Court of Appeal for Ontario

Date: January 4, 2019 Docket: C62941

Hoy A.C.J.O., Feldman and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Ahmed Hafizi Appellant

Counsel: Philip Campbell and Catriona Verner, for the appellant Susan Reid, for the respondent

Heard: December 3, 2018

On appeal from the conviction entered by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury, on March 4, 2016.

Benotto J.A.:

[1] Facts and Overview

[1] The appellant went out with a few friends to an Ottawa nightclub. While there, they clashed with a group of about twelve men. This led to an altercation. Even though the appellant did not initiate the altercation, he was told to leave the bar. Sixteen minutes later the main aggressor from the other group left the club alone. The appellant ran at him and fatally stabbed him.

[2] The appellant was convicted of first degree murder. He appeals the conviction on several grounds.

[3] For the reasons that follow, I would dismiss the appeal, but substitute a conviction for second degree murder.

Facts

[4] On the night of January 20, 2012, the appellant went with a friend and an acquaintance to a nightclub in Ottawa, where they met a few more friends. The appellant was a high school student who had turned 18 three weeks earlier. The nightclub was on the second floor of a building near the corner of Dalhousie and Rideau Streets. It was accessible by two staircases: one from Dalhousie and the other from Rideau.

[5] Navid Niran, a 24-year-old man, was at the club with about twelve of his friends. The appellant's group and Niran's group did not know each other. The two groups clashed several times during the evening. During one confrontation, one of Niran's friends hit the appellant in the face with an elbow causing him to bleed. The appellant and Niran swore at each other. Ahmad Haidari, Niran's friend, testified that he heard the appellant say, "I'm going to fuck you up" or "I'm going to fucking catch you." The appellant was asked to leave the club by the bouncers. At trial, one of the bouncers testified that the appellant was not at fault, but because the other group had booked a table and was spending a lot of money, it was the appellant who was told to leave. The appellant left by the staircase that led to Dalhousie Street. Video surveillance captured the events that followed.

[6] The appellant spent about 12 minutes in the stairwell and made some phone calls. While he was there, he was told by one of his friends that they would bring their car around. They came along Dalhousie and stopped in front of the stairwell. The appellant got into the back seat of the car. He was in the back seat for three and a half minutes when Niran emerged – alone – from the same staircase that the appellant had used, onto Dalhousie Street. Eighteen seconds later, the appellant opened the car door, ran toward Niran and swung at him. Their altercation lasted 9-11 seconds. Niran sustained four stab wounds: two in the chest, 8 cm deep and two in the abdomen, 3 cm deep. The knife used to stab him had a 9 cm blade and a locking mechanism.

[7] The appellant fled, folding the knife into his pocket, and a few minutes later, threw it away into a snow bank on a nearby street. He got into a taxi and went to the apartment of someone he knew to use the phone. He was distraught and expressed remorse. The appellant admitted to stabbing and causing Niran's death.

[8] The appellant testified at trial and raised self-defence. He said that he did not have the knife when he charged Niran. Instead, Niran produced the knife and he wrestled it away. The Crown's position was that the appellant had the knife all along. In part, this was based on the fact that the locking mechanism on the knife required two hands to open.

[9] The Crown also argued that the murder was planned and deliberate. The Crown relied on the evidence of the appellant's encounters with the deceased inside the club, Haidari's evidence about what the appellant said to Niran, the amount of time the appellant had to plan and deliberate after leaving the club, and the fact that he was waiting in a car outside when the deceased left the club.

[10] The appellant argued that there was no evidence that the murder was planned and deliberate.

Issues

[11] The appellant appeals his conviction on the basis that the trial judge erred:

1. in refusing to correct the suggestion made in the charge to the jury that the appellant was guilty of murder if he "would have foreseen" that two stab wounds to the chest were likely to cause death;

2. by inviting the jury to rely upon the fact that the appellant attacked the deceased as corroboration for Haidari's evidence that the appellant had threatened the deceased; and

3. by including a series of rhetorical questions, prejudicial to the defence, in his charge to the jury.

[12] In the alternative, the appellant asks that a conviction for second degree murder be substituted for the first degree murder conviction on the grounds that the verdict was unreasonable as there was no evidence of planning and deliberation.

[13] The appellant also raises the following issues with respect to planning and deliberation, arguing that the trial judge erred: in failing to relate the evidence to the issue of planning and deliberation; and in failing to correct the Crown's suggestion that the appellant admitted the element of deliberation.

