COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadiqi, 2013 ONCA 250

DATE: 20130422

DOCKET: C53524

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Hasibullah Sadiqi

Appellant

Apple Newton-Smith, for the appellant

Christine Tier, for the respondent

Heard and released orally: April 4, 2013

On appeal from the conviction entered by a jury presided over by Justice Rutherford of the Superior Court of Justice, dated May 28, 2009, and the sentence imposed on May 28, 2009.

By the Court:

I

[1] The appellant was convicted of two counts of first degree murder. He appealed from his convictions alleging that:

• the trial judge improperly admitted certain expert evidence; and
• the trial judge failed to give a “W.D.” instruction;

[2] The court dismissed the appeal after oral argument with reasons to follow.

II

[3] The appellant is the older brother of Khatera Sadiqi, one of the victims. Khatera was engaged to marry Feroz Mangal, the other victim. The appellant’s family and the Mangal family immigrated to Canada from Afghanistan.

[4] The defence conceded at trial that the appellant shot both victims. The defence also conceded that the appellant intended to kill both victims.

[5] The defence contended that the appellant was provoked by insulting comments made by Mr. Mangal at the end of an evening during which the appellant had attempted, unsuccessfully, to reconcile with his sister. According to the defence, Mr. Mangal’s insulting comments, which included references to the appellant’s father, caused the appellant to suddenly lose control, go to his car, retrieve a loaded handgun that happened to be in his car, return to the victims’ car, shoot his sister who was seated in the driver’s seat at close range in the head, and then shoot Mr. Mangal who was seated in the front passenger seat. In total, the appellant fired six shots. There was a time lapse of about 30 seconds between the fifth and sixth shot.

[6] The appellant acknowledged in his testimony that his relationship with his sister had been strained as a result of her refusal to allow their father to be involved in her upcoming wedding and Khatera’s insistence that she would make her own decisions about who she married and where she lived. On the night of the homicides, the appellant had arranged to have dinner with his sister and Mr. Mangal. He hoped to put their relationship on better terms. Things went well during the evening until the appellant spoke to Khatera about their father. They began to argue and Mr. Mangal told the appellant to “let it be”. Things became tense and the appellant decided to leave. As he walked away from the vehicle in which his sister and Mr. Mangal were seated, Mr. Mangal said:

Fuck you, fuck your father, fuck your sister. I’ll bring your sister’s dead body to the wedding before I ever let her talk to your father. Fuck you.

[7] According to the appellant, he “exploded”. He professed to have no recollection of the subsequent events until he found himself driving away from the scene of the double homicide.

[8] The Crown maintained that the murder was not provoked, but was planned and deliberate. The Crown contended that Khatera and her father had been estranged for years. Khatera’s mother had fled the marriage and divorced Khatera’s father. Khatera had completely disassociated herself from her father who she alleged was abusive. She wanted nothing to do with him. Khatera had become engaged to Mr. Mangal and was living with his family. She had taken these steps without consulting her father. Khatera did not want her father involved in the wedding.

[9] According to the Crown’s theory, the appellant strongly believed that Khatera’s conduct disrespected their father and brought shame to their family. On the Crown’s theory, the appellant decided to vindicate the family honour by killing his sister. Statements made by the appellant prior to the shooting, his actions towards his sister before the shooting, the events immediately surrounding the shooting, and certain post-shooting conduct by the appellant gave credence to the Crown’s theory.

III

the admissibility of the expert’s evidence

[10] At trial, the Crown tendered the evidence of Dr. Mojab, an acknowledged expert in the phenomenon of honour killings within the traditional cultures of the Middle East, including Afghanistan. The Crown sought to elicit Dr. Mojab’s opinion as to the relationship between culture, religion, patriarchy and violence against women in the Middle East and diasporas around the world, specifically as those issues relate to honour killings.

[11] On the voir dire to determine admissibility, the defence did not challenge Dr. Mojab’s expertise, did not suggest that her description of honour killings was inaccurate in any way, and did not suggest that evidence like that proffered by the Crown would not be helpful to the jury. In fact, the defence readily acknowledged that evidence of the “Afghan culture” and the “cultural perspective of the parties” were relevant to both the issue of provocation and the issue of planning and deliberation. The defence told the trial judge that it would be calling expert evidence to “give the context of the Islamic culture”.

[12] The defence resisted the admissibility of Dr. Mojab’s evidence on the basis that her background as a strong advocate for women’s rights made her incapable of providing the kind of objective description of the relevant cultural context that could assist the jury. The defence argued that Dr. Mojab’s advocacy, combined with the inherently prejudicial use of the phrase “honour killings”, could turn the focus of the trial away from whether the Crown had proved the appellant’s culpability, to domestic abuse in general and, in particular, domestic abuse fostered by cultural beliefs that are antithetical to the beliefs underlying Canadian culture.

[13] In rejecting the defence argument based on Dr. Mojab’s bias, the trial judge said, at para. 45:

I don’t see that Dr. Mojab’s objectives in educating people, including judges, lawyers and police officers about an odious cultural phenomenon affecting women inhumanely and in an effort to bring about change to improve the rights of women preclude her from being an acceptable expert witness in a case like this one. No attack has been made on the correctness or integrity of her description of the phenomenon of honour killing.

