R. v. Ibrahem, 2016 ONSC 6760

CITATION: R. v. Ibrahem, 2016 ONSC 6760

COURT FILE NO.: 13735/14

DATE: 2016-10-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FERAIDON IBRAHEM Defendant

COUNSEL:

B. Green & N. Trbojevic, for the Crown

F. Davoudi & S. Caramanna, for the Defendant

HEARD: October 24, 25, & 26/ 2016

BEFORE: Justice B.A. Glass

Application by Defence for Directed Verdict that the Jury Make a Determination of Second Degree Murder Not First Degree Murder

[1] The Crown’s evidence has been completed. The Defendant is alleged to have stabbed his wife to death as a planned and deliberate act. The couple had been married in Afghanistan where the Defendant was a doctor. The deceased wife had been raised in Canada since age five and was thirty-one at her death in July 2013.

[2] Prior to the marriage, the Nasira Fazli had a prenuptial agreement drafted and arranged for the Defendant to sign it prior to the marriage. Nasira Fazli owned her own residence and had property in Ontario.

[3] When Mr. Ibrahem came to Canada, he could not practice medicine. The intention was to become certified to practice medicine.

[4] It appears that Mr. Ibrahem was surprised that life in Canada was such that women did not do what men told them to do. Early in Mr. Ibrahem’s time here, the couple began to encounter disagreements. Nasira Fazli worked at American Express but was off work on a health leave. She expected her husband to attend school, learn English so as to be fluent, help with work at the residence and assist looking after their young son, Yasin.

[5] Mr. Ibrahem did not like being directed by his wife to do various acts. He maintained journals in which he recorded his disapproval of how women conducted themselves in Canada and he did not approve of being bossed by a woman.

[6] Mr. Ibrahem maintained communication with his brother in Afghanistan. His brother is a doctor there.

[7] In some of his journal entries, Mr. Ibrahem talked of how women should be killed because of the way they acted.

[8] His journal entries reflected a thought of ceasing to continue living with his wife, of leaving her even if he was reported to the police, and of killing himself.

[9] On July 19, 2013, the couple left their son with Nasira Fazli’s mother and sister while they went shopping. They went to their residence where Nasira Fazli was stabbed and died. She had 9 stab wounds, many being fatal blows to vital organs such as the heart, the liver, the lungs.

[10] After Nasira Fazli was stabbed, Mr. Ibrahem called his brother Haroon in Kabul, Afghanistan to tell him that he had killed his wife and wondered if he should kill himself. He spoke with his brother for more than 39 minutes. The Defendant called a cousin in Oakville about the incident with his wife. His cousin recommended he call 911. Mr. Ibrahem did not call 911 to report his wife’s death for over 39 minutes. He reported that he killed his wife.

[11] Mr. Ibrahem was charged with second degree murder but was committed for trial on a first degree murder charge as being a planned and deliberate action.

[12] After the Crown closed its case, the Defence moved for a directed verdict of second degree murder rather than first degree murder.

Position of the Defence

[13] The Defence submits that the evidence, when viewed globally, does not show evidence of planning and deliberation whereby a jury properly instructed could find reasonably that Mr. Ibrahem would be guilty of first degree murder. Mr. Caramanna notes that the Defence accepts that there is evidence whereby a jury could reasonably find Mr. Ibrahem guilty of second degree murder but that there simply is not evidence of planning and deliberation. Although the Crown presents many submissions of inferences for a jury to consider, Mr. Caramanna maintains that such inferences are only speculative. With planning and deliberation, the conduct of the accused prior to the act of killing is the important action. Here, at most the Defendant made many entries in his various journals expressing his frustrations and other evidence has shown that Nasira Fazli also was frustrated and said harsh comments to the Defendant. Evidence of Nasira Fazli stabbing bicycle tires of Mr. Ibrahem with scissors when angry is before the court. The bottom line is that just because a person makes harsh comments one day does not mean that the person has planned and deliberated the murder of the other person. One must make a great leap of thinking to get to the point of saying that Mr. Ibrahem set a plan with deliberation for the death of his wife.

