COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esrabian, 2013 ONCA 761

DATE: 20131218

DOCKET: C49134

Doherty, Blair and Watt JJ.A.

Her Majesty the Queen

Respondent

and

Shant Esrabian

Appellant

Howard C. Krongold, for the appellant

Susan Ficek and Avene Derwa, for the respondent

Heard: November 22, 2013

On appeal from the conviction on a charge of first degree murder returned by a jury presided over by Justice Albert J. Roy of the Superior Court of Justice on June 21, 2008.

By the Court:

I

[1] The appellant appeals his conviction on a charge of first degree murder. Counsel asserts errors in the charge to the jury and in two evidentiary rulings made by the trial judge.

[2] The appellant had a bilingual trial. However, he requested an appeal before an English-speaking panel.

II

[3] The deceased (Hussein El-Hajj Hassan) was lured to a remote dead end road west of Ottawa on the evening of August 20, 2004 where he was shot twice and killed. He was buried in a shallow grave dug about 60 metres from where he was shot. His right arm was severed at the forearm and his skull was fractured in at least two places. Those injuries were inflicted around the time of death. His body was found about a year later.

[4] The Crown alleged that Hassan, a cocaine dealer in Ottawa, was murdered because he planned to circumvent his cocaine supplier, Fadi Saleh, and deal directly with Saleh’s supplier. When Saleh found out about Hassan’s plan, he became very angry and decided to kill him. Saleh enlisted the help of his enforcer, Mark Yegin, and the appellant, his friend and fellow drug trafficker.

[5] The Crown maintained that the three men agreed to kill Hassan and that pursuant to that agreement, Yegin, who was Hassan’s friend, took him to a remote area under the pretense of introducing him to a powerful local drug dealer. Instead, the appellant and Saleh arrived at the scene. Hassan was shot twice and killed. There was conflicting evidence as to who fired the fatal shots. On the Crown’s theory, it did not matter.

[6] The case for the Crown rested in part on various statements made by Yegin that were admitted for their truth after Yegin refused to testify at the appellant’s trial. These statements included several recorded interviews with the police and Yegin’s testimony at the appellant’s preliminary inquiry and Saleh’s preliminary inquiry.

[7] Yegin told various stories in his statements. He began by denying any involvement in the murder, but later conceded he was present at the murder scene and took the police to Hassan’s body. Yegin also gave different accounts of the actual shooting. In one account, Saleh shot Hassan much to the surprise of both the appellant and Yegin. In Yegin’s final version of the shooting, the appellant shot the deceased twice and Saleh fired a third shot into the deceased.

[8] Yegin was a thoroughly disreputable person. The trial judge gave a strong Vetrovec warning with respect to reliance on the statements made by Yegin.

[9] The Crown also relied on circumstantial evidence to implicate the appellant in the murder. That evidence was reasonably capable of supporting the following inferences:

• There was a close, ongoing personal and business relationship between the appellant and Saleh. The business relationship involved trafficking in narcotics.

• Saleh and the appellant had a mutual financial interest in preventing Hassan from circumventing Saleh by dealing directly with Saleh’s supplier of the cocaine.

• The appellant and Saleh both directly benefitted financially from Hassan’s death.

• Saleh and the appellant were together at or near the scene of the murder on the afternoon of the murder.

• The grave where Hassan’s body was buried was partially dug prior to the murder.

• Saleh, the appellant, and Yegin were present when Hassan was murdered and all three were involved in burying Hassan.

• Beginning with the burial and stretching over several months, the appellant was involved in a series of activities designed to conceal the commission of the murder.

[10] Much of the circumstantial evidence, especially as it related to the appellant’s involvement in the extensive efforts to conceal the murder, was unchallenged, although the appellant offered an innocent explanation for his actions.

[11] We need not review the circumstantial evidence in detail. Suffice it to say, and, of course, subject to the jury’s assessment of the appellant’s testimony, the circumstantial evidence made out a formidable case against the appellant.

[12] The appellant testified. He acknowledged that he was a drug dealer, trafficking in both cocaine and marijuana. He and Saleh were friends. The appellant often accompanied Saleh on his drug deliveries and cash collections. He knew Saleh to be both a drug trafficker and a loan shark.

