Court of Appeal for Ontario

Date: January 19, 2018

Docket: C55728, C56431, C56570, C63611

Judges: Feldman, Fairburn and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent/Appellant by way of cross-appeal

and

Mohammad Al-Kazragy, Payam Khastou and Arash Arashvand Appellants/Respondent by way of cross-appeal

Counsel

Erika Chozik, for the appellant Payam Khastou

Naomi Lutes, for the appellant Mohammad Al-Kazragy

Richard Posner and Lance Beechener, for the appellant Arash Arashvand

Elise Nakelsky and Peter Scrutton, for the respondent Crown

Heard: December 11-13, 2017

On appeal from: the convictions entered by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a jury, on June 13, 2012.

CRIMINAL – First and Second Degree Murder Conviction Appeals

• Verdicts neither inconsistent nor unreasonable
• Trial judge did not err in post-offence conduct instructions
• Trial judge did not err in circumstantial evidence instructions
• Trial judge did not err in review of evidence in charge
• Trial judge did not err in admitting expert evidence

By the Court

OVERVIEW

[1] Mr. Al-Kazragy and Mr. Khastou appeal from their convictions for first degree murder. Mr. Arashvand appeals from his conviction for second degree murder. The appellants seek to have their convictions set aside and a new trial ordered. The Crown appeals against Arashvand's acquittal on first degree murder. The Crown submits that the trial judge erred by failing to leave constructive first degree murder through unlawful confinement for the jury's consideration. The Crown only pursues this appeal, however, if Arashvand's appeal from his second degree murder conviction succeeds.

[2] The appellants raise a variety of grounds of appeal, most of which are directed at alleged errors in the trial judge's charge to the jury. For the reasons that follow, we dismiss the appeals. In light of this conclusion, we do not reach the Crown's cross-appeal.

FACTUAL CONTEXT

[3] The Crown led evidence that the appellants were close friends. Prior to the murder, each of the appellants expressed a dislike for the deceased. While their expressions of dislike varied in degree, Arashvand and Khastou's statements included threats to kill. It appears that the appellants thought that the deceased had engaged in inappropriate behaviour with certain young women who were the appellants' friends. These young women denied any such inappropriate behaviour by the deceased.

[4] During the early evening of November 6, 2008, the deceased was last seen alive in north Toronto. A few hours later, his body was found burning in a ditch on a deserted road near Barrie. He had been stabbed over 20 times. Two of the stab wounds penetrated his heart and three pierced his lung.

[5] A few hours after the deceased's burning body was found, the appellants showed up, unannounced, at a friend's home in the Toronto area in the middle of the night. Among other things, the friend testified about seeing blood on Al-Kazragy's clothes, a knife, and Khastou's car being cleaned. A few hours later, the appellants proceeded to an auto repair shop, where they were caught on video conducting a thorough cleaning of Khastou's vehicle. This included burning items taken from the car. A few days later, the appellants fled to Vancouver. Over a week later, Khastou and Al-Kazragy were apprehended in Calgary. Arashvand returned to Toronto and eventually turned himself in to the police.

[6] Given the amount and location of blood in Khastou's vehicle, the Crown theorized that the deceased was stabbed multiple times in the front passenger seat of the car and his body was then placed into the trunk and transported to the deserted road where it was set on fire. Tire tracks found at the deserted road were consistent with Khastou's vehicle. The cell towers used by Arashvand and Khastou's cell phones show a pattern consistent with a route north from Toronto toward the Barrie area where the deceased's body was found.

[7] The Crown led evidence that Khastou purchased duct tape and a gas can only hours before the murder. Around the same time that Khastou made these purchases, Arashvand purchased a SIM card, apparently for his girlfriend, at a store less than 100 metres away. A short time later, Khastou and Al-Kazragy were caught on video at an Esso station where Khastou purchased ethanol gasoline.

