Court of Appeal for Ontario

Date: 2025-03-21
Docket: C69915
Coram: Zarnett, Coroza and Monahan JJ.A.

Between:
His Majesty the King (Respondent)
and
Habibullah Daniel Ahmadi (Appellant)

Appearances:
Michael W. Lacy and Bryan Badali, for the appellant
Jim Clark, for the respondent

Heard: May 6, 2024

On appeal from the conviction entered on November 13, 2020 and the sentence imposed on February 4, 2021 by Justice Bruce G. Thomas of the Superior Court of Justice.

Coroza J.A.:

I. Overview

1After a long night of smoking marijuana and consuming “magic mushrooms” with several other young men, Habibullah Daniel Ahmadi (the “appellant”) viciously and inexplicably assaulted Sara Anne Widholm, a woman he came across on the morning of October 8, 2017, while walking on the Ganatchio Trail in Windsor. The appellant admitted that he repeatedly hit Mrs. Widholm with his fists and elbows. Mrs. Widholm, who was 75 years old at the time, never regained consciousness and eventually passed away from the grievous injuries the appellant inflicted on her.

2The appellant was tried before a judge sitting without a jury. His trial turned on the question of intoxication which was relevant to two issues: whether he was acting voluntarily because of non-mental disorder automatism at the time he committed the offence, and whether he had the state of mind for murder pursuant to either ss. 229(a)(i) or (ii) of the Criminal Code.

3As to the first issue, the trial judge rejected the involuntariness defence. He relied on the governing jurisprudence to observe that the appellant would have had to lead confirmatory psychiatric evidence to establish the defence. Since the appellant had not done so, he could not avail himself of it, and the presumption of voluntariness remained intact. In any event, he also held that the evidence did not support the suggestion that the appellant was labouring under the level of intoxication that would negate voluntariness and act as a complete defence to criminal responsibility.

4As to the second issue, while the trial judge was satisfied that the appellant was intoxicated due to his consumption of magic mushrooms, he concluded that the Crown had proven beyond a reasonable doubt that the appellant had the requisite intention to cause Mrs. Widholm bodily harm, that he knew was likely to cause death, and that he was clearly reckless as to whether death ensued pursuant to s. 229(a)(ii) of the Criminal Code.¹ Consequently, he convicted the appellant of second degree murder and imposed the mandatory sentence of life imprisonment. The trial judge directed that the term of parole ineligibility be set at 13 years pursuant to s. 745.4 of the Criminal Code.

5At issue on this appeal is the trial judge’s conclusion that the appellant had the requisite state of mind to commit murder. The appellant argues that the reasons of the trial judge contain three legal errors.

6First, the appellant submits that the trial judge improperly used the appellant’s out-of-court statements to the police as circumstantial evidence of guilt in the absence of independent evidence of fabrication.

7Second, he submits that the trial judge failed to consider the whole of the evidence and ignored critical evidence from E.H. who was with the appellant at the time of the attack, relating to the appellant’s state of mind in the minutes immediately preceding the attack.

8Third, he submits that the trial judge relied on after-the-fact conduct evidence of his physical movement following the attack which was not relevant to his state of mind at the time of the attack.

9If the conviction appeal fails, the appellant argues that the trial judge erred in imposing a parole ineligibility period of 13 years by improperly treating the appellant’s statements to police as an aggravating factor and characterizing them as “self-serving attempts to mask his criminality and divert responsibility”.²

10For the reasons that follow, I would dismiss both the conviction and sentence appeals.

II. Facts

1. The Backdrop

11On the afternoon of October 7, 2017, starting at about 3:00 p.m., the appellant and three other young men drove around smoking marijuana. Each of them had their own marijuana and they smoked over the course of the afternoon and evening. A young person named E.H., a key witness at trial, described his own consumption habits as significant, likely approaching half an ounce or 30 marijuana cigarettes a day.

12Eventually, the group ended up at the appellant’s residence, where they were joined by two other young men. They chatted about mixed martial arts, and the appellant shadowboxed and threw kicks in the air. E.H. had brought magic mushrooms with him – about an ounce in a plastic baggie. At about 2:00 a.m., he and the appellant each ate some. At trial, E.H. testified that he did not know how much the appellant had eaten. Another young man from the group recalled that E.H. and the appellant ate seven grams each. In his statement to police on October 8, 2017, the appellant said he ate about ten grams. They finished eating the mushrooms between 2:00 and 3:00 a.m. E.H. testified that he felt high about 20 minutes after he consumed the magic mushrooms.

