DATE: 20040503

DOCKET: C33797

COURT OF APPEAL FOR ONTARIO

FELDMAN and SIMMONS JJ.A. and LANGDON J. (ad hoc)

B E T W E E N:

HER MAJESTY THE QUEEN

Russell Silverstein

for the appellant

Respondent

• and -

SHAUKAT SHERI

Susan G. Ficek

for the respondent

Appellant

Heard: June 3 and 4, 2003

On appeal from the conviction for manslaughter entered by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury, on December 10, 1999.

SIMMONS J.A. and LANGDON J. (ad hoc):

I. Overview

[1] Early in the morning of March 9, 1997, the appellant placed two telephone calls to 911 from his neighbours’ apartment. He placed the calls approximately four minutes apart. In the first call, he requested the police, saying that a friend had assaulted him and had broken his nose. In the second call, the appellant asked for an ambulance, saying that he hit his friend with a knife and that his friend could die.

[2] Upon entering the appellant’s apartment, the police found Aamer Khan lying face-up, just inside the door, and a knife on the floor beside him. Mr. Khan had no vital signs and was later pronounced dead at the hospital.

[3] Mr. Khan had been stabbed seven times, once in the chest, once in the left side, and five times in the back. Subsequent testing revealed that there was no blood on the knife found close to his body. The police found a second knife on the balcony of the neighbours’ apartment, after the appellant directed them to that location.

[4] The appellant was charged with second-degree murder and tried before Ewaschuk J., sitting with a jury.

[5] At trial, the Crown alleged that the two friends had an argument that escalated into a fight and that during the course of the fight the appellant went into the kitchen and grabbed a knife. Based on the nature and location of Mr. Khan’s injuries, the pattern of bloodstains in the apartment, and the location of Mr. Khan’s body, the Crown asserted that the appellant initially stabbed Mr. Khan in the chest, and then, as Mr. Khan attempted to flee through the front door, stabbed him repeatedly in the back. The Crown also alleged that the appellant fled the scene via his balcony, and that, as he did so, he brushed his knife against the balcony door, depositing a bloodstain. Finally, the Crown asserted that, prior to the arrival of the police, the appellant and his father returned to the appellant’s apartment and planted the knife that was found beside Mr. Khan’s body.

[6] The defence position was that the appellant should be acquitted because he acted in self-defence. The appellant testified at trial and admitted that he stabbed Mr. Khan. However, he said that Mr. Khan behaved abnormally during a visit that began on March 8, 1997. When the appellant asked Mr. Khan to leave at around 4 a.m. on March 9, 1997, Mr. Khan resisted and challenged the appellant to a fight. During the course of the ensuing struggle, Mr. Khan attempted to choke the appellant, but the appellant broke free and grabbed two knives for protection. The appellant subsequently dropped one of the knives while trying to get out his front door; he used the other knife to stab Mr. Khan in self-defence during the course of a close quarters face-to-face struggle.

[7] The defence called a co-worker and three friends of Mr. Khan who gave evidence about changes in Mr. Khan’s behaviour in the months leading up to his death. A psychiatrist opined that Mr. Khan’s behaviour indicated some form of emotional disturbance that developed into a psychotic breakdown on the night in question. Five defence witnesses testified concerning the appellant’s reputation in the community as an honest and peaceful person.

[8] The Crown called reply evidence to rebut the defence claims of emotional disturbance and psychotic breakdown.

[9] In addition to self-defence, the trial judge instructed the jury concerning the specific intent required for second-degree murder and concerning the partial defence of provocation, therefore leaving it open to the jury to convict the appellant of manslaughter only. The jury found the appellant not guilty of second-degree murder, but guilty of the included offence of manslaughter. On March 6, 2000, the trial judge sentenced the appellant to three years in jail in addition to 15 months of pre-sentence custody.

[10] The appellant raises ten issues on his appeal against conviction. The first nine issues are stand-alone grounds of appeal. The tenth issue is a cumulative ground, which the appellant claims justifies a new trial in combination with the preceding grounds:

i. the trial judge erred in permitting the Crown to assert a speculative theory, namely that the appellant participated in planting the knife found at Mr. Khan’s side;

ii. the trial judge erred in his instructions to the jury on self-defence;

iii. the trial judge erred in his instructions to the jury on reasonable doubt;

iv. the trial judge erred in his instructions to the jury on motive;

v. the trial judge erred in admitting hearsay evidence of a statement allegedly made by Mr. Khan on the morning before his death;

vi. when a friend of the appellant (Mubin Shaikh) was unable to recall whether the appellant told him that Mr. Khan tried to choke him, the trial judge erred in refusing to admit another witness’s evidence (Ismail Ibrahim) that Mr. Shaikh told Mr. Ibrahim that the appellant did say that;

vii. the trial judge erred in refusing to permit the defence to re-address the jury after Crown counsel changed his theory, in his closing address, concerning how a bloodstain was deposited on the balcony door;

viii. the trial judge erred by failing to warn the jury sufficiently concerning inflammatory submissions made by the Crown;

ix. the trial judge’s conduct raises a reasonable apprehension that the appellant did not receive a fair trial; and

x. Crown counsel’s conduct was inflammatory and inconsistent with the Crown’s quasi-judicial role.

[11] For the reasons that follow, we would dismiss the appeal.

II. Background

a) The Crown’s case

i) the appellant awakens the neighbours on March 9, 1997

[12] Three occupants of apartment 1107, 79 Thorncliffe Park Drive, Toronto testified that they were awakened by the sound of someone trying to get in their balcony door between 3 a.m. and 4 a.m. on Sunday, March 9, 1997. One of the occupants described hearing a voice on the balcony saying, “help me, help me, help me”. She said that she recognized the appellant after he entered the apartment and that he was crying and saying something she could not understand. The second and third occupants described the appellant as crying and appearing very scared. Although the appellant was asking for the police, the female occupant called the appellant’s father, who arrived at apartment 1107 about fifteen to twenty minutes later.

ii) the 911 calls

[13] After arriving at the neighbours’ apartment, the appellant’s father called 911. He asked for the police, saying that someone had hit his son. The 911operator spoke to the appellant and asked if he had been assaulted. The appellant responded, “I was-um in that way-ah-yeah, I could of ”.

[14] The appellant then explained to the operator that his best friend was visiting, that he asked his friend to leave at 4 a.m., and that his friend refused, punched him and broke his nose. The appellant declined the offer of an ambulance and did not mention that he had stabbed Mr. Khan. The first 911call ended at 4:17:05 a.m.

[15] Three minutes and fifty-three seconds later, the appellant made a second call to 911 from apartment 1107 saying, “[w]e need an ambulance, ‘cause he’s about—he could die”. When asked what had happened the appellant said, “[w]e got into a fight…and it was over a knife. Right? He was about to kill me. He was gonna actually kill me”. The appellant said that his friend was injured, and that he “hit” his friend with a knife. When asked if he had stabbed his friend, the appellant answered, “[y]es”. The operator asked if his friend was conscious. The appellant answered, “[w]ell, I ran out…he was chasing me, while I ran away. He was…throwing things at me. And I ran…out on the balcony”.

[16] The second 911 call ended at 4:24 a.m. The female occupant of apartment 1107 testified that, sometime after the 911 calls were made, the appellant and his father left the neighbours’ apartment.

iii) the arrival of the police and the appellant’s arrest

[17] The police arrived at 79 Thorncliffe Park Drive at 4:36 a.m. They emerged from the elevator on the eleventh floor to find the appellant and his father standing in the hallway. The appellant said, “I called you because I stabbed my friend”. One of the officers noted that the appellant had blood smeared around his mouth.

[18] Upon entering the appellant’s apartment (apartment 1111), the police found Mr. Khan lying face-up on the floor with his head three to four feet inside the threshold of the doorway and a knife on the floor beside him, to his left. The apartment was in a state of some disarray, consistent with a struggle. Subsequent testing revealed that there was no blood on the knife found beside Mr. Khan’s body. After being directed to the balcony of apartment 1107 by the appellant, the police located the knife used to stab Mr. Khan under a patio chair.

[19] The appellant was arrested and taken to the police station. He did not complain of any injury. However, photographs of the appellant taken soon after his arrest disclose superficial cuts or scratches to his hands, red marks on the left side of his face, and swelling over one eyebrow.

iv) Mubin Shaikh’s evidence concerning a conversation with the appellant about the events in issue

[20] Mubin Shaikh met the appellant and Mr. Khan in 1995, while all three men were on a religious trip to India and Pakistan. Mr. Shaikh testified that he received a collect telephone call from the appellant while the appellant was in custody awaiting trial. In response to Mr. Shaikh’s inquiry about what happened, the appellant told Mr. Shaikh that Mr. Khan said something about staying over at his apartment that night and that he (the appellant) told Mr. Khan that would not be appropriate.

[21] The appellant also told Mr. Shaikh that Mr. Khan played a Metallica song entitled “Enter Sandman” and, in referring specifically to a verse about demons, said, “See, they come at night.” Mr. Khan then asked the appellant to speak to him in a female voice.