[8] The appellants were jointly tried for first degree murder. The jury trial took about six months to complete. The live issue at trial was the identity of the perpetrator or perpetrators of the murder. Each of the appellants alleged, in essence, that they did not participate in the murder but that the other two appellants likely did. Although they did not testify, each of the appellants claimed, through their counsel's closing addresses, that they only assisted the others in their subsequent attempt to conceal the killing.

[9] We now turn to the arguments on the appeals.

ISSUES AND ANALYSIS

(i) Inconsistent Verdicts

[10] The appellants all rely on this ground of appeal. They submit that the convictions of two of them for first degree murder, and the third for second degree murder, are inconsistent and/or unreasonable verdicts. In particular, the appellants suggest that the jury reached an improper compromise verdict by convicting Arashvand of second degree murder when the evidence, properly considered, did not allow them to differentiate among the appellants in terms of their levels of participation in the murder. We do not agree.

[11] For an appellate court to interfere with a verdict on the basis that it is inconsistent, the court must conclude that the verdict is unreasonable: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6. Whether the result is properly characterized as an inconsistent or unreasonable verdict, the test to reach such a conclusion is high. In Pittiman, Charron J. said, at para. 7:

The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness's testimony. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge.

[12] On this point, we also refer to R. v. Catton, 2015 ONCA 13, 329 O.A.C. 354, where Doherty J.A. said, at para. 22:

Verdicts that may at first impression appear inconsistent can often be explained by distinctions in the essential elements of the different offences or in the quality of the evidence relevant to the different offences.

[13] The differing verdicts in this case are explainable.

[14] The evidence relating to Arashvand was different than the evidence relating to the other two, particularly in the period of time leading up to when the deceased was last seen alive. There was direct evidence connecting Khastou to the purchase of the gas can and duct tape and direct evidence connecting Khastou and Al-Kazragy to the purchase of the gas. Although he was nearby, Arashvand was not involved in these purchases. This was important evidence upon which the jury could draw an inference of planning and deliberation. It was evidence upon which the jurors, as the sole judges of the facts, may well have drawn a distinction between Arashvand and the others.

[15] The verdicts are understandable in light of this different body of evidence. They are neither inconsistent nor unreasonable. This ground of appeal must fail.

(ii) Post-Offence Conduct

[16] Among other things, the post-offence conduct involved the burning of the deceased's body; the clean-up of Khastou's vehicle; the flight to Vancouver; and certain statements made on arrest. The appellants agree that the burning of the deceased's body was relevant to the issue of planning and deliberation, and take no objection to the trial judge's charge in this regard. Their objection relates to the trial judge's treatment of the other post-offence conduct.

[17] The appellants submit that the trial judge should have removed the post-offence conduct from the jury's consideration in determining whether any of them was a party to the murder. They maintain that because the post-offence conduct evidence is equally consistent with them being accessories after the fact to murder, as it is with them being parties to the murder, the jury should have been instructed to ignore the evidence as it related to the primary issue for determination: who committed the murder? The appellants take the position that, at a minimum, the post-offence conduct evidence relating to flight should have been taken from the jury's consideration on the issue of identity. The appellants rely upon R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 ("White (2011)"), where Rothstein J. said, at para. 37:

Arcangioli, and its successor case White (1998), stand for the proposition that a "no probative value" instruction will be required when the accused's post-offence conduct is "equally explained by" or "equally consistent with" two or more offences (White (1998), at para. 28; Arcangioli, at pp. 145 and 147).

[18] We see no error in the trial judge's approach to the post-offence conduct evidence in this case. She gave a careful ruling and correctly noted that in White (2011), at para. 137, Binnie J. commented that it is generally for the jury to decide,

… on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence.

[19] The trial judge correctly noted that while Binnie J. was in dissent in the result, his legal analysis on this point formed the majority view: see White (2011), at para. 105.