[14] The trial judge next considered whether the potential prejudicial effect of Dr. Mojab’s evidence outweighed its probative potential. He observed that Dr. Mojab did not know any of the parties and would not testify in any way about any of the facts of the case. Dr. Mojab would not offer any opinion as to whether the homicides were honour killings. Nor would she offer any opinion based on any hypothetical fact situation. Dr. Mojab’s evidence would provide context that could assist the jury in deciding what inferences to draw as to the appellant’s state of mind from the facts that the jury found the Crown had established.

[15] After noting that the doctor’s evidence would be straightforward and easy to understand, the trial judge concluded his assessment of the potential probative value of the expert evidence with this observation:

I am supported in my conclusion by the defence assertion that evidence of Afghan culture and of the cultural perspective of the parties is relevant and that a defence expert on the subject will be presented as well. I see no significant prejudice that would flow from Dr. Mojab’s testimony and there is no rule of evidence to hold against its admission.

[16] We see no error in the trial judge’s analysis. The necessity for and relevance of the proffered expert evidence, although challenged on appeal, are obvious given that provocation and planning and deliberation were in issue at the trial. Both the theory of the Crown and the position of the defence made the evidence relevant. The defence at trial conceded the need for and relevance of the expert evidence. Indeed, the defence told the trial judge that it intended to call similar expert evidence. The defence objection at trial targeted the witness the Crown wanted to call and not the nature of the evidence the Crown intended to elicit. Indeed, at one point in the submissions, defence counsel went so far as to suggest that it would have no objection if the Crown elicited its evidence through the expert the defence proposed to call.

[17] We agree with the trial judge’s finding that Dr. Mojab was an appropriate witness. A review of the evidence she actually gave fully supports the trial judge’s ruling. Dr. Mojab made it clear that she had no knowledge of this specific case and that her evidence about cultural phenomena could not be assumed to be applicable to any particular individual within the culture. As she put it:

The immigrant and refugee or any of the ethnic groups within Canada are as diverse as the entire Canadian society, and that is very important that we do not homogenize the community and actually appreciate the diversity within all these communities.

[18] The balanced nature of Dr. Mojab’s evidence is perhaps best indicated by the defence decision not to call its expert. Presumably, the defence got the necessary cultural context evidence it needed from Dr. Mojab.

[19] The trial judge’s balancing of the probative value versus the potential prejudicial effect of the evidence is entitled to deference in this court. We see no error in principle in his analysis of the relevant considerations; nor was his ultimate assessment unreasonable. Like the trial judge, we think it important in assessing the potential prejudicial effect that the expert offered no opinion on the facts of the case. There was no danger that the jury would cede its fact finding responsibilities to the expert.

[20] Lastly, we note that the trial judge’s instructions, both when the expert evidence was admitted and at the end of the trial, carefully and accurately described the use the jury could make of Dr. Mojab’s evidence. The jury would no doubt have understood that the expert evidence was simply part of the evidentiary mosaic against which to consider the actions of the appellant as the jury ultimately found those actions to be.

IV

the failure to give an explicit w.d. instruciton

[21] After hearing extensive submissions from counsel, the trial judge decided not to give the usual W.D. instruction. The trial judge was motivated both by the defence acknowledgement of liability for manslaughter, and the nature of the provocation defence. Given the objective component of the provocation defence, the jury could have accepted the appellant’s evidence and still have been satisfied beyond a reasonable doubt that provocation was unavailable. The traditional W.D. formulation did not work in respect of provocation.

[22] The instructions given by the trial judge did, however, make it crystal clear that the burden to prove each and every element of the offence and to negate provocation never shifted from the Crown. Nor, in light of the instructions, would the jury have approached the case by choosing between alternative versions of events. The trial judge repeatedly told the jury that the onus rested on the Crown to prove its case beyond a reasonable doubt. Having regard to the issues raised at trial, the nature of the evidence, and the entirety of the reasonable doubt instruction, the failure to give a specific W.D. instruction was not an error.

[23] Counsel for the appellant submitted that the failure to give a W.D. instruction was particularly significant because the case was presented to the jury as one in which the jury had to make a choice between the expert’s testimony and the appellant’s description of his state of mind. We do not read the charge to the jury as setting up a “credibility contest” between the appellant’s testimony and the expert’s evidence. The Crown’s case rested on a strong web of circumstantial evidence. The Crown argued that the appellant had evinced an intention to kill his sister long before he did so. The Crown argued that when the appellant in fact killed his sister, it was fair to infer that he had done what he had said sometime earlier he was going to do. This straightforward and powerful logic had nothing to do with Dr. Mojab’s evidence and made for a strong case of planning and deliberation.

V

[24] For the reasons set out above, the appeal is dismissed.

RELEASED: Apr 22, 2013 “Doherty J.A.”

“DD” “Paul Rouleau J.A.”

“Gloria Epstein J.A.”