COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamade, 2015 ONCA 802

DATE: 20151120

DOCKET: C56253

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Hamade

Appellant

Catriona Verner, for the appellant

John Patton, for the respondent

Heard: November 18, 2015

On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, on March 6, 2012, and the sentence imposed on June 25, 2012.

Pardu J.A.:

[1] The appellant was convicted of second degree murder of his neighbour. He appeals from conviction and from the 15 year period of parole ineligibility imposed by the trial judge.

[2] Turning first to the conviction appeal, he submits that the trial judge made two errors:

1. The trial judge erred in failing to caution against reasoning by propensity, in failing to give a limiting instruction with respect to demeanour evidence, and in inviting the jury to rely upon the appellant’s callousness to find he was the type of person to have committed this offence; and

2. The trial judge further erred in refusing to give a “no probative value” instruction on some of the post offence conduct.

[3] The only substantial issue at trial was the identity of the killer. The victim, 81 years old, was murdered in her own apartment on January 6, 2009. She was struck 90 times in the head, neck, back and chest with a blunt object, scissors and a knife. She bled to death.

[4] The accused testified that on the morning of January 6, he knocked on the victim’s door. She told him that she was going to take a bath and he told her he would come back later. He testified that he knocked on the victim’s door again and had a brief conversation with a woman who told him that the victim was busy. He testified that he heard a man say “Be quiet. Be quiet.”

[5] According to the accused’s testimony, he went back to his apartment. On his way out of the apartment to catch a bus, he found a key and a credit card on the floor. He noticed that the victim’s door was propped open with a newspaper. After knocking and hearing no response, he walked in and found the victim dead. He checked her pulse, and then washed his hands in the sink. He started to call 9-1-1 but stopped out of fear. He left the apartment and tried to lock it with the key he found, but it did not lock the door. He went to drop off the key and the credit card to the superintendent, but he was not there. The credit card and keys belonged to the victim. Later that day, he used the credit card to buy groceries.

[6] He continued to use the credit card over the next few days and spent approximately $1,400. The appellant returned to her apartment before her body was discovered to retrieve milk he had stored in the refrigerator. On January 8, the victim’s son discovered her body in the office in her apartment. The appellant gave a statement to the police. He lied about being in the victim’s apartment after she died and did not tell the police about the man and woman he heard. The police examined the appellant’s jacket on consent. It had the victim’s blood on it, as well as white marks that were similar to white marks found in the victim’s apartment, later determined to be a type of cleaner. His pants were later tested as well, which had some of the victim’s blood on the knee. The appellant’s fingerprint was also found on the outside of the victim’s office door, in the victim’s blood.

A. The relationship between the appellant and the victim

[7] I turn first to the evidence of the relationship between the victim and the appellant. The Crown introduced evidence suggesting that the appellant was a nuisance to the victim and to other neighbours in the building. In contrast, the appellant testified that he was like a son to the victim. The victim’s family and other neighbours testified that the appellant was a pest. The victim told him not to come knocking at her door. She covered the peephole in the door to her apartment so that the appellant could not look through it. She told him he could no longer bring his children into her apartment. Several months before the homicide, the victim scolded the appellant for taking her newspaper. She said she feared he was going to ask her for money and told her son she would refuse if asked. The victim’s granddaughter stayed with her for a time and observed the appellant’s incessant knocking at her grandmother’s door.

[8] The appellant argues that this was prejudicial bad character evidence.

[9] We agree with the application judge’s[^1] observation that:

It is inconceivable to me that a reasonable jury could convict a man of murder on the basis that he had been a pest and/or the possibility that he might have been inclined to ask the victim to lend him some money. The prejudice, if any, from evidence that the deceased thought the accused to be a pest is, at the highest, minimal.

It seems fair to say that pestering an elderly lady to the point that she feels the need to take the steps Mrs. Lyons apparently took is not something that will be apt to endear the accused to the jury. Having said that, on a continuum of evidence of prior discreditable conduct, in my opinion, the discreditable nature of the evidence proffered in this case is almost de minimus.

