COURT OF APPEAL FOR ONTARIO DATE: 20230607 DOCKET: C68426
Lauwers, Paciocco and Zarnett JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Abdirizaq Yabarow
Appellant
Counsel: Jeffery Couse, for the appellant Andrew Hotke, for the respondent
Heard: November 21, 2022
On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, on June 25, 2019, and from the sentence imposed on October 10, 2019, with reasons reported at 2019 ONSC 5796.
Zarnett J.A.:
A. Overview
[1] The appellant appeals his conviction for the second-degree murder of Abdinasir Hussein. The appellant also seeks leave to appeal his sentence of life imprisonment with no parole eligibility for thirteen years.
[2] Mr. Hussein was found dead in his apartment early in the morning of October 4, 2017. He had spent the previous day and evening with the appellant, joined for part of that time by some of Mr. Hussein’s friends. After the friends left, the appellant and Mr. Hussein were alone. The appellant admitted that he had an altercation with Mr. Hussein and struck him with a bottle. The autopsy evidence was that Mr. Hussein died as a result of blood loss due to sharp force injuries that were consistent with a broken beer bottle having been used in a slashing motion.
[3] The appellant raises three grounds for asserting that his conviction should be set aside, and a new trial ordered. First, he argues that the trial judge erred by instructing the jury that after-the-fact conduct evidence was relevant to the issue of provocation. Second, he argues that the trial judge erred in not compelling the Crown to call, as a witness, a person the appellant told, several days after the altercation, that he had acted in self-defence. Third, he argues that the trial judge erred in not permitting the defence to call that person as a witness.
[4] On the sentence appeal, the appellant submits that the trial judge erred by not properly considering the appellant’s immigration status − his certainty of deportation − in deciding the length of parole ineligibility. He argues that the minimum parole ineligibility of ten years should have been imposed.
[5] For the reasons that follow, I would dismiss the appeal.
[6] Although after-the-fact conduct evidence can give rise to improper jury reasoning, the charge properly instructed the jury on how to use such evidence in relation to the issue of provocation. In this case, the after-the-fact conduct included conduct during the immediate aftermath of the altercation and conduct several days later. In the immediate aftermath the appellant: left his own blood-soaked clothing in Mr. Hussein’s apartment, changed into other clothing belonging to Mr. Hussein, and left the apartment building with his head covered. The trial judge instructed the jury that only this after-the-fact conduct could be used to decide the issue of provocation; no evidence about what happened after the appellant left the apartment building, including evidence about the appellant’s attempts to hide and leave the country, could be used on this issue.
[7] This tailored instruction was coupled with general cautionary instructions about after-the-fact conduct evidence. For example, the trial judge cautioned the jury that, before using such evidence, they had to consider, and reject, other explanations for the appellant’s conduct. He outlined the appellant’s own explanation of the conduct. He warned the jury against jumping to an inference of guilt from such evidence, instructed them on the limits of using it, and told them they did not have to use it. The charge thus equipped the jury to use the evidence on the issue of provocation only to the extent it was relevant and without engaging in a prohibited type of reasoning. The defence did not object to the charge.
[8] In addition, the trial judge did not err in deciding not to force the Crown to call a witness to whom the appellant had made an exculpatory out-of-court statement, or in not allowing the defence to lead evidence of that statement. None of the exceptions to the rule against admissibility of such statements were applicable.
[9] Finally, the trial judge did not err in his determination of parole ineligibility, a determination that is entitled to deference.
B. The Factual Context
[10] The appellant and Mr. Hussein spent the day of October 3, 2017 together at Mr. Hussein’s apartment. According to the appellant, both drank heavily, and the appellant at one point also smoked marijuana.
[11] In the evening, four of Mr. Hussein’s friends joined Mr. Hussein and the appellant. They each testified that they came to hang out and drink, bringing with them more alcohol and marijuana. The interactions between the appellant and these friends were not pleasant − the appellant felt they were making fun of him and they felt he was belligerent and rude. At one point one of the friends and the appellant engaged in a physical fight, which Mr. Hussein broke up.
[12] Eventually the friends departed, leaving Mr. Hussein and the appellant alone.
[13] The apartment building’s surveillance video shows the appellant leaving the building at about 11:43 p.m. on October 3, 2017. His head and face were covered by a coat. He was wearing Mr. Hussein’s clothing.
