Her Majesty the Queen v. Humaid [Indexed as: R. v. Humaid]
81 O.R. (3d) 456
Court of Appeal for Ontario,
Doherty, Weiler and Moldaver JJ.A.
April 19, 2006
Criminal law -- Defences -- Provocation -- Accused being charged with murdering his wife -- Accused relying on provocation defence and testifying that he lost control when his wife made statement which led him to believe that she was having affair -- Accused leading expert evidence that Islamic culture regards infidelity by female family member as serious violation of family honour worthy of harsh punishment -- Accused's provocation defence having no air of reality -- No evidence being adduced that accused shared views attributed to Muslims by expert -- Before characteristic can be attributed to "ordinary person" for purpose of provocation defence it must be shown to be characteristic possessed by accused -- Appeal from conviction for first degree murder dismissed. [page457]
Criminal law -- Evidence -- Hearsay -- Accused being charged with murdering his wife -- Defence seeking to introduce evidence of statements allegedly made by deceased to hotel desk clerk to effect that accused would be arriving later that evening -- Trial judge erring in excluding statements on basis that desk clerk's credibility suspect -- Assuming statement was hearsay the credibility of witness recounting it not circumstance surrounding making of statement so irrelevant to issue of threshold reliability -- Statements arguably not being hearsay as they were offered only to show deceased's state of mind at time they were made -- If evidence was hearsay, statements fell within recognized "state of mind" exception to hearsay rule -- Exclusion of statements not affecting verdict as it would not have affected strength of Crown's case on planning and deliberation -- Accused's appeal from conviction dismissed.
The accused was charged with the first degree murder of his wife. At trial, he admitted that he had killed her but maintained that he did not have the requisite intent for murder and, alternatively, that he had acted under provocation. The accused and his wife lived in the United Arab Emirates. The deceased was visiting her son in Canada. The defence position was that the accused traveled to Canada to meet with the deceased about a problem with their son, that they had a conversation in which she obliquely intimated that she was having an affair, and that he blacked out as a result. The deceased was stabbed at least 19 times. On the defence theory, the alleged admission of sexual infidelity had one of two effects on the accused. Either it amounted to a psychological blow throwing him into a disassociative state in which he did not form the intent required for murder, or it caused him to lose control, fly into a rage and kill the deceased before he could regain his self-control. The defence led the opinion evidence of an expert on the Islamic religion and culture. The expert testified that the Islamic culture was male-dominated and placed great significance on the concept of family honour, and that infidelity by a female family member was considered a very serious violation of the family's honour and worthy of harsh punishment by the male members of the family. The accused was convicted of first degree murder. He appealed, arguing that the trial judge erred in excluding from evidence statements allegedly made by the deceased to the front desk clerk at her hotel to the effect that the accused would be arriving that evening. It was part of the Crown's case that the deceased was unaware that the accused was coming to Canada. The defence position was that the statements constituted admissible hearsay evidence of the deceased's state of mind. The accused also submitted that the trial judge erred in his directions to the jury with respect to the "ordinary person" component of the provocation defence by instructing them that the accused's racial and cultural background was irrelevant to that aspect of the defence.
Held, the appeal should be dismissed.
The statements made by the deceased to the desk clerk were admissible. It was doubtful whether the statements were hearsay in the traditional sense of that word. They were offered only to show the deceased's state of mind at the time she made the statements, that is, her belief that the accused would be arriving at the hotel later that evening. The deceased's statements were not offered as evidence that the accused did in fact arrive at the hotel that evening. Assuming that the evidence was hearsay and prima facie inadmissible, statements evincing the declarant's state of mind at the time the statements are made are a long-acknowledged exception to the hearsay rule. The deceased's statements fell within the recognized "state of mind" exception to the hearsay rule, and should have been admitted. The trial judge erred by excluding the statement on the basis that the [page458] credibility of the desk clerk reporting the statement was suspect. The credibility of the witness testifying about the contents of a hearsay statement is not relevant to the circumstances surrounding the making of the statement and is therefore irrelevant when assessing threshold reliability. However, the exclusion of the statements could not possibly have had any effect on the verdict.
There was no air of reality to the provocation defence in this case. Assuming that an accused's religious and cultural beliefs that are antithetical to fundamental Canadian values such as the equality of men and women can ever have a role to play at the "ordinary person" phase of the provocation inquiry, the expert evidence could not assist the accused. It was not enough to lead evidence that Muslims, or any other group, have certain religious or cultural beliefs that could affect the gravity of the provocative conduct in issue and that the accused was a member of that group. Whatever features are to be attributed to the "ordinary person", they must be features possessed by the accused. As there was no evidence that he shared these views, the expert's evidence could not lend an air of reality to the provocation defence.
Moreover, a provocation claim rests on the assertion that an accused in a state of extreme anger lost his ability to fully control his actions and acted while in that state. Provocation does not shield an accused who has not lost self-control, but has instead acted out of a sense of revenge or a culturally- driven sense of the appropriate response to someone else's misconduct. If an accused relies on religious and cultural beliefs like those described by the expert to support a provocation defence, the trial judge must carefully instruct the jury as to the distinction between a homicide committed by one who has lost control and a homicide committed by one whose cultural and religious beliefs led him to believe that homicide is an appropriate response to the perceived misconduct of the victim. Only the former engages the defence of provocation. The latter provides a motive for murder.
APPEAL from a conviction for first degree murder entered by Kealey J., sitting with a jury of the Superior Court of Justice, dated March 16, 2006.