[20] The trial judge concluded that the live issue at trial was the identity of the perpetrators, specifically, whether the appellants caused the death. She found that the post-offence conduct had a tendency, as a matter of logic, common sense and human experience, to help resolve the live issue for the jury's determination. While the evidence may also have been informative of their involvement in the crime of accessory after the fact to murder, it was evidence that could be used by the jury on the issue of identity. It had nothing to do with the level of culpability.

[21] In R. v. White, [1998] 2 S.C.R. 72 ("White (1998)"), the court observed that a no probative value instruction is not required where the accused denies involvement in the charged offence, and seeks to explain his or her conduct by an unrelated culpable act. In these circumstances, it will "almost invariably fall to the jury to decide whether the evidence of post-offence conduct can be attributed to one culpable act rather than another": White (1998), at para. 29. See also: R. v. Kostyk, 2014 ONCA 447, 321 O.A.C. 256, at paras. 92-95. The trial judge did not commit any error in coming to a similar conclusion here.

[22] The trial judge gave a clear instruction to the jury about the post-offence conduct. She said:

You must be very careful not to immediately conclude that what a particular defendant said or did after [the deceased]'s death is related to the killing itself. The position on behalf of each defendant is that he did not participate in the killing itself but he was involved in steps to conceal the killing after it happened, which is itself a serious matter. The position of each defendant is that what he did or said after [the deceased]'s death is related to his involvement in concealing the killing and not to the killing itself. Additionally, the position on behalf of Mr. Al-Kazragy is that lying about his identity to the police in Calgary is related to possession of drugs and not to the killing itself.

[23] The jury was made aware of how to approach the evidence. We see no error in the trial judge's conclusion on this point, nor any unfairness in the manner in which she instructed the jury on the post-offence conduct. The evidence was potentially all relevant to the issue of identity. It was up to the jury to decide whether they would draw the inference urged upon them by the Crown.

(iii) R. v. Villaroman

[24] Al-Kazragy and Khastou submit that the trial judge's charge on circumstantial evidence does not comply with the requirements set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. In particular, the appellants claim that the trial judge should have provided the jury with an example, like the one set out in Villaroman, highlighting how to approach the circumstantial evidence in this case.

[25] The decision in Villaroman, released subsequent to the jury charge, did not establish any set instructions that must be included in a jury charge on the subject of circumstantial evidence. Justice Cromwell noted in Villaroman, at para. 22, that while "it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt", no set instructions are required.

[26] Justice Cromwell emphasized that there are various ways in which to provide assistance to the jury so that they understand the "risk of jumping to conclusions", and that "trial judges will provide this assistance in the manner they consider most appropriate in the circumstances": Villaroman, at para. 31.

[27] We are satisfied that the trial judge provided the jury with the assistance necessary to understand how to approach this largely circumstantial case. The trial judge instructed the jury in accordance with the model jury instructions. The trial judge told the jury:

This case rests on circumstantial evidence. I will speak with you shortly about the difference between direct and circumstantial evidence. In order to convict a particular defendant in this case, you must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the particular defendant is guilty. Bear in mind that the standard of proof beyond reasonable doubt does not apply to the individual pieces of evidence that make up the Crown's case, but to the total body of evidence upon which the Crown relies to prove guilt.

[28] The jury was clearly instructed on the difference between direct and circumstantial evidence. The jury was also instructed that they must not speculate. We are satisfied that the jury properly understood how to approach the use of circumstantial evidence and how it related to the issue of reasonable doubt.

(iv) Functional Approach in the Jury Charge

[29] Al-Kazragy maintains that the case against him was much weaker than the case against his co-accused. He suggests that the trial judge erred in failing to specifically relate the weak evidence against him to the main issue to be decided: whether he participated in the killing. He places a particular emphasis on the fact that there was no evidence directly linking him to the purchase of the gas can, duct tape, or gas. On the latter point, while there was video evidence placing Al-Kazragy at the gas station shortly after Khastou bought the gas can, Al-Kazragy emphasizes that there was no direct evidence actually showing him present when the gas can was filled.