[10] The application judge ultimately concluded that the probative value of the evidence outweighed any prejudice, concluding that without the admission of the evidence, the trier would be deprived of potentially significant information as to the deceased’s state of mind.

[11] Trial counsel relied on this evidence to suggest that it demonstrated that the appellant had no propensity for violence:

So we can understand how [the appellant] can be seen as a pest and a nuisance, aggravating and annoying from time to time, but nothing more than that. Nothing worse than that. No one felt threatened or intimidated by [the appellant]. And that includes Marion Lyons. So said her son, Randy Lyons; and her granddaughter, Kristie.

So there seems to be, on the evidence we have, no evidence, nothing in [the appellant’s] character or behaviour, or his demeanour as we have witnessed it personally, that would indicate a penchant for violence.[^2] [Emphasis added]

[12] The trial judge instructed the jury as to the use it could make of this evidence:

…members of the jury, you might wonder what use can you make of these particular comments about [the appellant], if you find them to be accurately reported or reliable. If you choose, you may use them to support other evidence that [the appellant] had some financial difficulties. You may also use them to shed some additional light on the nature of the relationship between [the appellant] and Ms. Lyons, and the reason she placed tissue in her peephole. But there’s one thing you must be careful about. Ms. Lyons is reported to have said that she thought [the appellant] was going to ask her for money. You cannot use this particular evidence to reach the conclusion that he actually did ask her for money when she returned from having visited her sister in London. Ms. Lyons obviously could not have actually known in advance that [the appellant] was going to ask her for money when she returned from London.[^3] [Emphasis added]

[13] Given the nature of this evidence, it was not necessary to caution the jury that they should not infer from the appellant’s behaviour before the killing that he had a propensity to commit murder.

[14] An accused’s communications with and actions towards a deceased person can be relevant to identity, animus, motive and intention. Even if this evidence tends to portray the accused in a negative way, no limiting caution is necessary about propensity reasoning: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373.

B. Conduct after the killing

[15] The appellant acknowledged when he testified that he:

1. failed to contact the police to tell them the victim was dead;

2. discarded his blood stained shirt;

3. used the victim’s credit card for several days; and

4. returned to her apartment to retrieve milk he had stored in her refrigerator.

[16] The appellant submits that this evidence was prejudicial because it tended to show that he was a callous, strange man, and because this was equivocal demeanour evidence. The appellant submits that this evidence had little to no probative value and that the trial judge ought to have warned the jury about the dangers of this kind of evidence.

[17] The accused’s actions after the killing went well beyond equivocal demeanour evidence, or odd statements made in stressful circumstances. Identity of the killer was the only real issue at trial. The accused’s use of the victim’s credit card in the days shortly after her killing was highly probative of the identity of the killer. The disposal of the blood stained shirt suggests an intention to destroy evidence.

[18] The trial judge carefully instructed the jury about the use they could make of the appellant’s conduct after the killing:

Evidence about what a person said or did after an offence was committed may help you decide whether it was that person who committed it. It may help, or it may not. I will refer to this kind of evidence as post-offence conduct.

Sometimes, according to human experience and logic, a person’s post-offence conduct is consistent with the conduct of a person who committed the offence and inconsistent with conduct of someone who did not do it. Sometimes, it’s not. And sometimes there’s another explanation for post-offence conduct, something unconnected with participation in the offence charged.

…you must be careful not to immediately conclude that he said or did them because he killed Ms. Lyons. Before coming to a conclusion about the reason or reasons for what [the appellant] said or did, you must consider other possible explanations. Of particular importance are [the appellant’s] own explanations for his conduct. [Emphasis added]

[19] The trial judge reviewed some of the inculpatory inferences they could draw from the appellant’s conduct:

1. First, there is the fact that [the appellant], who said that he considered Ms. Lyons to be like a mother to him, and who, he said, considered him to be a second son, did not call the police and tell them that Ms. Lyons was dead when he said he discovered her dead body in her apartment, or at any other time over the next few days before her body was discovered by her son. You may consider this to be consistent with the actions of a person who killed Ms. Lyons, and wished to avoid detection.