[14] The appellant approached a bus driver around 1:15 a.m. on October 4, 2017 and asked for help. He was taken to the hospital where he gave a different name and date of birth.
[15] Mr. Hussein’s body was discovered by a neighbour early in the morning of October 4, 2017. The police were called. Mr. Hussein was found lying in a pool of blood by his couch in the living room of his apartment, surrounded by shattered glass. Two pairs of the appellant’s trackpants, completely soaked with Mr. Hussein’s blood, were in the hallway leading to the bathroom. The appellant’s shoes, also soaked with Mr. Hussein’s blood, were also in the apartment – one was found under his body. The appellant’s bloodstained tracksuit top was in the living room near an overturned coffee table.
[16] The forensic pathologist who conducted an autopsy testified that the cause of death was sharp force injuries, of which there were hundreds, going in multiple directions, “on pretty much every surface of the body”. The injuries were consistent with broken glass, and those on the forearms with “defensive type injuries”.
[17] On October 5, 2017, the appellant spoke to two individuals. He admitted to one that he had a confrontation with a man whom he injured and had died from the injury. He asked for advice about getting out of the country. He asked the second person for help with documents so he could run away from the country. He also contacted a travel agency.
[18] On October 6, 2017, the appellant was found by police in the boiler room of another building, and then arrested and charged with second-degree murder.
[19] At trial, the appellant testified and admitted he had an altercation with Mr. Hussein on October 3, 2017. As he described it, they were both heavily intoxicated. Mr. Hussein insulted him, threatened to beat him up, and assaulted him, hitting him with a bottle; afraid for his life, the appellant grabbed a beer bottle and hit Mr. Hussein. He could not remember how many times, but he thought the bottle broke. As there was blood on his clothes, the appellant changed into clean clothes belonging to Mr. Hussein and left the apartment around 11:45 p.m. The appellant claimed that, at the time, Mr. Hussein was sitting upright by the couch talking. The appellant said he had no reason to think Mr. Hussein had been fatally injured. He denied that he intended to kill Mr. Hussein and said he had been very drunk and had acted in self-defence. He denied having inflicted injuries because he was angry.
[20] The appellant explained that, when he left the apartment building, he pulled a coat over his head because he was afraid of Mr. Hussein’s friends who lived in the area. The time it took him to flag down a bus driver and ask for help was due to fear and shock. The name he gave at the hospital was just a different spelling of his own name. He learned from the television in the afternoon of October 5, 2017 that Mr. Hussein had died. He inquired about leaving the country as he was afraid, in shock, concerned for his children who were out of the country, and was ignorant of the Canadian legal system.
C. Analysis
(1) The Conviction Appeal
a) The After-the-fact Conduct Issue
[21] The main issues at trial were whether the Crown had proven that the appellant caused Mr. Hussein’s death (as the appellant noted the possibility that a third-party could have entered the apartment after the appellant left), whether the appellant acted in self-defence, whether he lacked the mental state for murder due to intoxication, and provocation. The jury found the appellant guilty of second-degree murder, rejecting all of his defences.
[22] The appellant takes issue with one aspect of the jury charge – its instructions about the use of after-the-fact conduct evidence as it related to the defence of provocation. In order to analyse that issue, I first discuss the principles surrounding after-the-fact conduct evidence, generally and in relation to provocation. I then outline how the trial judge instructed the jury. I conclude by explaining why I reject the argument that the trial judge erred in those instructions.
i. The General Principles
[23] After-the-fact conduct evidence is a form of circumstantial evidence that encompasses the statements and actions of the accused after the offence was allegedly committed. Its admissibility is subject to the same rules as other evidence; it must be relevant to a material issue, its admission must not offend an exclusionary rule of evidence, and its probative value must exceed its prejudicial effects: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 106-7, per Martin J. (dissenting, but not on this point).
[24] After-the-fact conduct evidence can be admitted for its relevance on the issue of the accused’s state of mind: Calnen, at para. 119. As this court explained in R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at para. 55, citing R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at pp. 383-84, and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42 (“White (2011)”):
The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, ‘as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind’. [Citations omitted.]
[25] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The question is whether the evidence is capable of supporting the inference sought to be drawn. It will be irrelevant to a particular issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct does not allow the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124.