[30] Al-Kazragy also emphasizes that, unlike his co-accused, his cell phone did not bounce off towers in a pattern indicative of a journey to Barrie, where the deceased's body was found on fire. However, this was also consistent with him not using his cell phone during this period of time. Also, this submission must be seen in the context of the evidence that showed Al-Kazragy with the other accused before and after the murder. Since there was no evidence of there being any car other than the one belonging to Khastou (which was clearly implicated in the murder), there was nothing to detract from the available inference that Al-Kazragy was likely travelling with the other two.

[31] We do not find any error on this ground. The trial judge thoroughly reviewed all of the evidence in this very lengthy trial. Indeed, all counsel commended the quality and thoroughness of the charge in this regard. We are satisfied that, at the completion of this review, the jury would have well understood any difference in the strength of the evidence as it related to each accused. With respect to the cell phone evidence, the trial judge specifically highlighted for the jury's attention that the Al-Kazragy cell phone did not make or receive calls during the time period when the body would have been transferred to Barrie. In addition, insofar as the jury needed a roadmap through the evidence, this was provided by the trial judge when she summarized counsel's closing submissions.

[32] This ground of appeal must also fail.

(v) Blood Expert

[33] Al-Kazragy also takes issue with the expert evidence regarding whether the deceased's blood found under a ring that he was wearing was diluted or not. The Crown's theory was that if the blood was not diluted, then it settled on the ring during the murder and not during the clean-up where water was used. An expert was permitted to testify about the non-diluted nature of the blood on the ring.

[34] This challenge is based both on the alleged lack of qualifications of the expert and the methodology that he used in reaching his opinion. On the first point, the trial judge accepted that the expert was properly qualified. He had many years of experience as a forensic biologist with the Centre of Forensic Sciences. No suggestion was made as to what other qualifications the proposed expert would be expected to have to be qualified to give this opinion. Similarly, the methodology that the expert used to reach his opinion was not countered by any suggestion of a different or better methodology that ought to have been used. The trial judge concluded that the opinion was probative of an issue, and that its probative value exceeded any possible prejudicial effect. It was up to the jury to decide what use to make of it. The jury received a proper and detailed instruction about how to properly approach the expert evidence. Further, the conclusions of the trial judge on these matters are entitled to deference.

(vi) The 9:27 Telephone Call from Mason to Arashvand

[35] Arashvand takes issue with the trial judge's instruction to the jury regarding a telephone call that took place at 9:27 p.m., between his phone and another phone that apparently belonged to an individual named Mason. The call was connected for one minute and 14 seconds. Mason did not give evidence at the trial. Arashvand submits that this telephone call had the potential to establish that he was not with the other two accused at the time that the deceased was killed. In particular, Arashvand's trial counsel suggested to the jury that Arashvand would not have taken a telephone call if he was in the middle of participating in the murder. He also made a suggestion that there was some impropriety on the part of the Crown by failing to call Mason as a witness.

[36] Both the Crown and counsel for Khastou took objection to the Mason comments made during the closing address of Arashvand's counsel. The trial judge gave an immediate curative instruction, including telling the jury that the Crown was under no obligation to call Mason as a witness.

[37] Arashvand does not take issue with the immediate curative instruction. Instead, he focuses on the trial judge's charge related to the Mason call. The impugned instruction follows:

With respect to that call, there is no evidence before you that Mr. Arashvand took a call in the sense of speaking to anyone. There is no evidence of a conversation, or whether a conversation even took place, or of the relationship between Mr. Arashvand and the caller.

[38] These observations are correct as they relate to the direct evidence. There was no direct evidence that Arashvand spoke to Mason. While it might have been preferable if the trial judge had used the expression "direct evidence" (since a circumstantial inference of a conversation might have been drawn from the length of the call), we do not accept that the jury would have been left in any confusion on this point. It would have been clear to the jury that the trial judge was referring to direct evidence of a conversation.