Position of the Crown

[14] Ms. Green disagrees with Mr. Caramanna regarding planning and deliberation. She too suggests that the proper approach is to look at the evidence globally and not individual items of evidence. When doing so, Ms. Green submits that one can only arrive at the Defence position if one were to parse the evidence into individual items and such is incorrect mental gymnastics. When all of the evidence tendered is considered, the court should be looking at evidence favourable to the Crown at this stage as accepted evidence when determining whether there is evidence which a jury properly instructed could reasonably find planning and deliberation for causing the death of Nasira Fazli. In doing so, the conclusion must be that such evidence is present. To say that the Crown is advancing speculative positions is to divide up the evidence into individual items improperly.

[15] Ms. Green maintains that the contents of the journal entries of Mr. Ibrahem along with the evidence of Shahla Fazli and Sharipa Fazli, the mother and sister of Nasira Fazli, along with the cell phone records, the actions of the accused man prior to the final altercation, lead to a comprehensive picture of a person forming a plan to end his wife’s life as well as his own. His conduct after the stab wounds were inflicted became an extension of the plan to kill her by not calling 911 or medical emergency personnel for more than a half hour while he called his brother and cousin thereby making sure that Nasira Fazli would die of her wounds. Such activity demonstrated how the plan to kill Nasira Fazli would be put into play.

[16] Mr. Ibrahem is a medical doctor. He knew the vital organs and how inflicting stab wounds would be fatal. Knife wounds into the heart, lungs, liver and kidney would lead to her death.

Analysis

[17] The applicable test for a directed verdict is found in United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424.

[18] The applicable test for planning and deliberation is set out in R. v. Widdifield, an unreported case, and referenced in R. v. Ayotte, [1998] O.J. No. 4700 at paragraph 62, a decision of Watt J. as he then was. Planned means a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. It did not have to be a complicated plan, but rather could be quite simple. Deliberate means considered or not impulsive, slow in deciding, or cautious. At paragraph 64, Justice Watt referred to R. v. Smith (1979), 51 C.C.C. (2d) 381 where the Saskatchewan Court of Appeal noted that a planned and deliberate murder must be shown to be the result of a scheme or design that an accused person had previously formulated with the murder being the implementation of the scheme. The Smith decision had held that a murder committed on sudden impulse without prior consideration no matter how intentional would not be a planned and deliberate one.

[19] No matter how one considers the facts, one cannot move away from the necessity of making a global assessment of the evidence rather than dwelling on the individual pieces of evidence. At the same time, a court cannot consider evidence speculating that courses of conduct lead to a conclusion without some reasonable foundation. The key is that the court must have before it sufficient evidence that a properly instructed jury could reasonably find a defendant guilty of first degree murder.

[20] The evidence of Mr. Ibrahem not calling 911 or obtaining medical assistance after the stabbing is similar to the conduct of the defendant in R. v. Badakhshan, [2013] O.J. No. 2410 where the accused set fire to the building in which the victim and he were. He then attempted suicide. The court in Badakhshan noted other possible considerations such as only intending to commit suicide not realizing that the victim was still alive and that the fire led to her death. There had been evidence that the stabbing of the victim was impulsive. The court noted that there was a plausible inference of planning and deliberation with the facts for a murder/suicide as well as one that there had been an impulsive stabbing and then the setting of the fire to commit suicide. That was to be left to the jury.

[21] With Mr. Ibrahem’s case, the evidence that meets the requirements for planning and deliberation is the accumulated evidence showing the antagonism between Nasira Fazli and Mr. Ibrahem, the suggestion by the Defendant that women have too much power in Canada, the advancement towards ending the relationship between the parties, the acts to do some action such as holding a knife to himself with a suggestion of ending his life and talk of ending both lives.

[22] That is sufficient for leaving a planning and deliberation first degree murder count with the jury. The jury will be instructed that they consider all of the evidence when deliberating. The jurors might not accept the evidence as proving beyond a reasonable doubt first degree murder. That is their responsibility.

Conclusion

[23] The application for a directed verdict is dismissed.

Justice B.A. Glass

Released: October 28, 2016