[13] The appellant testified that on the evening of the murder he drove with Saleh to an anticipated meeting with Hassan. The appellant knew Saleh was angry about Hassan’s attempts to deal directly with Saleh’s supplier. The appellant anticipated that Hassan would be told in no uncertain terms that he could deal only with Saleh. The appellant also anticipated that if Hassan balked at Saleh’s demands, Saleh and his enforcer, Yegin, could resort to violence. The appellant thought that they might slap or kick Hassan. He did not expect that anyone would be shot. The appellant indicated that he was not surprised that the meeting with Hassan occurred in a remote isolated area, or that Yegin would drive Hassan to the meeting in a separate car.

[14] According to the appellant, when he and Saleh arrived at the meeting place, he saw Yegin order Hassan out of the car. Yegin and Hassan spoke briefly. While the appellant and Saleh were still in their car, Yegin hit Hassan with his gun and shot him twice. The appellant heard a third shot seconds after he and Saleh had exited their car.

[15] The appellant testified that he panicked when Yegin shot Hassan. Saleh told him to relax. Yegin dragged the body into the nearby woods. Saleh and the appellant retrieved the shovel and pick axe from the trunk of the car they had driven to the murder scene. Yegin and the appellant dug a grave. They placed the body in the grave, covered it with soil, and left the murder scene. The three men returned to Saleh’s home, showered, changed, and disposed of their soiled clothes. They also moved Hassan’s car, abandoning it in downtown Ottawa. The trio then visited a casino and finished the evening by watching a movie together at Saleh’s home.

[16] The appellant explained that, while he wanted nothing to do with Saleh after the murder, he was worried that Saleh would become suspicious if he immediately cut off all contact with Saleh. He admitted that he received $30,000 from Saleh within a few days of the murder. There was evidence that the $30,000 came from funds Hassan had given to Saleh’s drug supplier.

[17] The appellant also admitted that he did other things to conceal the murder, such as sending a message on Hassan’s BlackBerry after the murder to make it appear as though Hassan was still alive. The appellant insisted that he did these things because he feared for his life and for his family’s well-being if he did not cooperate with Saleh and Yegin.

[18] As with many of the witnesses in this case, there were significant problems with the appellant’s credibility. He admitted he had lied under oath at his bail hearing, and he refused to identify an individual who, according to the appellant’s testimony, could confirm or refute an important part of the appellant’s testimony explaining the appellant’s presence at or near the murder scene on the afternoon of the murder.

III

the grounds of appeal

(A) The Charge to the Jury

[19] Counsel for the appellant argued that the trial judge:

1. failed to instruct the jury that the Crown had to prove not only that the murder was planned and deliberate, but also that the appellant knew he was aiding and abetting a planned and deliberate murder when he provided assistance or encouragement to Saleh and/or Yegin;

2. failed to relate the elements of first degree murder to liability as an aider and abetter, but instead limited his instructions to potential liability as the perpetrator of a first degree murder;

3. failed to outline for the jury the factual findings it would have to make to find the appellant guilty as a participant in a first degree murder;

4. misdirected the jury on the mens rea for murder required in s. 229(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46; and

5. misdirected the jury as to the appellant’s potential liability for manslaughter under s. 21(2) by instructing the jury that manslaughter was available only if the jury was not satisfied that Saleh and Yegin had committed a planned and deliberated murder.

[20] Before examining each complaint, we note that most of the arguments raised on appeal were also raised by way of objections to the charge at trial. The charge to the jury would have been better had the jury been recharged in accordance with several of counsel’s objections. The question on appeal, however, is not whether a better charge could have been given, but whether the charge given reveals reversible error.

[21] The first three arguments outlined above allege errors in the instruction on first degree murder. They can be conveniently considered together.

[22] Jury instructions must, of course, be considered as a whole and in the context of the trial. That context includes the evidence adduced and the positions advanced by the Crown and defence.

[23] The trial judge correctly instructed the jury on the concepts of aiding and abetting in reference to the charge of first degree murder. For example, in reference to aiding, he said:

An aider may help another person commit an offence by doing something, or failing to do something. It is not enough that the aider does or fails to do [something] that has the effect of helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. It is not enough that a person was simply there when the crime was committed by someone else. …

On the other hand, if a person knows that someone intends to commit an offence, and goes to, or is present at the place where the offence is committed, to help the other person commit the offence, that person is an aider of the other of other offences and equally guilty of it.