[22] Mr. Shaikh testified that the appellant told him that the fight started when the appellant asked Mr. Khan to leave. Mr. Khan got up and punched the appellant in the face and knocked him down. A struggle ensued, things were thrown around, Mr. Khan was on top of the appellant, a knife was involved, and the appellant stabbed Mr. Khan. Mr. Khan kept coming at the appellant, despite being stabbed. In his examination in-chief, Mr. Shaikh said that the appellant told him that he continued to stab Mr. Khan until Mr. Khan stopped coming at him and fell, and that the appellant ran to his balcony with Mr. Khan still chasing him. In cross-examination, Mr. Shaikh said he was not sure whether the appellant told him that Mr. Khan fell.

[23] In addition, defence counsel made the following suggestion to Mr. Shaikh during cross-examination:

If I were to suggest to you that you told Ismail Ibrahim that [the appellant] told you that Mr. Khan was choking him and could not get him off would [you] agree it’s possible, maybe that’s something was said to you and you just can’t remember it now?

[24] Mr. Shaikh agreed that it was possible. Defence counsel subsequently asked, “[y]ou don’t have a recollection either way?” Mr. Shaikh responded, “I can’t say with absolute certainty that I remember saying it”.

[25] The trial judge later refused to permit defence counsel to lead evidence from Mr. Ibrahim during the defence case that Mr. Shaikh told Mr. Ibrahim that the appellant said that Mr. Khan choked him (the appellant) during the course of the struggle.

v) Mubin Shaikh’s testimony about the deceased’s behaviour

[26] Mr. Shaikh testified that, after the 1995 trip, he noticed a change in Mr. Khan’s behaviour. He said that Mr. Khan appeared more detached and that he was always talking about “Jinns”, or spirits. Evil Jinns are called Shaytan, (a variation of Satan). Mr. Shaikh recalled an evening when Mr. Khan broke off in the middle of a conversation and said, “Shaytan is here.” Mr. Shaikh also said that all three men were religious and that, after the trip, he never saw Mr. Khan without a beard until seeing him clean shaven at his funeral.

[27] After the appellant was arrested, Mr. Shaikh went to appellant’s apartment to help the appellant’s wife move their belongings. He found a Metallica tape still in the machine and took it home. When he played it, he found that it had been stopped near the end of the first song, “Enter Sandman.”

vi) the pathologist’s testimony

[28] Mr. Khan sustained seven stab wounds ranging in depth from 3.5 cms. to 15.5 cms. The pathologist testified that once a knife penetrates the skin, very little force is required to cause the knife to penetrate farther into the body. None of Mr. Khan’s wounds was as deep as the length of the knife said to have caused them. The wounds to the back of his neck (8.5 cms. deep, from back to front, downward and slightly right to left) and to the area of the left scapula (15.5 cms. deep, back to front, left to right and downwards), both of which penetrated the left lung, were the most significant.

[29] The pathologist could not give an opinion concerning the order in which the wounds were inflicted. However, he said that, after sustaining his wounds, Mr. Khan could have survived for up to 45 minutes but could not have continued vigorous activity for more than a couple of minutes.

[30] The pathologist noted that Mr. Khan also sustained five wounds to his hands, which appeared consistent with Mr. Khan grabbing the blade of the knife. Although he described these injuries as more likely defensive rather than offensive, the pathologist agreed that they could only be characterized as defensive if the intent of the person grabbing the knife was defensive. In addition, Mr. Khan sustained several relatively minor blunt force injuries consistent with a struggle or scuffle.

[31] While indicating that his findings were consistent with a fight in which a single stab wound was administered to the chest after which the deceased turned and was stabbed six times from the rear, the pathologist agreed that there were also other possible scenarios that would be consistent with his findings. In particular, he agreed that his findings were consistent with a struggle in which the individuals were close together and grabbing each other, and the knife was going in at angles. However, the angled wounds suffered by Mr. Khan did not necessarily mean the individuals were close together when those wounds were inflicted and the pathologist was not able to make any definitive statement about the degree of separation between the two men when the angled wounds occurred.

[32] Based purely on his autopsy findings, the pathologist said he could not “strongly pick” any one of the scenarios over another.

[33] T.H.C. was detected in Mr. Khan’s chest blood in a concentration that suggested cannabis use within 6 hours of his death.

vii) the Crown biologist’s testimony

[34] Mr. Khan’s blood was found on the kitchen floor, on the kitchen counter, on the patio door leading to the balcony, on the living room carpet close to the front hallway, on the living room wall, on the front hall closet and closet frame, on the inside of the front door just below the locking mechanism, on the front hall intercom panel, on the front hall wall and on the front hall floor.

[35] The Crown biologist testified that the majority of Mr. Khan’s bleeding occurred near the front door of the apartment while Mr. Khan was either standing or partly upright. However, that did not mean that his injuries were sustained in that location. Mr. Khan was wearing four layers of clothes and it would take time for the blood from the stab wounds to penetrate the layers of clothing. The blood from the cuts to his hands would have been exposed much sooner.

[36] Initially, the Crown biologist said that he could not exclude the possibility that the bloodstain found on the patio door had been transferred from the blade of a knife. However, following the testimony of a defence bloodstain pattern analyst, the appellant filed a supplementary report from the Crown biologist stating that, based on additional experiments he had conducted, he could “find no support for the knife [found at] apartment 1107 having made the swipe stain on the balcony door of apartment 1111”.

[37] Mr. Khan’s blood was also found on the appellant’s shirt. The appellant’s blood was found on his jacket, his jeans, as well as on the floor and on a table in apartment 1107.

b) The Defence Case

i) the appellant’s testimony

[38] The appellant was 26 years old at the time of trial. He is married and has two children. At the time of his arrest, he weighed 102 lbs. and was 5’5” tall. At age 17 the appellant pleaded guilty to a minor credit card fraud and received a conditional discharge.

[39] The appellant and Mr. Khan are Muslims. After their return from the religious trip in 1995 on which they met, Mr. Khan began to change and to speak deeply about religion and his contact with Jinns. When the appellant’s daughter was born, Mr. Khan gave her a book about Jinns, a gift the appellant thought inappropriate. Prior to March 8, 1997, Mr. Khan’s changes had not caused the appellant to fear him. Mr. Khan was slightly taller than the appellant, and weighed about 135 lbs.

[40] On the evening of March 8, 1997, the appellant invited Mr. Khan to his apartment. He noticed that Mr. Khan was clean-shaven when he arrived. They left the appellant’s apartment at 10:30 p.m. and returned at midnight with some marihuana. Mr. Khan rolled a marihuana joint and said to the appellant, “Listen, do you hear? They’re here. Shaytan is here.” An hour later Mr. Khan spoke again of Jinns and insisted on playing the Metallica song, “Enter Sandman”. Mr. Khan insisted that the appellant listen to the verse containing the following:

Now I lay me down to sleep, pray the Lord my soul to keep. If I die before I wake pray the Lord my soul to take. Hush little baby don’t say a word and never mind that noise, that noise you heard. It’s just the beast under your bed, in your closet, in your head.

[41] The appellant became uncomfortable and turned off the music. Mr. Khan then asked the appellant to describe female genitalia while speaking in a female voice. The appellant changed the subject. He asked when Mr. Khan planned to leave. Mr. Khan responded, “In fifteen or twenty minutes,” but he did not leave. The appellant waited and then, once again, asked Mr. Khan to leave. Ten minutes later the appellant got up, put on his boots and coat and went to wait for Mr. Khan by the elevator. Mr. Khan did not leave the appellant’s apartment. The appellant returned to his apartment and the two men had a confrontation over Mr. Khan’s refusal to leave.

[42] The appellant took Mr. Khan’s arm to pull him up off the couch and Mr. Khan promised once again to leave. The appellant took Mr. Khan’s arm again. Mr. Khan stood up, adopted a boxer’s stance and said, “What you want to fight me?” The two men lunged at each other. The appellant described what happened next as follows:

A. It was my reflex and I think – I don’t know if I was trying to block him or I hit him. I know I hit him in the face at that time. ...

Q. You demonstrated him having his hands in a fight stance and you demonstrated a forward motion?

A. Yes. And right after that punch hit me, I don’t know exactly where on my lips or nose right over here.

The appellant said that the two men then grappled and fell to the floor. Mr. Khan got on top of the appellant, squeezed his neck, and said, “Do you want me to kill you?”

[43] The appellant got out from under Mr. Khan and tried to reach the phone. Mr. Khan grabbed it from him. The appellant discovered blood on his mouth and went to the kitchen to wash it off. Mr. Khan followed. The appellant grabbed two knives from a block, intending to frighten Mr. Khan into compliance, and ran with them to the front door. Mr. Khan followed. The appellant dropped one knife so he could use his hand to unlock the door. He then heard a loud metallic crash that paralyzed him. Mr. Khan grabbed him from behind. They fought for control of the knife and Mr. Khan grabbed the knife blade.

[44] The appellant said he remembered “poking” Mr. Khan with the knife, once in the back and once in the front but denied stabbing Mr. Khan from behind. He said that he was facing Mr. Khan when he stabbed him, and that he feared for his life. He wanted to get free of Mr. Khan and get away. He finally did break free and ran directly to the balcony. He saw Mr. Khan chasing him. He clambered from the balcony of apartment 1111 to that of 1107. He thought he might have thrown the knife on to the balcony of apartment 1107. He asked the occupants of apartment 1107 to call the police but they called his father instead.