Cases referred to R. v. Meaney, 1996 6635 (NL CA), [1996] N.J. No. 261, 145 Nfld. & P.E.I.R. 306, 111 C.C.C. (3d) 55 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 591, 471 A.P.R. 90n, 112 C.C.C. (3d) vii], consd Other cases referred to R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 111 D.L.R. (4th) 48, 162 N.R. 280, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1; R. v. Campbell (1977), 1977 1191 (ON CA), 17 O.R. (2d) 673, [1977] O.J. No. 2452, 38 C.C.C. (2d) 6 (C.A.); R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 210 D.L.R. (4th) 64, 285 N.R. 1, 162 C.C.C. (3d) 129, 49 C.R. (5th) 209, 2002 SCC 29; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502]; R. v. D. (G.N.), 1993 14712 (ON CA), [1993] O.J. No. 722, 81 C.C.C. (3d) 65 (C.A.) [Leave to appeal to S.C.C. refused [1993] S.C.C.A. No. 257, 82 C.C.C. (3d) vi]; R. v. Dincer, [1983] 1 V.R. 450 (Vic. S. Ct.); R. v. Ferris, 1994 31 (SCC), [1994] 3 S.C.R. 756, [1994] S.C.J. No. 97, 174 N.R. 158, 34 C.R. (4th) 26, affg 1994 ABCA 20, [1994] A.J. No. 19, 27 C.R. (4th) 141 (C.A.); R. v. Flegel, 2005 13775 (ON CA), [2005] O.J. No. 1602, 197 O.A.C. 57, 196 C.C.C. (3d) 146 (C.A.);R. v. Gibson, 2001 BCCA 297, [2001] B.C.J. No. 924, 90 B.C.L.R. (3d) 247, 153 C.C.C. (3d) 465, 41 C.R. (5th) 213 (C.A.); R. v. Gilling (1997), 1997 837 (ON CA), 34 O.R. (3d) 392, [1997] O.J. No. 2774,117 C.C.C. (3d) 444 (C.A.); R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, [1994] S.C.J. No. 86, 20 O.R. (3d) 63n, 179 N.R. 1, 93 C.C.C. (3d) 99, 34 C.R. (4th) 22; R. v. Hill, 1986 58 (SCC), [1986] 1 S.C.R. 313, [1986] S.C.J. No. 25, 17 O.A.C. 33, 27 D.L.R. (4th) 187, 68 N.R. 161, 25 C.C.C. (3d) 322, 51 C.R. (3d) 97; R. v. Kent, 2005 BCCA 238, [2005] B.C.J. No. 911, 196 C.C.C. (3d) 528 (C.A.); R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 240]; R. v. Nahar, [2004] B.C.J. No. 278, 181 C.C.C. (3d) 449, 2004 BCCA 77, 23 B.C.L.R. (4th) 269, 20 C.R. (6th) 30 (C.A.); [page459] R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, [2001] S.C.J. No. 31, 199 D.L.R. (4th) 622, 268 N.R. 372, 154 C.C.C. (3d) 1, 41 C.R. (5th) 199; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 4 O.R. (3d) 383n, 48 O.A.C. 81, 83 D.L.R. (4th) 193, 128 N.R. 81, 6 C.R.R. (2d) 35, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Squire, 1976 26 (SCC), [1977] 2 S.C.R. 13, [1976] S.C.J. No. 50, 69 D.L.R. (3d) 312; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37, [1996] S.C.J. No. 2, 131 D.L.R. (4th) 675, 192 N.R. 1, [1996] 3 W.W.R. 1, 104 C.C.C. (3d) 1, 45 C.R. (4th) 1 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 229(a), 232 Authorities referred to Boyle, Christine, Dorothy Chun and Isabelle Grant, The Law of Homicide (Toronto: Carswell, 1994) Bronitt, Simon, and Bernadette McSherry, Principles of Criminal Law (Toronto: Carswell, 2001) Bryant, Alan W., Sidney N. Lederman & John Sopinka, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) Hill, S. Casey et al., McWilliams' Canadian Criminal Evidence, 4th ed. (Aurora, Ont.: Canada Law Book, 2003)
Richard J. Bosada and Diane Magas, for appellant. Riun Shandler, for respondent.
The judgment of the court was delivered by
DOHERTY J.A.:--
I Overview
[1] The appellant was charged with the first degree murder of his wife. At trial, he admitted that he had killed her and was guilty of manslaughter. He maintained, however, that he did not have the requisite intent for murder and, alternatively, that he had acted under provocation.
[2] The outcome at trial turned on the jury's resolution of three factual issues:
-- had the Crown proved beyond a reasonable doubt either of the intents required for murder as defined in s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46? [page460]
-- if the Crown had proved the requisite mental state, had the Crown proved beyond a reasonable doubt that the homicide was not provoked within the meaning of s. 232(1) of the Criminal Code?
-- if the Crown had proved the requisite intent for murder beyond a reasonable ground and negated the defence of provocation, had the Crown proved beyond a reasonable doubt that the murder was planned and deliberate?
[3] A "no" answer to either of the first two questions would lead to a manslaughter verdict. A "yes" answer to the first two questions, but a "no" answer to the third would lead to a conviction on second degree murder. "Yes" answers to all three questions would compel a conviction on the charge of first degree murder.
[4] The jury convicted the appellant of first degree murder.
[5] Counsel for the appellant argued two grounds of appeal. [See Note 1 below] Counsel submitted that the trial judge erred in excluding from evidence certain statements allegedly made by the deceased, which counsel contends demonstrated the victim's state of mind when she made the statements. He further argues that the deceased's state of mind was relevant to a fact in issue at trial. Counsel next argued that the trial judge misdirected the jury as to the application of the "ordinary person" component of the provocation defence by instructing the jury that the appellant's racial and cultural background were irrelevant to that component of the defence.
[6] I would dismiss the appeal. The trial judge erred in excluding the statements made by the deceased, but that error did not occasion any substantial wrong or miscarriage of justice. If there was any misdirection in the provocation instruction, it could not have affected the outcome of the trial.
II Overview of the Positions at Trial
[7] The appellant and the deceased Aysar Abbas ("Aysar") were married in 1979. They lived in Dubai in the United Arab Emirates. They regularly travelled to Canada with their children on vacations in the 1990s and in 1998 the entire family became Canadian citizens, although they continued to reside in Dubai.
[8] The Crown's position was that by the fall of 1999, the appellant's marriage had soured for various reasons, including his [page461] prior infidelity. The Crown contended that the appellant wanted out of the marriage in part because he no longer considered his wife, who was approaching middle age, sexually attractive. He also stood to gain financially by his wife's death. She controlled most of the family wealth as long as she was alive.
[9] The Crown argued that the appellant decided to kill his wife while he was in Dubai in early October 1999. The appellant knew that his wife would be in Ottawa in mid-October 1999 with a male business associate visiting her son. He decided to travel to Ottawa without telling anyone, kill Aysar in circumstances that would cast suspicion on her male business associate, and return to Dubai before the police could suspect him.
[10] The defence contended that the circumstances surrounding Aysar's death were entirely inconsistent with a planned and deliberate murder. It was the position of the defence that the appellant decided to travel to Ottawa in early October upon learning that his son, who had just started university in Ottawa, was using drugs. The appellant knew that his wife would be in Ottawa at the same time and arranged to meet her there so that they could discuss the problem with their son.
[11] The appellant arrived in Ottawa on October 9. He and Aysar were getting along well during his stay in Ottawa, although the appellant did become concerned that Aysar's conduct with her male associate seemed unduly friendly and familiar. According to the defence theory, on October 14, the day the appellant was to return to Dubai, he and Aysar left the hotel intending to run some errands. They got lost, stopped their vehicle and decided to go for a walk. During the walk, the appellant and Aysar discussed her relationship with her business associate. They both became angry. Aysar made a comment that the appellant took to mean that she had engaged in sexual relations with the business associate. The appellant blacked out immediately after Aysar made this comment. A witness saw the appellant chasing Aysar along the side of the road and a few seconds later he saw the appellant sitting astride Aysar's prone body, flailing at her with his arms. The appellant stabbed Aysar at least 19 times.
