Court File and Parties

Court File No.: CR-17-0000422 Date: 2018 09 24

Ontario Superior Court of Justice

Between:

Her Majesty the Queen, Applicant (A. Esson and S. Ferrone for the Crown)

- and -

Hassan Salifu, Respondent (J. Kaldas and R. Wong for the Respondent)

Heard: September 11, 2018

Discreditable Conduct Ruling

D.E. HARRIS J.

Introduction

[1] The Respondent Hassan Salifu is charged with the second-degree murder of his mother, Galina Alexander, committed in the apartment they shared on August 15, 2015. The Crown applies to admit evidence from several different witnesses to paint the history of the relationship between mother and son.

[2] The defence concedes that the accused assaulted the deceased, causing her death. Although there is a suggestion that the defence might raise a section 16 issue, currently the one live issue which the jury will have to decide is whether the Crown has proven the mental element for murder in section 229 (a)(i) and (ii) of the Criminal Code. If not, the proper verdict is a conviction for manslaughter. [1]

[3] It is the Crown’s contention that without the history, the jury will have a distorted and incomplete picture of what led to the killing of the deceased. Without the full background, the jury’s evaluation of the mental element for murder will be compromised. In their view, the troubled relationship between the accused and the deceased assists in demonstrating an intention to kill.

[4] The defence argues that the history is virtually irrelevant to the mental element for murder. Furthermore, the evidence proposed is gravely prejudicial, outweighing its minimal probative weight. The application should be dismissed in its entirety.

[5] I start with this: The evidence tendered by the prosecution is outside the scope of the indictment and is therefore presumptively inadmissible. To defeat the presumption of inadmissibility, the Crown must demonstrate that the probative value of the evidence outweighs its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-55.

[6] I accept the basic proposition that for the jury only to know the bare fact that on August 15, 2015, the accused killed his mother would be unfair to the Crown in making out its case that the accused possessed the mental element for murder. The history assists to some degree in illuminating what may have led the accused to do what he did and in proving his mental state at the time of his mother’s death. However, it is important to remember that some of the history is evident from the accused’s statements to the police after the killing. With respect to the defence position, I accept the submission that the historical evidence has significant potential to engender prejudice against the accused. Although it pales in comparison to the evidence of the accused’s assault on his mother that resulted in death, the moral and reasoning prejudice from the historical evidence is substantial.

[7] Contemplating these competing submissions, I arrive at this proposition: There should be admitted sufficient evidence of the history between mother and son to ensure the jury is given at least a general sense of the difficulties in the relationship between the accused and the deceased, while, at the same time, keeping the prejudicial effect to a minimum. Of course, implementing this formulation will be much more difficult than its articulation.

The Importance of Delineating the Live Issue in the Case

[8] Like relevance, probative value can only be assessed by examining the relationship between a primary fact and a fact sought to be proven. The best statement of the importance of this in the context of similar act evidence, a close relative of discreditable conduct evidence, (R. v. Singh, [2004] O.J. No. 5746 (Sup. Ct.); R. v. Polimac, [2006] O.J. No. 4757 (Sup. Ct.)), is from Justice Binnie in Handy:

73 The requirement to identify the material issue "in question" (i.e., the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.

74 The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded. The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice. [Citations omitted.]

What is the Other Pertinent Evidence the Jury Will Hear on the Mental Element for Murder?

[9] Most of the cases in this area involve evidence sought to be admitted to prove the act of killing. The defence, as noted above, concedes this. Indeed, the evidence to prove the unlawful acts causing death is overwhelming. The accused called 911 and told the operator that he had killed his mother. Authorities responded to the call and arrived at 11:15 a.m. The applicant exited the apartment upon their arrival. Ms. Alexander was pronounced dead at 11:21 a.m. In the police car on the way to the station, the accused lamented about why his mother aggravated him. Apparently, the accused also admitted the killing on his Facebook page.

[10] The pathology report concludes that the cause of death was blunt force trauma and neck compression. The accused strangled the deceased with a belt. In a five-hour interview with the police, the accused confessed to the killing. The accused was distraught and remorseful. He said he felt cowardly and did not deserve to live. He said that he had moved back in to his mother’s apartment in the last several months. The accused added that he had moved out previously because she did not give him enough space.