[45] After arriving at the neighbours’ apartment, the appellant’s father called 911. At first, the appellant declined the offer of an ambulance because he believed he had not seriously harmed Mr. Khan. However, after checking the appellant’s apartment, the appellant’s father told the appellant to call an ambulance. The appellant and his father left apartment 1107 and met the police at the elevator. In cross-examination, the appellant specifically rejected the Crown’s suggestion that he went to his apartment between the 911 calls and planted the knife that was found near Mr. Khan’s body.

[46] The appellant’s father died before the trial commenced.

ii) evidence concerning Mr. Khan.

[47] The appellant called three mutual friends who testified about Mr. Khan’s unusual behaviour in the months before his death. One of them, Richard Liao, discussed Jinns with Mr. Khan and said Mr. Khan told him that something had stepped on his head. Another, Adam Basilone, had invited Mr. Khan to his home. While there Mr. Khan said, “This is an evil place. Shaytan is here.” Mr. Khan continued to speak like this for about half an hour until Mr. Basilone asked Mr. Shaikh, who was also present, to take Mr. Khan home.

[48] Ismail Ibrahim knew Mr. Khan before and after his 1995 trip. He noted that, following the trip, Mr. Khan had become more religious, more reserved and “weird”. He recalled Mr. Khan telling him on a bus that people were staring at him.

iii) psychiatric evidence.

[49] Dr. Robert Hill, a psychiatrist, gave evidence based on materials presented to him about Mr. Khan, including some notes from Mr. Khan’s family physician. He opined that before March 9, 1997, Mr. Khan was suffering from some sort of emotional disturbance and that he was becoming more severely mentally ill. He said that if Mr. Khan’s behaviour on the night in question was as described by the appellant, it was in keeping with that of a quite severely mentally disturbed individual.

iv) bloodstain evidence.

[50] The defence bloodstain pattern analyst opined that the bloodstain on the balcony door was likely the result of a transfer from skin or cloth. He said that a bloodstain on the left cuff of Mr. Khan’s sweatshirt contained sufficient blood to have made that stain while a bloodstain on the appellant’s jacket did not.

c) The Crown’s Case in Reply.

i) why Mr. Khan shaved off his beard

[51] During the course of the trial, the defence presented evidence indicating that it was quite unusual for a devout Muslim to shave his beard. From this evidence the defence theorized that Mr. Khan’s conduct, in shaving his beard on the morning before he died, was a sign that he had succumbed to mental illness.

[52] The trial judge permitted Mr. Khan’s brother, Aatif Khan, to testify in reply that, on the Friday before he died, Mr. Khan told their grandmother that he shaved off his beard after cutting it accidentally.

ii) the Crown’s psychiatrist

[53] The Crown also called Dr. Klassen, a psychiatrist, as a reply witness. Dr. Klassen noted that the information available to him and Dr. Hill was less than one would normally have in attempting a psychiatric diagnosis. He also noted that cultural and religious components made diagnosis even more difficult.

[54] Initially Dr. Klassen disagreed with Dr. Hill’s opinion. He felt that Mr. Khan was functioning better than was possible if he were an acutely psychotic person. However, when asked about Mr. Khan’s specific behaviour on the night in question, as described by the appellant, Dr. Klassen said the following:

What happened that night, … given the facts as you’ve given it to me, the possibilities include the following, which I won’t necessarily list in order of priority, but they include, he may have been having a manic episode, that he may have been psychotic.

In response to a question concerning whether the manic episode would include psychotic features, he continued:

With or without psychotic symptoms … We kind of went through this overvalued ideation psychosis dichotomy so that’s what I’m referring to. Could be a psychotic episode with another underlying diagnosis such as schizophrenia or it could be that he was psychotic as a result of street drugs or other psychogenic drug intoxication.

It could be that there were some situational or environmental factors that lead him to be highly agitated and outside of his normal frame of reference in terms of his interpersonal presentation and level of activity and those kinds of things.

[55] When asked whether he would still disagree with the proposition that Mr. Khan was suffering from some sort of mental illness if one removed the assumption that Mr. Khan was able to function at work, Dr. Klassen said:

My position is not that he was or wasn’t. My main position is that there is a lot of data missing and it’s hard to be conclusive. I pick one piece of that data [that] seems to be more important to me that being the work data, but I would agree in the hypothetical scenario posed to me with those facts if you add to [it that] this man[’s] function[ing] was decreasing it would support the position he was mentally ill.

III. Analysis

1. Did the trial judge err in permitting the Crown to assert a speculative theory, namely that the appellant participated in planting the knife found at Mr. Khan’s side?

[56] From the outset of the trial, the Crown took the position that the appellant and/or the appellant’s father, with the appellant’s knowledge and consent, planted the knife that was found at Mr. Khan’s side (the “second knife”) and that that conduct amounted to after-the-fact circumstantial evidence of guilt, rebutting the appellant’s claim of self-defence.

[57] Defence counsel at trial (not Mr. Silverstein) objected to the Crown’s position, asserting that there was no evidence to support the Crown’s theory; that no possible motive for planting the second knife had been suggested; and that the appellant, at no time, in either his evidence or in his out-of-court statements, ever claimed that Mr. Khan was armed with a knife.

[58] The trial judge overruled the defence objections and permitted the Crown to advance its position. In his instructions to the jury concerning post offence conduct, the trial judge said that, from his perspective, there were three possible explanations for the presence of the knife. First, that the appellant’s evidence was correct and that Mr. Khan fell “by sheer coincidence” next to the second knife. Second, that the appellant’s father planted the knife without the consensual participation of his son. Third, that the appellant planted the second knife or consensually participated in planting it in order to create the false appearance that Mr. Khan was armed.

[59] The trial judge also cautioned the jury as follows:

I must caution you that this item of evidence that is the so-called planted knife is not admissible whatsoever as post offence conduct unless the accused himself planted the knife or consensually participated in its planting. Only then may it be used as post offence conduct.

I should also caution you that no one item of this type of post offence evidence establishes guilt, it only constitutes an item of evidence which when weighed together with all of the other evidence may establish guilt. Consciousness of fault may be found when an accused acts in a manner which is consistent with conduct expected of a guilty person and inconsistent with conduct expected of an innocent person. In other words, the accused must have acted in a manner which indicates that he was aware that he had acted unlawfully and without a valid defence for his unlawful killing of Aamer Khan.

[60] On appeal, the appellant concedes that the evidence at trial revealed a theoretical window of opportunity for the appellant and/or his father to have planted the second knife. However, he contends that there was no other evidence to support the suggestion that the knife was planted or that he participated in planting it and that the trial judge therefore erred by failing to instruct the jury to ignore what was no more than a purely speculative theory.

[61] We reject the appellant’s submissions. The issue boils down to whether there was sufficient evidence capable of giving rise to an inference that the second knife was planted and that the appellant participated in planting it. In our view, there was. The evidence consisted not only of the evidence of opportunity, but also of the appellant’s evidence that he dropped the second knife while trying to get out the front door; the evidence that the second knife was found close to Mr. Khan’s body but did not have any blood on it; and the evidence reflected in the 911 calls concerning the difference in the appellant’s demeanour during the second 911 call.

[62] In our view, it was open to the jury to reject the appellant’s explanation for the presence of the second knife as improbable. The appellant gave no real explanation for grabbing two knives, rather than just one, when he fled to the kitchen. Further, it would require a series of coincidences for the second knife to fall close to the eventual location of Mr. Khan’s body and yet not be stained by blood. Moreover, because the appellant did not assert that Mr. Khan wielded a knife, if the jury rejected the appellant’s explanation, the only rational explanation for the presence of the second knife was that the appellant and/or his father used the opportunity to plant it. Finally, if the jury concluded that the second knife was planted, in our view, it was also open to them to conclude that the appellant was complicit in planting it, because it was improbable that the appellant’s father would risk unwittingly jeopardizing his son’s position by acting without his son’s knowledge and consent.

[63] While it may have been preferable for the trial judge to have instructed the jury specifically that they could not draw the requested inference unless they rejected the appellant’s explanation, taken as a whole, the trial judge’s instructions were adequate. Accordingly, we would not give effect to this ground of appeal[^1].

ii) Did the trial judge err in his instructions to the jury on self-defence?

[64] The appellant makes three submissions concerning the trial judge’s instructions to the jury on self-defence. We will deal with each submission in turn.

[65] The appellant’s first submission is that the trial judge’s instructions on self-defence were muddled, unclear and difficult to understand. In particular, he claims that the trial judge’s references to Mr. Khan being a trespasser and committing a deemed assault on the appellant under s. 41(2) of the Criminal Code made the instructions confusing and improperly deflected the jury’s attention from the actions of Mr. Khan that prompted the appellant to act in self-defence.

[66] The trial judge dealt with self-defence in two places in his charge to the jury. As the result of objections made by defence counsel, he also dealt with self-defence as part of a recharge. The impugned passages relating to this submission appear in both portions of the original charge[^2] dealing with self-defence.

