Superior Court of Justice

COURT FILE NO.: 11-70000031-0000

DATE: 2012/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAHMOUD ABOU AL RASHTA and SHAHIN PIROUZI

Accused

Glen Crisp, for the Crown

Susan J. Von Achten, for Mahmoud Abou Al-Rashta, and

D. Sid Freeman and Sam Scratch, for Shahin Pirouzi

HEARD: January 9 to February 8, 2012

REASONS FOR JUDGMENT

O’MARRA J.: (Delivered orally)

[1] In the 10 Count indictment before the court, Mahmoud Abou Al-Rashta and Shahin Pirouzi are charged jointly in Counts 1 and 2 with conspiring to murder Noureldeen Araimet and Ratnam Somasunderam respectively between February 1 and March 31, 2008, and in Counts 3 and 4 conspiring to commit aggravated assault against the same persons. Mahmoud Abou Al-Rashta is charged separately in Counts 5 and 6 with counseling Shahin Pirouzi to murder Noureldeen Araimet and Ratnam Somasunderam, respectively, and in Counts 7 and 8 with counseling Shahin Pirouzi to commit aggravated assault against the same persons sometime between February 1 and March 31, 2008. Shahin Pirouzi is charged separately in Count 9 with assault with a weapon, to wit: a remote control and in Count 10 assaulting Ratnam Somasunderam.

Evidence at Trial

Mohammad Zack Khan

[2] Mohammad Zack Khan, the manager of a family-owned retail property located at 361 Yonge Street, Toronto, and Masshour Saleh, a store manager of one of the retail businesses in the building, both testified to having overheard a conversation between Abou Al-Rashta and Shahin Pirouzi, the content of which forms the basis of the conspiracy and counseling offences charged.

[3] In substance, they testified they overheard Abou Al-Rashta tell Shahin Pirouzi that he wanted him to get Noureldeen Araimet, “the taxi driver”, and Ratnam Somasunderam, “the Sri Lankan sitting upstairs” for him. Mr. Pirouzi was heard to say “Yes, yes, okay, okay” and to nod his head up and down. Abou Al-Rashta was seen to demonstrate how he wanted it done by taking hold of Pirouzi from behind with one arm across his neck and with the other thrusting it over Pirouzi’s shoulder in a stabbing motion several times to his stomach. Abou Al-Rashta told Pirouzi not to worry that he would get him a knife and that he was not to worry about being caught because they could show them “the certificate” we are crazy. Any further discussion was interrupted when Saleh rushed from a washroom where he had been listening to tell them to get out of the store, which they did.

[4] The building where the conversation took place has several floors. In 2008, the lower floor had a poster shop in the front half and the back half was vacant, save for a washroom and an office used by Mr. Khan. The second floor of the building was occupied by an adult video store. Mr. Masshour Saleh managed the adult video and poster stores. Ratnam Somasunderam worked for Saleh as a sales clerk.

[5] Mohammad Khan testified that sometime in February or early March 2008 he was sitting in his darkened office with the door opened looking at his computer on his desk near the door when he saw Abou Al-Rashta enter into the vacant area to a spot approximately 10 feet from where he was sitting. Before Abou Al-Rashta had entered the area he had seen Masshour Saleh pass through toward the washroom. After seeing Abou Al-Rashta he then saw Shahin Pirouzi enter the area. He heard Abou Al-Rashta call to Shahin Pirouzi to come over to where he was located. Abou Al-Rashta sat down in a chair and Shahin Pirouzi walked toward him. It appeared to Khan that they did not know he was there. He heard Abou Al-Rashta say to Pirouzi in English “You’ve got to get those two motherfuckers for me”. Pirouzi asked Abou Al-Rashta, “Who?” to which he replied “The Sri Lankan sitting upstairs” and “The taxi driver who comes outside the Zanzibar at night time”. He saw Pirouzi nod his head up and down and heard him say “Yes, yes, okay, okay”. Pirouzi then asked “Where?” and Abou Al-Rashta responded “Don’t worry, I will show you”. Abou Al-Rashta stood up and said “Do like this”. He put one arm across Pirouzi’s neck standing from behind and with his other arm thrust downward in a stabbing motion several times toward Pirouzi’s stomach, during which Pirouzi was heard to respond “Okay, okay” and nod his head up and down.

[6] Abou al-Rashta told Pirouzi that he would get him a knife and “Don’t worry about it. We’ll show them the certificate, we’ll show them we are crazy”. Also he made reference to getting him a pill to take and “They will think we are crazy”.

