Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20230912 DOCKET: C68538
Zarnett, George and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
Hassan Salifu Appellant
Counsel: Marianne Salih and Alexander Ostroff, for the appellant Karen Papadopoulos, for the respondent
Heard: June 27, 2023
On appeal from the conviction entered by Justice David E. Harris of the Superior Court of Justice, sitting with a jury, on October 23, 2018.
George J.A. :
[1] Section 232(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. Before its amendment in 2015, s. 232(2) defined provocation as “[a] wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool”. In 2015, when amended, the words “[a] wrongful act or an insult” were replaced with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment”.
[2] This arguably narrowed the qualifying conditions for the partial defence of provocation, thereby circumscribing the range of circumstances in which the defence is available.
[3] The appellant, charged and convicted by a jury of second degree murder of his mother, submits for the first time on appeal that s. 232(2), as amended, infringes the rights of a reasonable hypothetical accused under s. 7 of the Canadian Charter of Rights and Freedoms. He further submits that the partial defence of provocation, under the pre-amendment s. 232(2), should have been left with the jury in his case even though he did not raise it.
Background
[4] The appellant and his mother lived together. While they were close, the relationship was volatile. The appellant struggled with mental health issues. On August 15, 2015, the two had an argument over nothing of any real consequence, including the food their dog was eating. The argument escalated and at one point the appellant’s mother told him that she should have choked him when he was a baby. The appellant then descended into a rage. He punched and kicked his mother in the face and choked her with a belt. She succumbed to her injuries and died. The appellant was charged with second-degree murder.
The Trial
[5] The appellant’s trial proceeded in two stages. The first stage was to determine whether the appellant was guilty of murder or manslaughter, and the second was to determine whether he was criminally responsible.
[6] At the first stage, the main issue was whether the mens rea for second degree murder had been established. As mentioned, the defence of provocation was not raised by the appellant. The jury ultimately found the appellant guilty of second degree murder, and then, after the second stage, rejected his argument that he was not criminally responsible (“NCR”) on account of a mental disorder. The trial judge sentenced the appellant to life in prison with the minimum 10-year period of parole ineligibility. Despite the jury’s finding that the appellant was criminally responsible, the trial judge found that the appellant’s mental health played a central role:
In the end, only Mr. Salifu’s mental illness can explain what happened here. To be clear, the basis for this finding is the lack of a significant previous history of violence, the inability to fully explain this homicide based on the history between Mr. Salifu and his mother, the circumstances which led Mr. Salifu to snap and the indisputable evidence of mental illness adduced in this proceeding.
[7] The trial judge continued, writing:
[T]he insults from his mother clearly played a role in the anger which descended upon Mr. Salifu…. This was at the very extreme end but did not perhaps differ on the surface from a typical family argument. It just went way further and the anger that was produced was white hot, explosive. It was enough to shatter the boundaries of familial respect.
Issues
[8] These are the issues raised on appeal:
i) Is the amended definition of provocation under s. 232(2) of the Criminal Code unconstitutional? a. Was there an air of reality to provocation under the pre-amendment definition? b. Should the appellant be permitted to raise a constitutional argument for the first time on appeal? c. Does s. 232(2), as amended, violate s. 7 of the Charter as being overly broad? d. If so, is it is justified under s. 1 of the Charter?
ii) Did the trial judge err by inverting the proper approach to an NCR determination in his jury charge?
[9] I decline to address the constitutional question for two related reasons. First, while the record created in the court below is complete and equips us to address it, the constitutionality of s. 232 was not raised there by the appellant for, I find, a tactical reason. Second, and in any event, there is no air of reality to the defence of provocation, including under the pre-amendment provision, meaning there will be no miscarriage of justice by declining to decide the issue. This is therefore not an appropriate case to properly decide the outstanding question of constitutionality.