[67] We agree that the references to a deemed assault introduced an element into the charge that may have appeared confusing to the jury. s. 34(2) of the Criminal Code sets out three requirements for the defence. It requires: i) that the accused be unlawfully assaulted; ii) that the accused act under a reasonable apprehension of death or grievous bodily harm; and iii) that the accused act in the reasonable belief that he cannot otherwise preserve himself. In our view, because they were not really relevant to the second and third requirements under s. 34(2), the trial judge’s references to a deemed assault may have seemed confusing. Nevertheless, we reject the appellant’s submissions for three reasons.

[68] First, the trial judge instructed the jury in both sections of his original charge that it was not only the original assault that was relevant to the second and third requirements of s. 34(2), but also the violence with which the assailant (Mr. Khan) pursued his purpose.

[69] Second, in his review of the defence position relating to self-defence, the trial judge made it clear that it was not the deemed assault that the appellant relied on as justifying his actions. In particular, the trial judge said the following:

At this time the accused grabbed the deceased by the arm to lead him out of the apartment. The deceased actively resisted and became a trespasser. Mr. Khan’s act of resistance deems him to have assaulted the accused in the latter’s own home.

At this point Aamer Khan leapt up in a boxer’s pose and punched the accused. They soon fell to the floor in the southern part of the living room. At this point with Khan on top, Khan choked the accused who was soon able to flip him off. The accused then went to the kitchen to clean off blood from his nose with Khan nearby.

The accused later bolted towards the front door to exit the apartment but stopped at the knife rack. There he instinctively grabbed two knives and attempted to frighten off the crazed Aamer Khan. Khan, however, stepped towards the accused who turned and ran to the front door. At this time the accused discarded one knife and threw it down. The deceased then ran south through the kitchen and around the wall to the living room.

At that point he grabbed the fan and threw it against the coffee table with the express purpose [of] frightening the accused. The paralyzed accused was [unable] to open the door before the crazed Aamer Khan grabbed him from behind and swung him against the east wall in the foyer. At this time they were face to face and Khan grabbed at the knife for the purpose of killing [the appellant].

The crazed Khan had already threatened to kill [the appellant]. [The appellant] was in mortal fear of dying. He lashed out with the knife in a sustained but quick frenzy, stabbed the struggling and moving Aamer Khan seven times. At no time did the accused stab the deceased in the back from the rear. [emphasis added]

[70] Third, during pre-charge discussions, experienced defence counsel specifically requested that the trial judge refer to s. 41(2) of the Criminal Code in his instructions to the jury concerning self-defence. Further, defence counsel did not raise this objection, which has been raised for the first time on appeal, at the conclusion of the trial judge’s charge to the jury.

[71] Taking all of these factors into account, we conclude that it would have been clear to the jury that while the deemed assault referred to by the trial judge was capable of satisfying the first requirement of s. 34(2) of the Criminal Code, it was other aspects of the evidence, including the appellant’s evidence concerning Mr. Khan’s previous behaviour on the night in question and concerning Mr. Khan’s threat to kill the appellant and his attempt to choke him that were relevant to the second and third requirements of the section.

[72] The appellant’s second submission relating to self-defence is that the trial judge erred in law in two respects: first, by instructing the jury that the appellant was only entitled to cause grievous bodily harm to Mr. Khan if his actions were in fact a last resort and second, by instructing the jury that the appellant’s prior knowledge of Mr. Khan’s disposition was relevant to the question of whether he believed he was being unlawfully assaulted. The impugned passage relating to these submissions appears in the second portion of the original charge dealing with self-defence. We will set out the impugned passage for ease of reference:

I turn now to general comments about section 34(2) and the use of deadly force in self-defence. The starting point and first essential element of the defence of self-defence is the requirement that the deceased (sic) must have a reasonable belief of serious bodily harm, which may be actually attempted or threatened.

In this case, in fact, there is an evidentiary basis for a deemed assault. In assessing the honesty and reasonableness of the accused’s belief that he was being unlawfully assaulted you must consider the accused’s prior relationship with the deceased and the accused’s prior knowledge of the deceased’s disposition to act violently. [emphasis added]

In this case, it’s the opposite. The evidence seems to be the deceased had a disposition to act peacefully. Thus, the defence of self-defence permits a person to kill or cause serious bodily harm to another person only as a last resort for self-preservation and the limited and stringent circumstances of necessity described in section 34(2) of the Criminal Code.

[73] The appellant points out, correctly in our view, that the “last resort” reference creates an impression of an objective test in relation to the third requirement of s. 34(2). The proper test requires simply that an accused reasonably believe he cannot otherwise preserve himself. The appellant also submits that while his knowledge of the deceased's prior disposition may have been relevant to the issue of the reasonableness of his belief concerning the extent of any threat, it was not relevant to his belief concerning whether he was being unlawfully assaulted.

[74] We would not give effect to either of these submissions.

[75] In relation to the appellant’s first concern, the trial judge instructed the jury on several occasions that the third requirement of s. 34(2) has both a subjective and an objective component. In other words, the trial judge instructed the jury that the third requirement is not simply an objective test. In the face of these explicit references, we are not persuaded that one brief reference to self-defence permitting the infliction of harm “only as a last resort” would have misled the jury in any way concerning the third requirement of s. 34(2).

[76] In relation to the appellant’s second concern, we reject the appellant’s submission for two reasons. First, this court made it clear in R. v. Currie (2002), 2002 44973 (ON CA), 166 C.C.C. (3d) 190, that an actual assault is not a prerequisite to a defence in relation to the first requirement of s. 34(2) of the Criminal Code. Rather the relevant question is whether the accused person reasonably believes in the circumstances that he is being unlawfully assaulted. In this case, the appellant’s evidence concerning how the struggle commenced was not clear and it was open to the jury to find that the appellant acted, at least initially, in response to an apprehended assault. The issue of whether the appellant reasonably believed he was being assaulted was therefore potentially a live issue for determination.

[77] Second, the appellant relied on evidence of Mr. Khan’s deteriorating mental and emotional state as evidence capable of supporting his claim of self-defence. Defence counsel at trial not only did not object to the impugned instruction, he asked the trial judge to go further and discuss the impact of the appellant’s knowledge of Mr. Khan’s belief in Jinns in assessing the appellant’s perception of the need to use deadly force. Although this request related primarily to the second requirement of s. 34(2) of the Criminal Code, similar considerations may apply when assessing the reasonableness of an accused person’s belief that he is being unlawfully assaulted under the first requirement of s. 34(2): see R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.). If the jury approached self-defence on the basis of an apprehended assault, the appellant’s knowledge of Mr. Khan’s mental and emotional state and his disposition for violence were relevant factors in assessing the reasonableness of the appellant’s belief that he was being assaulted.

[78] We conclude that the trial judge did not err in instructing the jury that they could consider the appellant’s knowledge of Mr. Khan’s disposition in assessing the reasonableness of the appellant’s belief that he was being unlawfully assaulted. Moreover, in light of the appellant’s reliance on evidence of Mr. Khan’s deteriorating mental and emotional state and his belief in Jinns, the trial judge did not err in making what amounted to a passing reference to Mr. Khan’s disposition to act peacefully: see R. v. Diu (2000), 2000 4535 (ON CA), 144 C.C.C. (3d) 481 (Ont. C.A.).

[79] The appellant’s third submission relating to self-defence is that the trial judge erred by failing to adequately review the defence evidence that supported the appellant’s claim of self-defence and by failing to relate the defence evidence to the requirements of s. 34(2) of the Criminal Code. In particular, the appellant points out that the trial judge failed entirely to review the psychiatric evidence that supported the appellant’s position except when setting out the position of the defence and that the trial judge failed to make any references to the defence evidence when reviewing the law of self-defence.

[80] In addition, the appellant asserts that the trial judge exacerbated this error by saying that Drs. Hill and Klassen disagreed over whether Mr. Khan “was actually experiencing a major mental breakdown of some unknown name on the night in question”. The appellant contends that this comment seriously mischaracterized the psychiatric evidence and indicated that the trial judge preferred the Crown’s evidence to that of the defence.

[81] The appellant submits that the trial judge should have instructed the jury that the appellant’s evidence, along with other evidence in the trial, indicated that Mr. Khan’s mental state was significantly compromised at the time of the events in issue and that he should have explained to the jury that this evidence supported the appellant’s defence.

[82] Once again, we reject the appellant’s submissions. There is no precise formula concerning how a trial judge must go about relating the evidence to the applicable law in a particular case. In this instance, the trial judge reviewed the evidence supporting both the Crown and the defence positions when setting out those positions. In effect, he explained to the jury how the evidence supporting each side’s position related to the law.

[83] Further, in our view, the trial judge did not err when he said that Drs. Hill and Klassen disagreed concerning whether Mr. Khan was experiencing a major mental breakdown. The closest Dr. Klassen came to supporting the defence position, is in those portions of his evidence set out in paragraphs 54 and 55 above. As we read his evidence, Dr. Klassen never abandoned his position that there was simply not enough evidence to make a proper diagnosis.

