Court File and Parties

COURT FILE NO.: CR-17-70000850 DATE: 2019-02-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – IAN OHAB

COUNSEL: B. Richards and A. Grady, for the Crown P. Klumak and A. Mehta, for Mr. Ohab

BEFORE: S.A.Q. Akhtar J.

RULING ON MOTION FOR DIRECTED VERDICT

Factual Background

[1] Ian Ohab stands charged with the offence of first degree murder.

[2] In the early hours of the morning of 15 April 2016 Mr. Ohab met Melissa Cooper on the 15th floor of an apartment building situated at 220 Oak Street in Toronto. Both rode on an elevator bound for the 23rd floor where Mr. Ohab resided.

[3] Video surveillance inside the elevator showed some physical contact between Mr. Ohab and Ms. Cooper before she followed him out of the elevator on the 23rd floor. Ms. Cooper’s mobile phone disconnected from her subscribed network some ten minutes later, and she was not seen alive again.

[4] On 19 April 2016 an employee of Charlie’s Meat and Seafood store in Toronto discovered Ms. Cooper’s severed torso hidden in a garbage bin. On 3 May 2016 Ms. Cooper’s dismembered right arm was found on a conveyor belt at the Canada Fibre recycling plant.

[5] Police arrested Mr. Ohab and searched his apartment. Dried droplets of Ms. Cooper’s blood were found beneath tiles in the bathroom. Mr. Ohab was subsequently charged with first degree murder and indecently interfering with human remains.

[6] At the outset of this trial, Mr. Ohab admitted that he dismembered Ms. Cooper’s body but pleaded not guilty to the offence of first degree murder.

[7] At the conclusion of the Crown’s case, Mr. Klumak, counsel for Mr. Ohab, brought an application for a directed verdict of acquittal on the count of first degree murder arguing that the Crown had adduced no evidence of the predicate offences set out in s. 231 of the Criminal Code, R.S.C., 1985, c. C-46, to provide a basis for the first murder degree count. In response, Ms. Richards, for the Crown, submitted that evidence of sexual assault and forcible confinement provided the foundation for first degree murder pursuant to s. 231(5) of the Criminal Code.

[8] After hearing submissions, I indicated to the parties that the application for a directed verdict would be granted with full reasons to follow. These are those reasons.

The Test for a Directed Verdict

[9] It is settled law that the test for a directed verdict is identical to the test for committal at the end of a preliminary inquiry. If there is any evidence upon which a reasonable and properly instructed jury could convict an accused, the presiding judge must allow the offence to proceed to determination by the trier of fact, whether judge alone or jury: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; and R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 158.

[10] Where the Crown’s case relies upon circumstantial evidence to prove an essential element of the offence, the presiding judge must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inference the Crown advances: Arcuri, at para. 23; R. v. Pettipas-Link, 2017 ONCA 963, 356 C.C.C. (3d) 281, at para. 8.

[11] Limited weighing does not amount to deciding issues of fact or credibility. Nor does it permit a judge to decide whether they would find the accused guilty of the ultimate issue: Arcuri, at para. 23; Pannu, at paras. 159-160. The weighing exercise involves identifying the potential factual inferences that may be drawn from the evidence led by the Crown but not choosing between them: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 18 and 25. The judge must take the Crown’s case at its highest and through a lens most favourable to the Crown: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 7.

Section 231(5) of the Criminal Code

[12] Murder becomes first degree murder when the crime falls within the parameters of s. 231 of Criminal Code.

[13] Here, as noted, the Crown relies upon s. 231(5)(b) (sexual assault) and (e) (forcible confinement) of the Criminal Code as justification for the offence of first degree murder.

[14] Section 231(5) of the Criminal Code reads as follows:

Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(a) section 76 (hijacking an aircraft); (b) section 271 (sexual assault); (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (d) section 273 (aggravated sexual assault); (e) section 279 (kidnapping and forcible confinement); or (f) section 279.1 (hostage taking).

Sexual Assault

[15] In R. v. Ewanchuk, [1999] 1 S.C.R. 330, the Supreme Court of Canada defined sexual assault as comprising three elements: (a) touching, (b) the sexual nature of the contact, and (c) the absence of consent. The first two elements are objective, whereas the third is subjective. The court in Ewanchuk made clear, at para. 25, that the Crown need not prove that the accused had “any mens rea with respect to the sexual nature of his or her behaviour”.

[16] Here, any direct evidence of sexual assault was constrained by the limited ability to conduct a full physical examination of the deceased: only Ms. Cooper’s lower torso and right arm were recovered. There was no evidence of vaginal or anal trauma or bruising. Nor was there any evidence of semen or other bodily fluids that might suggest sexual activity took place prior to death.

[17] Ms. Richards therefore asks this court to focus on video evidence depicting Mr. Ohab’s actions after he and Ms. Cooper entered the elevator to go to his apartment. Ms. Richards submits that an inference of sexual assault may be drawn from Mr. Ohab’s physical contact with Ms. Cooper as recorded on camera.

[18] The video shows both parties entering the elevator on the 15th floor. Mr. Ohab and Ms. Cooper converse and Ms. Cooper raises a hand as if offering a handshake. Mr. Ohab instead advances with his arms spread as if to embrace Ms. Cooper, who, in response, spreads her own arms to signal reciprocity. The two hug with Ms. Cooper patting Mr. Ohab on his back. As they part, Mr. Ohab begins to gyrate his body as if dancing with or against Ms. Cooper. Ms. Cooper puts her arm around Mr. Ohab’s neck placing him in a loose headlock before the two move apart, Mr. Ohab laughing. The two continue to engage in conversation with only Mr. Ohab’s face visible. He laughs and smiles at Ms. Cooper whose body movements appear relaxed and friendly. When Mr. Ohab leaves the elevator, she follows him.