13At about 3:30 a.m., two members of the group went to the gym to work out. The appellant and E.H. went on a walk to “suicide hill”, a popular location for teenagers to hang out just off the Ganatchio Trail in Windsor. They lay on their backs looking up at the sky and had a casual conversation. E.H. detected no inability on either of their parts to communicate with or comprehend one another.

14After about an hour, E.H. and the appellant left, and the two gymgoers picked them up at a Tim Horton’s. E.H. recalled that he was still “pretty high” but beginning to come down. He thought the appellant was feeling similarly based on his observations of the appellant. When they got back to the appellant’s residence, the other two young men decided to call it a night. E.H. and the appellant smoked some more marijuana, and the appellant suggested that they go for another walk. They walked once more to the Ganatchio Trail. After some time, E.H. was falling asleep, and told the appellant that they should head home.

2. The Walk Back and the Attack

15E.H. described the appellant as “definitely” acting differently during their walk home, a description borne out by his account of the appellant’s behaviour. First, the two of them came upon a building surrounded by a six-foot fence topped with barbed wire. The appellant climbed the fence without difficulty and invited E.H. to join him. E.H. declined. Shortly after that, having resumed their walk home, the appellant grabbed E.H. from behind and challenged him to a fight “out of nowhere”. E.H. declined, and the appellant wordlessly stared into the woods before eventually returning to his walk with E.H.

16Ten to fifteen minutes later, the pair encountered Mrs. Widholm on an intersecting trail path. Surveillance camera footage reveals that this took place at about 7:42 a.m. Mrs. Widholm was carrying a grocery bag. E.H. described her as “freaked out” to see them. He slowed down to give her some space and she carried on ahead of them.

17The appellant looked at E.H. and asked, “do you think she needs help with her bag?” E.H. said no, but the appellant insisted that she did, and said that he was going to provide it. E.H. protested that this would just “freak her out” more. Undeterred, the appellant ran up the approximately 75 yards to Mrs. Widholm. From E.H.’s perspective, it looked like the appellant spoke to Mrs. Widholm for about 30 seconds.

18Then a struggle began. The appellant tried to put the jacket he was carrying on Mrs. Widholm. Alarmed, Mrs. Widholm flailed her arms and told the appellant to get away from her. The appellant dropped the jacket and punched her directly in the face. She dropped straight to the ground, landing on her stomach with her face down. The appellant then brutally attacked her as E.H. ran toward them. The appellant straddled her lower back, pinning her down, and punched and elbowed her head into the ground. E.H. said the appellant landed at least ten punches and ten elbows to her head and face, and picked her up and slammed her into the ground a couple of times.

19At first, Mrs. Widholm cried out for help as E.H. approached them, but she quickly became unresponsive as the appellant pressed on with his attack. E.H. testified that he tried to pull the appellant off Mrs. Widholm, but he was unsuccessful: the appellant flailed his elbows to stop him. Knowing his own cell phone was dead, E.H. tried to retrieve the appellant’s phone from his jacket, but did not succeed.

20So instead, E.H. ran down the path to get help. He saw a woman gardening near the parking lot and told her he needed help and to call 911. She did not have a phone, so he ran into a nearby subdivision hoping to find the appellant’s house so that he could make the call himself. Before he could locate the house, he heard emergency sirens and ran back to the parking lot, where he flagged down a police car and offered to tell the officers what happened. In the meantime, the woman in the parking lot had found someone with a cellphone and called 911.

21Constable Pelaccia arrived at the parking lot at 7:58 a.m. and drove her vehicle up the path. Constable Pelaccia found Mrs. Widholm’s body just west of the trail. Since Mrs. Widholm was unresponsive, Constables Pelaccia and Bal attempted to apply pressure to her head wound. Paramedics arrived on the scene at 8:05 a.m.

3. The Surveillance Videos

22While the above events were taking place, surveillance cameras from the wastewater treatment facility adjacent to the Ganatchio Trail captured the appellant in the minutes following the attack.

23First, at around 7:50 a.m., the appellant is seen moving through the undergrowth up the hill away from the place where Mrs. Widholm’s body is found. He disappears into the undergrowth and trees. Shortly after, EMS personnel arrive at the scene and officers are shown on the path.