[84] Finally, the trial judge specifically referred the jury to Dr. Hill’s opinion that Mr. Khan was suffering from a major mental illness, to Mr. Khan’s family physician’s notes, and to the evidence of the independent witnesses that the defence claimed supported that opinion. Considering the charge as a whole, we are not persuaded that the appellant was in any way prejudiced by the manner in which the trial judge chose to review the evidence favouring the appellant and to explain how that evidence related to the applicable law.

3. Did the trial judge err in his instructions to the jury on reasonable doubt?

[85] The appellant submits that the trial judge made two errors in his instructions to the jury on reasonable doubt. First, in response to an objection by the Crown concerning defence counsel’s closing address, the trial judge gave the following instruction to the jury:

You have taken an oath to render a true verdict based solely on the evidence. [Defence counsel] spent a great deal of time referring to cases where the accused had been wrongfully convicted. Obviously, you must not be frightened from doing your sworn duty. If you were to be preoccupied with the idea that your verdict may result in a miscarriage of justice you will be unable to assess the evidence in an objective and dispassionate manner, totally fair to both sides.

[86] The appellant contends that the foregoing instruction amounted to an improper invitation to the jury to ignore the criminal standard of proof and that it is the effective equivalent of the “timid juror instruction”, disapproved of by this court: R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont. C.A.); R. v. Karthiresu (2000), 2000 6008 (ON CA), 129 O.A.C. 291.

[87] Second, although this was a post-Lifchus[^3] charge, the trial judge failed to refer to the fact that the criminal standard of proof is higher than the civil standard or to explain where on the continuum the criminal standard lies. When viewed in the context of the trial judge’s comment during defence counsel’s closing address to the effect that “moral certainty” is not a proper definition of reasonable doubt, the cumulative effect of these errors makes it impossible to conclude that the jury correctly understood the standard of proof.

[88] We would not give effect to this ground of appeal for three reasons.

[89] First, we reject the appellant’s submission that the instruction set out at paragraph 86 above is the effective equivalent of the “timid juror instruction”, or that it amounted to an invitation to the jury to ignore the criminal standard of proof. The impugned instruction was an issue-specific instruction given in response to the following comments made by defence counsel during his closing address:

The application of the principle (presumption of innocence) does not always succeed in preventing the conviction of innocent people. Anyone who reads the newspapers and follows other forms of media knows that even the best systems fail on occasion. In England there are all the I.R.A. cases, the Birmingham 6, the McGuire 7, the Guilford 4, in the Name of the Father, the movie, all situations where people were wrongfully convicted.

In the United States in November of 1998 there was a conference in Chicago, the topic of discussion of the fact that since 1976 in the United States 74 convicts on death row have been exonerated, most of them by D.N.A. evidence and that’s just the capital murder cases. That’s three a year. Those were all mistakes that were made by hard working and honest jurors.

A fellow named Hurricane Rubin Carter, spent over a decade in jail for three murders committed by somebody else. Bob Dylan wrote a song about it. There was a book written about it. And there’s an upcoming movie about it. Mr. Carter is now a director of an association headquartered here in Toronto called the Association in Defence of the Wrongly Convicted, which is an association, which lobbies on behalf of such people.

We’ve had examples in Canada of failure of our system, Wilson McQues’ case, Donald Marshall, David Milgaard, Guy Paul Morin. Even our own legal history is sprinkled with miscarriages of justice. The fact is no system is perfect but the presumption of innocence is the most effective bastion we have against such failures. It’s really the only and the main principle that we have to prevent that from happening. If we do not apply the presumption of innocence we don’t fail any particular accused, we fail ourselves as members of this community.

[90] The impugned instruction was an acceptable response to defence counsel’s remarks appealing to the emotions and fears of the jury. It was given at page seventy-two of a seventy-nine-page jury charge and was not in any way linked to the definition of reasonable doubt, which appears at pages six through eight of the charge. In particular, the instruction emphasized the jurors’ duty to consider the evidence in “an objective and dispassionate manner, totally fair to both sides” and did not, in any way, link reasonable doubt with avoiding their responsibilities.

[91] Second, when the trial judge interjected during the course of defence counsel’s closing address, he was responding to the following comment made by defence counsel:

What is proof beyond a reasonable doubt? There have been many different definitions given over the years for this and the one that you must follow most closely is the one given to you by his Honour.

The Crown may mention some definitions, I do not. There is one definition that has been used in the past which I would ask you to consider and keep in mind. It is to the effect that you must be, based on the evidence you hear, morally certain of guilt.

[92] The trial judge said simply, “[t]hat’s not the proper test…moral certainty is not part of the definition…it shouldn’t be used”. Considering the trial judge’s comments in context, it would have been obvious to the jury that they were directed at the proper wording of the test. In our view, it is fanciful to suggest that the jury would have concluded that they could convict the accused even if they were not “certain” of his guilt or that they were otherwise misled concerning the standard of proof.

[93] Third, although the trial judge did not comply precisely with the Lifchus model, he did use much of its language, he referred to the criminal standard as a “higher” standard of proof, and he gave a proper W.(D.) [^4] instruction. In the circumstances, we see no basis for concluding that there is a reasonable likelihood that the jury misunderstood the standard of proof.

4. Did the trial judge err in his instructions to the jury on motive?

[94] At the conclusion of his instructions to the jury on the subject of motive, the trial judge said the following:

The defence position is that the absence of motive is significant in this case. The Crown says no it is not because the accused acted impulsively. You will decide whether or not it is [emphasis added].

[95] The appellant submits that it was incumbent on the trial judge to instruct the jury that, as a matter of law, absence of motive is significant and that it can, by itself, raise a reasonable doubt.

[96] The trial judge’s complete instructions on motive were as follows:

In this case the defence submits that it has demonstrated that the accused … had no motive whatsoever to unlawfully kill his best friend… It seems that the Crown concedes that and the Crown’s position is that [the Appellant] killed [the deceased] because he lost his self-control in the particular circumstances.

Motive may be defined as a person’s ultimate end, purposes or object. Motive is the ulterior end for which an intentional act is done.

Having said that, motive is generally relevant to the proof of a crime. I must add, in fact, the Crown is not required to prove motive as an essential element of an offence. However, to prove absence of motive is nonetheless an important factor to be considered in whether the accused killed the deceased unlawfully. The defence position is that the absence of motive is significant in this case. The Crown says no it is not because the accused acted impulsively. You will decide whether or not it is.

[97] In our view, these instructions were adequate and appropriate in the circumstances. Although the trial judge might properly have added that proven absence of motive may, of itself, give rise to a reasonable doubt, we conclude that, in light of the instructions that he gave, the trial judge did not commit reversible error by failing to give this instruction.

[98] In particular, the trial judge told the jury that absence of motive was conceded and that it was an important factor for the jury to consider in determining whether the appellant killed Mr. Khan unlawfully. However, he also set out the Crown’s position that the appellant and Mr. Khan got into an argument, and that the appellant lost his self-control in repeatedly stabbing his unarmed victim. In this context, proven absence of motive would not be significant.

[99] In our view, the trial judge highlighted the real issue the jury had to determine when considering motive, namely, whether proven absence of motive was significant in the context of this case. He also made it clear to the jury that, if they were satisfied it was significant, proven absence of motive would be an important feature in assessing the appellant’s guilt. Accordingly, we would not give effect to this ground of appeal.

5. Did the trial judge err in admitting hearsay evidence of a statement allegedly made by Mr. Khan on the morning before his death?

[100] As already noted, the Crown called Mr. Khan’s brother, Aatif Khan, in reply, to testify that, on the morning before his brother died, he heard his brother explain to their grandmother that he made a cut in his beard accidentally and decided to shave it off.

[101] Defence counsel at trial objected to Aatif Khan’s evidence, saying that it was inadmissible hearsay. In ruling Mr. Khan’s statement admissible, the trial judge found that Mr. Khan’s explanation for shaving his beard was sufficiently contemporaneous to the event to justify its reception.

[102] The appellant submits that the trial judge erred in holding that Aatif Khan’s evidence was admissible for two reasons. First, because there was insufficient evidence to find that the statement was made contemporaneously to the event. Second, because there was insufficient indicia of reliability to warrant its admission.

[103] We agree with the appellant’s submissions.

[104] In ruling Aatif Khan’s evidence admissible, the trial judge relied on an excerpt of his evidence from the preliminary inquiry. According to Crown counsel at trial, the excerpt did not clearly indicate at what time of day the statement was made. Crown counsel confirmed that it was the first time Aatif Khan saw his brother without the beard, and the trial judge concluded, “[l]ikely he’s just shaved it … at least within the recent past”.

[105] At trial, Aatif Khan testified that he noticed that his brother had shaved his beard “around morning time” of the particular day. He confirmed that he heard some conversation about his brother having shaved his beard that morning; in particular, he heard his grandmother ask his brother, “you shaved your beard”.

[106] In our view, Mr. Khan’s utterance does not meet the necessary threshold to qualify for admission as res gestae.