2. There is [the appellant’s] evidence that he discarded the shirt that he was wearing when he discovered Ms. Lyons’ body, and which he knew had Ms. Lyons’ blood on it, into a remote garbage bin. You may consider this to be consistent with the actions of a person who killed Ms. Lyons, and wishes to avoid detection.

3. Next, there is [the appellant’s] use of Ms. Lyons’ Mastercard after her death on January 6 and 7, 2009. You may consider this to be consistent with the actions of a man who had no compunctions about having killed Ms. Lyons, and was therefore willing to exploit her death for his own ends.

4. Next, there is [the appellant’s] evidence that he returned to Ms. Lyons’ apartment after he knew she was dead to get his milk out of the refrigerator. You may consider this to be a callous disregard for the death of Ms. Lyons, consistent with the actions of the man who killed her.

5. Next, there is [the appellant’s] untruthful statement to the police that he had not been in Ms. Lyons’ apartment for a year. Once again, you may consider this to be consistent with the actions of a person who killed Ms. Lyons, and wishes to avoid detection.

[20] The trial judge reviewed the appellant’s own explanations for his conduct:

1. First, regarding [the appellant’s] failure to call the police and report Ms. Lyons’ death, you may think that this might be the action of an innocent person who didn’t want to get involved in an investigation out of fear of becoming a suspect, particularly because he was a Muslim who might be seen as a terrorist, or out of fear -- out of fear of the real killers, who [the appellant] said knew his identity, or, as he testified, because in a hurry to go shopping when he first started to dial 911.

2. Second, regarding [the appellant] discarding the shirt with Ms. Lyons’ blood on it, you may think that this might be the action of an innocent person who didn’t want to get involved in the investigation out of fear of becoming a suspect, particularly because he was a Muslim who might be seen as a terrorist, or out of fear of the real killers who knew his identity, or, as he testified, because he couldn’t risk bringing the shirt to the mosque because blood might drip on the floor.

3. Third, with regard to [the appellant’s] using Ms. Lyons’ Mastercard the day she was killed and the next day, you may think this might be the action of a person addicted to shopping who had nothing to do with the killing, but was willing to take advantage of it, or you might consider, as [the appellant] testified, that these might be the actions of a man who thought, well, Ms. Lyons is dead so she won’t have to pay for my shopping.

4. Fourth, with regard to [the appellant’s] evidence that he returned to Ms. Lyons’ apartment after he knew she was dead to get his milk out of the refrigerator, you may think that this might be the action of an innocent man who had an unusual indifference to her death.

5. And fifth, with regard to [the appellant’s] untruthful statement to the police that he had not been in Ms. Lyons’ apartment for a year, you may think that this might be the action of an innocent person who didn’t want to get involved in the investigation, again, out of fear of becoming a suspect, particularly because he was a Muslim who might be seen as a terrorist, or out of fear of the real killers who, he said, knew his identity, or, as he suggested, to avoid being suspected of using Ms. Lyons’ credit card.

[21] Finally, the trial judge instructed the jury:

Remember, members of the jury, you must exercise caution in inferring guilt from post-offence conduct, because the conduct might be explained in an alternative manner. [The appellant’s] post-offence conduct can only be used by you to support an inference of guilt if you reject any other innocent explanation for the conduct. [Emphasis added.]

[22] In these circumstances, where the identity of the killer was in issue, the trial judge was not required to tell the jury that, because of the repugnant nature of his conduct after the killing, they could not infer that the accused committed the murder. As a matter of logic and human experience, a person in a mother and son relationship with a deceased might not leave her body for days without saying anything to anyone. A jury could legitimately conclude that the accused’s use of the victim’s credit card after the killing established that he had been in her apartment at the time of the killing (in addition to the fingerprint he left there in the victim’s blood) and in combination with all of the evidence established that he was the killer.