Aiding relates to a specific offence, an aider must intend that the offence be committed, or know that the person intends to commit it, intends to help that person accomplish his goal. It does not matter, as far as the aider is concerned, whether the person whom he aids are [sic] not on trial or cannot be convicted of the offence. [Emphasis added.]

[24] Prior to this instruction, the trial judge had read the indictment to the jury and reminded them that the offence in question was the offence of first degree murder. The Crown relied only on the planning and deliberation definition of first degree murder. The jury would have understood that the instruction on aiding and abetting as it related to knowledge of the offence and the intention to commit the offence referred to a planned and deliberate murder.

[25] The trial judge’s instructions on the essential elements of the crime of first degree murder are problematic in that they presume that the Crown’s case is based on the claim that the appellant was the shooter when in fact the Crown’s case was that the appellant, Yegin, and Saleh had agreed to kill the deceased and that his murder was committed in furtherance of that plan. The Crown’s case turned not on the contention that the appellant was the shooter, but on the contention that he participated in the planned execution of Hassan.

[26] For example, the trial judge, in instructing the jury on the elements of first degree murder, referred to causation and the commission of an unlawful act as two of the elements of the offence. That instruction is no doubt essential in most cases of first degree murder where the Crown alleges that the accused perpetrated the murder. In this case, however, there was no doubt that whoever shot the deceased caused his death and no doubt that the shooting amounted to an unlawful act. The real question was whether the shooting was in furtherance of an agreement to kill the deceased and, if so, whether the appellant had been privy to that agreement.

[27] We are satisfied, however, despite the misplaced focus of the instruction on the essential elements of first degree murder, that the trial judge adequately conveyed to the jury the essential questions that it had to determine in rendering a verdict.

[28] Early in his instructions on the elements of first degree murder, the trial judge told the jury:

The Crown’s theory, based on all of the evidence, is that it doesn’t matter who shot Mr. Hassan, this was a planned initiative on the part of three people, friends and business associates who decided together to murder the victim Mr. Hassan. [Emphasis added.]

[29] The trial judge then reviewed some of the evidence relevant to whether the three men had planned and deliberated the murder. While the trial judge mischaracterized this as a causation issue, the instruction did convey the essential factual question to be determined: was the murder the result of “a planned initiative on the part of the three people”?

[30] The trial judge effectively made the same point in discussing the element of planning and deliberation:

Now, again, what [the] Crown is relying on are the provisions of section 21, the party section, that this was a planned and deliberate murder that was orchestrated and organized by three friends and business associates. That’s what the Crown’s position is on this. That they worked, they planned this together. [Emphasis added.]

[31] The trial judge referred to some of the evidence that could assist the jury in determining whether the “three friends and business associates” had planned the murder together.

[32] The trial judge also made it clear to the jury in outlining the positions of the defence and the Crown that the Crown’s case on first degree murder rested on the contention that the appellant and his two friends had “executed this planned and deliberate murder together.”

[33] Finally, in outlining the position of the defence, the trial judge referred to the appellant’s evidence that, while he was aware of a plan to confront and perhaps assault the deceased, he was unaware of any plan to kill him. The trial judge told the members of the jury that if they believed or had a reasonable doubt about the appellant’s evidence, they must acquit the appellant.

[34] Considering the instructions as a whole in the context of the evidence placed before this jury, we are satisfied that the jury would not have convicted the appellant of first degree murder on these instructions unless the jury was satisfied beyond a reasonable doubt that the appellant, with Saleh and Yegin, planned and then executed the murder of the deceased. Any deficiencies in the charge did not undermine that essential and determinative finding.

[35] The fourth alleged misdirection arises out of the trial judge’s instructions on the elements of murder as defined in s. 229(a)(ii) of the Criminal Code. The trial judge told the jury:

Crown counsel must prove that Mr. Esrabian either meant to kill Mr. Hassan, or meant to cause Mr. Hassan bodily harm that Mr. Esrabian knew was likely to kill Mr. Hassan, or was reckless whether Mr. Hassan died or not. [Emphasis added.]