Trilogy of Lower Court Decisions
[10] Before explaining why I decline to answer the constitutional question, I acknowledge that three lower court decisions have already said that Parliament’s decision to replace “[a] wrongful act or an insult” with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment” violates s. 7 of the Charter and is of no force and effect: R. v. Simard, 2019 BCSC 531, 375 C.C.C. (3d) 107, leave to appeal dismissed [2019] S.C.C.A. No 201 (Ruling on Constitutionality); Fredette c. R., 2019 QCCS 4116; and R. v. Mujber, [2020] O.J. No. 6126 (S.C.). This question has yet to be addressed by an appellate court.
[11] In the event this court elected to go down that path, the Crown forcefully argued that all of these cases were wrongly decided. It takes the position that each decision is fundamentally flawed in the way the presiding justices too narrowly defined the legislative objective without anchoring it in the impugned text, which in turn led to a misplaced finding of overbreadth. Again, while in the particular circumstances of this case I do not see it as appropriate to weigh in on this question, it is one that will have to be answered in a future case which properly raises it.
[12] It is also worth noting for context that, in the Simard case, the Crown sought leave to appeal directly to the Supreme Court pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26, which was denied. This, however, does not mean that the Supreme Court has endorsed the finding that the amended s. 232 is not Charter compliant. There are many possible reasons, unrelated to the merits of the lower court decision, for denying leave. In Mr. Simard’s case, while he was permitted at trial to raise the defence of provocation based on the pre-amendment definition, he was ultimately convicted of second degree murder and sentenced to life in prison. As the Crown was successful at trial, the Supreme Court’s decision to deny the Crown leave is unsurprising.
[13] The accused in each of the other lower court cases were similarly convicted of either first or second degree murder. For this reason, the Crown has not yet had an opportunity to properly challenge the pre-trial Charter rulings, which explains why those lower court decisions have yet to be addressed head on. Although this would seem to support the argument that this court should now, I would still not do so. As mentioned, the constitutional question is being raised for the first time on appeal and there is no air of reality to provocation in this case.
Raising a Constitutional Argument for the First Time on Appeal
[14] Generally speaking, an issue cannot be raised for the first time on appeal. Whether to grant leave or not is a discretionary call based on a balancing of the impact on the parties and the interests of justice. In Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22, the Supreme Court set out the applicable test. It is a “stringent one” that directs us not to exercise our discretion “routinely or lightly”. As explained by Watt J.A. in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 40, there are several reasons why leave should be granted only sparingly:
i) prejudice to the other side who did not have the opportunity to respond and adduce evidence at trial; ii) the absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue; iii) the societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and iv) the important responsibility of defence counsel to make decisions that represent a client’s best interests and to advance all appropriate arguments throughout the trial.
[15] The appellant, as the party who “seeks to escape the grip of the general prohibition against raising issues for the time on appeal”, must satisfy us that three conditions are met: first, that the evidentiary record is sufficient to permit us to fully, effectively, and fairly determine the issue raised on appeal; second, that the failure to raise the issue at trial was not due to tactical reasons; and third, that a miscarriage of justice will result from the refusal to raise the new issue on appeal: see Reid, at para. 43.
i) Is the evidentiary record sufficient?
[16] As conceded by the Crown, there is no question that we are in a position to fully and effectively determine the constitutional issue raised on appeal. I also recognize the benefit of addressing the question now in light of the fact that, given the Mujber decision, s. 232 is presumptively unconstitutional and not being followed throughout the province. This weighs in favour of addressing the constitutional question.
ii) Did the appellant make a tactical decision at trial?
[17] To address whether the appellant made a tactical decision to not raise a provocation defence, it is important to understand the appellant’s approach to his trial and how it unfolded. The parties agree that the appellant’s defence was twofold: first, he would argue that he did not have the requisite mental state for murder, and second, he would argue that he was not criminally responsible on account of mental disorder. This was made clear from the outset at the judicial pre-trial. Against this backdrop, at no point did the appellant’s trial counsel complain that she was constrained by the amended provocation section or that the appellant would have, or wanted to, raise provocation. On a complete review of the record from the courts below, there is no basis to conclude that this was through inadvertence. Nor, I would add, does the appellant claim he received ineffective assistance from his counsel.