24Second, the appellant is seen at around 9:12 a.m. coming out of the undergrowth. The manager of the treatment plant is driving on the path away from the police presence. The appellant comes out of the undergrowth within a minute of the manager’s vehicle disappearing. The appellant slips through an opening in the fence of the treatment plant and walks calmly across the paved roadway. At this time, he is not carrying a bag and he is wearing his hoodie with bloodstained elbows.

4. The Statement Upon Arrest

25Having spoken with E.H., Constables Bal and Stramacchia drove to the appellant’s residence, along with Detectives Shaw and Westenberg. After speaking with some people present there, they encountered the appellant around 10:00 a.m. It had been about 2 hours and 15 minutes since the attack. The appellant was walking down the street toward his residence. He was shirtless and soaking wet. He was also carrying a grocery bag containing his own bloodstained sweatshirt and a t-shirt soaked with what analysts would later confirm was Mrs. Widholm’s blood.

26The appellant complied with the officers throughout the interactions that followed. He acquiesced in their demand to stop and drop the bag. He provided his name and allowed them to handcuff him upon his arrest. He said he understood his right to counsel and volunteered that he thought “someone slipped [him] something”, before asking for a lawyer. Both Constables Bal and Stramacchia indicated that they saw no signs that the appellant was impaired. He spoke clearly and responded quickly, with no apparent comprehension issues. One of the officers described him as stoic and emotionless. Officers who had contact with the appellant after he was brought to the police station reported similar observations.

5. The Formal Statement at the Police Station

27The police interviewed the appellant at 7:41 p.m. on October 8, 2017. The appellant acknowledged that he had taken mushrooms and estimated his consumption to be about ten grams. When asked about his encounter with Mrs. Widholm, the appellant initially told the police that he did not remember it well. He said his memory was “all blurry” and that he “just remember[ed] seeing her in the trails”. Eventually, he said he remembered running up to her to offer help, and that she said something to him, but that he could not remember what happened after that. He first described himself as sobering up immediately upon his arrest, but then said that he started to come down from the high when he was running through the trails after the attack. He broke down into tears and asked if Mrs. Widholm would be okay.

28Crucially, the appellant said three times that he blacked out at the time of the attack. At the end of the interview, the officer suggested he had not been honest on that point, and the appellant responded that he “didn’t quite black out. It is just the memory is a blur”.

III. The Trial Judge’s Decision

29The trial judge found that there was no doubt that the appellant was intoxicated by the use of magic mushrooms. However, he found that the Crown had proven beyond a reasonable doubt that the appellant had the requisite state of mind for murder. He gave five reasons for that conclusion.

30First, the appellant was able to function, react, and process events rationally before he assaulted Mrs. Widholm. He had been able to communicate with E.H. and the other young men, to walk significant distances along dark paths on the Ganatchio Trail, and to scale a six-foot fence topped with barbed wire. He had been aware that the person he encountered on the path was an elderly woman.

31Second, the brutality of the attack and the nature of Mrs. Widholm’s injuries spoke to whether the appellant would have foreseen the likelihood of her death. The trial judge cited R. v. Herlichka, 2020 ONCA 307, paras. 11, 36.

32Third, the appellant’s after-the-fact conduct further suggested that he was thinking clearly enough to be capable of having the state of mind for murder. Surveillance footage showed the appellant “negotiating his way through thick ground cover within minutes of concluding his assault”. It showed him an hour and 24 minutes after the attack sliding through an opening in the fence surrounding the wastewater treatment facility to leave the trails, having carefully waited until the plant manager left the scene to make his move.

33Fourth, the appellant’s ability to act in a focussed and rational manner was supported by his statements to the police. The trial judge observed that 2 hours and 15 minutes after the attack, the appellant encountered the police near his residence. The first thing he said to the arresting officer was that someone had slipped him something. The trial judge also observed that the appellant’s subsequent formal police interview evolved as it progressed. The appellant began by saying that he had no recollection of what happened. Then he said he remembered trying to help Mrs. Widholm, but that she scared him, and then he blacked out. When the interviewing officer suggested that he did not believe that the appellant blacked out, the appellant backed off that position, saying instead that he had not quite blacked out, but that his memory was a blur.

34The trial judge found that the appellant’s statements during the interview were “self-serving” and “a further attempt to disguise his knowledge of his actions”, and that there was “no doubt” that during his interview, the appellant understood the extent of both his peril and the injuries he had inflicted on Mrs. Widholm.