[36] The trial judge misstated the requirements of s. 229(a)(ii). The word “and” should have been used instead of the word “or”. Murder under s. 229(a)(ii) requires that the accused intend to cause bodily harm that he or she knows is likely to cause death and the accused must be reckless whether death ensues or not.

[37] This error, unnoticed at trial, could not have had any effect on the jury’s verdict. The Crown argued that this was an execution. The defence did not take issue with that assertion, but instead argued that the appellant did not know of the planned execution. The jury’s determination that the appellant was guilty of first degree murder indicates that the jury was satisfied that the appellant, Saleh, and Yegin had agreed to kill the deceased and had followed through with that plan. On that view, only the definition of murder in s. 229(a)(i), which requires that an accused “mean to cause death”, could have possibly been engaged. The minimally wider definition of the mens rea of murder in s. 229(a)(ii), misstated by the trial judge, could not have played any role in the jury’s verdict.

[38] The final alleged error in the jury instruction arises out of the trial judge’s instruction on the appellant’s potential liability for manslaughter pursuant to s. 21(2) of the Criminal Code. Often where an accused is convicted of the full offence charged in an indictment, an error that relates only to potential liability for a lesser and included offence will be rendered harmless by the conviction on the full offence. Counsel for the appellant submits, however, that the trial judge’s instruction effectively took manslaughter away from the jury and left the jury to choose between a conviction on first degree murder and the unpalatable alternative of an outright acquittal. Counsel submits that given the appellant’s admitted involvement in the events surrounding and following the murder, the jury would have been reluctant to acquit him. On this argument, the absence of a proper instruction on potential liability for the lesser offence could have driven the jury to convict on the full charge, rendering the misdirection on manslaughter far from harmless despite the conviction on the main charge.

[39] The initial instruction on the appellant’s potential liability for manslaughter under s. 21(2) was confusing and, in at least one respect, overly favourable to the appellant. The recharge cleared up some, but not all, of the confusion arising out of the initial charge. We are satisfied, however, that the confusion could not have prejudiced the appellant.

[40] As we read the s. 21(2) instruction on manslaughter, that instruction was premised on the appellant’s participation in an agreement to do some form of harm to Hassan short of killing him. The appellant’s potential liability for manslaughter under s. 21(2) depended on the jury accepting the appellant’s contention that he was party to a plan involving some form of assault, but not murder. The jury’s verdict demonstrates that it was satisfied beyond a reasonable doubt that the appellant participated in the planned execution of Hassan. The jury, therefore, was never called upon to consider the appellant’s liability for manslaughter as a participant in some agreement short of the agreement to execute Hassan.

(B) The Evidentiary Rulings

(i) Saleh’s statements

[41] In one or more of the out-of-court statements made by Yegin and admitted at the appellant’s trial under the principled exception to the hearsay rule, Yegin stated that some two or three months after the murder, Saleh told him that he wanted to move the deceased’s body because he did not trust the appellant. Saleh also asked Yegin to kill the appellant. It was unclear exactly when these statements were made and whether they were made in two different conversations or in the same conversation.

[42] The jury was aware of these alleged statements in that they were in the transcripts of Yegin’s statements read to and given to the jury. The defence, however, asked that the trial judge instruct the jury that the statements were evidence of Saleh’s state of mind toward the appellant and that Saleh’s mistrust of and animosity toward the appellant were evidence that the appellant had not been a party to the plan to murder Hassan.

[43] The statements, attributed to Saleh by Yegin some months after the murder, could not have assisted the jury in determining the nature of the appellant’s participation in the murder of the deceased. To the extent that Saleh’s statements were offered as evidence from which his state of mind could be inferred, Saleh’s state of mind months after the homicide had no logical connection to the nature of the appellant’s participation in that homicide. Evidence that, some months after the murder, Saleh had come to intensely dislike and distrust the appellant could not logically give rise to any inference about the nature of the appellant’s involvement or non-involvement in the planning and murder of Hassan.

