NEWMARKET

COURT FILE NO.: CR-11-01457

DATE: 20140228

CORRECTED DATE: 20140501

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAND MOHAMAD

Defendant

P. Westgate/R. DeChellis, for the Crown

M. Mirosolin/R. Tomovski, for the Defendant

HEARD: July 2-4, 2013

Corrected decision: The text of the original Ruling was
Corrected on May 1, 2014 and the description of the correction
is appended.

RULING #4 – ADMISSIBILITY OF STATEMENTS OF THE DECEASED

McISAAC J.

[1] On July 4, 2013 I made a “bottom-line” ruling admitting certain statements from the deceased, Arash Bakhtaryani, and indicated that more fulsome reasons would be delivered in due course. These are those reasons.

BACKGROUND

[2] Although the accused has not made a formal admission to that effect, there is significant direct and circumstantial evidence before the jury that he shot and killed Mr. Bakhtaryani on the evening of January 21, 2011. From my perspective, the claims of self-defence and provocation will be front and centre for the jury’s consideration. In addition, the Crown suggests that this killing constituted a first degree murder on the theory of planning and deliberation.

[3] That theory flows from evidence that the deceased believed that Mr. Mohamad had been the mastermind behind the theft of his $20,000 some several years previously and that he was obsessed to get it back from the accused. In furtherance of that theory, the Crown proposes to lead evidence through the deceased’s brother of certain utterances made over the course of the several years prior to his death relating to that theft and his efforts to recover the money. Counsel for the accused objects to the admission of this evidence because of the significant prejudice that may flow to Mr. Mohamad from the sources of the deceased’s belief which cannot be tested and which could advance bad character evidence towards him.

ANALYSIS

[4] Hearsay evidence is presumptively inadmissible. However, the common law has developed exceptions to this prohibition over the centuries, including evidence of the “state of mind” of the later deceased declarant: see R. v. Griffin, 2009 SCC 28 at paras. 59-63. See as well Carlton v. The Queen (1989) 1991 ABCA 261, 166 CLR 283 (H.C. of Aus.).

[5] The British Columbia Court of Appeal dealt with circumstances that are similar to those of the instant case. The panel affirmed the trial decision allowing the Crown to call hearsay evidence of the deceased employer’s suspicions of the accused’s theft from one of his fellow employees as circumstantial evidence that there had been a confrontation over the suspicions which in turn could provide a motive for the murder. In that case, the trial judge, Oppal J., had confined the use of this evidence by the jury to motive only and had specifically instructed that it not be used as evidence of bad character: see R. v. Mafi (1998) 1998 6221 (BC CA), 114 B.C.A.C. 161. My reading of this case is that the “state of mind” evidence was limited to the deceased’s belief that the accused had committed some workplace thefts but not the basis for that belief. This suggests that what is important for the proponent of the hearsay evidence is the belief of the declarant and it indicates that the potentially prejudicial reasons for that belief are not necessary. This makes eminent sense to me and defines my approach to this application. I see no need to get into the foundation for Mr. Bakhtaryani’s belief that the accused was implicated in the theft of his money. The Crown can get all it needs from his belief alone. The context of the relationships between the two of them can be explained sufficiently in this manner to meet the Crown’s needs without painting Mr. Mohamad in an unduly negative manner.

CONCLUSION

[6] For these reasons, the Crown will be permitted to lead the following statements from the deceased:

• that he had met up with the “guy” that his “banker” had suspected of having orchestrated the home invasion when his money was stolen;

• that he was not happy about the theft and that he was trying to get it back;

• that his “banker” had found out who was behind the theft of his money;

• that the person was an “Iraqi guy” and he did not trust him; and

• that the only person he had any problem with was the person who took his money.

[7] The Crown will not be permitted to lead the deceased’s statement that he talked to the accused who said that the money was gone and he could not get it back. I proposed giving a limiting jury instruction along the lines of that given by Oppal J. in R. v. Mafi, supra, at para. 10.

McISAAC J.

Released: May 1, 2014

Correction made to the spelling of the Defendant’s surname from Mohamed to Mohamad:

p. 1 - Neutral Citation Line

p. 1 - para. 3, 1st line

p. 2 - para. 3, 2nd line

p. 2 - para. 5, last line