[7] Just at that time, Khan heard Masshour Saleh, who had come from the washroom, scream at them to get out of the store, and “I’m calling the police, you’re teaching people how to kill”. Khan came out of the office area to help Saleh get them out of the store. Initially, About Al-Rashta took an aggressive stance towards Khan but then moved outside the store with Pirouzi. Pirouzi walked away and Abou al-Rashta stood outside the front entrance and faced Khan. He showed him a tiger tattoo on his arm and said “Look at my body and look at your body”. Khan became frightened and he went back into the store leaving Abou Al-Rashta standing outside.

[8] Khan testified that he understood the reference to the “Sri Lankan upstairs” as being Ratnam Somasunderam and “the taxi driver” to be Noureldeen Araimet who would sit in his taxi sometimes outside the Zanzibar Tavern next door to pick up fares. He knew him only as Nour.

[9] He had known of Abou al-Rashta and Shahin Pirouzi for a number of years although he had not had many dealings with them. He knew that Abou Al-Rashta and Saleh knew each other and that Abou al-Rashta would come to the store from time to time to visit with Saleh, a fellow Arab-speaking person. He had known Shahin Pirouzi to come to the store and in the company of Abou Al-Rashta. Also he knew there had been problems recently with both of them harassing customers by demanding money.

[10] After Pirouzi and Mahmoud Abou Al-Rashta left the store Khan did not take any steps to call the police or alert the purported victims. He said that he left it up to Saleh who had earlier said that he was calling the police and had his cell phone in hand.

[11] About a month and a half to two months later, he had heard that Shahin Pirouzi had been charged with murder, (later withdrawn by the Crown). Then one and a half to three months after that he happened to see Nour for the first time he told him what he had heard Abou Al-Rashta and Pirouzi talking about and that “He’s lucky the knife was not used on him”. He said Nour left “shaken up”. It was not until sometime in August, 2008 when the police called him and asked him to give a statement as to what had occurred earlier.

[12] In terms of when the conversation took place, he could not remember if it was early March or in February. His best recollection was that it was at a time when Saleh had been putting up new posters, in the poster store, in preparation for March break. He recalled that the posters for sale were being changed-over as they would be for other seasonal occasions such as Christmas and other up-coming holiday periods.

[13] He has no criminal record but acknowledged that he was facing charges for fraud and forgery, along with Saleh in relation to novelty identification cards sold from one of the businesses operated at 361 Yonge Street.

[14] In cross-examination by counsel for Abou Al-Rashta he denied the suggestion that he made up the story about the conversation and that he had conspiring with Saleh and others to get revenge on Abou Al-Rashta for not participating in a scheme he tried to orchestrate against the neighbouring business, the Zanzibar strip club to seek “revenge” against the owners.

[15] He acknowledged that approximately 15 years earlier the second floor of 361 Yonge Street was occupied by a strip club that was subsequently closed by the City arising from a complaint from the owners of the Zanzibar for non-conforming use with its business license. Counsel suggested that Khan had endeavoured to enlist Abou al-Rashta, who had worked briefly sometime in 2007 as a doorman at the Zanzibar, to supply fake IDs to underage dancers working at the Zanzibar as a means of shutting it down. He looked aghast, which I took to be genuine and responded “Absolutely false”. Further, when she suggested that Khan told Abou Al-Rashta that if he did not do what he asked of him he would have him deported, he responded “I never say something like this, I don’t know where coming from such words like this”. There was no evidentiary foundation for counsel’s suggestion.

[16] In cross-examination by counsel for Shahin Pirouzi, Mr. Khan acknowledged that it was Abou Al-Rashta who did most of the talking and that Pirouzi only uttered responses such as “Yes, okay, where?” and nodded his head up and down. Further, Khan agreed that in his experience of Pirouzi, when he was spoken to he would often nod his head up and down and say “yes, yes, okay, okay”. He agreed that Pirouzi saying, “okay, okay” and nodding his head quickly was typical of how he conversed with other people.

[17] Mr. Khan testified that in August, 2009 he was called by Shahin Pirouzi and asked by him to tell Ratnam Somasunderam and Masshour Saleh not to come to court. Mr. Pirouzi was charged as a result with obstructing justice and in August 2011 after trial he was found guilty.

Masshour Saleh

[18] Mr. Masshour Saleh came to Canada from Lebanon in 1993 as a refugee. Shortly after he started working at 361 Yonge Street. He met Abou Al-Rashta in 1994 and they developed a friendship. Mr. Abou Al-Rashta would come to the store and they would speak Arabic together. He had known Pirouzi for about 9 or 10 years and he, too, would come to the store although he spoke Iranian (Farsi) and they would speak in English. Occasionally, Abou Al-Rashta would work at the store and be paid in cash. However, recently Abou Al-Rashta and Pirouzi had been causing problems with customers by asking them for money. Further, Abou Al-Rashta would often ask him for money. They were told that they should not come to the store.