[19] I have reviewed the video footage several times. There is no doubt that there is evidence of touching in this case. It is unclear to me, however, that the movements by Mr. Ohab are sexual in nature. The video evidence appears to show Mr. Ohab appearing to simulate dancing rather than doing anything of a sexual nature. Assuming, however, that Mr. Ohab’s conduct constitutes sexual contact, the question of whether there is any evidence of a sexual assault falls to be determined on the issue of consent. That element is purely subjective and determined only by Ms. Cooper’s subjective internal state of mind at the time it occurred: Ewanchuk, at para. 26; R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd, [1997] 1 S.C.R. 304.

[20] As there cannot be direct evidence of Ms. Cooper’s state of mind, the Crown relies upon the circumstantial evidence of Ms. Cooper’s behaviour in the elevator. I must therefore engage in a limited weighing of the evidence to determine the issue of lack of consent. As I have already described, the initial exchanges between Mr. Ohab and Ms. Cooper appear to be friendly and consensual. When Mr. Ohab dances/gyrates, Ms. Cooper does not immediately push him away but grabs him in a loose headlock. That motion, however, does not appear to be one motivated by hostility but appears playful. As Ms. Cooper releases Mr. Ohab, he moves back against the elevator wall and laughs in her direction. She continues to talk to him and their conversation appears to be good natured and friendly. When the elevator doors open she follows him out onto the 23rd floor.

[21] After weighing this evidence in a limited fashion, I conclude that the video shows no evidence of a sexual assault. Put another way, I find that the evidence cannot be said to be reasonably capable of supporting the inference that the Crown says it does. Even at its highest, and most favourable, there is no evidence of a sexual assault in this video.

Unlawful/Forcible Confinement

[22] Mr Klumak further argues that there is no evidence that Mr. Ohab committed or attempted to commit the offence of forcible confinement when he allegedly murdered Ms. Cooper.

[23] Forcible confinement is included in the definition of unlawful confinement. Unlawful confinement has been defined as the coercive restraint or direction contrary to the victim’s wishes for a significant period of time: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. In R. v. Parris, 2013 ONCA 515, 309 O.A.C. 289, at para. 46, Watt J.A. described the elements of unlawful confinement as follows:

[T]he predicate offence requirement under s. 231(5)(e) involves the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement. Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: [citation omitted]

[24] In R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.), at para. 107, Doherty J.A. described the use of unlawful confinement in the s. 231(5)(e) of the Criminal Code context as follows:

R. v. Luxton, supra, makes it clear that if in the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5)(e) of the Criminal Code. The purpose of the confinement is not relevant.

[25] However, at para. 108, Doherty J.A. made clear that the murder and unlawful confinement had to be separate acts in order to constitute first degree murder under s. 231(5)(e) of the Code:

While I would reject the contention that unlawful confinements in the course of a robbery cannot provide the basis for liability under s. 231(5)(e), I do accept that a confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first-degree murder. Thus, for example, if, with the requisite intent for murder, the appellants had struck and killed Dr. Warrick as she left the elevator and then took her purse, there would be no basis upon which the appellants could be convicted of first-degree murder under s. 231(5)(e). On this example, the act of confinement and the act of killing are one and the same. Where, however, there is a confinement and then in the course of the same series of events, the victim is murdered while under the unlawful domination of the killer, the rationale underlying s. 231(5)(e) is fully engaged. There is not only a murder, but there is a murder of a person under the domination of the attacker.

[26] The court in Pritchard, at para. 27, approved these comments, reiterating the need for unlawful confinement and murder to be distinct acts under s. 231(5)(e) of the Criminal Code.

[27] At this trial, the Crown adduced evidence that prior to going to the 15th floor (where she met Mr. Ohab), Ms. Cooper had been visiting another tenant of the building, Maurice Liberty. Ms. Cooper left Mr. Liberty’s apartment to purchase crack cocaine on the 15th floor and told him that she would “be right back”.

[28] Ms. Richards argues that the forcible confinement can be inferred from the fact that when Ms. Cooper went into Mr. Ohab’s apartment, her phone disconnected from her cellular network and she never returned to Mr. Liberty’s apartment. This, argues Ms. Richards, is some evidence that Ms. Cooper was unlawfully confined by Mr. Ohab.

[29] Although I agree that a significant period of time need not necessarily be a lengthy period of time (see, for example, R. v. White, 2014 ONCA 64, 305 C.C.C. (3d) 449), there must be evidence of the confinement itself beyond mere speculation or conjecture.

[30] The difficulty for the Crown is that there is no specific evidence of what occurred in Mr. Ohab’s apartment or any details regarding how Ms. Cooper died. The fact that Ms. Cooper’s mobile phone became inactive shortly after leaving the elevator does not, in my view, amount to evidence of unlawful confinement. Even if, taking the Crown’s case at its highest, Mr. Ohab was responsible for disconnecting the phone, that would not give rise to the inference that he had unlawfully confined Ms. Cooper but only that he was somehow responsible for the disconnection of the phone. Any other factual premise to be drawn from that inference would amount to no more than speculation and conjecture.

[31] Similarly, the Crown’s argument that Ms. Cooper’s failure to return to Mr. Liberty’s apartment constitutes evidence that she must have been being held against her will constitutes circular reasoning.

[32] Accordingly, I find there to be no evidence upon which a reasonable and properly instructed jury could find Mr. Ohab guilty of first degree murder. The defence application for a directed verdict is granted and Mr. Ohab will stand trial only for the offence of second degree murder.

S.A.Q. Akhtar J. Released: February 19, 2019