COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hassan, 2013 ONCA 238

DATE: 20130417

DOCKET: C53653

Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Respondent

and

Mustafa Hassan

Applicant (Appellant)

Theodore Sarantis, for the appellant

Tracy Kozlowski, for the respondent

Heard: April 11, 2013

On appeal from the convictions entered by a jury presided over by Justice Robert M. Thompson of the Superior Court of Justice, dated December 9, 2010.

ENDORSEMENT

[1] The appellant was convicted by a jury of aggravated assault and assault with a weapon. Both charges arose out of a fight between the appellant and Craig Wheildon. The appellant stabbed Mr. Wheildon several times. Mr. Wheildon was unarmed. The appellant claimed he acted in self-defence. He did not testify.

[2] The appellant appeals conviction only. There are five grounds of appeal.

ground #1 – did the trial judge err in failing to conduct an inquiry into the allegations of one of the jurors made after the verdicts?

[3] Counsel for the appellant did not press this ground of appeal.

[4] One of the jurors sent a letter to the trial judge after the verdicts were delivered claiming, among other things, that her fellow jurors had coerced her into returning a guilty verdict. The letter also made reference to comments made by court officers responsible for the jurors during their deliberations. The trial judge caused statements to be taken from those court officers. He, however, declined to enter upon any further inquiry.

[5] The trial judge could have conducted a hearing for the purpose of creating a record for appellate consideration. He was not, however, obliged to do so. The appellant has had a full opportunity to create the appropriate record for this court. This ground of appeal fails.

ground #2 – do the allegations made by the juror vitiate the verdicts?

[6] We have considered the notes from the juror delivered to the trial judge after the verdicts and the statements provided by the court officers. The vast majority of the allegations made by the juror could not be considered under the juror secrecy ratio in R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344. For example, the statement by the juror that others would not allow her to put questions to the trial judge during the jury’s deliberations is protected by juror secrecy and is not admissible on an inquiry into the jury’s verdict.

[7] To the extent that the notes suggest that the jury was subject to outside influence in the form of a comment made by a court officer to one of the jurors, the juror’s notes do refer to a potential outside influence that is beyond the pale of juror secrecy. That reference in the juror’s notes is the proper subject matter of appellate inquiry into the validity of the verdicts.

[8] The version of the comment provided by the court officer offers no support for any claim of improper influence. Considered in the context in which the officer made the comment, that comment, about the cost of the proceedings to the taxpayer, was not inappropriate or capable of influencing any juror. The officer’s comment was merely a statement of a fact that would be obvious to any juror and was offered to the juror as an explanation for the officer’s insistence on strict adherence to the protocols established for the jury while they were deliberating.

[9] In one of the juror’s notes to the judge, she said:

Once we returned to the jury room after dinner, it was reported that one of the CSOs said that this case was costing the County over $100,000, so we “better do this right”, which was interpreted to mean a guilty verdict.

[10] The source of the “report” is not identified in the juror’s note. Nor are those who “interpreted” the comment “to mean a guilty verdict” identified. The juror who wrote the note does not suggest that she heard the officer’s comment or that she was in any way influenced by what she was told. The juror’s unsourced, vague reference to something a court officer supposedly said to another juror is no reason to doubt the bona fides of the verdicts.

ground #3 – did the trial judge err in failing to put section 37 of the criminal code to the jury?

[11] The trial judge charged the jury on self-defence as defined in s. 34(1). He did not instruct the jury on s. 37 even though counsel for the appellant requested that instruction.

[12] The appellant says that an instruction on s. 37 was necessary because unlike s. 34(1), self-defence under s. 37 is available where the appellant provoked the initial assault or where the appellant intended to cause death or grievous bodily harm to Mr. Wheildon.

[13] The appellant’s submissions accurately set out the distinctions between self-defence as described in s. 34(1) and s. 37. Neither distinction assists the appellant. The trial judge effectively took provocation as a bar to self-defence under s. 34(1) away from the jury. He said:

I would suggest that there is no evidence that Mr. Hassan provoked Mr. Wheildon into assaulting him.

[14] There is no realistic possibility that this jury rejected self-defence under s. 34(1) because it was satisfied beyond a reasonable doubt that the appellant provoked the assault.

[15] Nor could the appellant have possibly succeeded on a self-defence claim if the jury found that he intended to kill or cause bodily harm to Mr. Wheildon. When the appellant stabbed Mr. Wheildon, he had no basis to reasonably apprehend death or grievous bodily harm at the hands of Mr. Wheildon. Absent that reasonable apprehension, a response in which the appellant intended to kill or cause grievous bodily harm to Mr. Wheildon could not possibly meet the proportionality requirement of s. 37(2). There is no air of reality to a self-defence claim premised on conduct of the appellant driven by an intention to kill or cause grievous bodily harm. The failure to instruct on s. 37 was not non-direction amounting to an error in law.

ground #4 – did the trial judge fail to relate the evidence to the defence of self-defence?

[16] The trial judge identified the criteria relevant to the claim of self-defence under s. 34(1). He explained each criterion in the context of the evidence heard by the jury. The trial judge also reviewed the positions of the parties and the evidence of the witnesses.

[17] Counsel had a draft of the trial judge’s charge before it was delivered and took no objection to the manner in which the trial judge proposed to deal with the evidence. Counsel made no objection to the charge after it was delivered.

[18] The instructions on self-defence were correct in law, clearly stated, particularly having regard to the subject matter, and fairly related the evidence and the positions of the parties to the self-defence claim. A trial judge is not required to repeat in detail every argument made by the Crown and the defence, or to martial the evidence in support of each argument as would counsel.

[19] The jury’s question did not request a more detailed review of the evidence. The trial judge responded to the question by repeating his earlier instructions. Counsel were content with that response. So are we. There was no error.

ground #5 – did the trial judge’s expression of opinion result in a miscarriage of justice?

[20] Counsel for the appellant did not press this ground of appeal. While the trial judge did comment negatively on the reliability of certain witnesses, he made it clear to the jury that it was free to disregard his opinions. The witnesses singled out by the trial judge did not assist the defence any more than they did the Crown. The trial judge’s comments did not impair the fairness of the trial.

[21] The appeal is dismissed.

[22] The trial judge’s publication ban on the juror’s notes and the court officers’ statements continues in force.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”