[26] In providing instructions respecting after-the-fact conduct evidence, it is important that the trial judge set out the use to which the evidence can be put and the inferences that are available to the jury: Calnen, at para. 115. Where the conduct is equally consistent with competing inferences, the trial judge should provide a limiting or no probative value instruction to the jury: R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 145; White 2011, at para. 60.
[27] These instructions are important because after-the-fact conduct evidence poses unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction, informing the jury of other explanations for the accused’s actions: White (1998), at para. 57; White (2011), at para. 24. However, as noted above, some circumstances involving the use of after-the-fact conduct evidence may require a trial judge to do more and counter a specific reasoning risk by providing a limiting instruction: Calnen, at para. 118.
[28] This is often the case where the accused has admitted to the actus reus of the offence and the Crown seeks to rely on the after-the-fact conduct evidence to demonstrate a specific level of intent. In these cases, after-the-fact conduct evidence will often not be relevant to distinguishing between levels of intent, as such evidence will be equally consistent with multiple offences: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 52; Calnen, at para. 121. However, there are some cases, such as when an accused’s after-the-fact conduct is out of proportion to an alternative explanation, that the evidence may be relevant in discerning an accused’s level of culpability: see Calnen, at paras. 148-50.
ii. After-the-fact Conduct Evidence and Provocation
[29] Consistent with these principles, there is no bright line rule controlling whether after-the-fact conduct evidence can be considered in assessing the statutory partial defence of provocation. The question is one of relevance: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 130.
[30] A judge does not err in instructing the jury that they may consider after-the-fact conduct evidence on the issue of provocation if it is arguably relevant and the jury is appropriately cautioned about its use, including being reminded to consider other explanations for the conduct and to not assume it supports a finding of murder. The extent of any necessary caution and limiting instruction will be assessed against the positions of the parties at trial and whether the defence objected to the instruction on after-the-fact conduct: R. v Gould, 2008 ONCA 855, 244 O.A.C. 176, at paras. 6-11.
iii. The Jury Charge
[31] The trial judge structured his charge so that, after explaining the jurors’ duties and some general principles of law, he explained some evidentiary rules that applied to this case.
[32] In that section of the charge, he gave a general instruction about after-the-fact conduct evidence, in which he set out various cautions about its use, and noted some of the issues, including provocation, on which the evidence might be used. He said the following:
Evidence of what a person said or did after an offence was committed may help you decide whether it was that person who committed it. It may help. Or it may not.
What a person said or did after an offence was committed is a type of circumstantial evidence. Like any circumstantial evidence, it is for you to say what inference should be drawn from this evidence. You may use this evidence, along with all the other evidence in the case, in deciding whether Crown counsel has proven [the appellant’s] guilt beyond a reasonable doubt.
As circumstantial evidence, evidence of after the fact conduct has only an indirect bearing on the issue of guilt. You must be careful about inferring that [the appellant] is guilty on the basis of evidence of after the fact conduct because there might be other explanations for that conduct … You may use this evidence of after the fact conduct, along with other evidence, to support an inference of guilt only if you have rejected any other explanation of this conduct.
[33] After summarizing the after-the fact-conduct evidence beginning with the immediate aftermath of the altercation through to the appellant’s attempts to leave the country several days later, the trial judge continued:
It is open to you to conclude that [the appellant] changed his clothes, covered his head when he left the apartment and didn't seek help until he was far from [the apartment] to conceal his identity from the surveillance cameras and to avoid being associated with what happened to Mr. Hussein by the police. It is open to you to conclude that on October 5, once he knew that the police had discovered Mr. Hussein's body and might be able to connect him to the apartment, he slept in a boiler room to avoid being found by the police and was making efforts to leave Canada in order to avoid being arrested and charged. If you reach these conclusions, then it would be open to you to infer that [the appellant] was doing all this because he was the person who inflicted the injuries that caused the death of Mr. Hussein, and also that when he inflicted the injuries, he was not acting in self defence or as a result of provocation. You do not have to draw these inferences, but it would be open to you to do so.
But in trying to decide the reasons for what [the appellant] did after injuring Mr. Hussein, you should consider all of the evidence. Of particular importance is evidence that offers other explanations for what he did. He testified that he initially fled the scene and covered his head out of fear of being harmed by friends of Mr. Hussein who lived nearby and might do harm to him … He said that he did not ask neighbours or people living close to the apartment for help for the same reason, and he waited a long time to ask for help because no doors were open along the route he took. He also said that after he learned on October 5 that Mr. Hussein had died, he panicked. He was not a Canadian. He was hiding and considering leaving Canada because he was scared, and didn't know how our justice system works.