35Finally, the Crown’s expert evidence suggested that the peak of the appellant’s high should have been before the attack based on the time of consumption, and that he would not have sobered up as suddenly as he claimed.

IV. Conviction Appeal

Issue 1: Did the trial judge err in using the appellant’s out-of-court statements as circumstantial evidence of guilt?

36The appellant argues that the trial judge fell into legal error by finding that the appellant’s statements to the police were fabricated in the absence of independent evidence and that he consequently used the statements as circumstantial evidence of the appellant’s guilt.³ The appellant acknowledges that a trier of fact can find that an out-of-court statement is concocted or deliberately fabricated, but he submits that can only occur if there is independent evidence of concoction. Here, the appellant argues there was no such independent evidence.

37In response, the Crown argues that while the trial judge made findings that the appellant’s statements were “self-serving” and “an attempt to disguise his knowledge of his actions”, he did not use these conclusions as circumstantial evidence of guilt. Instead, the Crown argues that the trial judge used these conclusions for two reasons: (1) to reject the appellant’s narrative; and (2) to address the defence’s argument that the appellant did not have the state of mind for murder because of his level of intoxication. Neither of these uses required independent evidence of fabrication. Alternatively, the Crown argues that independent evidence can be found in the nature and the circumstances in which the statements were made and would allow for the reasonable inference that the appellant lied to conceal his complicity in the murder of Mrs. Widholm.

38In my view, the appellant’s argument fails because the trial judge did not use the statements as circumstantial evidence of guilt.

39The live issue at trial was the appellant’s intoxication and the effect it had on the appellant’s mind. The appellant argued that he was so intoxicated by drugs that there was a reasonable doubt as to whether he had formed the state of mind required for murder. The trial judge rejected that submission. After noting that there is a common-sense inference that sane and sober persons intend the natural and probable consequences of their actions, the trial judge recognized that he had to consider the evidence of the appellant’s consumption of drugs along with the other evidence relevant to intent. As noted above, the trial judge reviewed the evidence and gave five reasons for his conclusion. The appellant highlights the fourth reason given by the trial judge as supporting his contention that the trial judge improperly used his finding of fabrication as consciousness of guilt.

40For ease of reference, I set out the fourth reason in its entirety:

[93] Fourth, the ability of the accused to act in a focussed and rational fashion is supported by his statements to police. Two hours and fifteen minutes after the offence, Daniel Ahmadi encountered police near his residence. He had removed his bloody shirts, I find, so that he did not draw attention. He had washed himself off. He comprehended the instructions and questions of the police and answered appropriately. The first thing he said to Constable Bal was that someone slipped him something. I find that he was already setting up his narrative for the act he knew he had committed.

[94] Daniel Ahmadi’s formal statement to police evolved as it progressed, pressed by Detective Shaw to explain what he recalled, saw and heard. He began his statement by suggesting he did not remember what happened. He had no recollection of what he said to Widholm or what she said to him. The only real interest he had in the questions of Shaw came when they discussed his prowess in MMA-like training and moves.

[95] He then stated that he was trying to help Widholm, but she scared him, and he blacked out. But he remembered he wanted to help her. He did not know why he was scared. He didn’t see a 75-year-old lady when he looked at her, but he did not know what he saw. His drug induced high wore off instantly when he got arrested. Ahmadi then said he remembered that he ran up and she hit him and then he blacked out. He didn’t see her with a human face. But he was not sure what kind of face he saw. He was able to describe the items he had with him on the trail, and that he had lost his brother’s phone speaker, likely on the trail.

[96] When Shaw suggested he didn’t believe he blacked out at the instant of the assault, Ahmadi stated he didn’t quite black out, but rather his memory was a blur.

[97] I find his self-serving interview comments, a further attempt to disguise his knowledge of his actions by suggesting his mind was simply overpowered by the hallucinogenic drug he ingested. There is no doubt, during his interview, Daniel Ahmadi knew the extent of his peril and the extent of the beating he had exacted on a defenceless elderly woman. [Emphasis added.]

41It is readily apparent in the impugned passages that the experienced trial judge did not explicitly state he was using the statements for the purpose that the appellant contends. An appellate court should not ignore what trial judges actually say in their reasons. When reasons are given, they should generally be taken seriously and at face value, as an accurate reflection of the author’s thought process: R. v. Morin, 2024 ONCA 562, para. 41.