[19] Saleh testified that sometime in February or March before March break he was working in the store when he saw Abou al-Rashta and Pirouzi come through the front door. To avoid a confrontation he walked to the washroom at the back. From there he heard the voices of both Abou al-Rashta and Pirouzi. He heard Abou Al-Rashta say to Pirouzi “We have to get rid of these two motherfuckers, these two guys”. Saleh heard Pirouzi say “Who? Who? Who?” Abou Al-Rashta said he would tell him and then said “Ratnam upstairs” and “Nour the taxi driver who parks his car in front of the Zanzibar”. He heard Pirouzi say several times “yes, yes”. When he came out of the washroom, he saw Abou al-Rashta with one arm across Pirouzi’s neck and with his other hand hit him in the mid-section of his body, during which Pirouzi said “okay, okay” and nodded his head. He said he heard no mention of a knife but he did recall Abou Al-Rashta to say something like “Don’t worry, I have a certificate and I will protect you”. He testified he did not pay a lot of attention to that although he understood what Abou Al-Rashta meant when he referred to a “certificate”. Abou Al-Rashta told him earlier that he had a certificate that said he was crazy and that he could do anything because of the certificate.

[20] When he came out of the washroom and he saw what they were doing, he yelled at them to get out. Eventually Pirouzi and Abou Al-Rashta left the store but only after he grabbed his phone. At that time, Khan came out of his office and followed them out of the store. Saleh said that afterwards he told Khan that they were talking about Ratnam and Nour.

[21] He said that he took what he had heard seriously, but he did not call the police because he had done so before and the police did not usually come. He spoke with Ratnam a day or two afterwards and told him to be careful. He spoke with Nour about one to three months afterwards.

[22] After Pirouzi and Abou Al-Rashta left the store that day, he did not see them again. It was not until much later, after he had seen Nour that the police called him and he told them what he had seen and heard.

[23] Mr. Saleh agreed that he had a criminal record that consisted of three convictions for theft under for shop lifting offences, December 19, 2006, March 9, 2007 and December 2, 2010. Further, he had been charged with fraud and forgery along with Khan involving the novelty identification cards made at the store. He no longer worked at the store.

[24] He denied suggestions in cross-examination that he was under the control of Khan and had to help get revenge on Abou Al-Rashta. He knew of no problems between Khan and Abou Al-Rashta, or problems with the Zanzibar, other than something that happened 15 years ago. The only problems he had with Abou Al-Rashta and Shahin were the problems caused at the store with other customers. He said that both Abou Al-Rashta and Pirouzi would try to bully people for money and that was why they did not want them at the store.

[25] Saleh agreed that Pirouzi’s manner when spoken to by others was to say “okay, okay” all the time.

[26] He denied counsel’s suggestion that he agreed at the preliminary hearing that Mr. Pirouzi kept coming up with reasons why the plan would not work or asked how they would do it, or what if they got caught. His recorded answer translated from to the long multi-part question was “correct”. Here he said, “I never heard this kind of words, “it wouldn’t work”, but I heard ‘okay, okay’.”

Noureldeen Araimet

[27] Noureldeen Araimet, called Nour, testified that he met Abou Al-Rashta in the 1990s as another Arab speaking person in Toronto. Nour was a street vendor selling watches and bracelets on Yonge Street for a period of time. For the past 8 or 10 years, he has been driving a taxicab. He had not seen much of Abou Al-Rashta after 2003 having “drifted apart”. Although he also stated he tried to separate himself from Abou Al-Rashta in a civilized way without alluding to why that was so.

[28] However, during the summer of 2007 he received a telephone call from Abou Al-Rashta, then in Germany, in which he asked Nour to send him 300 Euros for nose surgery. Mr. Araimet refused, to which Abou al-Rashta became upset and said to him in a threatening way “You will see what will happen when I am in Canada”. In the fall of 2007, Abou Al-Rashta came to his home in the middle of the night several times when Nour was out working, which caused Nour’s spouse, Mitzi Brown, to become alarmed. Abou Al-Rashta also left several voice mail messages on Nour’s answering machine in which he made threats such as “I will plot against you. I will slit your stomach” and that he would rape his wife and sister. Further, he demanded sums of money that were not owed to him.

[29] Nour took the threats seriously and reported them to the police. As a result, Abou al-Rashta was charged with threatening death. Initially, he was arrested and released in November, 2007. He was arrested on December 9, 2007 and then released on recognizance January 11, 2008. During the first week of February, 2008 at a court appearance, Abou Al-Rashta told Nour that the police could not protect him 24 hours and that he was going to kill him and rape his wife. Nour reported it to the police and it was confirmed that Abou Al-Rashta had been in court on February 6, 2008.