[11] The accused said that the argument which led to his assault was about eggs. His mother wanted to feed an egg she had just cooked to her dogs while the accused wanted to eat the egg himself. They just kept arguing and arguing. They said horrible things to each other. He called her a whore and said that she cared more about the dogs than about him. He became angry and “just snapped.” It felt like it was not him doing it.

[12] Mr. Salifu told the police officer in his confession that he hit his mother three or four times with his hand and kicked her with his foot. He said that he had won an Ontario Brazilian jiu-jitsu competition a few years before and was “pretty good.” Mr. Salifu said he used a belt as well, but did not elaborate.

[13] After he killed his mother, he had a shower to wash the blood off himself. He sat with the body for what seemed like an hour. He paced around. He had the thought that it would be better if the police shot him. Mr. Salifu then called 911. He told the operator that he had killed his mother. She was cold to the touch.

[14] Some evidence of the accused’s history with his mother emerged in the confessionary statement. The defence does not request that these parts of the confession be edited out of the evidence the jury will hear. The accused said that his mother had called the police one time when he broke something in the house. He agreed with the police officer that he had punched a hole in the wall. She had said he was violent because, amongst other things (it was somewhat unclear in the statement), he played video games in which there was shooting involved. The accused said that they had just come back from Kazakhstan two weeks before. They had argued on this vacation.

The Cases Relied Upon by the Crown

[15] Although there are a multitude of cases in which discreditable conduct evidence has been admitted proving the accused was the person who killed the victim, to reiterate, the identity of the killer is not the issue in this case. Rather, the issue is solely the mental element for murder.

[16] There are three main cases which the Crown argues demonstrate that the proposed evidence ought to be admitted. In R. v. Moo, 2009 ONCA 645, 253 O.A.C. 106 (leave requested and refused on other grounds No. 33661 (July 15, 2010), the appellant killed his wife by hitting her over the head four times with a four-and-a-half-pound mortar he had been using to grind chili peppers. [2] She died of brain injuries. The argument that precipitated the assault was the wife’s longstanding demand that her parents live with the couple. The appellant could not abide this and issued an ultimatum: his wife could either live alone with him or live with her parents.

[17] Six witnesses were permitted to testify with respect to the history of the couple. All the evidence derived from the few months preceding the killing and detailed Mr. Moo’s past verbal abuse, threats and the conflict with respect to the deceased’s parents.

[18] Watt J.A., alluding to the deference owed the trial judge’s decision to admit the evidence, held that there was no error:

98 In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased’s killer and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v. Cudjoe, 2009 ONCA 543 (Ont. C.A.), at para. 64; R. v. Van Osselaer (2002), 2002 BCCA 464, 167 C.C.C. (3d) 225 (B.C. C.A.), at para. 23, leave to appeal refused, 313 N.R. 199 n (S.C.C.).

106 The deceased’s ante-mortem statements to others were relevant and material. They tended to show the true nature of the relationship between the appellant and deceased, casting it in a different light than as described by the appellant. These statements reveal animus and motive on the part of the appellant, thus bearing on the issue of whether his unlawful killing of the deceased was murder or manslaughter.

108 While moral and reasoning prejudice is inherent in any evidence of extrinsic misconduct, its influence may vary significantly from one case to the next, depending, in part at least, on the nature and extent of the misconduct. Here, the extrinsic misconduct paled by comparison to the conduct charged. In some instances, it reflected more badly on others, for example, the deceased’s father, than on the appellant. The sting of any prejudice was largely alleviated by the limiting instructions given by the trial judge forbidding propensity reasoning, instructions that were more favourable than those to which the appellant was entitled.

[19] The second case is R. v. Pasqualino, 2008 ONCA 554, 239 O.A.C. 59. Mr. Pasqualino shot his wife to death with a handgun. The marriage had been stormy, and the accused had said that he would kill her if she ever tried to leave him. In fact, the deceased told the appellant’s brother two days before the killing that she intended to leave the accused.

[20] The impugned evidence admitted at trial included verbal and physical abuse and the threat to kill. The accused had testified that the triggering event was his wife questioning his sexual prowess. It was argued at trial that provocation arising from this insult negated the intention for murder. The jury convicted Mr. Pasqualino of murder. LaForme J.A. found no error in admitting the evidence of the history between the two.