42In the impugned passages, the trial judge was specifically averting to the appellant’s rational and focussed behaviour. Put another way, he was squarely addressing the appellant’s apparent ability to comprehend what was happening, to communicate his thoughts, to respond to questions and to engage in a deliberate mental process. These observations were inconsistent with a claim that he was so intoxicated that he did not have the state of mind required for murder. I do not see the trial judge using the fact that the appellant lied as a makeweight for the Crown’s case. It is less than clear that the trial judge drew an adverse inference because the appellant had concocted his statements. Indeed, the trial judge at another point in his reasons, referred to a different type of after-the-fact conduct (surveillance videos showing the appellant’s movements) and explicitly said that it was not being used to demonstrate a consciousness of guilt:

[90] Here, the after the fact conduct is not being used to demonstrate a consciousness of guilt. It is being used to assess the level of the accused’s intoxication, and his ability to form intent at the time of the crime. In those cases, the after the fact conduct was being sought to be admitted to prove consciousness of guilt. The accused could be fleeing or destroying evidence subsequent to either of those offences. It might be consciousness of guilt but for what offence? Here, the defence is one of intoxication by drugs. The evidence of what Daniel Ahmadi did immediately after the offence is instructive on the issue of capacity and thence on the issue of his intent at the time of the offence. [Emphasis added.]

43When the reasons are read as a whole, what the trial judge was doing in the impugned passages was not to draw an adverse inference against the appellant because he had lied, but to respond to defence counsel’s argument that intent could not be established due to the appellant’s intoxication.

44Notably, after the impugned passages, the trial judge self-instructed himself in the following way:

[99] I must apply the analysis of R. v. W.(D.), [1991] 1 S.C.R. 742 to my assessment of credibility. In considering the statement made to police, I reject it as self-serving designed to detract from the jeopardy he found himself in upon arrest. Nothing about that evidence raises a reasonable doubt on the issue of intent, which is the only issue in this trial. Considering the evidence as a whole in this case, I am content that the Crown has met its significant burden. [Emphasis added.]

45As I will explain below, the jurisprudence stresses that independent evidence is required before a finding of fabrication can be made to ensure the proper application of the burden of proof and to guard against the risk of conviction based on mere disbelief of the accused’s version of events: R. v. Iqbal, 2021 ONCA 416, para. 54. The fact that the trial judge subjected the formal statement to a W.(D.) instruction fortifies the conclusion that the trial judge did not simply jump to the conclusion that the appellant was guilty because he had lied.

46In the alternative, had the trial judge relied on the statements as circumstantial evidence of guilt, there was independent evidence of fabrication capable of supporting a finding of fabrication.

47It is not disputed by the parties that there is a distinction between out-of-court statements that are disbelieved and statements that are found to be concocted or fabricated. The former have no evidentiary value while the latter can have value as circumstantial evidence. However, in order to use a fabricated statement as circumstantial evidence of guilt, there must be independent evidence of fabrication.

48These governing principles were reviewed by this court in R. v. Iqbal, 2021 ONCA 416. Sossin J.A. helpfully reviewed the principles articulated by previous decisions of this court such as R. v. Coutts, leave to appeal refused, [1998] S.C.C.A. No. 450; and R. v. O’Connor. He made the following observations:

[54] In criminal trials, the distinction identified in Coutts between an exculpatory statement that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability, is of critical importance. This is because a statement that is merely disbelieved is not evidence that strengthens the Crown’s case, while a statement that has been deliberately concocted is “capable of supporting an inference of guilt”. Distinguishing between disbelief and fabrication is thus essential to ensure triers of fact properly apply the burden of proof in cases where an accused testifies.

[55] Requiring independent evidence of fabrication helps to maintain this key distinction. The kind of evidence that may be considered “independent” in a particular case will depend in part on where the exculpatory statement at issue originated. Unlike with out-of-court exculpatory statements, the circumstances surrounding an accused’s in-court testimony, such as logical implausibility or internal inconsistencies arising from that testimony, cannot constitute independent evidence of fabrication. [Emphasis added.]