[30] Sometime later Nour saw Khan and Saleh who told him about what happened at the back of the store between Abou Al-Rashta and Pirouzi. Nour testified that Khan told him he was lucky he was still alive because Abou Al-Rashta had been teaching him to use a knife so he could kill him. He then told him that Shahin had been charged with killing someone.

[31] Nour called his spouse who checked on the internet to find out what had happened to Shahin Pirouzi and then draft a letter outlining their involvement with Abou Al-Rashta and his threatening behavior. He in turn provided the letter to Mr. Ed Schofield, a lawyer who had been acting for Abou al-Rashta at the time. His thought was that perhaps his lawyer could do something. Subsequently, the letter was turned over to the Crown and police.

Mahmoud Shihab and Yousef Shoka

[32] Mahmoud Shihab and Yousef Shoka, two Arab-speaking acquaintances who had befriended Abou Al-Rashta testified that in 2007, he began to ask them for money or assistance and when they refused he began to threaten them and their families. He also told them at different times that he would kill Nour who he stated owed him money.

[33] Mahmoud Shihab testified that he received a number of calls from Abou al-Rashta in October-November 2007 when he was in jail seeking help to bail him out. Shihab refused. During one of the calls, however, Abou Al-Rashta referred to Nour and specifically blamed him for his being in jail and told Shihab that he was going to finish him, get rid of him. Shihab testified that Abou al-Rashta spoke to him in Arabic and used a phrase, “akles alle” (phonetic spelling), which Shihab said meant to “kill him”.

[34] For reasons unknown to Shihab in early February, 2008 Abou Al-Rashta called him again and began to threaten him and his family members. Abou Al-Rashta was charged with further offences of threatening death, for which he was subsequently found not criminally responsible on November 27, 2008.

[35] Yousef Shoka testified that he met Abou Al-Rashta in 2005. At the time, Shoka was working in a grocery store and Nour, who was driving taxicab, came in one night and introduced Abou Al-Rashta to him as another person from Palestine. Thereafter, Abou Al-Rashta would come to the store from time to time, and purchase phone cards and to visit. Later, when Shoka opened his own store he would drop by from time to time and visit there as well.

[36] In November 2007, Abou Al-Rashta came by his store and asked him for $100 to use in a job search, which Shoka gave him. He appeared again the next day and asked for a further $100, which Shoka gave him. However, when he appeared the following day and again asked for more money Shoka refused. Abou Al-Rashta started to scream at him and told him to call Nour and tell him to give him $500. Further, he told Shoka to tell Nour that “I have a gun, if he does not give, I kill him”. Later, Shoka did call Nour in order to warn him. In March 2008, after Abou Al-Rashta had been charged with threatening to kill Nour and Shihab he contacted Shoka and began to threaten him as well.

[37] At various times he told Shihab, Shoka, Saleh and Araimet that if he gets into trouble he has a certificate that says he has mental issues and he will be released. He told Shihab that he “plays mental”. Shoka said he told him that when he does anything he goes to a hospital for two or three months, gets some medication and the doctors then let him out. He told Saleh that he has a certificate that says he’s crazy and that he can do anything and no one can touch him. He told Araimet if he gets into trouble he just tells them that he has mental issues and he will be released.

Ratnam Somasunderam

[38] Mr. Ratnam Somasunderam testified that he came to Canada in 1991 from Sri Lanka. He works part time in the adult video store at 361 Yonge Street. He knew who Shahin Pirouzi and Abou Al-Rashta were having seen them at the video store from time to time. However, he was not friends with them. He recalled only one dealing with Abou al-Rashta where he was approached and asked by him for money. Sometime in February or March 2008 he said Abou Al-Rashta came up to him and asked him for $50. Ratnam did not know why he was being asked for money so he just told him “no”. Abou al-Rashta reacted to the refusal according to Ratnam by using “bad words”. He said “I fuck you” and then he left the store. He did not see Abou Al-Rashta thereafter.

[39] Ratnam testified that Shahin Pirouzi approached him from behind one day in February or March 2008 he thought and hit him over the head two or three times with a remote control device. He had been sitting at the top of the stairs of the second floor behind the counter watching one of the televisions when he heard a noise on the stairs and looked down and saw Mr. Pirouzi coming up. He returned to watching television when he was struck on the top of the head. He turned around and saw Pirouzi standing on the top step of the stairs and he struck him again with the remote control as he tried to defend himself. In addition Mr. Pirouzi spat on him and then ran down the stairs out of the store. There was no explanation for the attack. The police were contacted and he told them what happened but did not ask to have Pirouzi charged.

[40] Later, in cross-examination he acknowledged that he was not really sure when it had happened and that it could have happened before October 30, 2007. That date was specified because there was a police report from an attendance at the store as a result of a complaint Pirouzi had threatened Khan in which an officer noted that “the witness Ratnam, also advises that in a previous incident, the suspect hit him over the head with an object. The witness declined to press charges at that time.” He said that was the only time he had problems with Pirouzi.