[107] In J. Sopinka, S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto, Butterworths, 1998) the authors describe two situations in which the courts have properly invoked the res gestae doctrine to admit utterances offered for their truth: (1) declarations accompanying and explaining relevant acts, and (2) spontaneous exclamations. Here, Mr. Khan’s utterance could not qualify under the second heading, as it was not the result of a startling occurrence or excitement-provoking event.

[108] As for the first heading, this court set out the parameters of admissibility in R. v. J.E.F. (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 at para. 30 as follows:

The words are considered to be so inter-related to a fact in issue that they become a part of the fact itself. To qualify, the words must introduce the fact in issue, explain its nature, or form in connection with it one continuous transaction. [emphasis added]

[109] In this instance, there was no clear evidence concerning the proximity of Mr. Khan’s utterance to his prior action. Moreover, even if it could reasonably be inferred that Mr. Khan spoke to his grandmother soon after shaving his beard, his words were not so inter-related with his actions as to form one continuous transaction. Rather, they were an after-the-fact explanation given in response to his grandmother’s inquiry and they lacked the circumstantial guarantees of reliability associated with the res gestae exception. Put another way, it is possible in the circumstances that Mr. Khan was simply making an excuse to his grandmother.

[110] Further, Mr. Khan’s utterance would not qualify for admission under the principled exception to the hearsay rule for the same reason that it does not qualify as res gestae: the surrounding circumstances do not provide sufficient indicia of reliability to warrant admission.

[111] However, we see no reasonable possibility that the verdict would have been different had this error not been made for three reasons. First, it became obvious during cross-examination that Aatif Khan had an interest in diminishing the defence theory that his brother’s conduct in shaving his beard was a significant event.

[112] Second, even if the jury accepted Aatif Khan’s evidence about his brother’s statement to their grandmother, it remained open to the jury to reject Mr. Khan’s statement as untrue. There was a substantial body of additional evidence going to the question of Mr. Khan’s deteriorating mental state at the time of his death. If the jury did not reject the other evidence, in our view, it is unlikely that they would have accepted that Mr. Khan’s statement to their grandmother was true.

[113] Third, even if the jury accepted that Mr. Khan made the statement to his grandmother and that it was true, given the significant body of evidence relating to Mr. Khan’s mental state it is unlikely that excluding this single piece of evidence would have changed the outcome of the trial.

[114] Taking account of all of our findings concerning this appeal, we are satisfied that no substantial wrong or miscarriage of justice was occasioned as the result of this error.

6. When Mubin Shaikh was unable to recall whether the appellant told him that Mr. Khan tried to choke him, did the trial judge err in refusing to admit Ismail Ibrahim’s evidence that Mr. Shaikh told Mr. Ibrahim that the appellant did say that?

[115] As already noted, the Crown called Mubin Shaikh to testify about a conversation that he had with the appellant concerning the circumstances of Mr. Khan’s death. This evidence was admissible for the truth of its content as an admission by the appellant adduced by the Crown.

[116] In cross-examination, Mr. Shaikh said that he was unable to recall whether he told Mr. Ibrahim that the appellant said Mr. Khan tried to choke him. Subsequently, defence counsel asked that Mr. Ibrahim be permitted to testify to that effect during the defence case for the limited purpose of proving that the appellant made the statement to Mr. Shaikh. In particular, defence counsel was concerned that, if the Crown cross-examined the appellant on his failure to tell Mr. Shaikh that he was choked, then without Mr. Ibrahim’s evidence, the jury would be left with a misleading impression of what occurred.

[117] The trial judge refused to admit Mr. Ibrahim’s evidence, saying that it would have to go in for its truth and that it was not admissible for that purpose. He concluded that the evidence would amount to double hearsay, that there were no indicia of reliability surrounding either the making or the repetition of the statement, and that the evidence was inherently unreliable because the alleged statement was said and then repeated well after the event.

[118] On appeal, the appellant contends that, because the Crown chose to adduce the appellant’s statement for the truth of its content, the trial judge erred in classifying Mr. Ibrahim’s evidence as double hearsay. Further, since Mr. Ibrahim’s evidence corroborated the appellant’s version of his confrontation with Mr. Khan, the appellant contends that it was patently reliable. Finally, he submits that the trial judge ought to have applied a lesser standard of admissibility to this evidence because the defence adduced it: see R. v. Brown (2002), 2002 SCC 32, 162 C.C.C. (3d) 257 (S.C.C.).

[119] We reject the appellant’s submissions. Had the trial judge acceded to defence counsel’s request, Mr. Ibrahim’s evidence concerning what Mr. Shaikh told him would have been hearsay. Defence counsel stated that he would be content that the statement not be admitted for the truth of its content. However, he did not ask that Mr. Shaikh be given an opportunity to adopt Mr. Ibrahim’s evidence. Mr. Shaikh had already agreed that he may have told Mr. Ibrahim that the appellant said that Mr. Khan tried to choke him (the appellant), but that he was not sure. In the circumstances, there was no purpose in admitting Mr. Ibrahim’s evidence as a prior inconsistent statement. We see no basis for interfering with the trial judge’s conclusion that Mr. Ibrahim’s evidence failed to meet the threshold requirement of reliability and that it was not therefore admissible under the principled exception to the hearsay rule.

[120] Fourth, we do not accept the appellant’s submission that the trial judge erred in this case by failing to apply a lesser standard of admissibility to defence evidence. While it is open to a trial judge to admit defence evidence based on lower standards of admissibility in some circumstance, a minimal threshold guarantee of reliability is still required: see R. v. Williams (1985), 1985 113 (ON CA), 18 C.C.C. (3d) 356. We see no such guarantee in this case. Further, prior to making his final ruling, the trial judge said that if Crown counsel cross-examined the appellant on this issue and the appellant asserted that he told Mr. Shaikh that Mr. Khan choked him, the trial judge would tell the jury that the appellant probably did say that to Mr. Shaikh. Crown counsel did not cross-examine the appellant on this issue.

[121] In the circumstances, in our view, the trial judge’s admissibility ruling was correct and his caution to Crown counsel struck an appropriate balance between a strict application of the rules of evidence and fairness to the defence.

7. Did the trial judge err by refusing to permit the defence to re-address the jury after Crown counsel changed his theory, in his closing address, concerning how a bloodstain was deposited on the balcony door?

[122] The appellant submits that the trial judge erred in refusing to permit defence counsel to re-address the jury after the Crown introduced a new theory of liability in his closing address. The circumstances giving rise to this ground of appeal are as follows.

[123] In his opening address to the jury, Crown counsel suggested that the appellant stabbed Mr. Khan initially in the chest and then stabbed him repeatedly in the back as Mr. Khan tried to escape through the front door. The appellant submits that it was the Crown’s position throughout the trial that the appellant deposited Mr. Khan’s blood on the balcony door by brushing his knife against the door as he fled from his apartment.

[124] However, in his closing address to the jury, Crown counsel theorized that Mr. Khan suffered the defensive wounds to his hands during an initial confrontation in the kitchen. Crown counsel suggested that Mr. Khan went searching for an escape route and in doing so, smeared blood from his hands on to the balcony door. Crown counsel also theorized that the appellant pursued Mr. Khan, caught up with him in the north part of the living room near the foyer, and stabbed him five times in the back as Mr. Khan attempted to flee out the front door.

[125] Following Crown counsel’s closing, defence counsel submitted that Crown counsel had introduced a new factual theory to explain the infliction of the wounds and the bloodstain on the patio door, and he requested the opportunity to re-address the jury. The trial judge refused defence counsel’s request.

[126] We reject the appellant’s submission that the trial judge erred in refusing to permit defence counsel to re-address the jury for three reasons.

[127] First, contrary to the appellant’s submissions, Crown counsel did not advance any position, in his opening address, concerning how the bloodstain on the patio door was deposited. What Crown counsel did say was the following:

The friends had an argument, perhaps it was over Mr. Khan’s refusal to leave so that [the appellant] could study for his exams. It escalated into a fight.

[The appellant] went to the kitchen and grabbed a knife from the kitchen knife rack. This made the fight very one-sided because Mr. Khan didn’t have a knife. Mr. Khan did his best to defend himself with his hands against [the appellant’s] knife. Mr. Khan’s hands were cut badly. [The appellant] kept up his attack.

With Mr. Khan’s hands now badly cut [the appellant] was able to stab Mr. Khan once in the chest, and once on his side. Mr. Khan was badly hurt and bleeding. He tried to flee. He turned away from the fight and pushed to the front door of the apartment. Bleeding all the while he desperately tried to unlock the door so he could escape. In doing so, he smeared blood around the front door around the entrance but [the appellant] kept up his attack as Mr. Khan retreated.

[The appellant] stabbed Mr. Khan five times in the back. …

Mr. Khan fell back from the …door, and died where he landed. [The appellant] suffered only minor injuries. He had very little blood on him. He knew he was in trouble and had to do something. Mr. Khan’s body was blocking the front entrance so he decided to climb out onto the balcony and into a nearby apartment….

[128] Second, even if the cumulative effect of Crown counsel’s opening address, the testimony of the Crown’s biologist, and Crown counsel’s cross-examination of the appellant raised a clear inference that the Crown’s theory was that the appellant deposited the bloodstain on the patio door with his knife, the Crown biologist’s supplementary report made that theory untenable. Experienced defence counsel filed the supplementary report as part of the defence case and would have realized that this theory that the appellant deposited Mr. Khan’s blood on the balcony door was no longer tenable.