[39] The charge must be read in context. In reviewing the closing address of Arashvand's counsel, the jury was clearly told that Arashvand's position was that there were five "key pieces of evidence" that led to the "reasonable inference that Arashvand was not involved in the murder". In listing these five pieces of evidence, the trial judge specifically reviewed the phone records showing the Mason call. She went on to explain counsel's position that "[i]f Mr. Arashvand were involved in the killing, he would not have accepted this call at this critical time".

[40] We are satisfied that the jury knew they could draw a circumstantial inference that Mason and Arashvand spoke for 1 minute and 14 seconds at 9:27 p.m. We would add the observation that, even if the jury was satisfied that this conversation had taken place, it was dispositive of nothing. The exact timing and location of the murder were unknown. The exact location of Arashvand at the time of the Mason call was unknown. Even if the conversation occurred, it did not preclude Arashvand's participation in the murder.

[41] We would not give effect to this ground of appeal.

(vii) Khastou's Objection to Arashvand's Closing

[42] Khastou objects to a number of aspects of Arashvand's counsel's closing address (not counsel on appeal), including: (a) commenting on Khastou's failure to make out the defence of alibi; (b) attacking the credibility and integrity of opposing counsel; (c) raising a speculative alibi defence; (d) contravening agreements with other counsel and the direction of the trial judge; and (e) misstating the evidence. These arguments were advanced to varying degrees in oral argument. We do not accept them.

[43] The alibi issue was canvassed ahead of counsel's closing. With the input of Khastou's counsel, parameters were placed on what Arashvand's counsel could say. In the result, Arashvand's counsel did not use the word "alibi" in his closing address.

[44] It was entirely open to counsel for Arashvand to mention the failed effort by counsel for Khastou to distance Khastou from the murder, in a situation where all counsel knew that all of the appellants were advancing a "cut throat" defence. Further, if the issue was as serious as Khastou now portrays it to be, including the submission that the problem was not capable of being remedied by the trial judge, it should have been the subject of an application for a mistrial. Yet no such application was brought.

[45] We would add that a suggestion by Arashvand that the evidence established Khastou was present for the murder was hardly surprising or prejudicial. The murder occurred in his vehicle.

[46] As for the suggestion that Arashvand's closing impugned the integrity of Khastou's counsel, there was no objection taken. Trial counsel was in the best position to determine whether a curative instruction was necessary. His silence on the point is telling.

[47] Khastou also complains that Arashvand's counsel led what is characterized as a "speculative alibi defence". This complaint again relates to the Mason call. We have addressed that issue above. We do not see any prejudice that could reasonably be said to have been occasioned to Khastou arising from the fact that Arashvand said he could not be involved in the murder because he was on the phone with Mason at the time. In any event, having convicted Arashvand of murder, the jury clearly rejected the suggestion put by his counsel.

[48] Khastou maintains that Arashvand's counsel undermined an agreement regarding the treatment of evidence of Arashvand's blood in Khastou's vehicle. Given the agreement in place, Khastou argues that he was the subject of unfair criticism when counsel for Arashvand suggested he failed to cross-examine on the point. To the extent that Arashvand's counsel contravened any prior agreement, it was entirely remedied in the charge where the trial judge told the jury to take nothing from the failure to ask questions on this issue.

[49] To the extent that Arashvand's counsel may have misstated some evidence, or asked the jury to draw improper inferences, counsel was directed to correct his misstatements and the trial judge took corrective action in her charge. For instance, following upon Arashvand's counsel's suggestion that Khastou failed to cross-examine a witness about a matter that counsel later agreed upon, the trial judge instructed the jury that they were to "take nothing from the fact that when [the witness] testified … he was not asked questions on this point".

CONCLUSION

[50] None of the grounds of appeal succeed. The appeals against conviction are dismissed. In light of this conclusion, we do not reach the cross-appeal.

Released: January 19, 2018

"K. Feldman J.A."

"Fairburn J.A."

"I.V.B. Nordheimer J.A."