49Sossin J.A. went on to find that there are four interrelated inquiries that appellate courts must conduct when asked to review a trial judge’s use of disbelieved evidence arising from in-court testimony:

1. Did the trial judge disbelieve the appellant’s testimony?
2. If so, did the trial judge also find that the appellant fabricated their testimony?
3. If the trial judge found the appellant’s testimony was fabricated, was there independent evidence of fabrication capable of supporting that finding?
4. If not, did the trial judge, despite the absence of independent evidence of fabrication, erroneously rely on the finding of fabrication as circumstantial evidence of guilt?

50Although, the inquiries in Iqbal were directed at in-court testimony, the analysis remains the same for the appellant’s out-of-court-statements in the current case. In O’Connor, at para. 30, this court held that when the Crown seeks to introduce evidence to show that an accused has fabricated an out-of-court statement, the trial judge should determine whether there is sufficient independent evidence of falsity at the admissibility stage. This approach was recently affirmed in R. v. Carignan, 2021 ONCA 496, para. 34. The jurisprudence is clear that independent evidence of concoction may be found in the nature, circumstances, and the very-content of the impugned statements: O’Connor, at para. 31; R. v. Ching, 2019 ONCA 619, para. 47. For example, where an accused has made contradictory exculpatory statements, the self-contradiction may constitute independent evidence of fabrication: see Ching, at para. 47 citing R. v. Shafia, 2016 ONCA 812, para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17.

51In this case, the appellant did not testify. The issue here is the out-of-court exculpatory statements made by the appellant. Accordingly, I will conduct the four inquiries recommended by this court in Iqbal.

(a) Did the trial judge disbelieve the appellant’s out-of-court statements?

52The answer to this question is yes. The trial judge clearly rejected the appellant’s statements, both those made on arrest and those made during his formal interview. The trial judge found that the appellant’s statement upon arrest that someone had “slipped him something” was an attempt to set up a narrative for “the act he knew he had committed.” He later described the appellant’s interview comments as “self-serving” and an attempt to “disguise his knowledge of his actions”.

(b) If so, did the trial judge also find that the appellant fabricated his testimony?

53Although the trial judge did not expressly say that he found these statements were fabricated, I agree with the appellant that a reasonable interpretation of the trial judge’s language supports the contention that the trial judge found that the appellant had deliberately provided false out-of-court statements to the police. The trial judge described the statements as “self-serving designed to detract” from the jeopardy he found himself in upon arrest. It is clear from this language that the trial judge believed that the statements were fabricated.

(c) If the trial judge found the appellant’s statements were fabricated, was there independent evidence of fabrication capable of supporting that finding?

54As noted above, there must be independent evidence of fabrication before a trial judge can make a finding of fabrication. In any given case, such evidence will necessarily be case and fact specific. Some examples of such evidence are “pre-arrest exculpatory statements that are specific and detailed” or “post-arrest statements that are inherently implausible”: R. v. Al-Enzi, 2021 ONCA 81, para. 40 citing R. v. Wright, 2017 ONCA 560, para. 48.

55The trial judge referred to the appellant setting up a narrative at the scene of the arrest and then subsequently providing a statement that contained several contradictions. Read as a whole, the statements revealed the following shifting narrative:

• Someone had slipped the appellant something;
• The appellant could not remember what had happened on the trail because he had blacked out;
• The appellant then recalled he was trying to help Mrs. Widholm;
• The appellant recalled that Mrs. Widholm said something to him but he could not remember what she said;
• The appellant then professed to remember precise details that Mrs. Widholm hit him but then he had blacked out; and
• When confronted by the police at the end of the interview, the appellant then stated he did not black out but his memory was a blur.

56The self-contradictory nature of the appellant’s statements was not lost on the trial judge. As the trial judge noted, the appellant’s formal statement “evolved” as it progressed. The trial judge looked at the timing, the nature, the scope, the detail, and the precision of the statements to find that they were “self-serving” and designed to disguise his knowledge. I am satisfied that the trial judge’s findings regarding these features of the statements was sufficient to meet the requirement for independent evidence of fabrication.

57Once a finding of concoction or fabrication is made, it is open to a trial judge to use the fact of fabrication as consciousness of guilt. As Doherty J.A. held in R. v. Stevenson, 2014 ONCA 842, para. 92, “the evidentiary value, if any, of evidence of lies told to the police by an accused will depend on the nature of that evidence, the other evidence adduced in the case, the inferences reasonably available from that evidence as a matter of common sense and human experience, and the relevance of those inferences to the live issues at trial”. Here, the trial judge could have used the fact that the appellant was lying to the police in his statements, the timing, and the subject matter of the lies to support the inference that he was concocting a narrative to avoid culpability: Stevenson, at para. 93.

