Court File and Parties

Court: Court of Appeal for Ontario Date: 2022-08-16 Docket: C69189

Between: Her Majesty the Queen, Respondent And: Ian Albert Ohab, Appellant

Before: Doherty, Favreau and Copeland JJ.A.

Counsel: John Kaldas and Nadia Guo, for the appellant Linda Shin, for the respondent

Heard: August 8, 2022

On appeal from: The conviction entered by a jury presided over by Justice Suhail A.Q. Akhtar of the Superior Court of Justice on January 31, 2019.

Reasons for Decision

[1] The appellant was charged with the first-degree murder of M.C. and indecent interference with her remains. The appellant pled guilty to the charge of indecent interference. The trial judge directed a verdict of acquittal on the first-degree murder charge and the jury convicted the appellant of second-degree murder. The appellant appeals his conviction on the second-degree murder charge. He alleges reversible misdirection in the instruction on after-the-fact conduct.

[2] The appellant and M.C. were acquainted but were not friends. M.C. had friends in the apartment building at 220 Oak Street in Toronto, where the appellant lived. The appellant and M.C. were heavy drug users, as were many others in the apartment building.

[3] M.C. was last seen alive on video surveillance in the elevator at 220 Oak Street with the appellant just after 1:35 a.m. on April 15, 2016. They were on their way to the appellant’s apartment.

[4] The appellant was seen on video entering the elevator alone at 2:28 a.m. He returned to his apartment less than five minutes later. According to his testimony, M.C. remained at his apartment on the balcony.

[5] The appellant testified that after he returned home, he went to the kitchen to prepare the heroin he had just purchased. He then went to his bedroom and injected the heroin. M.C. was alive and in the bathroom.

[6] The appellant testified that he woke up between 8:00 and 9:00 a.m. the next morning to discover M.C. lying on the living room floor. She was dead. The appellant assumed she had overdosed.

[7] The appellant did not call 9-1-1 or make any attempt to get help. Instead, he decided to dismember and dispose of M.C.’s body. The appellant testified that a little over two months earlier, his girlfriend had died of an overdose in his apartment. He had become the subject of intense police scrutiny and suspicion among the other residents in the apartment building. Even though the appellant had never been charged with any offence in relation to his girlfriend’s death, he feared that he would once again come under police scrutiny and might be forced out of his apartment. He panicked and decided to avoid the risk of a police investigation and the suspicion of his neighbours by dismembering M.C.’s body and disposing of the body parts in various places. The appellant also took extensive steps to destroy evidence that could link M.C. to his apartment.

[8] Over the next several days, the appellant:

• dismembered M.C.’s body using a hacksaw purchased for that purpose;
• disposed of the body parts in various locations. Only a few body parts were ever recovered;
• cleaned up his apartment and, in particular, the bathroom using bleach. He also removed the floorboard from his bathroom; and
• disposed of several pieces of furniture and a rug that had been in his apartment when M.C. died.

[9] The evidence summarized above, taken together, is referred to as the after-the-fact conduct evidence. That evidence was central to the Crown’s case at trial and is the focus of the appellant’s arguments on appeal.

[10] Because only parts of M.C.’s body were found, and there were no urine or blood samples available, no cause of death could be determined. The part of M.C.’s lower torso found by the police had significant bruising that, according to the expert evidence, occurred prior to her death. The cause of that bruising could not be determined. A witness who had sexual intercourse with M.C. a few hours before she went to the appellant’s apartment testified that he did not see any bruising on her lower torso.

The Grounds of Appeal

(a) Should the trial judge have given a “no probative value” instruction in respect of the after-the-fact conduct?

[11] The appellant submits that the after-the-fact conduct evidence was not admissible either as evidence that the appellant had killed M.C., or as evidence that he had the intention for murder as required by s. 229(a). Counsel submits that, having regard to the entirety of the evidence and particularly the explanation for the after-the-fact conduct offered by the appellant in his evidence, a reasonable jury could not have used that evidence to infer either that the appellant killed M.C., or that when he did so he had the mens rea necessary for murder. As we understand this submission, the appellant contends that the jury should have been told to ignore the after-the-fact conduct evidence.

[12] Evidence is relevant to a fact in issue if, as a matter of logic or common human experience, that evidence has a tendency to make the existence of a material fact in issue more or less likely. The steps taken by the appellant over several days to dismember and hide M.C.’s body, as well as his efforts to destroy evidence connecting M.C. to his apartment, easily admits of the inference that the appellant had unlawfully caused M.C.’s death. Similarly, the nature and extent of the efforts the appellant made to eliminate any evidence capable of showing how M.C. died, or the nature of the injuries she had suffered, could reasonably support the inference that the appellant killed M.C. with the mens rea required for murder: see R. v. Rodgerson, 2015 SCC 38, at para. 27.

(b) Was the instruction on the inferences to be drawn from the after-the-fact conduct adequate?

[13] The trial judge correctly and repeatedly instructed the jury on the inference drawing process as it related to circumstantial evidence in general and, specifically, to after-the-fact conduct evidence. The trial judge delineated between the potential use of the evidence to establish the appellant killed M.C. and the potential use of the evidence to establish the appellant’s state of mind. The trial judge cautioned the jury against drawing the inferences urged by the Crown without carefully considering the innocent alternative explanations offered by the defence. He outlined the explanations put forward by the defence for various parts of the after-the-fact conduct evidence. The instructions to the jury on how it could use the after-the-fact evidence tracked the controlling authorities and reveal no legal error.

(c) Did the trial judge err in failing to caution the jury against drawing any inferences from the bad character of the appellant as revealed by the after-the-fact conduct evidence?

[14] Much of the after-the-fact conduct evidence casts the appellant in a bad light. The trial judge could have instructed the jury that it could not use that evidence to draw the inference that because the appellant had dismembered and disposed of M.C.’s body he was a bad person and therefore more likely to have committed murder. An instruction along these lines was not given. Nor was one requested by the defence.

[15] We are not satisfied that the failure to give a “bad character” instruction constituted a reversible error in the circumstances of this case. This was not a case in which the “bad character” evidence consisted of misconduct that had no direct connection to the subject matter of the charge. We see little possibility that a jury would have used the after-the-fact conduct evidence to draw the inference that the appellant was a “bad person” and therefore more likely to have committed murder. If the jury rejected the appellant’s explanation for the after-the-fact conduct and was not left in any doubt by that explanation, the jury would have, in all likelihood, drawn the much more direct inference that the appellant dismembered and disposed of M.C.’s body because he had killed her and wanted to destroy the evidence that would show how he killed her, rather than drawing the more circuitous inference that because he had dismembered and disposed of M.C.’s body, he was a bad person capable of committing murder and had in fact murdered M.C.

[16] We are also satisfied that the trial judge’s repeated and proper instruction on the inference-drawing process as it related to circumstantial evidence and, in particular, after-the-fact conduct evidence would have gone some length to avoiding any misuse of that evidence by the jury.

[17] The appeal is dismissed.

“Doherty J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”