Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-03-02 Docket: C69180

Before: Tulloch, Huscroft and Miller JJ.A.

Between: Her Majesty the Queen, Respondent And: Mohamed Nazir, Appellant

Counsel: Dan Stein, for the appellant Alexander Hrybinsky, for the respondent

Heard: February 23, 2022 by video conference

On appeal from: The conviction entered on December 13, 2019 and the sentence imposed on September 3, 2020 by Justice Wailan Low of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of three counts of attempt murder, aggravated assault, two counts of uttering threats, and two counts of failure to comply with probation. He was sentenced to 13 years in prison, less credit for pretrial custody. He appeals against conviction and sentence.

[2] The convictions arose out of the appellant’s knife attack on two of his sisters-in-law and his niece at the family home. One sister-in-law, Rakhee, was injured severely. The other sister-in-law, Wazila, protected herself and her daughter Alyssa from the attack by locking themselves in an upstairs bathroom until the police came to arrest the appellant. The issue at trial was whether the appellant formed the intent to kill. The voluntariness of his utterances to the police following the attacks was also in issue.

[3] The appellant raises four issues on appeal:

1. Did the trial judge err by focusing exclusively on capacity to form intent rather than actual intent?
2. Did the trial judge err by admitting opinion evidence regarding the appellant’s credibility and demeanour?
3. Did the trial judge misapprehend the evidence as to the appellant’s intoxication and state of mind?
4. Did the trial judge err with respect to the use of the appellant’s out-of-court statement made to Officer Litster-MacLeod?

[4] In addition, the appellant seeks leave to appeal sentence, arguing that the sentence is excessive.

[5] The appeal is dismissed for the reasons that follow.

The trial judge did not err by focusing exclusively on capacity to form intent rather than actual intent

[6] The appellant’s argument focuses on the convictions for the attempted murder of Wazila and Alyssa Nazir. He says that the trial judge focused on capacity and failed to consider whether he had the actual intention required.

[7] There is no merit to this argument.

[8] The trial judge correctly framed the issue of whether the appellant had the intention to cause death. She fairly set out the appellant’s position and specifically responded to it, finding that it was an “inescapable” inference that the appellant had the intention to cause the death of Rakhee. In essence, this was a continuous series of events: the appellant’s intention to kill Rakhee was redirected to Wazila and Alyssa once Rakhee escaped. The trial judge found that the existence and contemporaneity of the verbal death threat, following them upstairs, bringing knives, and attempting to pry open the bathroom door with a screwdriver led only to the inference that the appellant intended to cause their death. These findings are amply supported by the record and there is no basis to impugn them.

The trial judge did not err by admitting opinion evidence regarding the appellant’s credibility and demeanour

[9] The appellant submits that Officer Lister-MacLeod was permitted to testify as to his demeanour, honesty, malingering, and other inappropriate matters, which infected the trial judge’s reasoning process. He acknowledges that trial counsel did not object to this evidence and that one of the most “egregious” comments was elicited in cross-examination of the officer.

[10] There is no merit to this submission. This was a judge-alone trial, and it is apparent that the trial judge did not rely upon inadmissible opinion evidence in reaching her conclusion. The trial judge is presumed to know the law, and it cannot be assumed in the absence of a self-instruction that she improperly relied on the opinion evidence. There is no basis to suggest that she “implicitly embraced” this evidence or that there is an appearance of unfairness.

The trial judge did not misapprehend the evidence

[11] The appellant argues that the trial judge wrongly relied on the evidence of Officer Lister-MacLeod and failed to address inconsistent evidence concerning the appellant’s impairment, including the expert toxicology evidence of Dr. Mayer.

[12] There is no merit to this argument.

[13] The trial judge reviewed the degrees of intoxication set out by the Supreme Court in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 and carefully reviewed the toxicology evidence of Dr. Mayer. She noted that although Dr. Mayer calculated that the appellant had an estimated BAC level indicative of impairment, it was not possible to determine the precise nature of the impact of alcohol on an individual. Dr. Mayer also could not opine on the appellant’s actual level of impairment, his ability to form the requisite intent or his ability to foresee the consequences of his actions.

[14] The trial judge reviewed the conduct of the appellant following his arrest and made findings that were open to her on the evidence. The appellant’s speech was not slurred, his gait was not impaired, and he related lucid, cogent, and detailed particulars to Officer Lister-MacLeod. This was indicative of an operating mind. So too was the appellant’s ability to respond to questions and requests, along with his compliance with Officer Lister-MacLeod’s admonition when he flirted with her and the hospital staff. It was open to the trial judge to find that he was able to appreciate the consequences of his actions despite a high BAC level.

The trial judge’s use of the appellant’s out-of-court statements occasioned no prejudice

[15] The appellant argues that the trial judge erred in characterizing his statements as an attempt to undermine the credibility of the complainants. The appellant submits that his statements demonstrated his inaccurate, confused recollection, suggesting a higher degree of impairment, which affected the mens rea for attempt murder.

[16] The respondent argues that any mischaracterization of the defence position at trial was insignificant in the context of the trial and could not have affected the outcome. We agree.

[17] There was ample evidence supporting the trial judge’s conclusion that the appellant’s memory was not impaired. Moreover, even if trial counsel’s submission was mischaracterized, the trial judge did not fail to apply even scrutiny to the appellant’s statement. She acknowledged exculpatory aspects of the appellant’s statement but based her decision on the evidence as a whole. This ground of appeal fails.

The sentence was fit

[18] We see no error in law or in principle, nor was the 13-year sentence imposed demonstrably unfit, having regard to the brutal and vicious nature of the attack. There is no basis for this court to interfere with the sentence imposed.

Conclusion

[19] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

“B.W. Miller J.A.”