(d) If not, did the trial judge, despite the absence of independent evidence of fabrication, erroneously rely on the finding of fabrication as circumstantial evidence of guilt?

58In light of my conclusions that the trial judge did not rely on the statements as circumstantial evidence of guilt and that there existed independent evidence of fabrication, it is not necessary to perform the fourth inquiry from Iqbal.

59In sum, I see no legal error in how the trial judge treated the appellant’s statements. I would reject this ground of appeal.

Issue 2: Did the trial judge fail to consider critical evidence on the issue of intent?

60The appellant argues that in rejecting the appellant’s defence that his consumption of magic mushrooms led to an absence of the requisite intent, the trial judge failed to consider critical evidence of E.H. who testified that the appellant’s behaviour approximately 15 minutes prior to the attack had changed.

61As described in more detail above, E.H. testified that the appellant was acting differently and engaging in strange behaviour on their walk home. The appellant submits that the trial judge accepted E.H.’s evidence on this point but the finding played no role in the trial judge’s analysis and that the import of the appellant’s change of behaviour was not considered in the trial judge’s assessment of the appellant’s ability to act in a rational fashion.

62I do not accept the appellant’s submission.

63The trial judge’s failure in his reasons to refer to specific evidence capable of offering some support for the position of the defence is not in and of itself indicative of a failure to consider that evidence or a failure to give adequate reasons. As this court has held, a trial judge’s failure to mention a piece of evidence does not mean that it was ignored: Canada (Attorney General) v. Georgiou, 2023 ONCA 495, para. 52, leave to appeal to S.C.C. refused, 41047 (March 21, 2024). Here, the trial judge did refer to E.H.’s evidence that the appellant’s behaviour had “changed from before when he had seemed relaxed and chill”. However, the issue was not what the appellant’s behaviour changed from, but what it changed to. Read as a whole, it is implicit in the trial judge’s reasons that he was not prepared to accept that this sudden change in behaviour was so acute that the appellant did not have the state of mind for murder when he was brutally assaulting Mrs. Widholm. The trial judge provided several reasons why he was satisfied that the appellant had the state of mind required for murder. Notably, he reviewed the evidence of Dr. Woodall, the expert toxicologist called by the Crown. In considering her evidence, the trial judge noted:

[98] The evidence of Dr. Woodall also assists me in rejecting the narrative offered by Daniel Ahmadi. Always subject to specific circumstances, the peak of his high should have come within two hours of ingestion. Even using 3:00 a.m. as the outside limit, by 7:45 a.m.⁴ he should have been coming down, consistent as well with the effects of the drug on [E.H.]. Finally, one does not instantly sober up. Dr. Woodall described a gradual elimination, usually ending within six hours of ingestion. [Emphasis added.]

64I agree with the Crown that the real complaint is that insufficient weight was given to E.H.’s assertion about the appellant’s behaviour just before the attack. What weight the trial judge gave that evidence was entirely up to him and I see no error in how the trial judge grappled with this issue. Accordingly, I would reject this ground of appeal.

Issue 3: Did the trial judge err by relying on after-the-fact conduct?

65The appellant argues that the trial judge erred in relying on evidence of after-the-fact conduct that had no probative value. This is in relation to the trial judge’s reliance on surveillance footage capturing the appellant’s movements prior to and after the attack. The appellant contends that the after-the-fact conduct relied on by the trial judge related only to the appellant’s ability to navigate his physical surroundings and that it had no logical relationship to his capacity to form intent. He argues that this is supported by the toxicologist’s evidence adduced at trial which indicated that the effects of magic mushrooms were perceptual and mood altering. The appellant argues that as a matter of logic and human experience, the appellant’s ability to navigate the undergrowth did not make it more likely that the appellant foresaw the consequences of his actions against Mrs. Widholm.

66This court has held that “[e]vidence of post-offence conduct may be relevant to discredit a defence that relates to an accused’s state of mind”, such as intoxication, and “thus be relevant to the accused’s ability to form the requisite intent”: R. v. Chretien, 2014 ONCA 403, para. 105. There is no bright line rule that “classifies certain kinds of post-offence conduct as always relevant or never relevant to a particular fact in issue”: Chretien, at para. 106. Rather, it will depend on the facts of the case.