[41] A number of admissions were made on the trial several of which should be noted here. Mahmoud Abou al-Rashta has been assessed, tested, treated and diagnosed on a number of occasions in relation to his mental health (from 1996 to present). He was found not criminally responsible in relation to four separate charges from 2004 to 2008 as follows:

1. February 3, 2004 – assault causing bodily harm on February 21, 2003. He was discharged from hospital on bail April 8, 2003 and treated on an out-patient basis. He was discharged conditionally on April 5, 2004 and then discharged absolutely on May 5, 2005.

2. He was found not criminally responsible November 27, 2008 for failing to comply with a recognizance and threatening death in reference to Mahmoud Shihab having occurred on February 5, 2008.

3. On January 6, 2009, he was found not criminally responsible for threatening death November 8, 2007.

4. On January 13, 2009 he was found not criminally responsible on two counts of threatening death involving Noureldeen Araimet and Mitzi Brown in October 2007.

[42] Counsel for Abou Al-Rashta stated that she was not putting in issue the defence of not being criminally responsible by reason of a mental disorder. However, it was raised as to whether he could have a declared animus toward Araiment, as reflected by his earlier threats to kill him, having been found not criminally responsible for those threats. This position shall be discussed below.

[43] Mr. Abou Al-Rashta was out of custody from January 11, 2008 to February 6, 2008 when he was arrested for having threatened Mahmoud Shihab. He was in custody thereafter. Shahin Pirouzi was charged and arrested for second-degree murder on April 17, 2008. The charges were withdrawn on April 15, 2009 before the commencement of a preliminary inquiry as a result of the Crown’s view that there was no reasonable prospect of conviction. He was in custody during this time.

[44] Shahin Pirouzi contacted Mohammad Khan on or about August 10, 2009 about Saleh and Ratnam and charged August 18, 2009 with attempt to obstruct justice. He was found guilty after trial August 3, 2011.

The Law of Conspiracy and Counselling

Conspiracy

[45] A conspiracy is an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means (see R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at pp. 668-9). For there to be a conspiracy, there must be an intention to agree, the completion of an agreement and a common design. (see United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462 at para. 86 and R. v. Root, 2008 ONCA 869, [2008] O.J. No. 5214 (OCA) at para. 66).

[46] The actus reus of the crime of conspiracy is the formation of an agreement, tacit or express between two or more individuals to act together in pursuit of a mutual criminal objective. They must agree to achieve a common goal. There must be a meeting of minds of the conspirators to achieve a common goal. A mens rea of the offence is the conspirators’ agreement with the intention that their criminal objective be committed. In Dynar at para. 87 it was noted that:

The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence.

[47] The issue with respect to the conspiracy charges is whether Abou Al-Rashta and Shahin Pirouzi agreed that Pirouzi would stab to death Noureldeen Araimet and Ratnam Somasunderam or cause them serious bodily harm by stabbing them.

[48] The position taken by counsel for both accused is that there was no such discussion. It was fabricated by Khan and Saleh to rid themselves of the bothersome duo.

[49] Counsel for Abou Al-Rashta suggested in her questioning of Khan that he was motivated by revenge for Abou Al-Rashta’s refusal to participate in a scheme to close down the Zanzibar tavern next door to Khan’s premises by supplying false identification cards to underage girls. Khan adamantly rejected the suggestion. The revenge motive to fabricate and to conspire with others was not advanced by counsel in her submissions, no doubt because there was no evidentiary basis provided for the suggestion. However, she argued that Khan and Saleh fabricated the scenario on hearing that Pirouzi had been charged with a serious offence. Further, Araimet and his spouse Mitzi Brown conflated the information received from Saleh and Khan when they warned Araimet. The information that they were provided was embellished and “embroidered” with detail in a letter that was received ultimately by the Crown and police. She argued that this embroidered or elaborated story leading to the police contacting Khan and Saleh resulted from the same kind of effect that happens in a child’s game called “Chinese whispers” or “Telephone” where the original message become altered and distorted as it is passed from one person to the next. Based on the analogy utilized, it is unclear who she was arguing altered the story.

[50] I find counsel’s submission to be purely speculative, and fanciful. One only has to ask why Saleh and Khan would create out of whole cloth a conversation between Abou Al-Rashta and Shahin Pirouzi that involves Noureldeen Araimet and Ratnam Somasunderam on hearing that Pirouzi had been charged with a serious offence. There is no evidence that Khan or Saleh were even aware of any difficulties that existed between Abou Al-Rashta and Noureldeen Araimet.

