Court of Appeal for Ontario

Date: 2025-09-11

Docket: COA-23-CR-0339

Judges: Fairburn A.C.J.O., Wilson and Rahman JJ.A.

Between

His Majesty the King Respondent

and

Anas Mujber Appellant

Counsel

Mark C. Halfyard and Chloe Boubalos, for the appellant

Samuel Greene, for the respondent

Heard: September 8, 2025

On appeal from: The conviction entered by Justice Ronald M. Laliberté of the Superior Court of Justice, sitting with a jury, on November 12, 2021.

Reasons for Decision

The Appeal

[1] This is an appeal from conviction for second-degree murder. The deceased was shot three times at close range. All three bullets met their mark, and one of them perforated the deceased's heart.

[2] The appellant admitted that he was the shooter and guilty of manslaughter. The sole issue at trial was whether he had the requisite intention for murder. While the appellant did not advance the defence of intoxication, he maintained that the combination of his intoxicated state, along with the suddenness of the events that unfolded out front of a bar he attended with his friends, should have resulted in a reasonable doubt as to whether he had the requisite mens rea for murder.

The Rolled-Up Instruction

[3] The parties agreed that the trial judge should provide the jury with a rolled-up instruction, providing the jury with guidance as to the cumulative effect of the evidence, especially the evidence of intoxication, on the mental element for murder. In R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at para. 31, Zarnett J.A. set out the three features that a rolled-up instruction should "generally have": (i) identification of the relevant factors; (ii) a description of the relevant evidence; and (iii) a direction to consider the cumulative effect of the evidence on the accused's state of mind. He was also quick to point out that "substance prevails over form."

[4] The appellant acknowledges that features (i) and (iii) were well attended to. His objection relates to (ii), it being said that the trial judge failed in his description of the relevant evidence bearing on the appellant's degree of intoxication. In particular, the appellant contends that the trial judge's failure to refer to the evidence of one of the witnesses, the bartender who made observations about the men in the appellant's group being intoxicated, should have formed part of the rolled-up instruction. The appellant argues that including a summary of the bartender's evidence in the rolled-up instruction was particularly critical because it served to corroborate the sole defence witness' evidence on this point. The appellant points out that the defence witness came with admittedly serious credibility challenges and, accordingly, corroboration of his account was particularly important to the defence.

The Court's Analysis

[5] Despite the capable submissions advanced on appeal, we see no error in the trial judge's approach.

[6] In our view, the bartender's evidence was generic at best. While she described the group of people that the appellant was a member of as visibly drunk and very intoxicated, she also testified that she would have had no difficulty serving alcohol to the group. Therefore, the appellant's degree of intoxication was dealt with by reference to the group as a whole and watered down somewhat by the fact that the bartender would still have served the group.

[7] The much more powerful indicators of the degree of the appellant's intoxication came from the high-quality video evidence that captured him before, during and after the murder. The jury was well positioned to form a view as to his degree of intoxication, including considering what the defence suggested demonstrated signs of impairment.

[8] It was largely a matter of discretion for the trial judge to determine how he wished to summarize the evidence and how much detail to give. While the trial had been long, the bartender's evidence on this point was not and defence counsel had just reviewed it in her closing argument the day before the jury was charged. As an indication of how arguably peripheral the bartender's evidence was to the issue of intent for murder, is the fact that when dealing with the issue of intoxication, defence counsel only devoted less than one out of 24 pages of transcript in her closing address to the bartender's evidence. This places the import of that evidence into its proper context. And, against that context, no reversible error arises from failing to mention that the bartender formed the opinion that those in the appellant's group were intoxicated, even very intoxicated, but not so intoxicated that she would not have served them. We defer to the trial judge's choices regarding what evidence to summarize in the rolled-up charge, especially in light of the exhaustive reviews done by counsel in their closings the day before.

Evidence of a Brewing Altercation

[9] The appellant also argues that the trial judge omitted the evidence of three bar employees (the bartender and two bouncers) that was consistent with the theory that a fight was brewing inside the bar between the deceased's group and the appellant's group and that this fight was about to take place outside. The appellant argues that it was essential to summarize that evidence to ensure that the jury understood that the altercation may have begun before the deceased and the sole defence witness emerged from the bar. It is said that this could have added force to the defence suggestion that the deceased punched the defence witness, which ultimately prompted that witness to push the deceased which culminated in the shooting.

[10] At its highest, the record reveals that one of the bouncers was on alert for a possible fight because of things he had overheard. The other bouncer and the bartender said that there was "no problem" and "everyone [appeared to be] getting along." Critically, none of the staff members provided evidence corroborating the defence witness's evidence that there had been an altercation in the washroom prior to the shooting.

[11] In any event, even if there was evidence that a fight was brewing inside the bar before it spilled out into the street, this would not have impacted the defence suggestion that the appellant acted on the sudden. The fact is that he was already outside of the bar when the alleged fight inside started to brew.

The Curative Proviso

[12] As a final point, even if it had been an error not to refer to these matters in the charge, this case would have called out for the application of the curative proviso. This case could not be described as anything other than an overwhelming Crown case, in the sense that there would be "no realistic possibility that a new trial would produce a different result": R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36.

[13] The video of the shooting is clear, showing the appellant, without hesitation, coming out from between vehicles and shooting three times, each bullet striking the deceased. The entirely predictable consequence of these actions, especially at close range, is that they would result in death.

[14] As for his degree of intoxication, as it pertained to the rolled-up instruction, there was ample evidence, all caught on video, to show the appellant with his faculties entirely intact, including: (i) parking his Range Rover without difficulty 38 minutes before the shooting; (ii) retrieving his wallet and identification without difficulty when entering the bar; (iii) jogging up a steep staircase at the bar without touching the railing; (iv) ordering and paying for drinks without difficulty, including counting the right amount of money; (v) catching a set of car keys with one hand as they were thrown to him; (vi) executing the deceased, shooting him with three shots without hitting the other people in close proximity; (vii) immediately fleeing from the scene, driving, and demonstrating he was aware of his surroundings; and (viii) getting rid of the firearm while driving.

[15] In our view, this was indeed an overwhelming Crown case. With or without a review of the evidence that forms the basis of this appeal in the rolled-up charge, a reasonable and properly instructed jury would have inevitably returned a verdict of guilty.

Decision

[16] The appeal is dismissed.

"Fairburn A.C.J.O."

"D.A. Wilson J.A."

"M. Rahman J.A."