Court of Appeal for Ontario

Date: 2025-04-17
Docket: C70935
Coram: Fairburn A.C.J.O., Coroza J.A., and Baltman J. (ad hoc)

Between:
His Majesty the King (Respondent)
and
Mustafa Ahmed (Appellant)

Appearances:
Anil K. Kapoor and Nusra Khan, for the appellant
Elena Middelkamp, for the respondent

Heard: 2024-09-24

On appeal from the judgment of Justice Ronald M. Laliberté of the Superior Court of Justice, dated March 29, 2021, with reasons reported at 2021 ONSC 2141.

Coroza J.A.:

I. OVERVIEW

[1] The appellant, Mustafa Ahmed, was found guilty of second degree murder, contrary to s. 235(1) of the Criminal Code, RSC 1985, c C-46, after a judge-alone trial.

[2] The appellant admitted to shooting Omar Rashid-Ghader (the “deceased”) thereby causing his death. The shooting occurred when the parties were engaged in a fight inside a bar in Ottawa during the early morning hours of August 14, 2016. The entire incident was captured on closed-circuit television (“CCTV”).

[3] The Crown’s theory at trial was that the appellant was the aggressor and that the deceased struck the appellant with a champagne bottle upon seeing the appellant pull out a handgun during their argument. After the deceased wrestled the appellant to the ground, the appellant shot the deceased twice in the torso. For his part, the appellant maintained that he was not the aggressor, that he believed he had been pistol whipped by the deceased, and that he shot his gun to save his own life.

[4] At trial, the contested issues were self-defence, whether the appellant had the specific intent for murder, and the partial defence of provocation. The appellant testified and the trial judge found him to be neither credible nor reliable. Consequently, he rejected the defence of self-defence. Furthermore, the trial judge concluded that when he shot the deceased, the appellant subjectively meant to kill the deceased and at a minimum, he meant to cause the deceased bodily harm knowing death was likely and was reckless whether death ensued or not. The trial judge then went on to consider the partial defence of provocation and found that the Crown had proven beyond a reasonable doubt that the appellant’s act of shooting the deceased was not the result of provocation.

[5] The appellant now appeals his conviction and seeks a new trial. He raises two issues on appeal. First, he submits that the trial judge made palpable and overriding errors of fact in assessing the CCTV footage. These findings of fact, according to the appellant, were central to the trial judge’s resolution of the issues of self-defence, specific intent, and provocation. Second, the appellant contends that the trial judge erred in how he treated the appellant’s testimony about his subjective beliefs during the fight. These errors, the appellant submits, resulted in a chain of reasoning that led to an unreasonable verdict, because it was reached “illogically or irrationally”: R. v. Beaudry, 2007 SCC 5, paras. 96-97; R. v. Sinclair, 2011 SCC 40, para. 4.

[6] For the reasons that follow, I would dismiss the appeal.

II. SUMMARY OF THE FACTS

[7] The appellant and the deceased knew each other for years prior to the incident at issue, although they had little contact in the years immediately preceding the incident. They knew each other through their gang affiliations, and they were both involved in drug trafficking and related violence.

[8] Late in the evening on August 13, 2016, the appellant went to Sentral Nightclub in Ottawa. He testified that he went to the nightclub to speak to an “investor of money for drugs” who he believed would be there that night. The appellant testified that he entered the nightclub wearing a concealed handgun and that he carried a gun for protection around 95 percent of the time.

[9] Approximately two hours after the appellant’s arrival, at 1:55 a.m. on August 14, 2016, the deceased arrived at the nightclub. CCTV footage captured the two men greeting and hugging one another. The appellant testified that he knew and feared the deceased, as he had witnessed the deceased engage in acts of violence for intimidation and retaliation. He testified that he knew that the deceased would not have been searched upon entry to the nightclub given his reputation.

[10] At 3:10 a.m., the CCTV footage shows the appellant and the deceased walk by one another. Shortly after, the appellant starts talking with a man at the bar. The appellant identified the man as the investor and testified that they were discussing a potential drug transaction. The appellant testified that he thought the deceased was not in the nightclub at this time and he would not have talked to the investor about the transaction had the deceased been there. Two men the appellant later identified as the deceased’s “henchmen” quickly interjected in the appellant’s conversation with the investor and asked to be involved in the deal.

