Court of Appeal for Ontario
Date: 20240416 Docket: C66912
Lauwers, Hourigan and Nordheimer JJ.A.
Parties and Counsel
BETWEEN
His Majesty the King Respondent
and
Ayubullo Mohammad-Daud Appellant
Counsel: Brian H. Greenspan and Naomi M. Lutes, for the appellant Dena Bonnet, for the respondent
Heard: April 9, 2024
On appeal from the conviction entered on December 7, 2018 by Justice Edward F. C. Then of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
Overview
[1] The jury convicted the appellant of the first degree murder of Steven Doyle.
[2] The appellant and the victim had had an altercation between 5:05 and 5:12 p.m. on August 15, 2016. The appellant walked away and as he left said, according to the witness Christopher Brown: “This isn’t over. I’ll be back”.
[3] At 5:34 p.m. the appellant stole a van from a nearby location. About ten minutes later he swerved the van off the road and struck and killed the victim, who was riding a bicycle on the sidewalk. The appellant was driving at the speed of about 60 km/hour when he hit the victim, who died of multiple blunt force injuries to his head.
[4] At trial, the defence conceded that the appellant’s conduct constituted manslaughter but argued that he did not intend to kill the victim.
[5] We advised the parties that the appeal was dismissed, with these reasons to follow.
The Issues on Appeal
[6] The appellant raises three issues:
- The trial judge erred in admitting the character evidence;
- The trial judge failed to instruct the jury in accordance with the principles of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; and
- The trial judge failed to give a corrective instruction when the Crown improperly bolstered the evidence of the eyewitness, Christopher Brown.
The Character Evidence was Admissible
[7] Two weeks before the killing in this case, the appellant pleaded guilty to dangerous operation of a motor vehicle causing bodily harm. The character evidence the Crown sought to adduce related to this conviction. It concerned his conduct when he was caught trying to steal a credit card from a truck. In making his escape in a stolen van:
He intentionally accelerated toward that person at a high rate of speed instead of availing himself of the opportunity to reverse the vehicle in order to escape. The person who confronted him was hit by the accused’s vehicle, clung to the roof and suffered a broken wrist when he fell off.
The second person attempted to stop the accused as he was exiting the parking lot. The accused also drove toward him. The second person was hit and suffered injuries to his collar bone and ribs.
[8] Evidence of prior convictions is admissible under s. 666 of the Criminal Code, R.S.C, 1985, c. C-46, where the accused has put his character in issue. The trial judge found that the appellant put his character in issue by seeking in his testimony “to foster the impression that he is a bad driver who is accident prone, but that he does not have the moral disposition to intentionally hit someone with a motor vehicle.”
[9] The trial judge set out the evidence that led to the decision to admit the character evidence:
Toward the conclusion of his evidence-in-chief the accused was asked if he intentionally hit the deceased with his automobile. The accused answered “no” and added that “I would never in my life actually intentionally of what you just said”.
At the commencement of the cross-examination the accused was asked what he meant by “I would never in my life ... “ in reference to intentionally hitting a person with a vehicle. The accused observed that “for me, I would never in my heart do something like that.” He again repeated “no heart of mine to actually, uh, eh, what really actually do something like that ...”.
The accused subsequently repeated that “never in my heart knew l actually did something to a person”.
[10] The appellant’s counsel argues that the trial judge’s ruling erred in two respects. First, the appellant’s testimony should have been taken to amount to nothing more than a bare denial that he intended to run the victim down. It was not, properly construed, an intentional effort to assert that, as a matter of personal morality, he would never have deliberately run the victim down. In making this argument, counsel relies on the affidavit of Dr. Adam Tancredi, a forensic psychiatrist, concerning the appellant’s cognitive limitations, which was filed in support of a fresh evidence application.
[11] Although the appellant does not dispute the original finding that he was fit to stand trial, counsel argues that Dr. Tancredi’s evidence about the appellant’s cognitive limitations casts doubt on the trial judge’s character evidence ruling. Had these deficiencies been considered at the time, the trial judge may well have concluded that the appellant did not have the requisite level of understanding either to intentionally put his character in issue or to realize that doing so was not in his interest.
[12] Second, the appellant’s counsel submits that the similar act dangers of admitting the character evidence were so high in this case that the trial judge ought to have excluded the evidence as overwhelmingly and excessively prejudicial: “The admission of the evidence of the previous driving convictions was utterly fatal to the Appellant’s defence.”
[13] We see no basis for interfering with the trial judge’s finding that the appellant put his character in issue in making the exculpatory statements that he made. We do not admit the fresh evidence. It does not meet the Palmer test for admission. Trial counsel could have adduced similar evidence and did not. Further, there was evidence as to the appellant’s cognitive limitations in the record. Finally, the trial judge had the advantage of hearing and seeing the appellant give testimony, and was in the best position to assess the appellant’s intentions in using the language that he did.
[14] There is also no basis to interfere with the trial judge’s finding that the probative value of the evidence as a rebuttal to the appellant’s narrative of simply being a bad driver, particularly in light of defence counsel’s character attack on the Crown’s key witness, outweighed its prejudicial effect. His decision was discretionary and disclosed no errors. It is entitled to deference.
The Jury Instruction was Adequate
[15] The second argument on appeal is that the trial judge erred in failing to explain to the jury that it must consider alternative explanations for the collision. Counsel asserts that the trial judge ought to have told the jury that they could only convict if, in accordance with Villaroman, there were “no rational inferences pointing to a lack of mens rea”.
[16] The defence was built around the characterization of the collision as an accident. The appellant testified that he had dropped his cell phone and that his effort to retrieve it caused the van to swerve into the victim. He said this was an accidental collision because he was a bad driver. This theory was raised by the defence and the Crown responded to it in jury submissions. The jury charge set out the contending positions.
[17] The trial judge gave the ordinary reasonable doubt jury instruction. He reviewed the defence theory that there was a doubt raised in this case as to the appellant’s intent. The trial judge told the jury that they must be satisfied beyond a reasonable doubt of the appellant’s guilt, and that a reasonable doubt might arise from the evidence or from a lack of evidence. In this case, the evidence of planning and deliberation was circumstantial. The trial judge explained the concepts of direct and circumstantial evidence. No special Villaroman instruction was required.
The Trial Judge’s Failure to Give a Corrective Instruction was Immaterial
[18] The appellant submits that the trial judge agreed to correct the Crown’s jury address, which sought to bolster the evidence of the eyewitness, Christopher Brown, but he forgot to do so.
[19] The appellant’s complaint is that in the Crown’s examination-in-chief of Mr. Brown and in her closing address, she referred to Mr. Brown’s family difficulties and his commitment in coming to court twice. She told the jury that, despite those “significant personal circumstances,” he had come to court to tell the jury what happened to the deceased. In fact, Mr. Brown was under a subpoena and was not attending voluntarily. Defence counsel asked for a corrective instruction, which the trial judge forgot to provide. Defence counsel pointed this out, after the jury retired, but did not request a re-charge on this point.
[20] The trial judge’s omission was regrettable, but we see no reason to elevate its importance beyond the importance accorded to it by trial defence counsel, who did not press for a correction.
Disposition
[21] It is for these reasons, that the appeal was dismissed.
“P. Lauwers J.A.”
“C.W. Hourigan J.A.”