[51] In the alternative, counsel contends that the conversation could not have taken place, or the Court should have at least a reasonable doubt that it occurred at all because the witnesses, Khan and Saleh, testified that it occurred sometime in February or early March, sometime before March break, a period when Abou Al-Rashta was in custody. Abou Al-Rashta had been charged with threatening death on February 6, 2008 and detained thereafter, leaving only five or six days in February the conversation Khan and Saleh said happened could have taken place. Counsel argues he could not have participated in a conversation described by the witnesses as occurring before March break, because he was in custody, thereby asserting an alibi from February 6 onward.

[52] The indictment in this instance indicates that the offence occurred during the period from and including February 1 2008, to and including March 31, 2008. In R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, Wilson J. quoting from Ewaschuk J.’s text Criminal Pleadings and Practice in Canada (2nd) Ed. (1987) at para. 9: 10050 noted that the long standing common law rule with respect to the date specified in indictments is as follows:

From time in memorial, a date specified in an indictment has never been held to be a material matter. Thus, the Crown need not prove the alleged date unless time is an essential element of the offence or unless there is a specified prescription period.

[53] Wilson J. described two categories of cases in which the Crown will be required to prove that the offence occurred during the time period alleged. The first category involves cases where an essential element of the offence is that the act constituting the offence is a crime only if it occurred during a certain period of time. An example might be where a person is charged with operating a vehicle without a valid license. Establishing the time period when the person’s license was invalid is essential in that instance. Wilson J. made reference to R. v. McCrae and Ramsay (1981), 1981 CanLII 3503 (MB QB), 25 Man. R. (2d) 32 (Co. Ct.) where the court on an appeal observed:

An offence under the Aeronautics Act, which involves flying an aircraft, is not in itself an offence if it is done in a period of time in which the pilot or owner had the necessary authorization, just as driving a car is not unlawful unless done during a period where the driver was not licensed.

[54] This is not that kind of case. Conspiracy or counseling another to commit an indictable offence is an offence whenever it occurs.

[55] The second category where the time requirement is an essential element was described by Wilson J. as follows at para. 41:

Another circumstance which has been held on the authorities to make the time of the alleged offence critical is when an accused defends the charge by providing evidence of an alibi for the date or time period alleged. To hold otherwise would be to deny an accused the right to make full answer in defence.

[56] In this instance, the time period specified is broad enough to include the time when Mr. Abou Al-Rashta was in the community. Further, there is evidence that he had threatened to kill Mr. Araimet directly at a court appearance, and indirectly through Mahmoud Shihab, in early February, 2008.

[57] In R. v. Tarnovsky, [1995] O.J. No. 968 (OCA) Doherty J.A. considering the application of the second category referred to in B.(G.), noted that the appellant, in the case on appeal, when called on to answer the charges advanced an alibi, which covered the entire time period referred to in the allegations made against him. Such is not the case in this instance. The witnesses said it occurred before March break, sometime in February or early March. Mr. Abou Al-Rashta was not in custody during that entire period. The witnesses’ point of reference was the upcoming March break and the changeover of posters in the store. The witnesses did not testify the overheard conversation could only have happened immediately before March break.

[58] Counsel argues that the Court should not accept the evidence of Khan and Saleh because they lack credibility and their accounts of the conversation should be considered unreliable. Counsel for Pirouzi argued that Khan is not credible because he is facing charges alleging acts of dishonesty. Similarly, Saleh is facing the same charges and he has a criminal record of theft related offences. While it is correct that the bad conduct of a witness may be considered in assessing how much or little of a witness’ evidence to accept in this instance, I do not consider Khan’s or Saleh’s unproven acts of dishonesty or Saleh’s record of minor offences to undermine or lessen the description of the conversation as provided.

[59] Counsel submitted that Khan and Saleh were evasive in responding to questions. If there was any resistance to answering questions, I observed, related to questions around their outstanding charges. I did not perceive any hesitation or evasiveness when questioned about the conversation.

[60] In addition, counsel argued that there were several inconsistencies as between Khan and Saleh about the content of the conversation. Khan said Abou Al-Rashta referred to the Sri Lankan upstairs and the taxi driver, whereas Saleh testified he heard Abou Al-Rashta refer to Ratnam upstairs and Nour the taxi driver. Khan said he heard reference to a knife, whereas Saleh did not. I bear in mind that both witnesses were called upon to recount their observations when contacted by police in August 2008, some six months later. I also consider that Khan was in a better position to overhear the conversation than was Saleh who was out of sight and in the washroom area.

[61] I accept that Khan and Saleh heard the conversation as related. They are consistent as to the nature of the conversation and relative actions of the two accused. There was reference to getting two individuals identified and the manner in which it was to be done. In my view the differences are minor and reflect their own recollections. I find nothing in their recount of their respective observations to suggest collusion as suggested by counsel.