[11] Eventually, at 3:19 a.m., the deceased walked up to the bar and interjected in the conversation. The appellant testified that he was startled, and he did not know how much of their conversation the deceased had heard. The deceased started asking questions about the deal and the appellant told him to “fuck off”. The appellant testified that he did so to show that he was not scared of the deceased. In response, the deceased’s two henchmen told the appellant not to be stupid, which the appellant saw as a threat and a reminder that he could be attacked and punished for not listening. During this interaction, the CCTV footage shows the appellant place his hand near the side of his waistband where his gun was concealed.

[12] Within seconds of being told to “fuck off”, the deceased struck the appellant across the face and head with a glass champagne bottle, grabbed him from behind, and wrestled him to the ground while punching him. The appellant testified that he believed the glass bottle was the butt of a gun. In the moments following, the appellant rolled on top of the deceased, firing two shots into his chest. One of the shots was fatal. The appellant testified that having believed he was hit with the butt of a gun, he shot the deceased to defend himself against that threat. The appellant’s gun is first visible in the CCTV footage less than one second after the deceased struck him with the bottle.

III. DECISION BELOW

[13] As noted above, the appellant advanced self-defence and the partial defence of provocation, both of which were rejected by the trial judge.

(1) Self-Defence

[14] In determining whether the Crown had discharged its burden to prove each of the essential elements of second degree murder beyond a reasonable doubt, the trial judge instructed himself that if the appellant “was acting in lawful self-defence when he shot the deceased twice then he did not cause his death by an unlawful act”. After noting that there was an evidential basis that would provide an air of reality to self-defence, he observed that it was not the appellant’s responsibility to prove that the three elements of the defence were present. Rather, the burden was on the Crown to prove beyond a reasonable doubt that at least one of the three elements of the defence was not present.

[15] The trial judge then went on to analyze if all of the elements of s. 34(1) of the Criminal Code were present:

1. Whether the appellant believed on reasonable grounds that force was being used against him (“the trigger”);
2. Whether the appellant used his handgun for the purpose of defending or protecting himself from the use of force (“the motive”); and
3. Whether the appellant’s use of the handgun (i.e. shooting the deceased twice) was reasonable in the circumstances (“the response”).

[16] First, the trial judge acknowledged that the trigger component of the self-defence analysis was subjectively and objectively established by the appellant’s testimony and the CCTV evidence which showed the deceased hitting the appellant with the bottle to the head/face.

[17] Second, the trial judge accepted as a fact that the appellant shot the deceased for the purpose of defending himself. In other words, the trial judge found that the Crown did not establish a motive other than protection from force being used against the appellant beyond a reasonable doubt.

[18] Finally, in considering the entire factual context, the trial judge found that the appellant played a “significant role” in instigating and escalating the incident. The trial judge found that the appellant’s conduct was “provocative” and “fueled the final confrontation” that led to the shooting. The trial judge acknowledged that the appellant’s role as the instigator did not disentitle him to the defence of self-defence once he was attacked: see R. v. Pandurevic, 2020 ONCA 798, para. 21. However, he went on to find that the appellant’s assertions as to his subjective state of mind at the relevant time were not credible and reliable. Specifically, the appellant’s claims that he was unexpectedly struck to the head with what he believed to be a butt of a gun and that the deceased was likely in possession of a gun were rejected. Consequently, the trial judge concluded that the appellant’s act of shooting the deceased was “precipitous and disproportionate” and that the Crown had discharged its onus in showing, beyond a reasonable doubt, that the accused’s act was not reasonable in the circumstances.

[19] After rejecting the self-defence claim, the trial judge found that the appellant indeed had caused the death of the deceased by an unlawful act and that the required subjective intent was established by the appellant’s admission that he carried a gun 95 percent of the time in response to danger, the appellant’s use of lethal force by shooting the deceased twice in a vital area of the body, and the presumption that the appellant intended the natural and probable consequences of his actions.

(2) Provocation

[20] The trial judge then addressed the question of whether the Crown had proved beyond a reasonable doubt that the appellant did not cause the death of the deceased as a result of provocation, pursuant to s. 232 of the Criminal Code, such that the charge of murder would be reduced to manslaughter. While the trial judge found that there was an air of reality to the partial defence, he found that the appellant did not lose the power of self-control after being struck with a glass bottle by the deceased. The trial judge held that when looked at in the proper context, the violence exhibited by the deceased could not have been a surprise to the appellant given that he himself played a significant role in the ultimate confrontation. The trial judge noted that “through his actions, he is found to have received a predictable response” and that the appellant’s own evidence “negates the element of suddenness”. Accordingly, he rejected the partial defence of provocation.

