Court File and Parties

COURT FILE NO.: 13735/14 DATE: 2016-05-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – FERAIDON IBRAHEM Defendant

Counsel: B. Green & N. Trbojevic, for the Crown S. Carammana & F. Davoudi, for the Defendant

HEARD: May 26, 2016

Justice B. Glass

Ruling on the Admission of Scene of Death and Autopsy Photographs at Trial

[1] Many photos were taken at the scene of the death of Nasira Fazli which was the residence of Ms. Fazli and Mr. Ibrahem. These photos provide the jury with an overview of the physical location where Ms. Fazli passed away. There is no challenge to the introduction of those photographs.

[2] The Crown wishes to introduce several autopsy photographs of the deceased wife of the Defendant who is alleged to have murdered her and stands charged with first degree murder. Further, the Crown wishes to introduce 5 photos of the hands of the deceased taken at the hospital. And the Crown asks to introduce photographs of clothing of the deceased worn at the time of her death.

[3] The purpose for using autopsy photographs is that although they are graphic, they assist the pathologist to describe the wounds sustained as he testifies at trial before a jury. There were many stab wounds some into the heart and the lung areas.

[4] Whether the pathologist could describe the wounds he found while conducting the autopsy by way of diagrams was addressed. In a nutshell, the Crown submits that diagrams of the body and wounds are insufficient and further that the actual photographs more accurately show jurors what is being described.

[5] Ms. Green submits that the Crown wants to present a total of 65 photographs. Exhibit 3 is a disc with photographs vetted of the deceased woman at the hospital, the autopsy and her clothing. In Exhibit 3, there are original photos and also vetted for each of these categories. There are 5 photos of Ms. Fazli at the hospital marked vetted showing her hands and markings on them. There are 27 photos from the autopsy as those vetted for this application. Finally, there are 33 photos of clothing some with blood on them, some with cuts, some with markings to show the location of markings.

[6] Ms. Green submits that these are some of the total number of photographs. All the photos for each category are shown in Exhibit 3 as the original photographs as distinguished from vetted photographs for each of the 3 categories.

[7] The Defence submits that the photographs are excessive, over the top for explanations and become simply prejudicial to the Defendant having a fair trial. This objection applies to the hospital and autopsy photographs. Mr. Carammana submits that these photos are unnecessary and only inflame the jury to use them prejudicially.

Analysis

[8] The purpose for using these photographs is to assist the jury to understand the potential injuries to Ms. Fazli’s hands because of what the Defendant has said in his statement regarding to her hands and smearing blood within the residence. Further, the autopsy photos show the location of stab wounds sustained along with some body parts such as the breast plate removed with cut wounds that have come through the body. The stab wounds into the body of the victim can be understood more with the photographs rather than simply using diagrams completed by Dr. Rajagopalan as the pathologist. The clothing is contained in the last grouping of photos because some have cuts in the clothing worn by the deceased, some have blood on them, and some have markings pointing to areas that will be described by the pathologist.

[9] The test for such evidence is that the court must be satisfied that evidence is relevant and probative without being prejudicial so as to remove the opportunity for a fair trial for Mr. Ibrahem after having balanced each consideration.

[10] All of these photographs are relevant to the issues facing the jury with this trial.

[11] With respect to probative value to be attributed for the photos, the hospital photos show markings on both hands for consideration of the condition of them and for analysis of the comments by Mr. Ibrahem about what had happened between the couple prior to her death.

[12] The autopsy photos will help the pathologist explain the cuts to the deceased woman. The post mortem report and the diagrams prepared by Dr. Rajagopalan explain the work of the pathologist; however, the photographs of the hands and the body of Ms. Fazli provide far more context to the condition of the body and injuries sustained. I am persuaded that they are necessary.

[13] The clothing photos tell so much more than just words describing the condition of the materials.

[14] The bottom line is that the photographs being considered have a significant probative value for the jury to analyze evidence in determining whether Mr. Ibrahem committed first degree murder of Nasira Fazli. They do not serve the purpose of pumping up injuries so as to inflame the triers of fact to go offside and carry a bias against the Defendant. The only prejudicial effect flowing from these photographs is that they do not favour the Defendant. They do not remove his chance to have a fair trial. When one balances the probative value of the photos with any prejudicial impact they might carry, one can only conclude that the photographs ought to be presented to assist the jury when they assess the evidence they will hear.

[15] Mr. Carammana opposes the use of the clothing photos as being prejudicial as causing the jury to think of a life that was. I am not persuaded that they carry such a danger. Rather, these pictures do nothing more than enable the jury to see the condition of the clothing without having to handle each item all the time.

[16] I do not think that these photographs will pose a problem for the jurors because they are not grotesque, horrendous pictures that would make a person squeamish. Rather, they will help jurors understand what they are being told by the pathologist.

Conclusion

[17] All of the photographs in Exhibit 3 of this voir dire as vetted photos will be admitted.

Justice B. Glass Released: May 27, 2016