[62] What was Abou Al-Rashta seeking to have done to Noureldeen Araimet and Ratnam Somasunderam by Shahin Pirouzi? Was he seeking to have him murder the two or to cause them serious grievous bodily harm? Did Shahin Pirouzi agree to a common design?

[63] Abou Al-Rashta had a declared animus toward Noureldeen Araimet, and to some extent Ratnam Somasunderam but to a much lesser extent. In terms of his animus toward Noureldeen Araimet he had been charged with threatening death with respect to Araimet and his spouse after Noureldeen refused to give money to Abou Al-Rashta demanded by him. After he was arrested he made contact with Mahmoud Shihab and told him that he blamed Noureldeen for his being in custody and that he would kill him. Mahmoud Shihab said he used the Arabic phrase “akles alle”, meaning he wanted to kill him. Shihab warned Noureldeen as a result. Later, when Abou al-Rashta was out of custody he again threatened Noureldeen directly at a court appearance in early February 2008 and indirectly when he told Shoka he would kill Noureldeen.

[64] Counsel for Abou Al-Rashta argued that the court when assessing whether there is evidence of animus at the time of the conversation, the Court must consider that he was found NCR with respect to the earlier threats, although the defence was not relying on any mental disorder in this instance. There is no evidence before the court as to the basis for the subsequent findings of NCR with respect to Abou al-Rashta and I fail to see how any subsequent assessment of the accused’s intention during earlier threats bears upon his expression of animus for someone and an expressed desire to kill the person, in this instance Noureldeen Araimet, even grounded in a delusion if that was the case.

[65] There is little, however, with respect to any animus fostered by Abou Al-Rashta toward Ratnam Somasunderam beyond having uttered an expletive after being refused money he asked for from Ratnam at some earlier time. But Abou Al-Rashta does ask Shahin Pirouzi to either get or get rid of the two identified targets. Ratnam and Noureldeen are the objects of the request. Similarly, when he demonstrates what he wants to have done, it is with respect to both of them. He wanted Shahin Pirouzi to come up behind them, take them by the neck and to stab them repeatedly in the stomach.

[66] I am satisfied that Abou Al-Rashta wanted to kill Noureldeen Araimet by having Pirouzi repeatedly stab him in the stomach and for the same to happen to Ratnam Somasunderam.

[67] Did Shahin Pirouzi agree? Notwithstanding Abou Al-Rashta’s intention was there a meeting of minds between them to kill or seriously harm the individuals identified?

[68] In this instance, when Abou al-Rashta told Shahin Pirouzi he had to get the two persons identified and demonstrated how he should do it, Pirouzi was heard to uttered only monosyllabic answers, “yes, yes, okay, okay”, nod his head up and down in the affirmative and ask questions such as “who” and “where”. When Abou Al-Rashta told him he would get him the knife and not to worry because he had a certificate to show the police and a pill to give him to make them think they were crazy, Pirouzi was seen again to nod his head up and down and say “okay, okay”.

[69] Crown counsel argued that it is reasonable to conclude that Pirouzi was agreeing to do what he was being asked to do when he said “yes, yes, okay, okay”. Further, he relies on what he characterizes his post-offence behavior in trying to get Khan to persuade Saleh and Ratnam from attending the preliminary inquiry as conduct from which guilt can be reasonably inferred.

[70] In terms of his verbal responses, I note that both Saleh and Khan candidly agreed with defence counsel that Pirouzi’s manner of responding when spoken to by anyone was to nod his head up and down and say “yes, yes, yes, yes”. Saying “yes” is an overt act from which acceptance to the plan may be inferred. However, it is also consistent with Pirouzi’s manner when spoken to by others. Normally, an affirmative response would indicate acceptance, and/or concurrence with what is being said or asked. In this instance, I cannot be sure that Pirouzi agreed to what Abou Al-Rashta was requesting he do. It may have been nothing more than passive acquiescence to Abou Al-Rashta’s aggressive request, which is an insufficient basis to conclude that they agreed to carry out a common plan. I do not consider his post-offence behaviour to move my assessment of possibly only passive acquiescence at the time of Abou Al-Rashta’s request to confirmation he agreed to carry it out.

[71] I am not satisfied beyond a reasonable doubt that Shahin Pirouzi agreed to Abou Al-Rashta’s plan and in the result Counts 1 to 4 are dismissed.