[18] The trial judge expressly raised the issue of provocation with the appellant’s trial counsel early on during pretrial motions. This is their exchange:
The Court: There’s no provocation issue here, right? Defence counsel: There may very well be. Without seeing the reports of the doctors, for sure state of mind is going to be in issue and intent. The Court: Would it be the old provocation or the new one? Defence counsel: Well, the only ways to reduce the intent for second degree murder would be by way of a traditional provocation defence or the rolled up defence, which would include a lesser form of provocation in combination with other factors that the defence expert would say were salient and operating on Mr. Salifu’s state of mind. The Court: I was just asking whether the new definition – the new statutory definition of provocation would apply or the old one because it’s – it’s changed in the last few years. Defence counsel: Right. The Court: But anyhow we’ll figure that out later. Defence counsel: Right. The Court: Because the – the new one is much less charitable than the old one. Defence counsel: I have to confess I don’t know the… The Court: But… Defence counsel: …the answer offhand… The Court: Okay.
[19] Later that same day, the trial judge and defence counsel had this exchange:
The Court: Well, that goes to another issue of the – the mental – the – the Section 16 and – and this evidence stands on a very different ground if we’re talking about Section 16 now. Defence counsel: No, but it – on a – on a lesser scale it goes to the viability of provocation, and it goes to the viability of the rolled up defence, if you will so…. The Court: Provocation seems extremely speculative on – on the record we have so far. Defence counsel: Right. But it is open for the defence to argue that a combination of things were operating at the time that caused Mr. Salifu to have not the intent that’s required. The Court: Well, the rolled up charge is usually provocation, self-defence and alcohol over… Defence counsel: Substance use.
[20] These two exchanges occurred on September 11, 2018, a full month before the pre-charge conference was held where the issues and the parties’ respective positions were thoroughly canvassed, and where the issue of provocation was not raised. While the appellant’s trial counsel seemed to be caught off-guard when the trial judge first raised the issue of provocation, she clearly had a handle on it by the end of her submissions on September 11 and, in any event, had several weeks to consider the issue further. Moreover, notwithstanding the trial judge’s comment that provocation was “extremely speculative”, he was clear with counsel that he was not foreclosing it.
[21] What is apparent from the record is that the appellant’s trial counsel was not concerned with the amended s. 232 acting as the only bar to her advancing what would otherwise have been a viable provocation defence. And, if counsel was initially unaware, the trial judge expressly raised it with her and then provided a sufficient amount of time to consider it. It is clear on the record why provocation was not raised later on, either during the pre-charge conference or during closing submissions, and that is because the appellant and his counsel thought it best to, first, argue that the Crown had not established the requisite intent for murder, and to then claim that the appellant was not criminally responsible on account of a mental disorder.
[22] This comes into sharp focus when one considers the kind of evidence typically needed to advance a provocation defence. The appellant would likely have had to testify to details and events that preceded the attack on his mother. This in turn could contradict or be inconsistent with prior statements he had given to the police during his lengthy interview. The appellant faced a clear risk of undermining his own position. The fact that this was a tactical decision is revealed in the appellant’s decision to not testify during the trial’s first stage, but to do so during the NCR phase.
[23] In my view, to allow the appellant to raise this constitutional argument for the first time now would be to, in essence, give him a second opportunity to run his trial, using a different approach, simply because he was found guilty the first time.
iii) Will a miscarriage of justice result?
[24] The appellant’s claim of provocation does not have an air of reality under either version of s. 232. Therefore, no miscarriage of justice will result from our refusal to consider the constitutional question. That is to say, no reasonable jury could have found that an ordinary person would have lost all self-control and did what the appellant did to his mother in response to her comments. In arriving at this conclusion, I carefully considered the evidence presented at the trial’s first phase.