C. Failure to give a no probative value instruction

[23] The appellant also argues that the accused’s conduct after the killing was equally consistent with guilt of theft of the credit card, and that the trial judge ought to have instructed the jury that the evidence of his conduct after the killing had no probative value.

[24] This was not at all a case like R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, where the accused’s flight was equally consistent with punching or stabbing the victim.

[25] As indicated in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 22-24, there is no general requirement for a special warning about the use of post-offence conduct:

The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance…[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis. Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed by the same principles as for all other circumstantial evidence. Thus, while the term “consciousness of guilt” may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged — provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated.

That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carries with it a substantial risk of jury error. Jurors may be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” without giving proper consideration to alternate explanations for the conduct in question.

In most cases, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of jury should be left to draw whatever inferences they choose from the evidence at the end of the day. [Emphasis added, citations omitted.]

[26] As a general rule, it is for the jury to decide, on the basis of the evidence as a whole, whether the evidence of an accused’s post-offence conduct is related to the commission of the offence charged rather than to something else, and if so, how much, if any weight should be accorded to the evidence in the final determination of guilt or innocence: Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at pp. 340-341.

[27] Here the trial judge carefully reviewed competing inferences which could be drawn from the post-killing conduct to ensure that the jury did not leap immediately to guilt from the appellant’s admitted conduct. No more was required in this case.

D. Sentence appeal

[28] The trial judge concluded that a 15 year period of parole ineligibility was appropriate in this case. In coming to this conclusion, the trial judge noted the following:

• The appellant had brutally murdered the victim, an 81 year old woman. They had a close relationship that deteriorated over time. The appellant asked her for money, she refused, and he killed her in a rage.

• The appellant covered up the murder, took her credit card, and went on a shopping spree.

• The victim’s family has suffered and will continue to suffer a profound sense of loss.

• The appellant, at the time of sentencing, was 44 years old with three children and had no criminal record. He appeared ‘simple minded’ on the stand and was financially irresponsible.

[29] At trial, the Crown argued that parole ineligibility should be 18 years. The defence argued that 12 years was appropriate in this case. The trial judge noted that it is difficult to identify a range for parole ineligibility for sub-categories of second degree murder, and to find guidance from cases when there are a myriad of different factors in any one case.

[30] Ultimately, the trial judge concluded this case involved a serious murder and called for a sentence that emphasized denunciation, deterrence and the protection of the community. The trial judge concluded that character of the offender was a neutral consideration. There was nothing praiseworthy about him, but he had no violent or criminal history. Given the nature and circumstances of the offence, its brutality and callousness and that it involved an abuse of trust, as well as the character of the offender, the trial judge sentenced the appellant to life in prison with a minimum period of parole ineligibility of 15 years.

[31] The appellant does not suggest that the trial judge failed to consider any relevant factors, but that he should have weighed them differently. He does assert that the trial judge erred by saying: “it is hard to find guidance from cases where there are a myriad of different factors in any one case.”

[32] I do not accept this submission. The trial judge received and considered case law from both parties. He was aware of the ranges proposed by both parties, including a range of 12-15 years proposed by the defence. Against that backdrop, his comments that “there are a myriad of different factors in any one case” is a truism.

[33] In summary the trial judge’s sentencing decision is owed deference and I see no basis to interfere.

[34] The conviction and sentence appeal are dismissed.

Released: (J.M.) November 20, 2015

“G. Pardu J.A.”

“I agree J.C. MacPherson J.A.”

“I agree M. Tulloch J.A.”

[^1]: The first trial, presided over by Clark J., ended in a hung jury and a mistrial. Justice Clark’s pretrial rulings continued in force in the second trial before Dambrot J. [^2]: This was repeated by the trial judge in his charge when he related the defence position. [^3]: In addition, the trial judge mentioned the relevance of this body of evidence to the relationship and the financial difficulties in relation to his charge on identification - which he indicated was “the central question”.