[44] To the extent that the appellant offers the statements as implied assertions by Saleh that the appellant was not a participant in the plan to murder Hassan, those statements are now classified as hearsay and were admissible only if the necessity and reliability criteria were met: see R. v. Baldree, 2013 SCC 35, 298 C.C.C. (3d) 425, at paras. 44-54. Neither criterion is met.

[45] The defence did not attempt to call Saleh or offer any explanation for an inability to call Saleh. Necessity is not demonstrated.

[46] Nor is the evidence sufficiently reliable as an implied assertion that the appellant was not involved in the plan to execute the deceased to justify its admission into evidence. Reading an implied assertion into Saleh’s comments to the effect that the appellant was not involved in the killing is no more tenable a reading of those statements than one implying that the appellant was involved, but could no longer be trusted. The nature of the statements simply does not allow any reliable conclusion as to the implied assertion, if any, contained in the statements. Any determination as to what, if anything, Saleh implied about the appellant’s involvement in the murder in his statements to Yegin would be entirely unreliable absent any opportunity to question Saleh under oath.

[47] The trial judge correctly declined to admit Saleh’s statements, as reported by Yegin, as evidence going to the question of whether the appellant participated in the plan to murder Hassan. On appeal, counsel suggested other possible uses of those statements – for example, to challenge Yegin’s credibility on certain points. We do not understand the trial judge to have precluded that kind of use of Saleh’s statements at trial.

(ii) The wiretaps

[48] Over defence counsel’s objection, Crown counsel was allowed to introduce some intercepted conversations involving the appellant. In those conversations, the appellant threatened individuals who owed him money, or spoke of threatening others who had in some way disrespected him or failed to pay money owed to him. Some of the language used in the conversations is jarringly crude. The conversations occurred a few months after the murder.

[49] The trial judge did not err in admitting the intercepted conversations. At trial, the Crown argued that Yegin, Saleh, and the appellant were all involved in the drug trafficking business and that they executed Hassan because he was attempting to avoid his direct financial responsibilities to Saleh, his drug supplier. On the Crown’s theory, Hassan was not only interfering with Saleh’s operation, but was also indirectly compromising the appellant’s financial interest in the drugs purchased from Saleh by Hassan. Evidence of the way the appellant responded to those he perceived as cheating him or failing to meet obligations owed to him in the course of his criminal activities was relevant to the case as advanced by the Crown.

[50] Evidence of the way the appellant reacted when he did not receive money due to him in the course of his criminal activities became more significant when the appellant testified. He admitted that he was a drug trafficker and that the meeting which culminated in Hassan’s murder was precipitated by Saleh’s anger over Hassan’s attempt to cut Saleh out of the chain of supply. The appellant insisted, however, that he did not anticipate the kind of violence used by his associates and fellow drug traffickers, Saleh and Yegin. Evidence from the intercepted conversations could assist the jury in assessing the credibility of the appellant’s assertion that he thought that Hassan would suffer nothing more than a slap or a kick.

[51] We also agree with Crown counsel’s submission that, having regard to the kind of the evidence necessitated by both the nature of the Crown’s case and the nature of the appellant’s defence, there was little danger that the conduct revealed by the intercepted communications would prejudice the appellant in the sense that it would cause the jury to convict the appellant because of his bad character. It was crystal clear from all of the evidence, including the defence, that the appellant operated in and was part of the violent world of drug trafficking. Indeed, the violence associated with the drug trafficking world was central to the appellant’s explanation of his apparent cooperation with Yegin and Saleh in the months after the murder. On his evidence, he feared for his life and the lives of his family members if he did not cooperate with Saleh and Yegin.

[52] The trial judge made it clear to the jury that it could not use the contents of the wiretaps to infer that, because the appellant was a person of bad character, he was guilty of the offences charged. Nor did the intercepted communications reveal conduct by the appellant that was significantly different or worse than the conduct acknowledged by the appellant in his evidence. Setting aside the crude language used in the conversations, the tenor of those communications was consistent with the appellant’s own evidence about the nature of the drug business.

[53] Ultimately, the intercepted communications were but a small part of the evidence heard by the jury. Even if those conversations could not significantly advance the Crown’s case, their admission could not have prejudiced the appellant in any meaningful way.

(C) Conclusion

[54] The appeal is dismissed.

RELEASED: “DD” “DEC 18 2013”

“Doherty J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”