Court of Appeal for Ontario

Date: 2025-03-25
Docket: COA-22-CR-0107
Coram: Trotter, Gomery and Madsen JJ.A.

Between:
His Majesty the King (Respondent)
and
Osama Filli (Appellant)

Appearances:
Carter Martell and Tina Yuen, for the appellant
Jeremy Streeter, for the respondent

Heard: January 22, 2025

On appeal from the conviction entered by Justice Maureen D. Forestell of the Superior Court of Justice on May 10, 2017, with reasons reported at 2017 ONSC 2883.

Trotter J.A.:

A. Introduction

[1] The appellant was charged with second degree murder in the stabbing death of Nahom Berhane. After a trial by judge alone, he was found not guilty of second degree murder, but guilty of manslaughter. The appellant was subsequently found not criminally responsible on account of mental disorder (“NCRMD”) and remanded to the Ontario Review Board for a disposition hearing: Criminal Code, R.S.C. 1985, c. C-46, ss. 16, 672.47. He has been subject to the jurisdiction of the Board ever since.

[2] The appellant only appeals his finding of guilt. He contends that the trial judge made several errors in her consideration of his claim that he acted in self-defence. He also says that these errors rendered his conviction unreasonable.

[3] The following reasons explain why I would dismiss the appeal.

B. Factual Summary

(1) Introduction

[4] In her thorough reasons for judgment, the trial judge reviewed the conflicting evidence adduced at trial and explained the credibility findings that she made. A number of these factual/evidentiary findings are challenged on appeal.

[5] It was undisputed that the appellant killed Mr. Berhane by stabbing him twice in the back with a large knife.[^1] The two main issues at trial were whether the appellant acted in self-defence (Criminal Code, s. 34) and, in the alternative, whether the Crown established one of the mental elements for murder (Criminal Code, s. 229(a)). As noted, the Crown disproved self-defence beyond a reasonable doubt; however, it failed to prove either of the fault requirements for murder, leading to the finding of guilt on the included offence of manslaughter.

(2) Events Leading up to the Stabbing

[6] Mr. Filli came to Canada from Eritrea in 2012 when he was 21 years old. In the weeks leading up to the offence, he stayed at a homeless shelter.

[7] The appellant experienced mental health challenges. He carried a knife for protection. Another resident of the shelter took the knife away from the appellant. This upset him because he believed that people wanted to harm him. He believed he was being hunted. The appellant testified, and the trial judge accepted, that he had been robbed on the street and sexually abused in the washroom of a bar.

[8] On the day before the stabbing, the appellant saw a nurse practitioner. He ran out of his prescription for chlorpromazine two days earlier; he said that he was taking the drug for stress and that he sometimes had “crazy” ideas. At about 6:00 p.m. that day, the appellant purchased another large knife (with a sheath) from Canadian Tire. He concealed it under his clothing.

[9] Later that evening, the appellant went to a park close to where the stabbing occurred. He brought a bottle of Jack Daniels with him, which he shared with others. Maarg Abraha and Selim Ademnur were also in the park. As discussed below, these two men, also members of the Canadian Eritrean community in Toronto, figure prominently in the events leading up to the stabbing of Mr. Berhane. The three men, and others, smoked marijuana in the park. They left the park around midnight to 12:30 a.m. and went to a licenced establishment named Awash Café.

[10] The appellant did not remain at Awash Café for long. He went a few doors down to Lumar Café, an unlicensed establishment. He stayed there until after 2:00 a.m., when he left for the subway. But the subway had stopped running, so he returned to Lumar Café and sat on a planter outside.

[11] It was around this time that Mr. Berhane entered the scenario. Mr. Berhane was 34 years old at the time of his death. He was well-known in the Canadian Eritrean community. He was viewed by others as a leader, especially among younger Eritrean men. The appellant and Mr. Berhane were strangers to each other. Mr. Berhane was a mentor to Mr. Abraha (they were like brothers) and a friend of Mr. Ademnur. Although Mr. Abraha and Mr. Ademnur knew the appellant, they were not friends.