[12] On the defence theory, Aysar's comment, which the appellant took to be an admission of sexual infidelity, had one of two effects on the appellant. Either it amounted to a psychological blow throwing the appellant into a disassociative state in which he did not form the intent required for murder, or it caused him to lose control, fly into a rage and kill Aysar before he could regain his self-control. The defence positions were advanced through the appellant's testimony, the evidence of a psychiatrist, and the evidence of an expert in the Islamic religion and culture. [page462]
III The Evidence
[13] The appellant and Aysar were both engineers. She was much more successful than was the appellant. Aysar earned over $500,000 a year, while the appellant worked sporadically and was unemployed for at least a year prior to Aysar's death.
[14] The appellant had an affair with the family maid in 1996. Aysar found out about the affair and subsequently transferred funds from a joint bank account with the appellant to an account in her name only. Aysar controlled most of the family finances from that time forward. Aysar and the appellant separated for a time in February 1997 after she found out about the affair. The appellant testified that he made a pilgrimage to Mecca to atone for the affair. After he returned from Mecca, he and Aysar decided to give their marriage a second chance, and the appellant moved back into the family home in April 1997.
[15] In August 1999, less than two months before Aysar's death, the appellant and Aysar travelled to Ottawa with their oldest son, Saif, who was starting first-year at the University of Ottawa in September. The family stayed in Ottawa for about two weeks, after which Aysar returned to Dubai on business. The appellant stayed with Saif until September 10, when he too returned to Dubai.
[16] There was conflicting evidence describing the relationship between the appellant and Aysar as of September 1999. Witnesses from Aysar's side of the family described the relationship as deteriorating and tense. These witnesses testified that the two avoided each other, where possible, and often argued. The appellant's side of the family, however, indicated that the marital relationship was normal and that Aysar and the appellant were often together.
[17] Aysar left Dubai on a business trip to North America on October 3, 1999. She was accompanied by a friend and business associate named Hussein. Aysar planned to be in the United States on business until October 9, and then to travel to Ottawa to visit Saif. She was to return to Dubai from Canada on October 14. The appellant knew Aysar's travel plans when she left on the business trip.
[18] On October 5, two days after Aysar left on her business trip, the appellant bought a return airline ticket to Canada. He was scheduled to arrive in Canada on October 9 and return to Dubai on October 14. When Aysar left Dubai on October 3, she did not know that the appellant would be in Ottawa at the same time that she was there. The appellant testified that he made a decision to go to Ottawa on October 5, immediately after he received word that Saif was using marijuana. [page463]
[19] After the appellant had purchased his ticket to Canada, he told friends that he was going to Europe on a job interview. He maintained this ruse when he called his brother-in-law from Ottawa on October 9 and told him that the scheduled meeting in Europe had been cancelled and that he might go on to Ottawa to see his son. The appellant testified that he lied to his friends and relatives because he did not want them to know that his son was using drugs.
[20] The night before the appellant left for Ottawa, he attended a small party in Dubai. He was withdrawn and distracted. Seemingly out of the blue, he told one of the men at the party that he would like to slaughter a sheep at an upcoming feast. He inquired as to the fastest way to kill an animal so that it would suffer as little as possible. His friend showed him how to cut the vein on the side of the sheep's neck to minimize its suffering.
[21] The appellant acknowledged that he may have asked about slaughtering a sheep, although he could not remember the context. The upcoming feast was several months away and the appellant's family had always hired a butcher to prepare the sacrifice. The appellant said that he was considering doing it himself on this occasion.
[22] The appellant stabbed Aysar in the neck at least 19 times.
[23] The appellant testified that he spoke to his wife a few days before he left Dubai on October 9 and told her that he would see her in Ottawa. He did not tell her about his concern that their son was using drugs. The appellant arrived in Montréal on October 9 and took a bus to Ottawa. He went to the hotel where Aysar was staying and checked in.
[24] The appellant testified that while in Ottawa, he, Aysar and Hussein went out together to eat, shop and visit friends. He, Aysar and Saif looked for a new place for Saif to live while Saif was attending the University of Ottawa. The appellant and Aysar met with an accountant to discuss the purchase of some property in Ottawa.
[25] On the appellant's testimony, he and Aysar got along well between October 9 and October 14. The appellant testified, however, that he became concerned when he was out with Aysar and Hussein that Aysar treated Hussein more like her husband than she did the appellant. Aysar would do things while Hussein was present, such as trying on clothing, that the appellant believed Aysar should do only in private or in his presence.
[26] On the morning of October 14, the appellant drove Saif to school. He returned to the hotel and convinced Aysar to accompany him on errands he had to run that morning. They planned to meet Hussein later that afternoon at a shopping plaza and then visit their accountant and some friends. The appellant was [page464] driving a vehicle he had rented when he arrived in Ottawa on October 9. He was scheduled to return that vehicle that afternoon, leave Ottawa by bus at 4:30 p.m. and return to Dubai on a flight from Montréal that evening. Aysar and Hussein were scheduled to leave for Dubai a few hours later that same day.
[27] The appellant testified that Aysar decided to drive shortly after they left the hotel. They intended to go to the shopping plaza where they were to meet Hussein later that afternoon, but got lost. They eventually found themselves parked on a relatively isolated dead end road. The appellant testified that he had no idea where they were when they parked. This road was nowhere near the shopping plaza. It was, however, on a map marked with a piece of paper in a book of maps of the Ottawa area found in the appellant's hotel room.
[28] The appellant testified that he and Aysar sat and talked, mostly about their children. They decided to go for a walk and have a cigarette. As the appellant was about to get out of the car, Aysar reminded him that he had put a knife in the glove compartment of the rented vehicle. She told him that he should take the knife out of the glove compartment so that he would not forget it when he returned the vehicle that afternoon. The appellant testified that he had undergone extensive dental work and had a very sore mouth. He used the knife to cut fruit into small pieces so that he could eat it. The appellant testified that he removed the knife from the glove compartment and stuck it in his pocket just before he and Aysar walked away from the vehicle. The appellant used the knife, a steak knife with a 3-inch blade, to stab Aysar to death.
[29] The appellant described how he and Aysar walked from the car arm in arm. She asked him what was bothering him and a discussion ensued about her relationship with Hussein. Aysar chided the appellant for being jealous, but acknowledged that she admired Hussein. Aysar and the appellant both became angry as they discussed Aysar's relationship with Hussein. The appellant told Aysar that he would be concerned about her fidelity if he did not know that she was having her menstrual period. The appellant did not think that Aysar would have sex while she was having her period. Aysar smirked and said that "a little pill would make a whole big difference -- a little pill can make many things". The appellant understood this to be a reference to a birth control pill and that by taking a birth control pill, a woman could prevent the onset of her menstrual period. The appellant took Aysar's comment as an admission that she was having sexual relations with Hussein. The appellant testified that he blacked out immediately after Aysar made the "little pill" comment. He has no recollection of chasing Aysar along the road and repeatedly stabbing her. [page465]
[30] A man named Kirkpatrick happened to be driving along the road where the appellant and Aysar had parked the vehicle. He saw Aysar running along the side of the road looking over her shoulder at the appellant, who was chasing her. Mr. Kirkpatrick turned his vehicle around. He saw Aysar lying on the ground. The appellant was straddling her and flaying his arms in her direction. Mr. Kirkpatrick called 911 at 11:56 a.m. He watched the appellant get up, return to his vehicle and drive away, leaving Aysar on the ground. Mr. Kirkpatrick reported the licence number to the police. The police traced the vehicle and arrested the appellant when he turned up at the car rental agency about two hours later.