[129] Third, reduced to its essentials, the Crown’s theory was that the appellant injured Mr. Khan in an initial confrontation, pursued him, and then stabbed him in the back as Mr. Khan attempted to flee. In our view, the Crown’s ultimate position did not significantly depart from its initial theory. Moreover, the appellant’s counsel closed to the jury saying that it was Mr. Khan who deposited the bloodstain on the patio door. In our view, the appellant has not demonstrated that he suffered any prejudice as a result of the manner in which Crown counsel closed to the jury.

8. Did the trial judge err by failing to warn the jury sufficiently concerning inflammatory submissions made by the Crown?

[130] At the beginning of his closing address to the jury, Crown counsel referred to the familiar understanding of stabbing someone else in the back as “mean, underhanded and unexpected” conduct. He also referred to a dictionary definition of “backstabber”, as “one who attacks unfairly”. Finally, he described stabbing another person in the back as conduct that is “so clearly and obviously wrong [that] it becomes the yardstick by which we measure other bad acts”[^5].

[131] Defence counsel objected to Crown counsel’s language. In his charge to the jury, the trial judge cautioned the jury as follows:

The word “backstabber”. Crown counsel referred to a dictionary definition of the word “backstabber” as meaning a person who treats another person unfairly. Let me relate the word to this case inasmuch as the accused’s version is that he stabbed Aamer Khan in the back while they were engaged face to face in a death struggle. In other words, at that time he was acting lawfully in self-defence.

On the other hand, the Crown’s version is that the accused stabbed the deceased Aamer Khan five times from behind while Khan was fleeing from the accused. Obviously, you should[^6] reject the accused’s evidence as untrue on this point and find as a fact that the accused did indeed stab the deceased five times in the back from the rear, it is in this limited and most restricted sense of the word “backstabber” that the Crown has used that word to characterize the accused’s criminal conduct.

[132] The appellant submits that Crown counsel’s language was inflammatory and that the trial judge’s caution to the jury was insufficient in the circumstances. The appellant contends that the trial judge should have admonished Crown counsel in the presence of the jury and instructed them to disregard completely the “backstabbing” analogy.

[133] We agree that, in using the term “backstabber” in the manner that he did, Crown counsel crossed the line between rhetoric and impermissible language.

[134] The appellant did not contest that he stabbed Mr. Khan in the back. However, he claimed that he acted in lawful self-defence during the course of a face-to-face struggle. Even if the jury rejected his defence of self-defence, the appellant claimed that he did not intend to kill Mr. Khan and that Mr. Khan provoked him. In this context, Crown counsel’s references to the appellant as a backstabber and to the moral blameworthiness of that conduct were really only relevant to the Crown’s assertion that the appellant stabbed Mr. Khan from the rear. The analogy had no application if the stabbing occurred in the context of a face-to-face struggle, and it was capable of unfairly prejudicing the defence if the issue came down to provocation. In our view, Crown counsel’s reference to all backstabbing as being underhanded and improper was an unfair attempt to undermine all aspects the appellant’s defence.

[135] Nevertheless, we are satisfied that the trial judge’s instructions on this issue struck an appropriate balance in terms of informing the jury of the limited sense in which Crown counsel’s analogy was appropriate and at the same time cautioning them not to use the analogy for an improper purpose. They focussed the jury’s attention on the sole appropriate basis for considering the analogy without diverting their attention to extraneous issues. We are not satisfied that additional instructions condemning Crown counsel’s use of language were necessary in the circumstances.

9. Did the trial judge’s conduct raise a reasonable apprehension that the appellant did not receive a fair trial?

[136] The appellant relies on three aspects of the trial judge’s conduct in claiming that it gives rise to a reasonable apprehension of bias.

[137] First, the appellant submits that in summarizing the Crown’s case for the jury, the trial judge added his own theory of the appellant’s guilt and presented the Crown’s position in a more cogent manner than Crown counsel had, thereby abandoning the position and appearance of neutrality.

[138] We reject this submission.

[139] In summarizing the Crown’s position in his charge to the jury, the trial judge said:

Mr. Khan had to have been moving from location to location in order to have deposited the blood in different locations.

The defensive wounds to the hands would not have prevented Mr. Khan from fleeing his assailant, even the initial wounds to the chest and side would not have prevented Mr. Khan from moving about. They were the least serious wounds and were not life threatening. But Mr. Khan could not [have moved about far] after the [two] lung puncturing wounds to his back. Furthermore, Khan’s several layers of clothing prevented immediate bleeding though the smears in the kitchen and the balcony door likely came from the defensive wounds to his hands during the flight from his assailant [emphasis added].

[140] We agree that Crown counsel at trial did not refer specifically in his closing address to the possibility that the wounds to Mr. Khan’s chest and side were inflicted during the initial confrontation. However, he did not present any specific theory concerning when those wounds were inflicted and his submissions concerning the order in which the wounds occurred focussed on accounting for the bloodstains throughout the apartment. In our view, the possibility noted by the trial judge flowed naturally from the Crown’s closing and did not constitute a new theory of liability. Significantly, Crown counsel had referred to the same possibility in his opening address.

[141] Second, the appellant contends that, throughout the trial, the trial judge showed great deference to Crown counsel, while treating defence counsel in a markedly different manner. The appellant submits that the trial judge’s conduct rendered the trial unfair and gives rise to a reasonable apprehension of bias. In particular, the appellant relies on the following examples:

▪ when defence counsel submitted that the trial judge was interfering with his cross-examination, the trial judge said that he was trying to help defence counsel and that he did not “need any of his insults”;

▪ when defence counsel sought to elicit that the witness Ismail Ibrahim went to the hospital and saw Mr. Khan clean-shaven, the trial judge excused the jury. In the colloquy that ensued, the trial judge referred to defence counsel as “insolent” and “junior and inexperienced”. The trial judge subsequently dismissed a defence mistrial application without hearing submissions;

▪ during the Crown’s cross-examination of the defence psychiatrist, the trial judge criticized defence counsel in the presence of the jury and once again dismissed a defence mistrial application without hearing submissions;

▪ the trial judge refused to exclude the witness Aatif Khan while defence counsel made submissions on a proposed line of cross-examination; and

▪ after the defence closing address, the trial judge accused defence counsel of being unprofessional and attacking him on a personal level.

[142] We agree that the trial judge was at times perfunctory and discourteous in dealing with defence counsel. However, we note that, both when making submissions and in response to the trial judge’s rulings, defence counsel was, at times, argumentative and accusatory. Based on our review of the record, the trial judge’s conduct did not deter experienced defence counsel from making submissions, nor did it inappropriately curtail his cross-examination of witnesses. In the circumstances, we see no basis for concluding that the trial judge’s conduct rendered the trial unfair or that it was such as to give rise to a reasonable apprehension of bias.

[143] In terms of the specific incidents cited by the appellant, we reject the appellant’s submissions. Our comments follow the same order as is set out above:

▪ the trial judge’s comments were made in the absence of the jury. In this court, the appellant did not pursue his submission that the trial judge interfered unduly with his cross-examination and our review of the record does not bear that out. The trial judge’s comments do not sustain the appellant’s submissions;

▪ the trial judge’s comments were made after defence counsel failed to respond to the trial judge’s inquiry about where his questions were going. Once again, in our view, the trial judge’s comments do not sustain the appellant’s submissions;

▪ the trial judge intervened during Crown counsel’s cross-examination of the defence psychiatrist to clarify that it was defence counsel who had determined which excerpts of certain material the psychiatrist received and set out certain hypothetical assumptions. Defence counsel interpreted the trial judge’s clarification as criticism and as warranting a mistrial. We do not;

▪ while it may have been preferable for the trial judge to have acceded to defence counsel’s request to excuse the witness, it was within his discretion not to do so. Ultimately, the trial judge determined that the proposed questions were not relevant;

▪ the trial judge’s comments were made in the absence of the jury in response to the Crown raising an issue concerning the following portion of defence counsel’s closing :

In our system, unlike others, trial Judges are permitted comment on those issues. The trial judge is also required to summarize the evidence for you. You may assume because of a trial judge’s theoretical lack of interest in the outcome of a case that summary is reliable and that all of the important evidence has been laid out for you. Please do not make any such assumption. Please do not assume what is said to you by the trial judge in this or any case about his views on the evidence are neutral. You must base that judgment on what you have seen happen over the course of this case.

Crown counsel submitted that there had been an implied and unfair criticism of the trial judge. The trial judge responded:

I’m not concerned about that. [Defence counsel] is not happy with me, I’m obviously not happy with him…there is no professionalism in this case and it’s obviously a personal attack…that’s not to say I’m going to take sides at the end. I don’t intend to do so. I try to give a position on both sides fairly and dispassionately and that’s it.

Although it may not be precisely clear what defence counsel intended, his remarks are certainly open to the interpretation that they constituted an attack on the trial judge’s neutrality. Given the totality of circumstances, once again we are not persuaded that the trial judge’s comments sustain the appellant’s submissions.