[12] Mr. Abraha testified at the appellant’s trial. Mr. Ademnur did not. He left Canada and returned to Eritrea before the trial started. He gave three statements to the police that were admitted into evidence for their truth.

[13] Earlier that evening, Mr. Berhane attended a meeting of a program known as City Leaders. It ended at about 9:00 p.m. He went with some of the other men to Awash Café. Although the precise number of drinks that he consumed that night is unknown, he was very intoxicated when he died at 3:30 a.m.

(3) The Fight and the Stabbing

[14] While the appellant was seated on the planter outside Lumar Café, he saw Mr. Berhane and some other men come out of Awash Café. They were talking outside of the bar and, according to the appellant, Mr. Berhane appeared to be lecturing them. Mr. Berhane came over and sat on the planter next to the appellant. The appellant says that Mr. Berhane seemed upset, and that he may have told Mr. Berhane to go home or asked him what was wrong. The appellant testified that Mr. Berhane then pushed him. The two men got into a tussle and were shouting at each other. They were soon separated, and Mr. Berhane was led away. Mr. Abraha and Mr. Ademnur were close by when this happened.

[15] Shortly afterwards, Mr. Berhane returned to the planter. He punched the appellant in the head. Another tussle began. Mr. Abraha attempted to separate the two men and stop them from fighting. Mr. Ademnur, who was a larger man, stood beside the appellant. The appellant testified that, in the fray, he fell to the ground and was kicked by Mr. Abraha and Mr. Ademnur with great force, and that Mr. Abraha head-butted him. The trial judge rejected his evidence that the men kicked him; however, she accepted that Mr. Abraha head-butted the appellant at some point.

[16] In his testimony, the appellant agreed that he could have left after the first part of the altercation, or once the second part began when Mr. Berhane punched him. He said that he did not do so because he wanted to find out why Mr. Berhane punched him. He said, “[o]bviously there’s a reason for getting punched, so I gotta know.”

[17] As the physical altercation continued, Mr. Abraha was holding onto the appellant’s shirt, attempting to separate the two men and prevent them from hitting each other. The appellant removed his recently purchased knife from his clothing, reached around Mr. Abraha, and twice stabbed Mr. Berhane in the back. He testified that he wanted to distract him with pain. It was his intention to stab Mr. Berhane in the shoulder or arm. Soon after he was stabbed, Mr. Berhane collapsed. The appellant ran away. One of the stab wounds he inflicted was fatal.

[18] The appellant testified that he thought the three men – Mr. Berhane, Mr. Abraha, and Mr. Ademnur – were going to kidnap him or kill him. He claimed to be in a 3-against-1 fight with the other men when he stabbed Mr. Berhane.

C. The Trial Judge’s Reasons

[19] The trial judge delivered a detailed, 33-page judgment in which she compendiously reviewed the conflicting and contradictory evidence. She approached with caution the testimony of Mr. Abraha (because he was evasive) and the statements of Mr. Ademnur (because of the lack of opportunity to cross-examine him and his admission to being drunk that night). The appellant’s testimony also presented challenges by virtue of its numerous internal inconsistencies.

[20] The trial judge instructed herself on the principles applicable to self-defence in s. 34 of the Criminal Code. The parties agreed that the appellant believed on reasonable grounds that force was being used against him or that a threat of force was made against him: s. 34(1)(a). The trial judge accepted this concession by the Crown. However, the Crown did not concede the other elements of the test for self-defence in s. 34(1)(b) (defensive purpose) and s. 34(1)(c) (the act committed was reasonable in the circumstances) were met.

[21] The Crown submitted that the appellant did not stab Mr. Berhane for a defensive purpose: s. 34(1)(b). It contended that the appellant acted in a targeted manner in stabbing Mr. Berhane, who was unarmed. This aspect of self-defence engages a purely subjective inquiry and is not qualified by a reasonableness requirement: R. v. Khill, 2021 SCC 37, para 59. The trial judge reviewed the conflicting evidence on this issue and accepted the appellant’s evidence that he was defending himself when he stabbed Mr. Berhane.