[31] The post-mortem examination revealed that Aysar had been stabbed 19 times on the right side of her neck. She had also been stabbed through the heart and suffered several defensive injuries to her hands.
[32] The police did not find a wallet, purse or any identification at the scene. They later found Aysar's personal papers in a zippered compartment inside a briefcase found in the appellant's hotel room. It was the Crown's theory that the appellant took Aysar's personal papers from the scene of the homicide, hoping that it would delay the identification of her body long enough for him to get out of Canada and return to Dubai.
[33] The appellant drove from the scene of the homicide to a prearranged meeting with his accountant. The accountant was expecting both the appellant and Aysar, and inquired as to her whereabouts. The appellant said that she had gone shopping and named a plaza where Aysar had gone. This was the plaza that the appellant and Aysar had arranged to meet Hussein at later that afternoon. The accountant testified that the appellant seemed normal. It was the theory of the Crown that by telling the accountant that his wife was at the plaza where they planned to meet Hussein, the appellant hoped to cast suspicion on Hussein when his wife's body was eventually found.
[34] After a short visit with the accountant, the appellant drove to the home of some family friends. This was also a prearranged meeting and his friends were expecting both the appellant and Aysar. When the friends asked where Aysar was, the appellant once again indicated she had gone shopping at the named plaza. The appellant visited with his friends for about 30 minutes, eating sweets and drinking coffee. According to his friends, the appellant acted normally.
[35] Before returning the rental car, the appellant drove back to the hotel and changed his clothes. A pair of jeans and a shirt, both stained with Aysar's blood, were found in the appellant's suitcase. [page466]
[36] The appellant arrived at the car rental outlet at about 2:00 p.m. The police were waiting for the appellant and arrested him. They examined the inside of the rented vehicle, but found only small traces of blood on the door handle and the floor mat. It was the Crown's contention that the absence of any significant amount of blood in the car indicated that the appellant had acted in a careful and deliberate way to avoid getting any blood in the car.
[37] The police searched the area where Aysar's body was found and discovered the knife in a ditch about half a kilometre from her body. The blade was markedly bent.
[38] The appellant testified in great detail about the events leading up to the stabbing of Aysar, but insisted that he had no recollection of the stabbing and very little recollection of the subsequent events. He testified that he could remember certain things after he read about them in the newspaper. He described these as "dream like" recollections.
[39] Dr. Bradford, a forensic psychiatrist, interviewed the appellant and reviewed the Crown's brief. When asked his opinion as to the appellant's state of mind when he stabbed Aysar, Dr. Bradford said:
Assuming that the emotional impact of her statement with regards to the pill was a very emotionally charged statement so that at a psychological and emotional level with him it had a very significant psychologically traumatic impact, making those assumptions, then Mr. Humaid describes a change in his feeling. He said he can't remember, he describes feeling differently. And that type of reaction based on a psychologically traumatic event and the effect on the person subsequently, which would happen almost immediately, would -- can induce, and from what he describes, is compatible with him having some type of disassociative reaction.
[40] Dr. Bradford testified that in his opinion, the appellant underwent a change of consciousness that persisted for some time and impaired his mental functioning so that the appellant had a "diminished criminal responsibility" when he stabbed his wife.
[41] In cross-examination, Dr. Bradford acknowledged that he had to rely on what the appellant told him in arriving at an assessment of the appellant's state of mind. His conclusion that the appellant could not remember the stabbing and had partial amnesia with respect to the subsequent events was based on the appellant telling him that he could not remember the stabbing or many of the subsequent events.
[42] The appellant adamantly denied that he placed the knife in the car as part of a plan to kill Aysar. He said that if he had planned to kill his wife, he would have used a much bigger knife. [page467]
IV The Exclusion of the Statements Made by Aysar on October 9, 1999
[43] It was part of the Crown's case that Aysar did not know that the appellant was coming to Ottawa on October 9. It was the appellant's position that he spoke to Aysar shortly after October 5 when he decided to travel to Ottawa to visit their son, and told her that he would be arriving in Ottawa on October 9.
[44] To support the position that Aysar knew the appellant would be coming to Ottawa on October 9, the defence proffered the evidence of Tammy Stevenson, the front desk clerk at the hotel where Aysar and the appellant stayed in October 1999. The trial judge heard her evidence on a voir dire at the commencement of the trial and ultimately held that her evidence as to statements made by Aysar was inadmissible. This ruling gives rise to the first ground of appeal.
[45] Ms. Stevenson testified that Aysar and Hussein checked in to the hotel at about 6:00 p.m. on October 9. Saif was with them. Ms. Stevenson had met Saif in August when he and the appellant had stayed at the hotel. They had become friends. Ms. Stevenson testified that she overheard Aysar tell Hussein that her husband would be arriving at the hotel later that night. Ms. Stevenson further testified that Aysar returned to the front desk a short time later and told Ms. Stevenson that the appellant would be arriving that evening and that it was a surprise for Saif. Aysar asked Ms. Stevenson to give the appellant a room key when he arrived. Ms. Stevenson testified that Aysar, Hussein and Saif left for dinner. The appellant arrived while the others were still at dinner. When Aysar returned to the hotel, Ms. Stevenson confirmed that the appellant had arrived while Aysar was at dinner.
[46] The defence contended that Aysar's statements to Ms. Stevenson constituted admissible hearsay evidence of Aysar's state of mind and specifically of Aysar's belief that her husband would be arriving in Ottawa on the evening of October 9. The defence contended that a jury could infer that she held that belief because the appellant, as he claimed, had spoken to her before the 9th and told her that he was coming to Ottawa. The defence submitted that evidence of Aysar's belief that the appellant would be arriving on the 9th was relevant because it was the Crown's theory that the appellant's unexpected arrival in Ottawa on October 9 was part of his plan to kill Aysar.
[47] The trial judge undertook the necessity and reliability inquiries dictated by the now well recognized principled approach to the admissibility of hearsay evidence: see [page468] R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449. Necessity was not an issue as Aysar was deceased.
[48] In assessing whether Aysar's statements were sufficiently reliable to warrant their admission into evidence, the trial judge focused on the credibility of Ms. Stevenson. He said [at para. 48]:
[I]t is my function as the trial judge acting as a gatekeeper in respect to the evidence which the trier may receive, that as a primary task, I consider the credibility of Tammy Stevenson. That is, I [must] be satisfied on a balance of probabilities at least that what she says she overheard or was told to her by Aysar is credible and accurate. Even though this is a defence application where a less stringent application of evidentiary rules is appropriate, I have such grave and serious reservations as to the testimony of Tammy Stevenson that I could not consider allowing it to be the basis for admitting the hearsay of Aysar as requested.