Analysis

[14] I begin with the conviction appeal generally and then consider the submission that the verdict of first degree murder was unreasonable. In light of my conclusions, it will not be necessary to consider the additional issues raised with respect to planning and deliberation.

(1) The Conviction Appeal

[15] The appellant seeks a new trial on three bases.

[16] First, he submits that the trial judge erred by instructing the jury that its finding on the mens rea turned on whether the appellant would have foreseen the likelihood of death. In doing so, he erred by failing to point out the appellant needed to have the subjective foresight of the likelihood of death in order to be convicted of murder.

[17] I do not accept this submission. The trial judge's instructions on the mens rea for murder were correct when considered in the full context of the trial record including the entire jury charge and the addresses of counsel. The trial judge instructed the jury that it had to find a subjective foreseeability of death. There is no realistic risk that the jury would have applied the wrong test in determining the mens rea, particularly considering the seriousness of the wounds, which were realistically only consistent with intent.

[18] Second, the appellant submits that the trial judge erred in failing to provide a Vetrovec instruction with respect to the evidence of Haidari. Instead, the trial judge invited the jury to find that Haidari's evidence of a threat was corroborated by the fact that the appellant did in fact attack the deceased.

[19] I do not agree that Haidari was a disreputable or unsavoury witness such that a Vetrovec caution should have been given. However, I do agree with the appellant that the trial judge erred by suggesting the fact of the killing could prove that the threat was spoken. This invited circular reasoning which was compounded by a bad analogy when the trial judge gave the example of a person saying they were going to mail a letter and then mailing it. That said, in the circumstances here, the error caused no unfairness or miscarriage of justice. The trial judge fully canvassed the frailties of Haidari's evidence, including the fact that there was more than a year's delay before he disclosed the threats, he was inconsistent about whether he remembered the exact words, it was a loud environment, and no other witness heard the alleged threats. More importantly, the evidence of Haidari was put forth as part of the Crown's submission on planning and deliberation. In light of my conclusion on the reasonableness of the verdict, the error is of no moment.

[20] Third, the appellant submits that the trial judge erred by including a series of rhetorical questions in his charge to the jury. I agree that rhetorical questions should be avoided in the jury charge: see R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 146. However, doing so did not result in a miscarriage of justice. The trial judge repeatedly reminded the jurors that they were the judges of the facts and his comments on the evidence could be ignored.

[21] I would therefore not give effect to the conviction appeal.

[22] I turn now to the primary issue raised by the appellant: the unreasonable verdict.

(2) Unreasonable Verdict

[23] The authority for a court of appeal to determine whether a jury reached an unreasonable verdict is found in s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:

686. (1) On the hearing of an appeal against a conviction ... the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

[24] The Supreme Court of Canada explained the test for an appellate court to determine whether the verdict of a jury is unreasonable or cannot be supported by the evidence in R. v. Yebes, [1987] 2 S.C.R. 168. At p. 186, McIntyre J. wrote for the court:

The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

[25] The Supreme Court in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, further explained that the test imports both an objective and a subjective assessment. The reviewing court first looks at the sufficiency of the evidence objectively to determine if it is capable of supporting the verdict. The subjective element requires the reviewing court to examine the weight of the evidence rather than its bare sufficiency.

[26] When a jury verdict that does not involve errors in the charge is perceived as unreasonable, it was held in Biniaris that the only rational inference is that the jury "was not acting judicially". Justice Arbour explained this at para. 39:

This conclusion does not imply an impeachment of the integrity of the jury. It may be that the jury reached its verdict pursuant to an analytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment. Such error would of course not be apparent on the face of the verdict by a jury. But the unreasonableness itself of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury. [Emphasis added.]

[27] An appeal court, in considering a claim that a jury verdict is unreasonable, must therefore engage in a limited weighing of the evidence. Justice Cromwell described the boundaries of this exercise in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28:

On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required "to review, analyse and, within the limits of appellate disadvantage, weigh the evidence" and consider through the lens of judicial experience, whether "judicial fact-finding precludes the conclusion reached by the jury". Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience. [Citations omitted; emphasis in original.]