[22] The crux of the trial judge’s decision (and the main issue on appeal) is whether the force used by the appellant was reasonable in all of the circumstances: s. 34(1)(c). This required the consideration of some of the factors listed in s. 34(2).

[23] Although the trial judge found that the appellant satisfied the requirements of s. 34(1)(a), for the purposes of her analysis of s. 34(1)(c), she said, at para. 203: “Mr. Filli subjectively believed that he faced the risk of serious harm, killing or kidnapping from Mr. Berhane, but that belief was not objectively reasonable.”

[24] The trial judge found that the appellant persisted in his desire to fight Mr. Berhane, even after he was pushed away by Mr. Abraha. He chose not to retreat. As the trial judge explained, at para. 205:

I find that he did so because, as he said, he thought that the three men might kidnap or kill him and there were too many things going on in his brain. I find that Mr. Filli’s assessment of the nature and level of threat to him was not objectively reasonable. He faced a possible physical assault from Mr. Berhane. He had no reasonable belief that Mr. Berhane was armed. Mr. Abraha had pushed him forcibly away from the altercation. Mr. Filli was not prevented from retreating. His choice to remain engaged in the fight and to use a weapon against unarmed men was not reasonable given the nature of the force that he faced and the options that he had to avoid that threat of force. I appreciate that the ability to retreat is not determinative of self-defence. It is merely a factor to be considered. However, in the circumstances of this case, I find the opportunity to retreat to be a significant factor in assessing the reasonableness of Mr. Filli’s act of stabbing Mr. Berhane. [Emphasis added.]

[25] The trial judge found that, although the appellant was assaulted by Mr. Abraha, Mr. Abraha did this to get the appellant to stop fighting. She found that Mr. Ademnur did nothing other than stand-by while the struggle was underway.

[26] Lastly, and while not an issue on appeal, the trial judge concluded that the Crown failed to prove either of the fault requirements for murder in s. 229(a) of the Criminal Code. She accepted the appellant’s evidence that he merely intended to strike Mr. Berhane in the shoulder or arm.

D. Analysis

[27] The appellant’s grounds of appeal focus on the trial judge’s assessment of the self-defence claim. First, the trial judge erred in failing to properly identify the threat perceived by the appellant. Second, the trial judge erred in concluding that the appellant could have left the fight. Third, the trial judge erred by relying on evidence of the appellant’s mental health challenges, evidence that she excluded in a separate ruling. Lastly, the verdict was unreasonable.

[28] The respondent’s overarching position is that the grounds of appeal collectively advanced by the appellant constitute an invitation to re-try the case. For the appellant to succeed, we would be required to substitute our own factual findings, which turned largely on credibility assessments, for those of the trial judge. The respondent further submits that the trial judge did not misuse evidence related to the appellant’s mental health challenges.

[29] I would not give effect to any of these grounds of appeal. I agree with the respondent that we are being asked to re-try the case and to ignore the trial judge’s careful credibility findings. This is not our role as an appellate court.

(1) The Trial Judge Correctly Identified the Nature of the Threat: s. 34(1)(a)

[30] The appellant submits that the trial judge misapprehended the nature of the threat reasonably perceived by the appellant that night. The appellant suggests that the trial judge simply accepted the position taken jointly by the parties that the appellant satisfied the requirements of s. 34(1)(a) of the Criminal Code without actually considering the nature of the threat he believed that he faced. This error matters, according to the appellant, because the way that one characterizes the threat under s. 34(1)(a) impacts whether an accused’s response was reasonable for the purposes of s. 34(1)(c). At the heart of this submission is the contention that the trial judge erred in not finding that the appellant reasonably perceived that he was defending himself against three people, and not just one. I disagree.

[31] The trial judge recognized that there is a certain fluidity to the elements of self-defence. As she said, at para. 166: “The three elements of self-defence under s. 34(1) cannot be considered in isolation. The nature of the force or threat of force faced by Mr. Filli must be considered in assessing the reasonableness of the act said to be committed in self-defence.” That is what she did.