(Emphasis added)
[49] In excluding Ms. Stevenson's evidence of the statements made by Aysar, the trial judge described Ms. Stevenson's evidence [at para. 49] as "fraught with inconsistency and contradictions" and as "utterly untrustworthy". The cross- examination of Ms. Stevenson supported the trial judge's assessment, although it must be said that a more benign interpretation of some of the inconsistencies in her evidence could well have been taken.
[50] The trial judge erred in law in holding that the credibility of Ms. Stevenson was relevant to a determination of whether Aysar's statements were sufficiently reliable to justify their admission under the principled approach to the admissibility of hearsay evidence. Where, as here, the declarant of the out-of-court statement is not available for cross-examination at trial, the inquiry into the threshold reliability of the out-of-court statement looks for circumstantial guarantees of trustworthiness arising out of the circumstances in which the out-of-court statement was made. These circumstantial guarantees of trustworthiness must be sufficiently supportive of the reliability of the out-of-court statement to permit its admission despite the absence of an opportunity to cross-examine the declarant. If the threshold reliability hurdle is cleared, the ultimate reliability of the out-of-court statement is for the trier of fact: R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257, at p. 930 S.C.R., p. 268 C.C.C.; Starr, supra, at paras. 215-17; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), at paras. 22-26, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502.
[51] Ms. Stevenson's credibility and the reliability of her narration of Aysar's out-of-court statements were not circumstances surrounding the making of those statements. Nor was there any need to demand that Ms. Stevenson's reliability clear some [page469] threshold level as a precondition to the admissibility of her evidence as to Aysar's statements. Threshold reliability stands as a substitute for cross- examination of the declarant, not the narrator of the out- of-court statement. Ms. Stevenson would have testified at trial. Her credibility and reliability as they related to Aysar's statements could have been fully tested on cross- examination before the jury. No doubt, her credibility and reliability would have been important considerations in the jury's ultimate determination of whether Aysar made the statements testified to by Ms. Stevenson. Her credibility and reliability were not, however, part of the circumstances surrounding the making of the statements by Aysar such that her credibility or reliability could enhance or detract from the threshold reliability of Aysar's statements: McWilliams' Canadian Criminal Evidence, 4th ed. (Aurora, Ont.: Canada Law Book, 2003) at 7-64.
[52] Crown counsel relies on R. v. Meaney, 1996 6635 (NL CA), [1996] N.J. No. 261, 111 C.C.C. (3d) 55 (C.A.), at 80 C.C.C., leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 591, 112 C.C.C. (3d) vii, to support his contention that the credibility and reliability of the narrator of the out-of-court statement is relevant to the threshold reliability inquiry. O'Neil J.A., for the court, said at p. 80 C.C.C.:
This inquiry [the admissibility inquiry] involves having regard to all the circumstances surrounding the making of the statement. As well, there should be an inquiry into the reliability of the evidence of the witnesses who testified as to the making of the statement by the declarant, including the accuracy of the statements reported, and how it was heard, received and perceived by the person giving the evidence.
(Emphasis added)
[53] The above-quoted passage must be understood in the context of the facts of Meaney. The complainant, a severely developmentally delayed adult with a serious speech impediment, had allegedly made complaints of sexual assault first to her caregiver and then to others. Because of the complainant's handicaps, she could not make herself understood by anyone who did not know her well. O'Neil J.A. described the statements at p. 80 C.C.C.:
[T]he statements were, to a great extent, not directly heard or understood by the witnesses to have emanated from the complainant herself, but as understood and transmitted by another person [the caregiver].
[54] The witnesses who testified as to the statements made by the complainant in Meaney were doing much more than merely repeating what they claimed the declarant had said. Their interactions with the complainant and their interpretation of what the complainant said were an integral component of the circumstances surrounding the making of the statement. This was particularly true in [page470] respect of the caregiver who actively elicited and interpreted most of the complainant's statements after the caregiver had become concerned that the complainant had been sexually assaulted.
[55] The situation in Meaney is akin to those cases where a child has made an out-of-court statement that is offered as evidence of the truth of its contents. In such cases, the conduct of the questioner can affect the reliability of the child's statement and is relevant to the threshold reliability of the child's statement. Since the conduct of the questioner in eliciting the statement is relevant, the credibility and reliability of the questioner's evidence on the voir dire concerning that conduct is germane to the determination of the threshold reliability of the child's out-of-court statement: see R. v. D. (G.N.), 1993 14712 (ON CA), [1993] O.J. No. 722, 81 C.C.C. (3d) 65 (C.A.), at pp. 78-79 C.C.C., leave to appeal refused [1993] S.C.C.A. No. 257, 82 C.C.C. (3d) vi.
[56] Read in its factual context, I do not think that Meaney assists the Crown. I acknowledge, however, that there are passages in Meaney, supra, at pp. 82-83 C.C.C. that could be read as holding that the reliability and credibility of even a mere narrator of an out-of-court statement tendered for its truth will be relevant to the threshold reliability of such statements. If Meaney so holds I must, for the reasons set out above, respectfully disagree.
[57] There is one caveat to what I have said. A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence: R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19, 27 C.R. (4th) 141 (C.A.), at pp. 155-56, affd 1994 31 (SCC), [1994] 3 S.C.R. 756, [1994] S.C.J. No. 97; R. v. Starr, supra, at para. 188. There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator's evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion. If the evidence was tendered by the defence, the discretion could be exercised only where the potential prejudice substantially outweighed the potential probative value to the defence of the out-of-court statement: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 66 C.C.C. (3d) 321, at p. 610 S.C.R., p. 391 C.C.C.; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 87 C.C.C. (3d) 289, at p. 140 S.C.R., p. 297 C.C.C.; R. v. Starr, supra, at paras. 187-88. I need not pursue this analysis as the trial judge did not purport to exclude Ms. Stevenson's evidence as to Aysar's statements by the exercise of that residual discretion. [page471]
[58] The statements made by Aysar to Ms. Stevenson were admissible. First, I doubt whether the statements were hearsay in the traditional sense of that word. They were offered only to show Aysar's state of mind at the time she made the statements, that is, her belief that the appellant would be arriving at the hotel later that evening. Aysar's statements were not offered as evidence that the appellant in fact did arrive at the hotel that evening. His arrival on October 9 was proved by other evidence and in fact was never in dispute: see Alan W. Bryant, Sidney N. Lederman & John Sopinka, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at 257-59.