But a word of caution. While this evidence may assist you in determining whether or not [the appellant] caused the death of Mr. Hussein, whether or not he acted in self-defence and whether or not he was provoked, it cannot be used in determining whether or not he had the intention required for murder. I say this because this after the fact conduct is as consistent with [the appellant] having the mental state for murder as it is for manslaughter. [Emphasis added.]
[34] The trial judge then proceeded to explain that, to find the appellant guilty of second-degree murder, the Crown needed to prove beyond a reasonable doubt the essential elements of the offence – that the appellant caused Mr. Hussein’s death, did so by unlawful means (and therefore did not act in self-defence), and had the requisite state of mind for murder (after considering evidence of intoxication). In discussing how the jury should approach each element and issue, he detailed the evidence that they might consider, including the different scope of after-the fact-conduct evidence that they may use on various issues.
[35] For example, on some issues, the trial judge suggested that a broad scope of after-the-fact conduct evidence could be used. On the issue of whether the appellant caused Mr. Hussein’s death, he told the jury they should consider the appellant’s after-the-fact conduct “in the manner I directed earlier in the charge”. On the question of whether the death was caused by an unlawful act, the trial judge addressed the issue of self-defence. Within his instructions on whether the appellant reasonably believed Mr. Hussein was using or threatening to use force, he simply invited the jury to consider the “words and conduct before, at the time and after the interaction between them”.
[36] In contrast, on the question of whether the appellant had the requisite intent for murder, the trial judge told the jury that they could not take into account the evidence of what the appellant did after wounding Mr. Hussein, with one exception. They could consider “his conduct immediately after the killing … because it may assist you in assessing [the appellant’s] level of intoxication” (emphasis added). He specified that this meant only the conduct of removing his bloody clothes and changing into Mr. Hussein’s, leaving the building with his head covered, and making his way to the street in the manner that he did. He indicated to the jury that this conduct was potentially relevant to assessing the appellant’s level of intoxication at the time of the killing, but noted that even this narrow scope of conduct ranged in usefulness depending on its temporal proximity to the killing.
[37] The trial judge went on to explain provocation. He told the jury he was doing so at the end of his charge about murder, as it was only an issue for the jury to decide if they were satisfied beyond a reasonable doubt that the appellant committed murder. If they were, and if the Crown did not prove beyond a reasonable doubt that the appellant was not acting under provocation, they were to find the appellant guilty of manslaughter, not murder. He went on to outline the elements of provocation as comprising five questions: (i) was there an indictable offence committed by Mr. Hussein against the appellant; (ii) was the indictable offence sufficient to deprive an ordinary person of the power of self-control; (iii) had the appellant lost the power of self-control as a result of Mr. Hussein’s indictable offence when he killed Mr. Hussein; (iv) was Mr. Hussein’s indictable offence sudden for the appellant; and, (v) did the appellant act suddenly before regaining self-control.
[38] In the context of his discussion of provocation, the trial judge outlined evidence that they might consider. On the sub-issue of whether the appellant lost self-control in response to Mr. Hussein’s indictable offence, he gave a specific instruction about the limited scope of after-the-fact conduct evidence that could be taken into account. He stated:
When you consider this issue, you can take into account all of the evidence you have heard about what happened during the day of October 3, 2017, up to the time [the appellant] left the building. You will not consider anything that happened after he left. You will obviously consider [the appellant’s] own evidence about these events. [Emphasis added.]
iv. Discussion
[39] To consider whether the trial judge erred in the manner in which he instructed the jury about after-the-fact conduct evidence, two questions are pertinent. The first is whether the charge directed the jury to only consider evidence that was relevant to provocation. The second is whether the jury was appropriately cautioned against improper prejudicial reasoning. [1]
[40] On the question of relevance, the appellant does not take issue with the way the jury was instructed to consider this evidence on any issue other than provocation. He concedes that the evidence of the conduct immediately following the altercation with Mr. Hussein was relevant to his state of intoxication, and that the evidence of his efforts to hide and flee after he learned of Mr. Hussein’s death was relevant to whether he knew he had unlawfully caused that death. But he argues it had no probative value on the question of provocation.