Counseling

[72] To counsel another person to commit an indictable offence includes but is not limited to “procuring, soliciting and inciting”, (s.22 (3)). As noted in R. v. Root at para. 83 to prove the actus reus of counseling there must be evidence of deliberate encouragement or active inducement or advocacy, not merely the description of the commission of an offence. (see R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 56). In R. v. Hamilton, 2005 SCC 47, [2005] SCJ No. 48 at para. 74 it was noted that as held in Sharpe:

Nothing short of active inducement or encouragement will suffice to make out the actus reus of the offence of counseling. In other words, when viewed objectively, the communication must be one that actively seeks to persuade the person counseled to commit the crime. In this way, the scope of the targeted activity is not extended to a mere possibility of planting a seed in the recipient’s mind; it is limited to those communications that are likely to cause that seed to sprout, creating a resolve to commit the crime. It is only then that the potential risk justifies the criminal prohibition. However, it is well established that it is not necessary that the person counseled be in fact persuaded; R. v. Walia (1975), 1975 CanLII 2456 (BC CA), 9 C.R. (3rd) 293 (BCCA), at pp. 293-95; R. v. Glubisz (1979), 1979 CanLII 3022 (BC CA), 47 C.C.C. (2nd) 232 (BCCA), at pp. 235 and 241-42; R. v. Gonzaque (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3rd) 505 (OCA), at pp. 508-9. The focus on the prosecution for counseling is on the counsellor’s conduct and state of mind, not that of the person counseled.

[73] To prove the mens rea of counseling there must be evidence “An accused either intended that the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused’s conduct (see Hamilton at para. 29 and Root at para. 84). In Hamilton at para. 80 it was noted that the restricted meeting of the word “counsel” as an active inducing, procuring or encouraging the commission of an offence connotes the requirement that there be a subjective intent to persuade the person counseled to commit the offence. The person counseling must intend that the counseled offence be committed for the offence to be made out. It is not necessary that the person counseled be persuaded or that the offence counseled is committed. In R. v. Ford, [2000] O.J. No. 1370 MacPherson J.A. concurs with the trial judge’s observation in that case as to the fundamental distinction between conspiracy and counseling offences. Conspiracy involves an agreement between two persons to do something whereas counseling involves one person urging another to do something. “Agreement is the anchor of conspiracy. Agreement is unconnected to counseling”.

[74] In this instance, Abou Al-Rashta called to Shahin Pirouzi to come to him. On reaching him, Abou Al-Rashta told him that he wanted to get, or to get rid of the two identified persons. He then demonstrated the way Shahin Pirouzi should do it. Standing from behind he put an arm around Pirouzi’s neck and with his other arm and hand thrust downward over his shoulder in a stabbing motion several times to his stomach. He told Pirouzi he would get him a knife to do it. Further, Pirouzi did not have to worry about being caught because Abou Al-Rashta would protect him by use of a certificate and by giving him a pill to make it appear they were crazy. While it does not appear to be a rationale inducement, in the analysis its rationality is of no moment, particularly given Abou Al-Rashta’s previous boasts he could get out of trouble by being crazy, and he had a certificate to prove it. He appears to have believed it helped him.

[75] Viewed objectively, such words and actions are sufficient in my view to establish active inducement or encouragement of Shahin to attack Noureldeen Araimet and Ratnam Somasunderam in the same way.

[76] Abou Al-Rashta had previously threatened to kill Noureldeen Araimet and he had declared that intention to others, Mahmoud Shihab and Yousef Shoka. That previously declared intention in combination with his comment to Pirouzi that he wanted to get, or get rid of Noureldeen Araimet by him repeatedly stabbing him in the stomach establishes that he wanted Pirouzi to kill Araimet and to attack Somasunderam. Abou Al-Rashta intended the harm inflicted to be fatal. He was trying to engage Pirouzi as his assassin.

[77] I am satisfied beyond a reasonable doubt that Abou Al-Rashta counseled Shahin Pirouzi to kill Noureldeen Araimet and Ratnam Somasunderam by stabbing with a knife. In the result, Abou Al-Rashta is found guilty on Counts 5 to 8.

Assault Charges

[78] The uncontradicted evidence is that Shahin Pirouzi came up behind Mr. Somasunderam and struck him a number of times on his head with a remote control device. Afterward, Pirouzi spat on Mr. Somasunderam’s shoulder. Counsel for Mr. Pirouzi made a tepid argument that there was insufficient evidence from Mr. Somasunderam as to the identity of his assailant. Mr. Somasunderam knew who Mr. Pirouzi was as a person who had attended the store on a number of occasions he saw his assailant and he identified him as a person he recognized as being Shahin Pirouzi. I am satisfied beyond a reasonable doubt that Shahin Pirouzi assaulted Somasunderam with a remote control and by spitting on him. In the result, Shahin Pirouzi is found guilty of counts 9 and 10.

A.J. O’Marra J.

Released: February 8, 2012

REASONS FOR JUDGMENT (Delivered Orally)

Released: February 8, 2012

A.J. O’Marra J.