[59] Second, assuming as counsel did at trial, that the evidence was hearsay, and prima facie inadmissible, statements evincing the declarant's state of mind at the time the statements are made are a long-acknowledged exception to the rule excluding hearsay evidence: R. v. Starr, supra, at paras. 168-70; R. v. Smith, supra, at pp. 925-27 S.C.R., pp. 265-66 C.C.C. The "state of mind" exception permits the admission of hearsay evidence demonstrating the declarant's state of mind, except where those statements are made "under circumstances of suspicion": R. v. Starr, supra, at para. 168. There were no suspicious circumstances surrounding the statements allegedly made by Aysar to Ms. Stevenson. The statements were made in the course of a routine discussion between a hotel employee and a guest and concerned a day-to-day matter in respect of which Aysar had no reason to mislead the hotel employee. There is also no reason to think that the statements, if made by Aysar, did not accurately reflect her belief that the appellant would be arriving that night.
[60] Aysar's statements fell within the recognized "state of mind" exception to the rule excluding hearsay evidence. That exception as formulated in R. v. Starr, supra, is consistent with the requirements of necessity and reliability which underlie the principled approach to the admission of hearsay evidence. Consequently, the statements should have been admitted at trial.
[61] The Crown has satisfied me, however, that the exclusion of the statements made by Aysar could not possibly have had any effect on the verdict. The statements are evidence of Aysar's belief as of 6:00 p.m. on October 9 that her husband would be arriving that evening. It could be safely inferred from that belief that Aysar received the information of the appellant's pending arrival from him. Aysar's statements do not, however, support the appellant's contention that he told Aysar several days before October 9 that he would be travelling to Ottawa. To the contrary, Aysar's conversation with the hotel staff at around 6:00 p.m. on October 9 alerting them to her husband's pending arrival would suggest that the hotel had [page472] not received any prior notification of his arrival, and that Aysar only became aware of his arrival shortly before he arrived at the hotel.
[62] It was not part of the Crown's case that the appellant planned to surprise Aysar in Ottawa, kill her and leave Ottawa before anyone knew he was there. Rather, it was the Crown's case that the appellant intended to travel to Canada without anyone knowing he was going there and while Hussein and Aysar would be there together. He would then kill Aysar in circumstances that would both cast suspicion on Hussein and allow the appellant to flee Canada and return to Dubai before the police became suspicious of him. What was important to the Crown's case was that the appellant travelled to Canada without any forewarning to Aysar, not that he arrived at the hotel on October 9 secretly and unannounced. Evidence that Aysar knew as of 6:00 p.m. on October 9, a few hours before the appellant arrived at the hotel and probably after the appellant was in Canada, that the appellant would be arriving at the hotel that evening, was not inconsistent with the thrust of the Crown's case on the issue of planning and deliberation. Obviously, Aysar would know of the appellant's arrival shortly after he arrived at the hotel if she was not aware of it before then. I am satisfied that while Aysar's statements to Ms. Stevenson indicated a belief that the appellant would be arriving at the hotel on the evening of October 9, those statements could not reasonably have dented even slightly the Crown's case on the issue of planning and deliberation.
V The Provocation Instruction
(a) The nature of the provocation defence
[63] Provocation as described in s. 232 of the Criminal Code is a partial defence to the charge of murder. Provocation does not negate either the act or the fault component of the crime of murder, but becomes germane only where the Crown has proved all of the elements of murder beyond a reasonable doubt. Where the Crown has proved what would otherwise be murder, provocation as described in s. 232 will reduce murder to manslaughter. When there is an evidentiary basis for the provocation defence, the Crown must prove beyond a reasonable doubt that the accused was not provoked. The provocation defence fails if the Crown proves beyond a reasonable doubt that one or more of the constituent elements of the defence does not exist: see R. v. Campbell (1977), 1977 1191 (ON CA), 17 O.R. (2d) 673, [1977] O.J. No. 2452, 38 C.C.C. (2d) 6 (C.A.), at p. 682 O.R., p. 15 C.C.C.; [page473] R. v. Gilling (1997), 1997 837 (ON CA), 34 O.R. (3d) 392, [1997] O.J. No. 2774, 117 C.C.C. (3d) 444 (C.A.), at p. 400 O.R., p. 452 C.C.C.; R. v. Gibson, 2001 BCCA 297, [2001] B.C.J. No. 924, 153 C.C.C. (3d) 465 (C.A.), at pp. 487-90 C.C.C.; R. v. Kent, 2005 BCCA 238, [2005] B.C.J. No. 911, 196 C.C.C. (3d) 528 (C.A.), at p. 539 C.C.C.; R. v. Flegal, 2005 13775 (ON CA), [2005] O.J. No. 1602, 196 C.C.C. (3d) 146 (C.A.), at p. 151 C.C.C..
[64] The relevant portions of s. 232 provide:
232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2)A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purpose of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
[65] As explained in the caselaw (e.g., R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, [2001] S.C.J. No. 31, 154 C.C.C. (3d) 1, at p. 767 S.C.R., p. 6 C.C.C.), there are four components to the provocation defence:
-- a wrongful act or insult;
-- the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;
-- the wrongful act or insult must have caused the accused to lose self-control and act while out of control; and,
-- suddenness, the killing must be in response to a sudden act of provocation and the accused's actions must occur on the sudden before he or she has time to regain self-control.
[66] The second component set out above is often described as the objective requirement of the defence. The third and fourth components taken together constitute the subjective component of the defence.
(b) The provocation defence at trial
[67] In addition to the appellant's evidence describing the events culminating in Aysar's stabbing, the defence led the opinion evidence of Dr. Ayoub, an expert on the Islamic religion and culture. Dr. Ayoub testified that the Islamic culture was male-dominated and placed great significance on the concept of family honour. Infidelity, particularly infidelity by a female member of a family, was considered a very serious violation of the family's honour and worthy of harsh punishment by the male members of the family. In response to specific questions about the effect of a wife's infidelity in the Islamic culture, Dr. Ayoub said:
It is a great stigma, infidelity. I said earlier that it is a stigma to the man and to the family and it is something that can lead to a great deal of violence, [page474] particularly if the infidelity is the infidelity of a female member of the family. There have been cases of people I know who killed, for instance, their daughters because they felt they were committing infidelity, for instance. So it's very, very difficult, you know, in Islamic cultures; it does not tolerate the infidelity of the woman.
There's no equality here. I said earlier that although infidelity on the part of the man is also not condoned and supposedly not tolerated, the culture somehow tolerates it more than that of the woman.
(Emphasis added)
[68] Dr. Ayoub acknowledged that individual Muslims would have different views on these matters, depending on their personal experiences and background.
[69] In admitting Dr. Ayoub's evidence, the trial judge held that it was relevant to the subjective component of the provocation defence. He did not decide whether it had any relevance to the objective aspect of that defence.
[70] The appellant is a Muslim. He described his courtship and marriage as traditional. The appellant testified that after he made his pilgrimage to Mecca in February 1997, in part to atone for his illicit affair with the family maid, he became a more devout Muslim. The appellant did not give any evidence as to whether he shared the notions of female infidelity and family honour attributed by Dr. Ayoub to Muslims in general.