[25] It is important to remember that, while the appellant testified at the second stage, when the issue of criminal responsibility was considered, he did not testify at the first, where the only evidence of provocative conduct came from his police statement. In that statement, the appellant said that he and his mother had “a relationship where when we argue we just both say horrible things to each other”. The appellant agreed with the officer that “bad words were said on both sides” without describing what was said by either of them other than that he had called his mother a “whore”. The appellant told the police that “it got too heated and [he] just swung at her”, and that he felt “angry” before he attacked her. The appellant also confirmed that he had not taken any drugs nor consumed alcohol at the time, and that he was in good health and did not suffer from mental health issues. This evidence falls far short of establishing an air of reality to provocation under either definition.
[26] Even if one were to consider the appellant’s testimony during his NCR hearing, the evidence still falls short. To start, his description of his mother’s conduct was very different from what he had told the police earlier. And, setting aside the significant credibility and reliability concerns arising from those material inconsistencies, he testified that he and his mother had a “little argument” over money and feeding their dogs. The appellant went on to describe their argument as “pretty stupid” and having lasted for one minute or less. Of particular note, after his mother supposedly told him that she “should’ve choked [him] as a baby”, he testified that while he was appalled by what she had said, he just walked away, conclusive evidence that he did not in fact lose control. The appellant even acknowledged on cross-examination that his mother’s comments did not, on their own, cause him to “snap”.
[27] Placing the appellant’s testimony at its highest, there is no air of reality to provocation under either the pre or post-amendment version of s. 232. Consequently, to preclude the constitutional argument now would not give rise to a miscarriage of justice.
The NCR Instruction
[28] The defence of mental disorder is set out in s. 16(1) of the Criminal Code, which provides that:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
[29] There are two possible paths to an NCR finding. If one establishes that they suffered from a mental disorder at the time of the offence, they will not be held responsible for their conduct if 1) they were incapable of appreciating the nature and quality of the act or omission, or if 2) they did not know it was wrong.
[30] The appellant submits that the trial judge erred by 1) inviting the jury to bypass the requirement of a mental disorder under s. 16; and 2) by leaving the jury with the impression that the appellant had to prove both branches of incapacity under s. 16.
i) Did the trial judge invite the jury to bypass the requirement of a mental disorder?
[31] The appellant submits that the trial judge effectively invited the jury to bypass mental illness entirely and to instead decide the issue of criminal responsibility by determining whether the attack on his mother was “a result of anger”. On the appellant’s view, the jury was led to believe that if they found the attack was motivated by anger, then incapacity could not be established. He submits that the instructions erroneously shifted the inquiry away from the existence and effects of his mental illness and towards his emotional state. That is, the instructions failed to convey that anger and other irrational emotions could just be symptoms of the appellant’s mental illness – paranoid delusions – which should have been the focus of the inquiry.
[32] I see no merit to this ground of appeal. The jury was never instructed, as the appellant claims, that they could use an assessment of the appellant’s emotions at the time of the killing as a substitute for the correct legal test. Rather, the jury was repeatedly told that the test under s. 16 required proof of a mental disorder that rendered the appellant incapable under one of the two branches. The passages identified by the appellant as problematic simply acknowledge the role anger played in the theory of liability proposed by each party and their expert witnesses.
[33] The appellant argued that, while he may have acted out of anger, this was because he suffered from a disease of the mind that also triggered irrational emotions such as delusion, paranoia, and feelings of persecution. The Crown argued that the appellant acted out of anger alone. Given the nature of the evidence, and these competing positions, it was entirely reasonable for the trial judge to tell the jury that if they found the appellant acted out of anger alone, then an NCR verdict was unavailable. The focus of the s. 16 inquiry was not displaced but specified.
[34] As evidenced in the following passages, the trial judge’s instructions to the jury highlighted these competing positions, and explained that anger could be a part of the equation:
To restate it slightly, why did Mr. Salifu kill his mother, Ms. Alexander? Was it an explosion of anger and therefore done with the capacity to know it was wrong and appreciate the nature and quality of his actions, or was it done while suffering from persecutory and conspiratorial delusions which so impaired his mental functioning that he was incapable of knowing it was wrong or appreciating the nature and quality of his actions? The defence has the burden, as I will explain, to convince you that it was delusions. Anger could still play a part, but what it was really about they contend was delusions, perhaps secondary to fear brought on by schizophrenia.