67The trial judge concluded that the after-the-fact conduct of the appellant assisted him in finding that the appellant had the state of mind for murder. He reached this conclusion after considering decisions of the Supreme Court of Canada and other courts of appeal that have held that an accused’s after-the-fact conduct may be probative of an accused’s culpability, but not the level of the culpability: see R. v. Angelis, 2013 ONCA 70, para. 53; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. White, 2011 SCC 13. As noted above, the trial judge specifically stated that the after-the-fact conduct was not being used to demonstrate a consciousness of guilt. Rather, it was “being used to assess the level of the accused’s intoxication, and his ability to form intent at the time of the crime.” Because defence counsel at trial ran an intoxication defence, the evidence of what the appellant did immediately after the offence was instructive as to his state of mind. The trial judge reviewed the surveillance footage which allowed him to see the appellant’s coordination over a period of time. He concluded:

[92] The security cameras show Ahmadi negotiating his way through thick ground cover within minutes of concluding his assault. It shows him an hour and 24 minutes later sliding through an opening in the fence surrounding the waste water facility. He waited until Richard Wilschut disappeared on the Kubota before he made his move. He was moving away from the police and EMS and a host of flashing emergency lights at the scene of his offence. He then walked calmly and without issue across the pavement and disappeared. [Emphasis added.]

68It was open to the trial judge to infer from this behaviour that the appellant’s level of coordination and his deliberate efforts to evade the police were relevant to his state of mind at the time of the offence. When this evidence is considered along with the evidence that when the police encountered the appellant he had removed the bloody clothing he had been wearing, had washed himself off, and he comprehended instructions and answered appropriately, the evidence that the appellant was acting rationally after the attack was probative to the issue of intent. The trial judge did not err by relying on it. Consequently, I would reject this ground of appeal.

V. Sentence Appeal

69The appellant submits that the trial judge erred by treating the appellant’s statements to police, which he characterized as “self-serving attempts to mask his credibility and divert responsibility”, as an aggravating factor in setting his parole ineligibility period at 13 years. He asks this court to intervene to adjust the parole ineligibility period to the minimum 10-year sentence.

70I would not interfere with the trial judge’s sentence. On appeal, a court can only intervene to vary a sentence if the sentence is demonstrably unfit or if the sentencing judge made an error in principle that had an impact on the sentence. Sentences are entitled to considerable deference and appellate courts cannot intervene simply because they would have weighed the factors differently: R. v. Friesen, 2020 SCC 9, para. 26; R. v. Lacasse, 2015 SCC 64, para. 11. For parole ineligibility orders, appellate intervention should only occur where a party demonstrates the application of an erroneous principle that has resulted in a period of parole ineligibility that is clearly or manifestly excessive or inadequate: R. v. Sinclair, 2017 ONCA 38, paras. 144-151.

71The trial judge was entitled to consider the appellant’s conduct after the attack as part of the circumstances surrounding the commission of the offence pursuant to s. 745.4 of the Criminal Code. When read as a whole, the trial judge’s reasons show that he considered the appellant’s statements to the police as one of the many ways the appellant attempted to minimize his blameworthiness and divert responsibility. The trial judge referenced other examples of the appellant’s self-serving behaviour including that he navigated through the undergrowth to evade detection, he avoided EMS personnel and other people in the area as he escaped, and he washed himself off to remove Mrs. Wildholm’s blood. Taken together with his statements to the police, these actions suggest an attempt to evade and minimize his blameworthiness, which are all relevant considerations. I see no error in principle.

72Considering the circumstances of this case and the brutal attack on Mrs. Widholm, a parole ineligibility period of 13 years is fit and is proportionate to sentences for similar offenders in similar circumstances: see e.g., R. v. Jama, 2021 ONCA 415; and R. v. Triolo, 2023 ONCA 221, conviction affirmed on appeal, 2024 SCC 18.

VI. Disposition

73For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence but dismiss the sentence appeal.

Footnotes

1. 1The trial judge stated that based on the nature of the attack the appellant may have had a specific intention to kill Mrs. Widholm but that he was “less clear” of that conclusion.
2. 2The appellant did not press this argument in oral submissions.
3. 3The appellant’s factum only focussed on the statements made in the police interview. However, during oral argument counsel for the appellant submitted that this ground of appeal also related to the statement made upon arrest.
4. 4This was the approximate time of the attack.