[71] The trial judge left provocation with the jury over the Crown's objection. He concluded that the appellant's evidence concerning the "little pill" comment allegedly made by Aysar (supra, para. 29) could provide evidence of an insult within the meaning of s. 232. He further held that the totality of the evidence gave an air of reality to the defence.
[72] The trial judge addressed each element of provocation in his jury instruction. He told the jury [at para. 72] that it must first determine whether Aysar's comment as described by the appellant amounted to an "insult":
In considering whether the alleged words or conduct meet this element, again, the whole of the circumstances must be considered, including all the characteristics of Mr. Humaid. You will realize that words or conduct which might not be insulting or hurtful to one person may be extremely so to another because of the person's age, their race, their ethnicity, their personal attributes, personal relationship or past history. The gravity of what was said or done and whether it meets the threshold of a wrongful act or insult to Mr. Humaid is what you must consider.
Thus, would the alleged conduct and words spoken in this case be construed as a wrongful act or insult by someone with Mr. Humaid's background and characteristics? It is for you to decide.
(Emphasis added) [page475]
[73] The trial judge then told the jury [at para. 73] to determine whether the insult was sufficient to deprive an ordinary person of the power of self-control:
To apply the ordinary person test sensibly and with some sensitivity, a comparable person must be taken to be of the same age, sex, and share with Adi Humaid other factors which would give the act or insult in question special significance. Therefore, you should also consider the relevant background circumstances, including the history of the relationship, prior insults, contacts and events of a similar nature between Mr. Humaid and his wife, Aysar Abbas.
Our law adopts the standard of an "ordinary person" to fix the level or degree of self-control and restraint expected of all in Canadian society. So on this element of provocation, you need to consider whether what is alleged here as provocation is beyond the tolerance of an ordinary person. In this exercise, certain background facts pertaining to Mr. Humaid as I have just mentioned may be necessary considerations. However, these considerations must not include peculiar, idiosyncratic traits arising from Mr. Humaid's Muslim faith or specific to his culture.
(Emphasis added)
[74] The trial judge next told the jury that the third component of the defence raised the question of whether Mr. Humaid was actually provoked by his wife's alleged insult. The trial judge said [at para. 74]:
You must determine whether or not Adi Humaid was in fact acting as a result of the provocation. Because this is a subjective approach, you may consider all of Adi Humaid's background, including any peculiar or idiosyncratic traits which you may find he possessed arising from his culture and/or Muslim faith. Here, again, you consider the totality of the circumstances.
(Emphasis added)
[75] The trial judge then turned to the fourth and final element of the defence which he described as the "suddenness of the provocation". He told the jury that it must determine whether the provocation was sudden and caused the appellant to act before there was time for his passion to cool. The trial judge told the jury that in considering this component of the defence, it should consider the appellant's culture and religious beliefs.
[76] During deliberations, the jury asked for further instructions on the "ordinary person" component of provocation. The trial judge told the jury that the "ordinary person" should be regarded as a person of the same age, sex and with the same marital background and relationship history as the appellant, but should not be taken as a person sharing the appellant's religion, culture or customs.
(c) The submissions on appeal
[77] Ms. Magas, in her helpful submissions, contended that the trial judge erred in telling the jury that the appellant's cultural [page476] background and religious beliefs could not be considered when determining whether the alleged insult was sufficient to deprive an ordinary person of self-control. She relies on the description of the "ordinary person" inquiry provided in R. v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37, [1996] S.C.J. No. 2, 104 C.C.C. (3d) 1, at para. 18:
[T]he "ordinary person" must be the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.
(Emphasis added)
[78] Ms. Magas submits that it was open to the jury to find that the appellant's cultural and religious background gave Aysar's alleged admission of infidelity "a special significance" to the appellant. She contends that if the jury so found, Thibert requires the jury to attribute to the ordinary person the features of the appellant's cultural and religious background that give the insult added significance. In her submission, the trial judge's instruction and recharge (supra, paras. 73, 76) prohibited that attribution.
[79] Crown counsel made three submissions in response. First, he contended that on the totality of the evidence, there was no air of reality to the provocation defence and it should not have been left with the jury. Second, the Crown argued that the jury's verdict of guilty on the charge of first degree murder renders any error in the provocation instruction irrelevant for the purposes of determining the outcome of this appeal. Finally, the Crown submitted that the instruction was correct.
(d) There was no air of reality to a provocation defence
[80] A trial judge can only leave the defence of provocation with a jury if there is evidence upon which a properly instructed jury acting reasonably could return a verdict of manslaughter based on that defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 162 C.C.C. (3d) 129, at pp. 46-47 S.C.R., pp. 169-70 C.C.C.; R. v. Squire, 1976 26 (SCC), [1977] 2 S.C.R. 13, [1976] S.C.J. No. 50. I have outlined the constituent elements of the defence of provocation (supra, para. 65). If a properly instructed jury acting reasonably could not, on this evidence, have a reasonable doubt as to whether the alleged insult was sufficient to deprive an ordinary person of self- control, the defence could not be left with the jury even if there was ample evidence that the appellant was in fact provoked by Aysar.
[81] The appellant testified that he took the "little pill" comment by Aysar as an admission of infidelity by her. Counsel for the appellant did not contend that an admission of infidelity in and of itself could ever amount to an insult capable of depriving [page477] an ordinary person of self- control. She submits, however, that the admission had to be placed in context and that the context could make the admission of infidelity an insult of sufficient gravity to pass the "ordinary person" inquiry. The evidence that the Muslim culture and religion regarded a wife's infidelity as a particularly serious blow to the honour of the family was relied on by counsel to give Aysar's admission of infidelity sufficient gravity to justify leaving the defence of provocation to the jury.
[82] Assuming that an accused's religious and cultural beliefs that are antithetical to fundamental Canadian values such as the equality of men and women can ever have a role to play at the "ordinary person" phase of the provocation inquiry, the expert evidence could not assist this appellant. There was no evidence that the appellant shared the religious and cultural beliefs attributed by Dr. Ayoub to Muslims in general. It is not enough to lead evidence that Muslims, or any other group, have certain religious or cultural beliefs that could affect the gravity of the provocative conduct in issue and that the accused is a member of that group. As Dr. Ayoub candidly acknowledged, the extent to which any individual Muslim holds the views he described and would act on those views would depend on a myriad of individual factors.
[83] I can find no evidence, either in the appellant's testimony or elsewhere in the record, from which the jury could conclude that the appellant shared the religious and cultural beliefs relating to infidelity described by Dr. Ayoub. Absent such evidence, reliance on the evidence of Dr. Ayoub in support of the provocation defence is an invitation to assign group characteristics to the appellant based on what can only be described as stereotyping. Individual free choice and individual responsibility for those choices are at the core of the Canadian notion of criminal responsibility. Verdicts that are the product of stereotyping are no less offensive because they benefit the accused.