[41] The appellant acknowledges that after-the-fact conduct evidence may be relevant to provocation in some first-degree murder cases because there are instances where such evidence is relevant to planning and deliberation, and therefore can also rebut a defence of provocation. However, he contends that this conduct will not be relevant in a second-degree murder case.
[42] I disagree. The appellant’s position would effectively create a bright line rule that would undermine the controlling test of relevance. I do not read the cases cited by the appellant to go as far as to say that after-the-fact conduct is never relevant to provocation in second-degree murder cases.
[43] R. v. Marinaro (1994), 76 O.A.C. 44 (C.A.), rev’d on other grounds, [1996] 1 S.C.R. 462, dealt with a distinctly different jury instruction that permitted the jury to consider after-the-fact conduct evidence on the issue of provocation that had no temporal proximity to the killing. The conduct at issue included the accused’s flight from the scene, destruction of evidence, and subsequent false statements. The trial judge had instructed the jury that this conduct “might be evidence of consciousness of guilt” from which an inference of culpability for the crime alleged could be drawn. There was no kind of limiting instruction on its use, despite requests from defence counsel. This court recognized that, in the absence of limiting instructions, the trial judge improperly permitted the jury to use this evidence to rebut a defence of provocation and to differentiate between murder and manslaughter.
[44] In R. v. Feil, 2012 BCCA 110, 282 C.C.C. (3d) 289, the jury charge was similarly erroneous because it failed to give any limiting instruction on applying the after-the-fact conduct evidence to the issues of intent and provocation. The evidence included the accused’s immediate response of performing CPR and failing to call 911, and his subsequent departure from the scene and visits with friends days later. Unlike in this case, the trial judge treated this evidence uniformly, instructing the jury that they could use this evidence “when deciding whether he is guilty of murder or manslaughter”. On appeal, the court concluded that the trial judge erred because the evidence was only relevant to assessing the veracity of the accused’s police statement.
[45] Clearly after-the-fact conduct can sometimes be relevant to provocation. The defence of provocation depends, in part, on the accused’s subjective state of mind, the issue being whether the accused lost the power of self-control in response to the provocation and acted on the sudden before there was time for passion to cool: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 36, 38; R. v. Barrett, 2022 ONCA 355, 162 O.R. (3d) 425, at para. 57.
[46] As noted above, after-the-fact conduct can be relevant to the accused’s state of mind, when “as a matter of common sense and human experience, the evidence [is] capable of supporting an inference that an accused had a particular state of mind”: MacKinnon, at pp. 383-84. Evidence of behaviour immediately after the state of mind that was said to exist may shed light on whether it actually did exist at the relevant time.
[47] Accordingly, in some cases, after-the-fact conduct evidence can be properly left with the jury on the issue of provocation. In R. v. Gould, 2008 ONCA 855, 244 O.A.C. 176, evidence of what the accused did immediately after stabbing the victim – threatening eyewitnesses, throwing away the knife in a sewer, and returning to make efforts to help the victim – was conceded to be potentially relevant to self-defence, provocation, and intoxication: at paras. 4, 6. In the second-degree murder case, R. v. Pappas, 2012 ABCA 221, 288 C.C.C. (3d) 323, at para. 55, aff’d on other grounds, 2013 SCC 56, [2013] 3 S.C.R. 452, the court noted the possibility that after-the-fact conduct may in some circumstances be relevant to the defence of provocation, but such evidence would need to be subject to cautionary and limiting instructions to avoid potential misuse.
[48] In this case, the trial judge properly limited the jury’s use of after-the-fact conduct evidence on the issue of provocation to what the appellant did immediately after the altercation with Mr. Hussein. This subset of evidence was arguably relevant to provocation. This was not a situation where competing inferences from this conduct were equally plausible. It was open to the jury to consider that if the appellant was making deliberate and calculated decisions to change his clothing and hide his appearance before his departure from the scene in the immediate aftermath of the altercation, his infliction of hundreds of wounds on Mr. Hussein had not taken place during a sudden loss of control. This is especially so given that the appellant had not testified that he acted in anger or had lost control. Defence counsel had asked the jury to consider that this occurred as an inference from the circumstances.
