Court of Appeal for Ontario

Date: 2018-01-05 Docket: C58643

Judges: Sharpe, Watt and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Hussein Jama Nur Appellant

Counsel

Ariel Herscovitch, for the appellant

Christine E. Bartlett-Hughes, for the respondent

Heard: December 20, 2017

On appeal from the conviction entered on May 27, 2013 by Justice Brian Trafford of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

1The appellant and two of his three co-accused were found guilty of manslaughter in the death of a fellow inmate at the Don Jail. The Crown alleged that the appellant was a member of a group that grabbed the deceased, punched him in the face, kicked and stomped on him, dragged him into a shower, and dragged him back to his cell where he was later found dead.

2The appellant submits that the trial judge erred in his charge to the jury on post-offence conduct and that he further erred by failing to relate the evidence against the appellant specifically to the elements of manslaughter. The appellant concedes that no single error standing alone is sufficient to require a new trial, but submits that their cumulative effect is fatal to the conviction.

3At the conclusion of the appeal, we indicated that despite the very capable argument of Mr. Herscovitch, we did not need to call upon the Crown and that our reasons for dismissing the appeal would follow. These are our reasons.

1. Did the trial judge err in his instruction on the use the jury could make of evidence of post-offence conduct?

4The Crown relied on the evidence that the appellant had been involved in moving the deceased into the shower, washing him, and then dragging him back to his cell as evidence of post-offence conduct from which the jury could infer that the appellant had participated in the assault that led to the death.

(a) The alleged "Hall" error

5The trial judge instructed the jury that "if you find that the defendant(s) did those things because they were conscious of having committed the assault, you may consider this evidence, together with all the other evidence, in reaching your determination of the issue of the identity of the perpetrators of the assault".

6The appellant submits that this amounted to an invitation to engage in the kind of impermissible circular reasoning identified by this Court in R. v. Hall, 2010 ONCA 724.

7We do not accept this submission. The impugned passage in the charge was preceded by a reminder to the jury that it should consider the post-offence conduct evidence in the context of the evidence as a whole. It was immediately followed by a caution to be "careful not to immediately conclude that the defendant(s) did these things because they were conscious of having committed the assault". Immediately thereafter, the trial judge instructed the jury to consider any innocent explanation for the post-offence conduct, such as an intention to revive the deceased, or to follow the jail culture of interfering with the evidence of crime to frustrate a police investigation even if one were not involved in the crime itself. The trial judge also properly characterized the evidence of post-offence conduct as circumstantial evidence that could be considered, together with the rest of the evidence, in the determination of guilt: see R. v. Taylor, 2015 ONCA 448 at para. 142. In this case, as in R. v. Moffit, 2015 ONCA 412, at para. 55, the jury was not invited to jump directly to the issue of guilt as in Hall: see R. v. Salah, 2015 ONCA 23, at para. 242.

8We note as well that the so-called "Hall" error, standing on its own, is not fatal: Hall at para. 146; Taylor, at para. 141.

9Moreover, very experienced trial counsel did not object to this aspect of the charge. The failure to object is, of course, not fatal on appeal, but it does suggest that if even if there were an error, it was neither serious nor significant in the mind of experienced trial counsel who was in the best position to assess its impact: see Taylor, at paras. 142, 145.

(b) Post-offence conduct evidence and the defence of prevention of the use of force

10The appellant submits that the trial judge erred by instructing the jury that it could consider evidence of post-offence conduct in assessing the defence of preventing the use of force. The appellant argues that the post-offence conduct evidence had no probative value on that issue, absent evidence that the appellant had the requisite knowledge to understand that the assault on the deceased could have been legally justified. Even if the appellant had that knowledge, in the context of a prison assault leading to death, the jury should have been instructed that a participant might well attempt to hide his involvement to avoid prosecution and the risk of conviction, even if he thought he was legally justified.

11We disagree with those submissions.

12The trial judge paraphrased s. 34(1) of the Criminal Code as the basis of his instructions on what he termed "the defence of preventing the use of force". The justification for which s. 34(1) provides has three requirements:

• (reasonable) belief
• purpose
• (reasonable) response

13Neither the appellant nor any other defendant expressly relied on this justification or asked the trial judge to leave it to the jury as arising on the evidence advanced at trial. The evidence to support the defence of "preventing the use of force" was at best tenuous. None of the defendants testified that the force they used was for the purpose of preventing themselves or others from actual or threatened force from the deceased. In addition to the absence of evidence on what we have designated the belief and purpose elements of the justification, the nature and extent of the injuries inflicted on the deceased by the several assailants seem irreconcilable with the requirement of a reasonable response in s. 34(1)(c).

14In any event, we are satisfied that given the manner in which this issue was left with the jury, there is no risk that the appellant could have suffered any prejudice.

15The jury was properly instructed that it should consider any possible innocent explanation for the post-offence conduct. In the context of this case and this evidence, the jury would have understood that a possible innocent explanation was that the accused believed that they were justified in using force against the deceased.

16We observe that here again, there was no objection to the charge, indicating that the alleged frailty in the charge urged on appeal did not exist in the mind of the experienced defence counsel who had close familiarity with how the evidence had unfolded at trial. Even if for tactical reasons counsel did not wish to emphasize the prevention of force defence in his submissions to the jury, he could easily have asked the trial judge to make more explicit the instruction requested on appeal if he thought that there was a realistic possibility that the jury would not understand this specific innocent explanation for the post-offence conduct.

2. Did the trial judge err by failing to relate the evidence pertaining to the appellant on the issue of mens rea for manslaughter?

17The appellant submitted in his factum that the trial judge failed properly to relate the evidence pertaining to the appellant on the issue of the mens rea required for manslaughter.

18We disagree. The instruction on the legal requirement of mens rea for manslaughter must be read in the light of the trial judge's detailed review of the evidence and the positions of the parties. The jury was properly instructed on the mens rea issue and, in our view, when the instruction is read as a whole, the evidence relating to the appellant on the issue of mens rea was fully and fairly presented. The jury was instructed to consider the evidence related to each accused separately and the situation of the appellant was distinguished from that of the other accused. Accordingly, we would not give effect to this ground of appeal.

Disposition

19For these reasons, the appeal against conviction is dismissed.

Robert J. Sharpe J.A. David Watt J.A. L.B. Roberts J.A.