[84] Whatever features are to be attributed to the "ordinary person", they surely must be features possessed by the accused. Absent any evidence that the appellant shared the views described by Dr. Ayoub, the doctor's evidence could not lend any air of reality to the provocation defence. Accordingly, on the totality of the evidence, even if Aysar's comment was understood by the appellant as an admission of infidelity, that admission could not amount to an insult capable of causing an "ordinary person" to lose self-control.
[85] I would add a second comment in respect of Dr. Ayoub's evidence. A provocation claim rests on the assertion that an accused in a state of extreme anger lost his ability to fully control his actions and acted while in that state. Provocation does not shield an accused who has not lost self-control, but has instead [page478] acted out of a sense of revenge or a culturally driven sense of the appropriate response to someone else's misconduct. An accused who acts out of a sense of retribution fuelled by a belief system that entitles a husband to punish his wife's perceived infidelity has not lost control, but has taken action that, according to his belief system, is a justified response to the situation: see R. v. Dincer, [1983] 1 V.R. 450 (Vic. S. Ct.), at p. 464.
[86] The thrust of Dr. Ayoub's evidence is not that Muslim men will lose control and act in a rage when confronted with their wives' infidelities, but rather that their religious and cultural beliefs dictate that wives who are unfaithful deserve to suffer significant consequences. If an accused relies on religious and cultural beliefs like those described by Dr. Ayoub to support a provocation defence, the trial judge must carefully instruct the jury as to the distinction between a homicide committed by one who has lost control and a homicide committed by one whose cultural and religious beliefs lead him to believe that homicide is an appropriate response to the perceived misconduct of the victim. Only the former engages the defence of provocation. The latter provides a motive for murder.
(e) The verdict excludes the possibility of a successful provocation defence
[87] Even if there was an air of reality to the provocation defence, any error in the provocation instructions could not have affected the verdict. In convicting the appellant of first degree murder, the jury must have been satisfied beyond a reasonable doubt that Aysar's murder was planned and deliberate. The jury instruction on planning and deliberation was accurate, balanced and thorough. No exception was, or could, be taken to that instruction. There was also ample evidence to support the jury's finding that the murder was planned and deliberate.
[88] An appellate court, when considering the effect on a verdict of any legal error, should consider any findings of fact clearly made by the jury as long as those findings were not tainted by the legal error: R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, [1994] S.C.J. No. 86, 93 C.C.C. (3d) 99, at p. 107 C.C.C.; R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259 (C.A.), at pp. 177-78 O.R., pp. 278-79 C.C.C., leave to appeal refused [2000] S.C.C.A. No. 240. The conviction on the first degree murder charge reflects a finding by the jury that the appellant planned and deliberated the murder. Implicit in that finding is the further finding that the appellant formed the intention to kill Aysar before they left the vehicle. This finding is entirely inconsistent with the appellant's claim that he [page479] acted on the sudden and in response to a provocative insult uttered by Aysar after they had left the vehicle.
[89] The appellant attempts to counter the contention that the first degree murder verdict renders any error in the provocation instruction of no consequence by pointing to the order in which the trial judge directed the jury to consider the various issues before them. The trial judge told the jury to consider the question of provocation before it reached the question of planning and deliberation. Counsel submits that had there been a proper provocation instruction, the jury may never have reached the issue of planning and deliberation.
[90] This submission misses the significance of the jury's verdict. As indicated above, it is implicit in the verdict that the jury was satisfied beyond a reasonable doubt that the appellant had decided to kill his wife before they left the vehicle. While it is true that the jury's verdict places that finding in the context of the determination that the murder was planned and deliberate, there is no reason to think that the jury would have made a different finding of fact had they considered the same factual question in the context of the defence of provocation. The jury was clearly satisfied beyond a reasonable doubt that the appellant did not kill on the sudden as a result of Aysar's allegedly provocative comment made as they walked along the road, but rather that he killed pursuant to a plan formulated and deliberated upon before the appellant and Aysar left the vehicle. The appellant cannot get out from under the unequivocal finding that he planned and deliberated the murder of Aysar before he left the vehicle. That finding leaves no room for a successful provocation defence even if this court accepted the appellant's submission that the appellant's religious and cultural background were relevant to the "ordinary person" inquiry.
(f) The "ordinary person" and religious and cultural characteristics
[91] As I would hold that there is, on this evidence, no air of reality to the provocation defence and that in any event, any error in the provocation instructions could not have affected the verdict, it is unnecessary to reach the merits of the claim that the appellant's religious and cultural beliefs should have been factored into the "ordinary person" test. I think it is better to leave this difficult issue to a case where the arguments have been fully developed at trial and on appeal and the resolution of the issue is necessary to the determination of the appeal. I will, however, highlight what I consider to be the nub of the problem raised by this argument. [page480]
[92] R. v. Hill, 1986 58 (SCC), [1986] 1 S.C.R. 313, [1986] S.C.J. No. 25, and Thibert, supra, establish that the "ordinary person" inquiry is a blend of subjective and objective considerations. In some situations, there can be no doubt that the accused's religious or cultural beliefs will be attributed to the "ordinary person" to properly apply the "ordinary person" test as described in the authorities. To borrow the language of Thibert, one's religious and cultural beliefs can give "a special significance" to the acts or insult said to have constituted the provocation. For example, where the alleged provocative insult demeans or otherwise targets the religious or cultural beliefs of an accused, it seems beyond question that those beliefs must be factored into the "ordinary person" test to determine whether the insults were capable of causing an "ordinary person" to lose self-control.
[93] In this case, however, the appellant's religious and cultural beliefs are not the target of the alleged insult. Rather, the appellant's religious and cultural beliefs are said to render the words spoken by Aysar highly insulting. The difficult problem, as I see it, is that the alleged beliefs which give the insult added gravity are premised on the notion that women are inferior to men and that violence against women is in some circumstances accepted, if not encouraged. These beliefs are antithetical to fundamental Canadian values, including gender equality. It is arguable that as a matter of criminal law policy, the "ordinary person" cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values. Criminal law may simply not accept that a belief system which is contrary to those fundamental values should somehow provide the basis for a partial defence to murder.
[94] The problem outlined above was not addressed in the only Canadian case to which the court was referred where beliefs similar to those of the appellant's were held to be relevant to the "ordinary person" inquiry: see R. v. Nahar, 2004 BCCA 77, [2004] B.C.J. No. 278, 181 C.C.C. (3d) 449 (C.A.). Some academic commentary suggests that religious and cultural beliefs like those relied on by the appellant cannot be part of the "ordinary person" inquiry: see Christine Boyle, Dorothy Chun and Isabelle Grant, The Law of Homicide (Toronto: Carswell, 1994) at pp. 6-17; Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Toronto: Carswell, 2001), at pp. 371-72. The resolution of this difficult issue awaits a case in which it must be resolved.
VI Conclusion
[95] I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: Several additional grounds of appeal were advanced in the appellant's factum. None have any merit and I will not address them in these reasons.