[28] The "judicial experience" component to the analysis gains particular significance when the jury is called upon to make "subtle distinctions" as this court explained in R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503. When considering the distinction between the mental state for murder and planning and deliberation, Doherty J.A. said at paras. 36-37:

As in almost all cases, the evidence relevant to the mens rea issues, save the appellant's testimony as to his state of mind, was circumstantial. Much of that evidence had relevance, both to the mens rea component of murder, and the mens rea required for planning and deliberation.

A lay jury, unaccustomed to the sometimes subtle distinctions drawn in the criminal law among various culpable mental states, might move quickly from a finding that the appellant decided to inflict bodily harm that he knew would probably cause death, to a finding that the appellant had planned to inflict harm that he knew was likely to cause death. Looking at the evidence "through the lens of judicial experience", an appeal court must have regard to the real risk that evidence demonstrating the intention to commit murder under s. 229(a)(ii) could be improperly treated by a jury as equally cogent evidence of planning, if not deliberation.

[29] When, as here, the analysis of a verdict engages circumstantial evidence, there is a further component to consider. Again, it was Cromwell J. who discussed this in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55:

Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence. [Citations omitted.]

[30] Applying these legal principles to the evidence relied on by the Crown to prove planning and deliberation, I conclude that the verdict of first degree murder is unreasonable. In coming to this conclusion, I have examined the Crown's evidence individually and in the context of the evidence as a whole.

[31] The Crown submits that the only reasonable inference from the evidence is that the appellant committed a planned and deliberate murder.

[32] The Crown's position is that, in the 16 minutes between the time the appellant last encountered Niran in the bar to the time of the stabbing, the appellant planned and deliberated about the murder. The Crown submits that Haidari's evidence constituted evidence of a threat to kill Niran and that this threat was the commencement of the plan, which continued while the appellant was in the stairwell and in the car, and then crystallized when he got out of the car on Dalhousie Street. The Crown says the triggering event was when the appellant saw Niran leaving the club. The fact that the appellant bolted from the car shows that he was acting in furtherance of a planned attack and that he had already engaged in deliberation.

[33] I do not accept that, on the whole of the evidence, acting judicially, the jury could have been satisfied that the only reasonable conclusion was that the murder was planned and deliberate. There are several aspects of the evidence that indicate otherwise. In particular:

• The appellant could not have known which staircase Niran would use to leave. If the appellant planned to kill him and was lying in wait to do so, he would not have placed himself in a position where he could not see both exits from the club.

• If the appellant was planning to kill Niran, he would not have gotten into the car on Dalhousie Street. First, from the car, he could not have seen the Rideau Street exit. Second, as there was no suggestion that the driver played any role in the murder, he could have driven away at any time.

• Niran was with a group of 12 friends, one of whom had hit the appellant earlier in the evening. The appellant had no reason to expect that Niran would come out of the club alone.

• The evidence of the appellant's words as related by Haidari, at its highest, amounted to no more than evidence of a threat to harm, not kill.

[34] The Crown relied on the swiftness of the attack to support the allegation of planning. In my view, this is also evidence of an impulsive act. In Robinson, para. 40, Doherty J.A. said:

A finding that the appellant decided seconds or a few minutes before inflicting the harm, to intentionally inflict bodily harm knowing that death was likely to ensue, is not the same as concluding that the appellant planned and deliberated upon the attack before commencing that attack. To borrow the language of the case law, there has to be evidence from which a jury could reasonably infer that the appellant's attack on [the deceased] was the product "of a calculated scheme", arrived at after weighing "the nature and consequences" of that scheme. In addition to evidence of planning, there had to be evidence that having made the plan, the appellant "deliberated", that is weighed the pros and cons of putting the plan into action.

[35] Here, the evidence falls short of establishing that the only reasonable conclusion was that the murder was the product "of a calculated scheme", arrived at after weighing "the nature and consequences" of that scheme. Further, there is no evidence that having made the plan, the appellant "deliberated", by weighing the pros and cons of putting the plan into action.

[36] As I conclude the verdict of first degree murder was unreasonable, it is not necessary to address the additional issues raised with respect to planning and deliberation.

Disposition

[37] I would dismiss the appeal but substitute a conviction for second degree murder.

[38] If the Crown seeks a period of parole eligibility in excess of ten years, I would invite written submissions (including victim impact statements, if any) from the Crown within 15 days of the release of these reasons and responding submissions within 10 days thereafter.

Released: January 4, 2019

"M.L. Benotto J.A."

"I agree Alexandra Hoy A.C.J.O."

"I agree K. Feldman J.A."