[32] Nonetheless, the trial judge properly considered the nature of the threat in s. 34(1)(a). After reviewing the conflicting evidence, the trial judge found that the appellant reasonably faced a threat from Mr. Berhane alone. His belief that he was defending against three men may have been genuine, but it was not reasonable. The trial judge said, at para. 193:

At the point that Mr. Filli took out his knife and stabbed Mr. Berhane, Mr. Abraha was holding Mr. Filli and attempting to prevent the continuation of the fight between Mr. Filli and Mr. Berhane. At the point that Mr. Filli took out and used his knife, Mr. Ademnur was doing nothing. He was standing nearby.

[33] In reaching this conclusion, the trial judge emphasized the fact that the appellant did not stab Mr. Abraha, even though he stood closest to him. He stabbed Mr. Berhane instead. The trial judge found, at para. 195:

Mr. Filli’s explanation for why he stabbed Mr. Berhane in the context of his description of the fight did not make logical sense. Mr. Berhane had not caused any harm to Mr. Filli. Even if I had accepted Mr. Filli’s version of events, that he was kicked by Mr. Abraha and Mr. Ademnur, Mr. Filli’s explanation for stabbing Mr. Berhane does not make logical sense. Mr. Filli was facing Mr. Abraha and was being held by him. He did not attempt to break free. He did not leave the area. He did not use his knife on Mr. Abraha. Instead he reached around Mr. Abraha and stabbed Mr. Berhane. [Emphasis added.]

[34] These factual findings were available to the trial judge based on the credibility findings that she made.

[35] The appellant submits that the trial judge erred in her consideration of the appellant’s belief that he thought that Mr. Berhane and his friends were going to kill him or kidnap him. The appellant contends that this issue was a “red herring” in the application of s. 34(1)(a). I disagree with this characterization. The trial judge considered this aspect of the appellant’s evidence in determining whether he acted with a defensive purpose under s. 34(1)(b) of the Criminal Code. Placing significant weight on this evidence, she found that he did. Far from being a “red herring”, this finding was helpful to the appellant’s position.

[36] I would not give effect to this ground of appeal.

(2) The Trial Judge Did Not Err in Finding that the Appellant Could Have Left the Fight

[37] The appellant submits that the trial judge erred in law in finding that the appellant could have left the fight. He argues that this was not a reasonable finding. I disagree.

[38] The trial judge addressed this issue at a number of points in her judgment. She correctly instructed herself on the law. When setting out the relevant factors to use in assessing the reasonableness of the appellant’s response under s. 34(1)(c), she said, at para. 162: “An accused need not wait until he or she is assaulted before acting, and an accused is not by law required to retreat before acting in self-defence”, citing R. v. Sinclair, 2017 ONCA 38, leave to appeal refused, [2017] S.C.C.A. No. 212, and R. v. Cormier, 2017 NBCA 10. The relevance of one’s ability to leave a confrontation is rooted in s. 34(2), which lists the factors that are included in the application of s. 34(1)(c). This factor may be taken into account in s. 34(2)(b) (the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force) and s. 34(2)(c) (the accused person’s role in the incident): Khill, at paras. 78, 82.

[39] The trial judge addressed the issue at para. 188:

I find therefore that in the second part of the fight Mr. Filli began fighting with Mr. Berhane. Mr. Berhane punched Mr. Filli and Mr. Filli responded by punching and pushing Mr. Berhane. Mr. Filli could have left. He did not leave, but willingly engaged in the fight. Mr. Filli testified, “I gotta know why I’m getting hit, what’s the reason … I wouldn’t just leave like that.”

[40] The trial judge further explained that the appellant was persistent in his desire to continue to engage physically with Mr. Berhane. He had opportunities to walk away, but he did not. The appellant could not even be pushed away, as Mr. Abraha attempted to do. The trial judge did not err in considering this as an important factor in assessing the reasonableness of the appellant’s response.