IV. ISSUES ON APPEAL

[21] As noted above, the appellant raises the following two issues on appeal:

i) Did the trial judge make palpable and overriding errors of fact in assessing the CCTV footage?
ii) Did the trial judge err in his treatment of the appellant’s subjective beliefs that led to an unreasonable verdict?

V. ANALYSIS

Issue 1: Did the trial judge make palpable and overriding errors of fact in assessing the CCTV footage?

[22] As part of its case at trial, the Crown called an expert in forensic media examination. According to the expert, the CCTV cameras inside the nightclub recorded 30 frames per second. The expert prepared a frame-by-frame visual aid which synchronized two cameras inside the club that captured the altercation between the parties. It is not disputed that 30 frames in this visual aid (which was tendered as an exhibit) translates into one second. Based on this evidence, the Crown argued at trial that the appellant was the aggressor throughout the fight and had brandished his gun before he was hit by the deceased. The Crown argued that it would have been impossible for the appellant to draw his gun in less than one second after being hit.

[23] The trial judge found that the question of whether the appellant had removed his gun from his waist prior to being struck with the bottle by the deceased was a highly contentious issue. The trial judge concluded that it was more likely than not that the appellant had removed his gun from his waist prior to being struck by the bottle and this prompted the deceased to strike the appellant with the bottle. According to the appellant, this finding was crucial to the outcome of the case, because it informed the trial judge’s analysis of self-defence, provocation, and specific intent.

[24] The trial judge listed several reasons for concluding that the appellant had pulled his gun out before he had been hit by the bottle including the following:

After careful and repeated review of the video clip from Camera 15 at 03:21:00, the Court finds that it shows that the firearm could not have been removed after the bottle strike. The flow of events shows otherwise. This is reinforced by a frame by frame analysis from frames 31 to 82. Since he was struck at frame 31 and the firearm is readily visible in his right hand at frame 61, this would allow for one second or less from being struck to its removal from his waist which was covered by his shirt. This is made even more doubtful by his evidence that he was unexpectedly struck and the severity of the impact which he describes as if he had been hit by a train. [Emphasis added.]

[25] The appellant submits that the trial judge erred by making an unreasonable generalized assumption not based on common, shared or human experience that there was insufficient time for the appellant to withdraw his gun after being hit by the bottle: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385. Furthermore, the appellant argues that there was no basis for the trial judge to find that the bottle strike was a reaction by the deceased to the appellant’s provocative behaviour.

[26] At the outset I would note that findings of fact and credibility are entitled to deference by this court because trial judges’ decisions reflect a familiarity that only comes with having sat through the entire case: Kruk, at paras. 82-83. An appellate court will only interfere with factual findings where there has been a palpable and overriding error: Kruk, at para. 85. In my view, the appellant’s submissions fall short of establishing a palpable and overriding error.

[27] Respectfully, I do not accept the appellant’s submission that the trial judge made a finding that the appellant pulled the gun out before he was hit by a bottle based on unreasonable generalized assumptions. Rather, the trial judge made a finding of fact that was clearly tethered to the evidence.

[28] First, the frame-by-frame visual aid prepared by the Crown’s expert captures the appellant and the deceased’s interaction. During oral argument, the appellant and respondent agreed the deceased strikes the appellant with the bottle at frame 31 and that the gun is first visible in the appellant’s right hand at frame 50 or 51, about 0.63 to 0.67 seconds after the bottle strike. As the trial judge noted, the evidence disclosed that there was a miniscule period of time for the appellant to remove a gun from his waist by lifting up his shirt with his left hand and reaching for the gun with his right hand. This is made even more difficult since according to the appellant the gun was apparently held in place by tight jeans and two pairs of underwear. The trial judge reasonably found that it would have been difficult, if not impossible, for the appellant to retrieve the gun in such circumstances in a second or less.

[29] Second, the trial judge’s finding that the appellant had likely brandished his gun prior to being hit was bolstered by the appellant’s evidence that when he was struck in the head with an object it felt like he had been hit by “a freight train”. In other words, the blow from the deceased had stunned the appellant. Based on this evidence, the trial judge reasonably found that the appellant’s testimony that he only pulled out the gun after he had been hit was “even more doubtful”. It was open to the trial judge to find that after being struck, the appellant’s own description about the severity of the impact would have delayed any attempt to reach for his gun.