[35] The instructions accurately describe the appellant’s position on this issue and clearly explain the jury’s task. Furthermore, while not dispositive, it is important to note that the appellant’s trial counsel actively participated at the pre-charge conference, provided input on this aspect of the charge, and at no point objected: see e.g., R. v. Gould, 2008 ONCA 855, 244 O.A.C. 176 at para. 17.
[36] I would reject this ground of appeal.
ii) Did the trial judge leave the jury with the impression that the appellant had to prove both branches of incapacity under s. 16?
[37] The appellant argues that the trial judge’s charge would have led the jury to believe that it could not find the appellant NCR unless both modes of incapacity had been established. He points to this passage from the final instructions:
You could, if you choose, go about this in two steps. One, did he know on a balance of probabilities at the time that the killing was morally wrong? If the answer is yes, you stop there, and your deliberations are over. If you answer no or you are unsure, you go on and ask, two, if he did know it was morally wrong, did he have the capacity to know that it was morally wrong? I’ll restate that, if he did not know it was morally wrong, did he have the capacity to know that it was morally wrong? If you are convinced on a balance of probabilities that he did not have the capacity, then he was NCR and you bring in that verdict. If he did have the capacity, even though he did not know it was morally wrong, he was criminally responsible at the time and that is your verdict. If you are satisfied that when Mr. Salifu attacked and killed Ms. Alexander it is more likely than not that he had a mental disorder that made him incapable of knowing, that is being aware that what he was doing was something he should not do according to the accepted moral standards of society, you must find Mr. Salifu not criminally responsible on account of mental disorder. If you are not satisfied that it is probable that Mr. Salifu lacked the capacity to know that what he was doing was morally wrong, then you will find him criminally responsible. [Emphasis added.]
[38] According to the appellant, the trial judge erred when he told the jury that if they find the appellant had the capacity to know his actions were wrong then he must be criminally responsible.
[39] I accept that this passage, standing alone, is problematic. However, after placing it in its proper context and when read in conjunction with the balance of the charge, I find that the jury would have well understood that the appellant did not have to establish both branches of incapacity under s. 16.
[40] The Crown submits that the trial judge is referring to only one branch of the test – whether the appellant had the capacity to know his actions were wrong at the time of the offence. Crown counsel takes the position that, in the circumstances of this case, it made sense to address this branch first because it was the main point of contention between the parties, and that the problematic passage was clearly linked to only that aspect of the jury’s deliberations. Crown counsel argues that when the trial judge said the jury’s deliberations would be over, he was referring to only that aspect of their deliberations, and that the jury would have understood that it had to then move on and consider the other route to an NCR finding.
[41] While the Crown’s interpretation of what the trial judge said is a bit charitable, it remains the case that the charge, when read as a whole, makes it clear that the appellant did not have to prove both branches of the test. The trial judge conveyed on several other occasions that the test was disjunctive and that the appellant only had to prove one in order to sustain an NCR finding. In fact, almost immediately after the impugned passage was read to the jury, the trial judge said this:
If you do not find that Mr. Salifu was incapable of knowing that his actions were morally wrong, you must go on to the issue of whether he was incapable of appreciating the nature and quality of his actions.
[42] Any ambiguity in the trial judge’s charge was immediately rectified by this specific instruction, reinforced by several other references to the need to address both routes. Any prejudice that might have ensued was quickly and repeatedly negated by the trial judge’s correct and explicit instructions on the test under s. 16.
Conclusion
[43] For these reasons, I would dismiss the appeal.
Released: September 12, 2023 “B.Z” “J. George J.A.” “I agree. B. Zarnett J.A.” “I agree. J. Copeland J.A.”