[41] In reaching this conclusion, we do not see this case as being similar to R. v. Cunha, 2016 ONCA 491, para 24, in which this court held that the trial judge erroneously evaluated the appellant’s decisions taken in the moment by holding him to a standard of perfection, disconnected from the urgency of the situation that he faced. In my view, the trial judge’s reasons reflect that she did not lose “sight of the whole factual context and the tableau of the evidence”.

(3) The Trial Judge Did Not Misuse the Mental Health Evidence

[42] In the weeks and days leading up to this offence, the appellant experienced mental health challenges. This is evident from the appellant’s NCRMD disposition, which was determined during a subsequent proceeding.

[43] Towards the end of its case, the Crown applied to adduce evidence of discreditable conduct, a statement made by the appellant to a nurse at the Toronto South Detention Centre, and “evidence of unusual behaviour, thoughts and beliefs of the [appellant] and treatment for mental illness prior to the offence.” This included the appellant’s exchange with the nurse-practitioner referred to in para. 8, above, evidence of his medical prescriptions, as well as evidence of the appellant’s “bizarre” behaviour during the same time-period.

[44] The trial judge provided separate reasons in which she explained why some of the evidence was admissible, and why some of it was not. The appellant does not challenge the correctness of this ruling.

[45] It is important to recognize the backdrop to this application. This was a bifurcated proceeding in which the appellant’s criminal liability would be determined prior to a consideration of whether he was NCRMD under s. 16 of the Criminal Code. The trial judge was aware of the importance of keeping these phases separate. The trial judge was also concerned with the potential prejudicial impact associated with evidence of mental illness – speculation or stereotypical reasoning that persons with symptoms of mental illness may be more prone to violence: see R. v. Swain, [1991] 1 S.C.R. 933, at pp. 994, 1015; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, paras 35-38.

[46] The trial judge found the following evidence to be admissible:

• Evidence of an utterance the appellant may have made to a nurse at the Toronto South Detention Centre to the effect that Risperidone made him do “crazy things”;[^2]
• The evidence of the nurse-practitioner referred to in para. 8, above; and
• Evidence that the appellant was observed sweeping the street with a cane.

[47] The trial judge excluded evidence concerning the treatment provided for the appellant’s mental illness, statements made to mental health professionals that he believed that people were plotting against him in the shelters, as well as other unspecified “bizarre” behaviour.

[48] The appellant contends that the trial judge improperly relied on evidence that she excluded and engaged in improper propensity reasoning. In particular, the appellant relies on the following passage where the trial judge, at para. 198, said:

I find as a fact that Mr. Filli believed that he was in danger from Mr. Berhane. Mr. Filli perceived the situation as gravely dangerous. There were, as he described, “many things” going on in his mind. Eleven days before the fight Mr. Filli told Mahmoud Adderahman that he needed a knife and that he believed he was being hunted. Within a month before that, he told Mr. Yuanes that he needed a gun. Mr. Filli believed that he was vulnerable and at risk before this altercation. During the altercation he believed that he could be kidnapped or killed. I find, based on all of the evidence, that Mr. Filli had a heightened sense that he was in danger before the commencement of this confrontation. This sense of vulnerability and sense that he was in danger was a factor in Mr. Filli’s perception of events and his response to the confrontation and ensuing altercation. [Emphasis added.]

[49] There is no indication in the trial judge’s reasons for judgment that she relied on any evidence she ruled inadmissible. Moreover, there was evidence that the trial judge admitted that touched upon the appellant’s mental state leading up to the day of the offence.

[50] Beyond this, I do not accept the submission that the trial judge engaged in impermissible propensity reasoning. She did not engage with the stereotype that those with mental health challenges are more prone to violence. In fact, she used this body of evidence, which was adduced by the Crown, in a manner that was helpful to the appellant. It was critical to her conclusion “that the Crown has not disproven the elements in ss. 34(1)(a) or (b)”: at para. 200.

[51] I would dismiss this ground of appeal.

