OTTAWA COURT FILE NO.: 12-M7866
DATE: 2015/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Ahmed Hafizi
Applicant
Mike Boyce, for the Crown
Oliver Abergel and Howard Krongold, for the Applicant
HEARD AT OTTAWA: December 3, 2015
DECISION ON PRE-TRIAL MOTION
K. PHILLIPS J.
[1] Mr. Ahmed Hafizi is charged with first-degree murder. The Crown alleges that in the early morning of January 22, 2012, he stabbed Mr. Navid Niran to death after having engaged in both planning and deliberation. The two men had a confrontation in a bar. Mr. Hafizi was escorted out by the bouncer. Somehow, another encounter occurred once Mr. Niran got outside.
[2] The matter is set for trial commencing January 25, 2016.
[3] Defense counsel advises that Mr. Hafizi intends to admit at the commencement of the trial that he caused Mr. Niran’s death by stabbing him in the chest with a knife. Defense further indicates that the issues in the trial will include whether Mr. Hafizi was provoked, and/or whether he was acting in self-defense.
[4] The Crown intends to tender evidence of alleged flight as after-the-fact conduct. The evidence is said to include participation by Mr. Hafizi in efforts to travel to his homeland of Afghanistan after January 22, 2012. The Crown argues that such evidence is relevant with respect to whether Mr. Hafizi did indeed commit an unjustified, culpable homicide, contrary to his present position that he acted in self-defense. The idea is that if he had in fact acted in self- defence, his conscience should have been clear and he would have felt no compulsion to get himself out of Ottawa after the police included him in their investigation.
[5] Defense argues that the alleged after-the-fact conduct ought now to be ruled inadmissible. It is said that the evidence of travel to Afghanistan is not actually evidence of flight, in that it relates to an always planned wedding trip, which was to be a return trip in any event. Even if that travel was moved up in time after the events of January 22, 2012, such initiative was not undertaken solely by Mr. Hafizi. The bottom line for the defense is that the evidence of Mr. Hafizi’s intention to go to Afghanistan after January 2012 is more prejudicial than probative. There are said to be aspects of the trip (like the behaviour of his family in arranging it, or the arranged nature of the marriage in question) that would cast Mr. Hafizi unfairly in a bad light and/or distract from the actual issues.
[6] The central question for the court in deciding the admissibility of this alleged after-the-fact conduct is one of relevance.
[7] In my view, relevance is best assessed when the proposed evidence is tendered. Only then will an evidentiary context be established such that probative value and prejudicial effect can be measured against meaningful bearings. It is not possible to properly perform such an analysis in a contextual vacuum or in only an abstract sense.
[8] In this regard, I am guided by the Ontario Court of Appeal in R. v. Peavoy 1997 3028 (ON CA), [1997] O.J. No.2788 at para 25:
The primary question is, “How is the after-the-fact conduct relevant?” This question cannot be determined in the abstract or by regard only to the evidence of after the fact conduct. It will depend on the nature of the conduct and the factual context of the case, particularly the context of the position advanced by the appellant at trial: R. v. Conway, a judgment of the Ontario Court of Appeal delivered January 17, 1995 (summarized 26 W.C.B. (2d) 121). Relevance is, of course, addressed when the evidence is tendered.
[9] I conclude that the issue of the admissibility of the alleged after-the-fact conduct of flight from the jurisdiction shall not be determined by way of a pretrial motion. The issue should be dealt with when the evidence is tendered and the larger evidentiary context has crystallized. Given that submissions have been made, I would expect disposition of the issue to be accomplished within one sitting day.
[10] This pretrial application is adjourned to the trial.
Mr. Justice Kevin B. Phillips
Released: December 31, 2015
OTTAWA COURT FILE NO.: 12-M7866
DATE: 2015/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Ahmed Hafizi
Applicant
decision on pre-trial motion
Phillips J.
Released: December 31, 2015