[144] Third, the appellant submits that the trial judge favoured the Crown in his evidentiary rulings. Our conclusions on appeal do not support this submission.

[145] We would not give effect to this ground of appeal.

10. Was the Crown’s conduct inflammatory and inconsistent with the Crown’s quasi-judicial role?

[146] Because this is a cumulative ground of appeal, in light of our conclusions up to this point, it is not strictly necessary that we deal with it. However, we will comment briefly as follows.

[147] We have already concluded that the Crown was entitled to advance the theory that the knife found near Mr. Khan’s body was planted and that the trial judge’s instructions to the jury adequately addressed the improper aspects of the Crown’s closing submissions.

[148] As for the appellant’s submissions concerning the Crown’s opening address, we note that, at trial, immediately following the Crown’s opening, defence counsel raised similar objections to those being raised on appeal. The trial judge reminded the jury to decide the case based solely on the evidence presented; he also told them that Crown counsel “may have interpreted the evidence…on a few points”, and that it was their interpretation that was important. In our view, the trial judge’s comments were sufficient to address any prejudice arising from the Crown’s opening address. We would not give effect to this ground of appeal.

IV. Disposition

[149] For the reasons given, we would dismiss this appeal.

Released: May 3, 2004 “KNF”

“Janet Simmons J.A.”

“K. Langdon J.”

“I agree Feldman J.A.”

Appendix A

From pp. 2060-2061 of the Transcript:

We now go down to 34(2), which justifies the use of deadly force. Subsection 34(2), everyone who is unlawfully assaulted, this is significant because you do have an unlawful assault, a deemed unlawful assault by the trespasser who actively resists his removal. So that seems to have been met in this case. Everyone who is unlawfully assaulted, then we assume at this point that Mr. Khan is deemed to have unlawfully assaulted Mr. Sheri because he actively resisted his removal from Mr. Sheri’s apartment. And we assume at this point Mr. Sheri has been unlawfully assaulted [emphasis added].

Everyone, being Mr. Sheri, the accused, who is unlawfully assaulted and who causes death, it’s not in dispute, or serious bodily harm, in repelling the assault is justified if, and this is conjunctive both conditions here, it’s not disjunctive, a) he causes it under reasonable apprehension. It’s not purely subjective. It’s a combination of objective and subjective.

Under reasonable apprehension you could substitute the word “believe”, under reasonable apprehension of death or serious bodily harm from the violence with which the assault was originally made, that is by Mr. Khan, or with which the assailant, being Mr. Khan, pursues his purpose, and, now becomes conjunctive [emphasis added].

Therefore, Mr. Sheri must have had reasonable apprehension of death or serious bodily harm because of the violence with which the assault by Mr. Khan was originally made or with which the assailant, Mr. Khan, pursued his purposes. He, being the accused, believes on reasonable grounds. The word “reasonable” is there again, believe is subjective, reasonable is objective, a combination of the two, that he cannot otherwise preserve himself from death or serious bodily harm. I’ll explain this again in much more detail. This is simply an overview, your starting point [emphasis added].

The accused has admitted that he killed Aamer Khan but maintains he did so in self-defence. The first question you must resolve is whether the killing was lawful or unlawful. In other words, did the accused act in lawful self-defence or did he act unlawfully because self-defence is unavailable to him on the evidence adduced in this case. That’s the first question.

If the accused acted in self-defence he must be acquitted outright on both charges. Self-defence applies in respect of murder and both forms of manslaughter.

From pp. 2078-80 of the transcript:

Section 32(2) (sic) of the Criminal Code provides as follows: everyone who is unlawfully assaulted and who causes death or serious bodily harm in repelling the assault, that is the unlawful assault, is justified if, (a) he causes it under reasonable apprehension of death or serious bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, the assailant being Mr. Khan, and, conjunctive, (b) he, being the accused believes on reasonable grounds that he cannot otherwise preserve himself from death or serious bodily harm [emphasis added].

I turn now to general comments about section 34(2) and the use of deadly force in self-defence. The starting point and first essential element of the defence of self-defence is the requirement that the deceased (sic) must have a reasonable belief of serious bodily harm, which may be actually attempted or threatened.

In this case, in fact, there is an evidentiary basis for a deemed assault. In assessing the honesty and reasonableness of the accused’s belief that he was being unlawfully assaulted you must consider the accused’s prior relationship with the deceased and the accused’s prior knowledge of the deceased’s disposition to act violently [emphasis added].

In this case, it’s the opposite. The evidence seems to be the deceased had a disposition to act peacefully. Thus, the defence of self-defence permits a person to kill or cause serious bodily harm to another person only as a last resort for self-preservation and the limited and stringent circumstances of necessity described in section 34(2) of the Criminal Code.

Once the defence is raised, the Crown must prove beyond a reasonable doubt that that the defence is unavailable to the accused because the evidence supporting the defence is either untrue or insufficient with respect to at least one essential element of the defence.

In other words, the Crown does not have to disprove each and every essential element of the defence to make the defence unavailable. Section 34(2) of the Criminal Code provides that every one who is unlawfully assaulted and who causes death or serious bodily harm in repelling the unlawful assault is justified if he causes it under a reasonable apprehension of death or serious bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes. And the accused believes on reasonable grounds that he could not otherwise preserve himself from death or serious bodily harm [emphasis added].

I must add that you are entitled to assess the reasonableness of the accused apprehension and belief in light of his prior experience or relationship with the deceased, but not in light of the accused’s consumption of marijuana.

Appendix B

Thank you. After four weeks of evidence this case boils down to one simple idea. It’s the idea of stabbing someone in the back. Mr. Sheri did it to Mr. Khan five times, that is what killed Mr. Khan. Now, before you were chosen as jurors in this case my guess is – I may not be right – but my guess is most of you probably have no previous experience with knife wounds. This was all something new hearing from pathologists, that sort of talk we’ve heard from the witness box.

On the other hand, my guess is even though you had no previous experience with knife wounds all of you have already understood perfectly well what it means to stab someone in the back. Probably most of you use the phrase yourself even if you’ve never been close to an actual stabbing.

Why would you all use and understand the idea of stabbing someone in the back before this case if you’ve never actually experienced a stabbing? Of course the answer to that question is obvious, we all know it’s common sense. It’s common usage that stabbing a person in the back is doing something mean, unexpected and underhanded to that person. In fact, that’s so common a use of the word it’s even in the dictionary, Oxford English Dictionary, edition 1989, page 7869. What’s a backstabber? One who attacks unfairly. Very simple idea. Very commonly understood. This common sense understanding of what it means to stab someone in the back teaches us a very important lesson, it’s that stabbing in the back is so obviously wrong and so clearly wrong we actually use that very phrase as the label for all other kinds of acts that we wish to identify as wrong. For example, we say things like my friend revealed a secret I asked him to keep, he stabbed me in the back. My co-worker got the boss to give her a plum assignment she knew I was in line first for. She stabbed me in the back.

In every day life, in your every day, common understanding stabbing someone in the back is so clearly and obviously wrong it becomes the yardstick by which we measure other bad acts. That is the understanding of stabbing someone in the back that you as jurors bring to this case.

Now, we have to ask ourselves should the law as it’s applied in this case think of stabbing someone in the back any differently? That’s up to you. You’re the judge in the case, not me, not defence counsel. I cannot tell you what to do and neither can defence counsel. Nothing that was said yesterday and nothing I say today is anything more than a suggestion that you are free to follow or reject as you think fit. We’re only lawyers, so all we can do is make suggestions. That’s all the rules permit us to do. You’re the judges, you make the decision based on what you think is right.

I’d like to take you on sort of a path through the evidence and it’s a path that will lead us right back to where we started, right back to the idea it’s just plain wrong to stab someone in the back. How am I going to go through this path? What I’m going to do is talk a little bit about how to analyze the evidence in this case and to do that I’m going to use an analogy. I’m going to use an analogy to foot prints, foot prints in the snow. And this short discussion, this analogy to foot prints, will provide you with the tools you need to organize the weeks of evidence you’ve heard in this trial [emphasis added].

[^1]: We have also considered the fact that the trial judge did not give the usual instruction to the jury about circumstances that can provide an innocent explanation for post-offence conduct. There was no objection to the charge on this ground either at trial or before this court. The trial judge may have concluded that, if the jury rejected the appellant’s explanation for the presence of the second knife, such an instruction could highlight the fact that the jury did not accept the explanation the appellant gave when testifying. In the circumstances, we will not address this issue further.

[^2]: The relevant portions of the trial judge’s original charge on self-defence are set out in Appendix A.

[^3]: R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1, S.C.C.

[^4]: R. v. W. (D.) (1997), 63 C.C.C. (3d) 297 (S.C.C.).

[^5]: The full text of Crown counsel’s comments in this respect is set out in appendix B.

[^6]: The transcript appears to be in error at this point. It is likely that the trial judge said,

Obviously, should you reject the accused’s evidence as untrue on this point and find as a fact that the accused did indeed stab the deceased five times in the back from the rear, it is in this limited and most restricted sense of the word “backstabber” that the Crown has used that word to characterize the accused’s criminal conduct (emphasis added).