(4) The Verdict was Not Unreasonable

[52] The appellant submits that his conviction is unreasonable and unsupported by the evidence. First, he travels the more traditional route, contending that no properly instructed jury acting judicially could have reasonably rendered the verdict reached by the trial judge in this case: see R. v. Yebes, [1987] 2 S.C.R. 168, at p.185; R. v. Biniaris, 2000 SCC 15, para 36; and R. v. C.P., 2021 SCC 19, para 28. This applies to trials conducted with a jury, and trials by judge alone: Biniaris, at para. 37; C.P., at para. 28.

[53] There is no basis for finding the verdict was unreasonable in this case. Hinging on key credibility assessments, the evidence provided a foundation for the trial judge’s conclusion that the Crown disproved the appellant’s claim of self-defence beyond a reasonable doubt. Although this was a trial by judge alone, it could not possibly be said that it would not have been open to a jury, acting on proper instructions, to reject the appellant’s claim of self-defence. The conclusion reached by the trial judge was available on the evidence.

[54] The appellant also relies on the second avenue for testing the reasonableness of a verdict, one that applies only to trials by judge alone. On this basis, the verdict of a trial judge will be unreasonable, even if it is supported by the evidence, if it is reached “illogically or irrationally”: R. v. Beaudry, 2007 SCC 5, paras 96-97, per Fish J. (dissenting); R. v. Sinclair, 2011 SCC 40, para 4; and R. v. R.P., 2012 SCC 22, para 9. In C.P., Abella J. explained, at para. 29:

This may occur if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge.

[55] Justice Abella stressed that this prong of the unreasonable verdict analysis is not meant to invite appellate courts to substitute their own findings for that of the trial judge; nor does it provide free rein to interfere with a trial judge’s credibility findings: at para. 30. Instead, it is narrowly targeted at fundamental flaws in the reasoning process such that the verdict was not reached judicially or in accordance with the rule of law: para. 30. As this court held in R. v. Bacchus, 2024 ONCA 43, para 13: “Unreasonable verdicts under Beaudry/Sinclair are exceedingly rare.”

[56] There was nothing illogical or irrational in the trial judge’s findings that caused her to reject the appellant’s self-defence claim. The appellant simply disagrees with many of the trial judge’s factual conclusions based on her credibility assessments. In rejecting this ground of appeal in Bacchus, the court offered the following assessment, at para. 14:

In our view, the trial judge came nowhere near making a Beaudry/Sinclair error in this case. As in many criminal trials, his credibility assessments and findings were a combination of both positive and negative facts relating to witnesses’ testimony standing alone and in comparison to other witnesses. This is normal in the course of a criminal trial. None of what the trial judge said in his judgment comes anywhere close to the label ‘unreasonable’.

These words aptly describe my assessment of the trial judge’s reasons in this case.

[57] The trial judge was faced with a difficult trial in terms of the credibility assessments and factual findings that she was required to make. This was performed against a backdrop of the appellant’s mental health challenges, evidence of which needed to be contained in order to preserve the authenticity of the bifurcated approach to s. 16 of the Criminal Code.

[58] Apart from these challenges, the case was straightforward. The appellant became involved in an altercation with Mr. Berhane. Punches were thrown and there was some pushing and shoving. Mr. Abraha attempted to keep the men apart. In the process, he assaulted the appellant. But the appellant would not be dissuaded. He wanted to keep fighting. The appellant was not hurt. He faced a modest threat. However, the appellant dramatically escalated the scenario to a whole different level when he produced a large knife, reached around the man who was trying to prevent the fight from continuing, and stabbed an unarmed man in the back. Twice. While the appellant may have thought that this was what he needed to do, his response was not proportionate. It was not reasonable. His claim to self-defence was doomed to fail.

[59] I would not give effect to this ground of appeal.

E. Disposition

[60] I would dismiss the appeal.

Released: March 25, 2025

“G.T.T.”
“Gary Trotter J.A.”
“I agree. S. Gomery J.A.”
“I agree. L. Madsen J.A.”

[^1]: Only one of the stab wounds was fatal.

[^2]: Although the evidence was ruled admissible, the trial judge ultimately determined that she could not be sure what the appellant said to this person and declined to rely upon it. See para. 151 of the trial judge’s reasons.