not conclude he intended or meant to bring about the predictable consequences of what he did.
If, after taking into account the evidence of the consumption of alcohol, along with the rest of the evidence, you are not satisfied beyond a reasonable doubt that Abdi Mohamed had the required state of mind for second degree murder, you must find him not guilty of second degree murder but guilty of manslaughter. Your deliberations with respect to him would be over.
17The purpose of the so-called “rolled-up charge” is to alert the jury to the need to consider all of the evidence that may be relevant to intent, and not to compartmentalize the evidence by restricting it to defences such as self-defence or provocation. The concern that the jury will compartmentalize the evidence is greatest where a discrete defence has been left to the jury. The danger is that the jury having rejected a defence, such as provocation, may fail to again consider the provocation evidence when dealing with the issue of intent.
18In this case, however, provocation was not left to the jury as a separate defence and the trial judge did tell the jury to consider all of the circumstances, including whether the appellant acted instinctively in the sudden excitement of the moment. There could be no concern that the jury would not consider all of the circumstances in the face of explicit and repeated instructions to do so. Provocation not having been left to the jury as a discrete defence, there was no need for the trial judge to refer to provocation or provocative acts as an element of a rolled-up charge; what was required was a reference to the need to consider the evidence and how that might affect Mohamed’s state of mind. The charge to the jury did that.
19Accordingly, Mohamed’s appeal from conviction is dismissed.
HASSAN’S GROUNDS OF APPEAL
1. The Crown’s Jury Address
20The trial judge ruled that he would not instruct the jury that Hassan could be guilty of murder on the basis that he was a party to a killing by Mohamed. Hassan submits, however, that the trial judge erred in failing to correct a portion of the Crown’s jury address where he invited the jury to convict Hassan on the basis of party liability. We do not agree with this characterization of the Crown’s jury address. The Crown’s position was that both accused were responsible for the killing. Crown counsel was entitled to rely on the accuseds’ acts, including the acts that they did together such as fleeing the scene together and Hassan’s statement to the occupants of the apartment: “that’s how we do it”. That comment was a particularly damning piece of evidence against Hassan and Crown counsel was careful to remind the jury that it was evidence against only Hassan. He did not attempt to leverage the comment into an admission of party liability. As Crown counsel said:
I’m only asking you to consider what it tells you about what Mohamed Hassan’s attitude was about what he did and his own understanding of his own action in the context of what he did and what he must have observed his brother doing. At the very least, it shows Mr. Hassan acknowledged participating in what had just happened, and in view of his own conduct as taken quickly with his brother.
21This was an entirely appropriate comment by Crown counsel and in no way suggested that Hassan was liable for murder simply as a party. In his charge to the jury, the trial judge told the jury that they had to determine the individual liability of each accused. There was no suggestion of party liability. We would not give effect to this ground of appeal.
2. Causation
22Hassan submits that, since he could not be convicted as a party to the offence, the Crown had to establish that his own acts caused the death of the deceased. He submits that the trial judge had to direct the jury that they could find that Mohamed’s acts of stabbing the deceased were intervening acts breaking the chain of causation from the acts of Hassan. In our view, the charge to the jury was sufficient. The trial judge directed the jury as follows concerning the need for proof of causation:
Now, for an act to cause someone’s death, it must be a significant contributing cause of death. There must not be anything that somebody else does later that results in the acts of either Abdi Mohamed or Mohamed Hassan no longer being a contributing cause of Mr. Ali’s death. It is of no concern to you that proper medical treatment might have saved Mr. Ali’s life. [Emphasis added.]
23Trial counsel for Mr. Hassan, not Mr. Breen, did not object to the charge to the jury on causation. In any event, intervening act was not a real issue in the case. The deceased suffered over 30 wounds. He died from loss of blood caused by multiple sharp force injuries. The testimony from Ms. Kamil, which was so central to Hassan’s defence, described only injuries inflicted by Mohamed to the deceased’s back. Her testimony did not account for the serious wounds to the torso, including the deep wound to the heart. This was not a case calling for an explicit direction on intervening act beyond the correct instructions set out above. The intentional acts of both accused in stabbing the deceased were significant contributing causes of death through loss of blood.
3. Self-defence
24Hassan submits that the trial judge erred in failing to leave self-defence to the jury. We agree with the trial judge that there was no air of reality to self-defence on Hassan’s part. There was no evidence from any witness from which it could be found that Hassan stabbed the deceased in self-defence. And, there was nothing in the circumstances that could raise a reasonable doubt that Hassan stabbed the deceased in self-defence. There was no evidence that Hassan stabbed the wounded victim to defend himself.
4. The Jury’s Question about Yasmin Kamil’s Evidence
25During their deliberations, the jury asked the following question:
At one point [Yasmin Kamil] made a statement that “nobody stabbed anybody except the two brothers. That is what I want to tell you”. This statement was either made to the police or at the preliminary trial. When asked during the examination or cross-examination did she accept saying the statement? Does she acknowledge making this statement? Does she acknowledge that this was true? If not, what does she change the statement to?
26The trial judge responded to the question by repeating verbatim the portion of Ms. Kamil’s evidence to which the jury was referring, which arose in re-examination. He concluded his review of the re-examination with this part of Ms. Kamil’s evidence:
What I mean is that three people involved in the fighting, two of them were boxing each other, struggling in all this, and the other one stabbed and killed. [Emphasis added.]
27Given Ms. Kamil’s evidence, the jury could have no doubt that her reference to “the other one stabbed and killed” was to Mohamed, not Hassan. The trial judge then directed the jury as follows:
So returning to your question, obviously Yasmin Kamil did acknowledge making the statement, and there is no issue that the question -- the statement you asked about was made to the police at 11:18 on the evening of these events.
You asked, Does she accept that this was true?
She was not asked whether or not this statement was true, and as it came out in re-examination, there was no opportunity for her to be cross-examined about it.
You asked, If not, what does she change the statement to?
Now, given that she wasn’t asked if it was true, the “if not” doesn’t arise, but given that you’ve asked about changes to her testimony, I think I should review with you the inconsistencies in her statements about this and what she said about those.
28The trial judge then dealt at length with some of the inconsistencies with Ms. Kamil’s evidence in a way that was favourable to Hassan, concluding by reminding the jury that Ms. Kamil testified that she did not see a weapon in Hassan’s hands at any point during his fight with the deceased. Hassan submits, however, that the trial judge should have instructed the jury that while Ms. Kamil acknowledged making the statement, she did not adopt the statement as true in the sense of saying that she had seen both brothers stab the deceased.
29We would not give effect to this submission. The trial judge was bound by the evidentiary record. In the charge to the jury, the trial judge had correctly instructed the jury about the use of prior inconsistent statements. In his answer to the jury’s question, he correctly set out the portion of the testimony that related to the jury’s question and, in fairness to Hassan, went on to remind the jury about her testimony concerning whether Hassan had a weapon. There was nothing more the trial judge could do or should have done.
30Accordingly, Hassan’s appeal from conviction is dismissed.
Signed: “Winkler C.J.O.”
“M. Rosenberg J.A.”
“S.T. Goudge J.A.”
RELEASED: “WW” April 5, 2011