Court of Appeal for Ontario

CITATION: R. v. Kassim, 2015 ONCA 863

DATE: 20151209

DOCKET: C55615

MacPherson, MacFarland and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amin Mohamed Kassim

Appellant

Counsel:

Amin Mohamed Kassim, appearing in person

Ian R. Smith and Amy J. Ohler, amici curiae

John Neander, for the respondent

Heard: December 2, 2015

On appeal from the conviction entered on April 25, 2011 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of first degree murder in the shooting death of his wife and the attempted murder of a taxi driver shortly after the appellant left the residence where he had killed his wife by shooting her four times in the head. The appellant appeals these convictions.

[2] The appellant made brief oral submissions at the appeal hearing in Kingston on December 3, 2015. None of his submissions advanced his appeal.

[3] Amici (Ian Smith and Amy Ohler) studied the appeal materials in a comprehensive fashion and considered four potential grounds of appeal. At the hearing, amici informed the court that they did not think that two of the potential issues could be successfully advanced. Thus, amici presented two issues for the court’s consideration.

[4] First, amici submits that the trial judge erred in ruling that three witnesses the appellant proposed to call had no relevant evidence to give, which resulted in an impermissible interference with the conduct of the appellant’s defence.

[5] We do not accept this submission. The appellant repeatedly refused to tell the trial judge why he wanted to call these witnesses even though the trial judge, with remarkable tolerance and in clear language, explained his gatekeeper role in ensuring that only relevant evidence was introduced at the trial. Accordingly, there was nothing to suggest that the proposed witnesses Mahid Ali, the deceased’s brother, and Hamza Kalifah, the husband of a friend of the deceased, were even remotely relevant to any potential defence the appellant might advance.

[6] With respect to the third potential defence witness, Salihi Sami, another of the deceased’s friends, the trial judge, with the appellant’s consent, reviewed the notes of Ms. Sami’s police interview and her video-recorded statement. The trial judge decided that the appellant could not call Ms. Sami (who lived in British Columbia) as a witness. He described her potential testimony as “worse than anything else that’s already gone in, in terms of potential prejudice for the defence.” Trial amicus, Richard Litkowski, agreed with the trial judge: “I fully respect Mr. Kassim’s right to his autonomy and his right to conduct his own defence but you’re right in some respect, he doesn’t have the right to slit his own wrists proverbially.”

[7] Before leaving this issue, we want to observe that the appellant was a very difficult, bordering on impossible, person to deal with throughout his trial. In our view, the trial judge and trial amicus treated the appellant with genuine concern and respect and strove diligently, within the bounds of their respective roles, to assist the appellant who chose to represent himself.

[8] Second, amici contend that the trial judge failed to adequately charge the jury on a potentially exculpatory conversation with a family friend the night of the shooting. The appellant, knowing the police might be listening, said:

I hit her with my hand too much. If I leave her like that I thought she’s going to put me in trouble then I dropped her into the living room, then I was mistaken and pulled the trigger. Shot her once and continue shooting. [Emphasis added.]

[9] Amici submit that the trial judge did not point out sufficiently to the jury that the emphasized portion of this passage had a potentially exculpatory meaning.

[10] We disagree. In his jury charge, the trial judge set out the contents of the appellant’s telephone statement and said: “On the one hand, that could suggest that at least the first shot was an accident.” Later, he also said:

You must also take account of the fact that in his telephone conversation with Ms. Mahdi, the transcript reveals that Mr. Kassim told her that the first shot “was mistaken”. It you are left with a reasonable doubt whether the first shot was accidental, you must ask yourselves whether in firing the second, third and fourth shots, Mr. Kassim intended to kill Ms. Ali.”

[11] In our view, this instruction properly drew the jury’s attention to the potentially exculpatory component of the appellant’s statement and properly pointed out the inquiry that would follow.

[12] Amici also submit that the trial judge should have charged the jury that if they thought that the first shot was accidental and killed the deceased, then they could not convict for first degree murder because the medical evidence could not determine which of the four bullets to her head killed her.

[13] This is an artificial, far-fetched argument in light of the appellant’s statement to his friend shortly after the shooting: “shot her once and continue shooting.”

[14] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”

“L.B. Roberts J.A.”