[30] Third, the appellant’s evidence on the issue contained a significant contradiction. The trial judge noted that the appellant provided very little evidence about how the gun was removed from his pants during his examination in chief. The appellant initially testified that his hand was on the gun but then he changed that evidence to say that his hand was only close to the gun, not on it. It was open to the trial judge to find this to be a contradiction that diminished the appellant’s credibility on the point. I also observe that the appellant’s evidence that his hand was close to his gun, near his waist while engaging in a heated argument with the deceased could also support the Crown’s theory that he was the aggressor acting provocatively.

[31] Nor do I accept the appellant’s further submission that there was no basis for the trial judge to find that the deceased had reacted to the appellant brandishing his gun by hitting him with the bottle. In my view, it was clearly open to the trial judge to find that the bottle strike was a reaction by the deceased to the appellant’s aggression. The CCTV footage shows that just prior to the appellant being hit by the bottle, the parties were very close to each other, engaged in a conversation. According to the appellant this was a heated discussion. Given their close proximity, and the trial judge’s careful and repeated review of the CCTV evidence, the finding that the deceased responded by hitting the appellant with a bottle flowed naturally from the finding that the appellant had likely removed the gun from his waist before the bottle strike.

[32] In sum, the trial judge’s findings were available on the evidence and were not the product of any palpable and overriding error. I reject this argument. Given my conclusion, it is not necessary to address the appellant’s submission that without the finding that the appellant removed his gun prior to being struck, a finding of guilt was not reasonably available on the balance of the evidence.

Issue 2: Did the trial judge err in his treatment of the appellant’s subjective beliefs that led to an unreasonable verdict?

[33] There are two pathways on which an appellate court may find that a verdict is unreasonable: (1) if the verdict is not one that a properly instructed jury acting judicially, could reasonably have rendered (R. v. Biniaris, 2000 SCC 15, para. 36); and (2) in a judge-alone trial, if the verdict is reached “illogically or irrationally”, even if the evidence may be reasonably capable of supporting the verdict: Beaudry, at paras. 96-97.

[34] The appellant argues that the trial judge erred in his treatment of the appellant’s evidence of his subjective belief and this error led to a verdict that was reached “illogically or irrationally”. As Fish J., dissenting in result, held in Beaudry, at paras. 96-97, “No one should stand convicted on the strength of manifestly bad reasons — reasons that are illogical on their face, or contrary to the evidence — on the ground that another judge (who never did and never will try the case) could but might not necessarily have reached the same conclusion for other reasons” and that “[a] verdict that was reached illogically or irrationally is hardly made reasonable by the fact that another judge could reasonably have convicted or acquitted the accused”. This approach was affirmed in Sinclair, at paras. 4, 15-17, per Fish J. (dissenting in result), and para. 44; see also R. v. R.P., 2012 SCC 22, para. 9.

[35] In assessing this ground of appeal, it is important to note that unreasonable verdicts under Beaudry or Sinclair are exceedingly rare: R. v. Bacchus, 2024 ONCA 43, para. 13. The analysis does not involve this court substituting its own findings for that of the trial judge; nor does it provide free rein to interfere with a trial judge’s credibility findings: R. v. C.P., 2021 SCC 19, para. 30. Instead, this court’s task is to examine whether there are fundamental flaws in the reasoning process such that the verdict was not reached judicially or in accordance with the rule of law: C.P., at para. 30.

[36] I do not agree with the appellant’s argument that the trial judge erred in his treatment of the appellant’s subjective belief. Consequently, the verdict reached by the trial judge was not illogical or irrational. I will deal with each of the appellant’s submissions in turn.

[37] First, the appellant submits that the trial judge’s finding that the appellant’s testimony established that the trigger requirement had been met for self-defence could not co-exist with his later finding that the appellant’s response was not “reasonable in the circumstances”. This is so, the appellant submits, because the trial judge accepted his testimony that he believed that force was being used against him yet the trial judge later rejected his subjective belief that he was pistol whipped as implausible and self-serving when assessing the proportionality of his response.

[38] In my view, the trial judge’s reasons do not disclose an error. In rejecting the appellant’s subjective belief that the deceased struck him with a gun, the trial judge held:

[322] As already stated, the accused [is] found not to be credible and reliable. His evidence is not believed. Nor does it raise a reasonable doubt. This finding is compounded by his testimony with respect to his professed subjective beliefs and bases for same at the crucial point of the encounter. These are found to be implausible and self-serving. It is again seen as an after-the-fact attempt at building a reasonable basis for his action. He is in essence saying that he was able to think this through to a nicety and identify a number of reasons why he needed to do what he did. The reality is that within 10 seconds of being struck with the bottle, the deceased had been shot twice. [Emphasis added.]