[49] It is true that in the trial judge’s general instructions on after-the-fact conduct evidence, referred to in para. 32 above, he referred to a broader array of conduct than that which immediately followed the altercation, and said that the jury could, but did not have to, use that evidence to infer that the appellant had not acted “in self-defence or as a result of provocation”. I agree with the appellant that conduct in the days following the altercation – hiding, trying to flee the country – were not relevant to provocation. However, I am satisfied that there was no material risk the jury would use that evidence on this issue.
[50] I reach that conclusion for two reasons.
[51] First, the trial judge’s charge was structured in a way such that he first gave a general instruction on after-the-fact-conduct evidence, and then gave more specific instructions on how it should be used for specific issues. In the general instruction, the trial judge noted the various types of after-the-fact conduct evidence and some of the issues to which it might relate. But he did so in the context of providing appropriate cautions to the jury about how any of that evidence could be used, and before he delved deeply into the specific issues.
[52] The trial judge then gave precise instructions to the jury about what aspects of the after-the-fact conduct evidence could be used on specific issues. For example, on the issue of whether the appellant caused Mr. Hussein’s death, the jury was entitled to consider the entirety of the after-the-fact conduct evidence, subject to the cautions given in the general instruction. In contrast, on the issue of intoxication, the trial judge told the jury they could only use the evidence of what the appellant did immediately after the altercation, and delineated what evidence he meant they could and could not use.
[53] Similarly, when the trial judge explained to the jury in detail the elements of provocation, and related the evidence to that issue, he expressly directed the jury to consider only the evidence up to the appellant leaving the building, and not afterwards. In light of this issue-specific instruction, there was no material risk that the jury would interpret the trial judge’s more general instruction as allowing them to use evidence of what the appellant did after he left the building on the issue of provocation.
[54] Second, trial counsel made no objection to the charge in relation to this issue, either at the pre-charge conference or after it was delivered. While not fatal, a failure to object on this type of issue is significant: Gould, at para. 11. Counsel’s position at trial informs an appellate court’s assessment of the seriousness of the issue subsequently raised on appeal: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.
[55] In sum, I am satisfied that the jury was properly instructed to only consider evidence that was relevant to the issue of provocation.
[56] On the question of whether the jury was sufficiently cautioned against prejudicial reasoning when using the after-the-fact conduct evidence on the issue of provocation, I would emphasize again the numerous cautions given by the trial judge in his general instruction on this evidence. For instance, he told the jury that: (i) they could, but did not have to, use after-the-fact conduct evidence on the issue of provocation; (ii) the evidence only had an indirect bearing on the issue of guilt, and such evidence could only support an inference of guilt if all other explanations were rejected; and (iii) they should specifically consider the alternative explanations proffered by the appellant. These cautions ensured that any potential prejudicial effect caused by the after-the-fact conduct evidence on this issue was effectively mitigated.
[57] I therefore reject this ground of appeal.
b) The Refusal to Allow Mr. Khalinle to be Called as a Witness
[58] The appellant’s argument that the Crown should have been forced, or he should have been permitted, to call Mohamed Khalinle as a witness must also be rejected.
[59] In the trial judge’s ruling on this issue, he summarized the intended evidence as follows:
[O]n October 6, 2017, Mr. Khalinle provided information to the police that at between 1:30 and 2:30 a.m. on October 6, he met the accused at a coffee shop. Mr. Khalinle was aware that Mr. Hussein had been killed. The accused told him that he had stabbed a friend of his, wanted to escape and needed a place to sleep that night. He said that he had been drinking with his friend when his friend attacked him, and he defended himself by stabbing him with a knife and killing him. Mr. Khalinle refused to give the accused a place to sleep, and told him to call the police. After this conversation, Mr. Khalinle saw the accused walk down an alley adjacent to 1716 Weston Road and enter an unlocked door.
[60] The trial judge noted that the police had arrested the appellant in the basement accessed through 1716 Weston Road based on the information given by Mr. Khalinle.
[61] Mr. Khalinle’s name was on the Crown’s witness list, but the Crown had reserved its right to elect not to call any particular witness. The appellant’s statement to Mr. Khalinle’s included an inculpatory aspect – the appellant admitted to knowing he killed Mr. Hussein – and an exculpatory aspect relating to the appellant’s claim of self-defence. When the Crown decided not to call him, the appellant asked that the Crown be forced to or alternatively that he be permitted to.
[62] The trial judge addressed the second request first in his ruling: see R. v. Yabarow, 2019 ONSC 3839, at para. 11. In doing so, he noted that the appellant’s exculpatory out-of-court statement was presumptively inadmissible as self-serving hearsay, and then considered whether the statement fell within a recognized exception. The two potentially relevant exceptions were the “mixed” statement exception and the exception recognized in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, [2010] S.C.C.A. No. 466, for spontaneous statements made by an accused upon arrest or when first confronted with an accusation.
[63] For the “mixed” statement exception, he re-iterated that the rule requires that, where the Crown seeks to tender an accused’s out-of-court statement that contains both inculpatory and exculpatory parts, the Crown is required to tender the entire statement and the exculpatory portions are substantively admissible in favour of the accused: see R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37. In this case, the Crown was not seeking to introduce the statement at issue. Accordingly, the defence sought to extend the rule so that, where the Crown adduces other inculpatory statements of the accused, but does not tender a mixed statement from a different circumstance, the accused should be entitled to introduce the mixed statement. The trial judge properly rejected this proposal. The fairness concerns underlying the mixed statement exception – that the statement’s meaning should not be distorted for the trier of fact – were not engaged here.
[64] Similarly, the trial judge did not err in concluding that the statement did not fall within the Edgar exception. The statement was not a spontaneous reaction to an allegation. As a result, the trial judge correctly held that the appellant was not permitted to call Mr. Khalinle to introduce the inadmissible exculpatory statement.
[65] The trial judge then considered whether the Crown should have been forced to call Mr. Khalinle. He held that there was nothing improper in the Crown’s decision not to lead that evidence and no basis to compel the Crown to do so. He properly referenced the authority of R. v. Cook, [1997] 1 S.C.R. 1113, which held that “[d]ecisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused”: at para. 55. I see no merit in the appellant’s argument that the evidence was required for narrative purposes, rather than hearsay purposes, to ensure a fair trial.
(2) The Sentence Appeal
[66] The appellant argues that the trial judge erred in not taking into account his immigration status and certainty of deportation in deciding that the period of parole ineligibility should be thirteen years.
[67] In my view, there is no basis to interfere with the sentence.
[68] A determination of the length of parole ineligibility, like any sentencing decision, is owed substantial deference on appeal. R. v. Salah, 2015 ONCA 23, 328 O.A.C. 333, at para. 267.
[69] The trial judge considered, on the question of parole ineligibility, various factors including that the appellant was a first time offender, had a difficult life, would be separated from his family for a long time, had made efforts at self-improvement, and that the offence was fueled by alcohol. On the other hand, he noted, as aggravating factors, the prolonged and brutal nature of the attack, the devastating impact on Mr. Hussein’s family, and the fact that the appellant had not sought any help for the victim knowing he had been stabbed and was bleeding profusely. Given the gravity of the offence and the degree of responsibility of the offender, he set parole ineligibility at thirteen years.
[70] The trial judge did not refer specifically to immigration consequences, although he noted that the appellant came to Canada with refugee status. In submissions, the prospect of deportation was raised. The submission was simply that “there would be no point in putting this case at the high end when he’s going to be deported in any event”.
[71] The trial judge was not required to refer to every submission and his failure to refer to this one does not mean it was overlooked: R. v. Randhawa, 2020 ONCA 38, 149 O.R. (3d) 343, at para. 19. The Crown was asking for fifteen years parole ineligibility which the trial judge did not accede to. Moreover, to the extent the appellant argues that the certainty of deportation should lead to minimum parole ineligibility, the trial judge was not required to accept such a proposition. There is no principled basis to say that parole should always be available earlier for persons who will be deported because, on that occurrence, they will be another country’s responsibility: R. v. Rowe, 2015 ONSC 2576, 324 C.C.C. (3d) 57, at para. 146.
D. Conclusion
[72] I would dismiss the conviction appeal. I would grant leave to appeal sentence, but would dismiss the sentence appeal.
Released: June 7, 2023 “P.D.L.”
“B. Zarnett J.A.”
“I agree. P. Lauwers J.A.”
“I agree. David M. Paciocco J.A.”
[1] The respondent argues that the trial judge ought not to have left provocation with the jury, as there was no air of reality to the defence. The appellant did not say he acted out of anger or loss of control. In light of my conclusions on the appeal, I do not have to address that issue.