[39] As I read his reasons, the trial judge found that while the “extent of the force used by the deceased” was disputed, the CCTV evidence and the appellant’s testimony established that the appellant was struck with a bottle, brought to the ground and then punched in the head/face area. This was sufficient, in the trial judge’s view, to satisfy the trigger element of self-defence based on reasonable grounds. In light of the CCTV evidence this was not a difficult finding to make. As the trial judge put it: “at a minimum, [the appellant] was struck with a bottle to the head/face area, brought to the ground and punched to the head/face area”. Although the trial judge mentioned that the appellant’s testimony satisfied the element that the appellant must believe on reasonable grounds that force was being used against him, the trial judge did not have to accept the appellant’s testimony that he believed that the deceased had a gun and would use it when assessing his response to the force used by the deceased.

[40] A trial judge can accept some, none, or all of a witness’ evidence. The trial judge made strong findings against the appellant’s credibility and reliability as a witness. In assessing the appellant’s credibility, the trial judge exhaustively and comprehensively set out several reasons why he found the appellant’s evidence neither credible nor reliable. In my view, there was nothing incompatible about the trial judge’s findings. He first accepts the appellant’s evidence that he believed that force was being used against him which was sufficient on a reasonable grounds standard to establish the trigger element for self-defence. He goes on to reject the appellant’s testimony that he shot the deceased because he had been pistol whipped and he believed that the deceased was armed in assessing whether the appellant’s response was reasonable in the circumstances. These two findings are not incompatible.

[41] Second, the appellant submits that the trial judge misapprehended the evidence of the appellant’s subjective belief by relying on the appellant’s answers to hypothetical scenarios posed by his trial counsel to conclude that his subjective belief was implausible, self-serving and not credible. I see no misapprehension by the trial judge. The trial judge understood the appellant’s evidence and he rejected it:

[319] Undoubtedly, if found to be credible and reliable, the accused’s assertion as to his subjective state of mind at the relevant time, would support the reasonableness of his ultimate act in the circumstances. His stated beliefs were as follows:

• The deceased was a dangerous individual capable of killing him; he was likely carrying a firearm;
• The deceased could rely on his two henchmen who would likely intervene;
• He was unexpectedly struck to the head with what he believed to be the butt of a firearm; this meant that the deceased was likely in possession of a firearm;
• He was at risk of losing consciousness because of the blows while on the floor;
• The bouncers would not intervene to help him as they had not done so in the past when he was shot;
• There was a risk that his left shoulder might dislodge;
• He would not survive a third shooting;
• The deceased was trying to get a hold of his firearm and he placed his hand on same following the first shot;
• He had no option other than shooting him a second time and kill him. [Emphasis added.]

[42] Nothing in the passage set out above suggests that the trial judge was referring to the testimony of the appellant in response to any hypothetical scenario put to him by his trial counsel.

[43] Finally, the appellant submits that the trial judge, having rejected his evidence as to his subjective belief on the issue of self-defence, then went on to illogically rely on the same evidence to find that there was no partial defence of provocation. The appellant highlights that one of the reasons the trial judge gave for finding that the appellant did not lose self-control was the appellant’s evidence “that his mind was assessing the risk and the reasons why he had no choice but [to] shoot the deceased”.

[44] I am not persuaded by this submission. The appellant’s subjective belief was obviously a proper consideration in assessing provocation. The impugned reason given by the trial judge is, in my view, an observation by the trial judge that the appellant’s own evidence suggested deliberate action or self-defence rather than action based on a sudden loss of self-control.

[45] In any event, the trial judge exhaustively set out several other reasons why the Crown had proven that the appellant did not lose the power of self-control. Those considerations included:

• The appellant did not indicate in his testimony that he had lost the power of self-control nor did he suggest having been unable to exercise control over his actions;
• The appellant stood up and calmly left the nightclub; he relodged his gun to his waist and covered his head with a hoodie;
• The appellant took a taxi and was driven to his friend’s home; and
• The appellant’s belief was that he had not committed an offence as he acted in self-defence.

[46] In sum, I see no error in the trial judge’s treatment of the appellant’s testimony about his subjective belief. Accordingly, this is not one of those rare cases where a trial judge’s reasons are so illogical or irrational as to constitute an unreasonable verdict.

VI. DISPOSITION

[47] For these reasons, I would dismiss the appeal.

Released: April 17, 2025

“J.M.F.”

“Steve Coroza”

“I agree. Fairburn A.C.J.O.”

“I agree. Baltman J. (ad hoc)”