[21] In R. v. Groulx, 2011 ONSC 1316, [2011] O.J. No. 2659, affirmed on other grounds, 2013 ONCA 690, like in this case, the accused strangled his mother to death. The evidence admitted at trial was that he had choked her previously. No appeal was taken against this ruling.

Probative Value

[22] The Crown argues the evidence is probative to show animus, motive and intent and to show state of mind. Motive in this context refers to the emotional state of the accused at the time of the killing: R. v. Malone, [1984] O.J. No. 22, 11 C.C.C. (3d) 34 (C.A.), at p. 43. The Crown also mentioned that it was relevant for narrative, a category often used by the prosecution as a default catch-all for probative value. The defence argues that the evidence is incapable of demonstrating the mental element for murder.

[23] The defence, in arguing that the evidence must show intent to kill, pitches the issue too narrowly. The potential probative value can be summarized this way. If the jury were deprived of any background of the relationship, the killing would appear quite inexplicable. Why kill a person over an egg? The reservoir of anger which built up in the accused is important to understand in assessing the accused’s mental state at the time he caused the deceased’s death.

[24] In his confession, the accused says that he snapped. It is a common and oft-seen argument that an explosion of sudden and irrational anger is said to negate the intent to kill. Killing someone out of the blue with no precursor and no reason is more likely to be committed without an intention to kill. In order to view this issue in its full and proper context, some evidence describing the relationship between mother and son ought to be heard by the jury. This is the main engine producing the probative value of the historical evidence in this case.

[25] The Crown also contends that a good deal of the evidence advanced ought to be admitted to show the deceased’s state of mind and, by a process of inference, to provide insight into the accused’s state of mind at the time of the killing. I am not convinced. Probably the most common use of state of mind in a murder case is to show a deceased’s intention to leave the accused and end their relationship, thus revealing the jealous accused’s motivation to kill: see R. v. Candir, 2009 ONCA 915, [2009] O.J. No. 5485, at para. 55. It may also go to identity of the killer, the leading case being R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-66. See also R. v. Carroll, 2014 ONCA 2, 314 O.A.C. 281, at paras. 104, 122.

[26] Neither of these situations mirror the factual scenario presented in this trial. Identity not being in issue, evidence of motive to solve the question of who killed the deceased is of no probative value. Nor is it a situation in which the deceased was threatening to leave or abandon the accused, which would have made it more likely that he killed her out of spite and jealously.

[27] In this case, the state of mind chain of reasoning towards the mental state for murder is much more tenuous. There are four links in the chain:

(1) the deceased feared the accused; (2) she must have had good reason to do so; (3) therefore, the accused must have hurt her or threatened her with violence in the past; and, finally, (4) because of the past antagonism, when the accused assaulted her, he intended to kill her or to cause her bodily harm he knew was likely to cause death.

[28] In this case, the problem is that the deceased’s fear of the accused does little or nothing to imply that he intended to kill as opposed to intending to assault and injure. The circumstances are similar to R. v. Foreman, [2002] 62 O.R. (3d) 204, 169 C.C.C. (3d) 489 (C.A.), in which Doherty J.A. said at para. 30:

Motive refers to an accused's a state of mind. As outlined above, the deceased's state of mind was one link in a chain of reasoning which could lead to a finding that the appellant had a motive to kill Ms. Heimbecker. In that way, evidence of Ms. Heimbecker's state of mind had an indirect connection to the appellant's state of mind. There was, however, a much more direct evidentiary connection drawn by the trial judge. He did not only admit the statements as evidence of Ms. Heimbecker's state of mind, but also admitted the statements as evidence that the appellant had in fact threatened Ms. Heimbecker. If the jury was satisfied that the threats were made, they could infer motive and intent from those threats without any inquiry into Ms. Heimbecker's state of mind: R. v. Walker (2002), 2002 BCCA 89, 163 C.C.C. (3d) 29 (B.C. C.A.), at pp. 43-48; R. v. Fournier (2000), 2000 BCCA 140, 143 C.C.C. (3d) 341 (B.C. C.A.), at pp. 346-47, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 208.

[Emphasis added.]

[29] I do not agree with the Crown’s argument that there is any significant probative value generated towards the ultimate issue of an intention to kill through the intermediate inference of the deceased’s state of mind. How the deceased’s fear of her son makes it more likely that he formed the intent to kill her will be at best obscure and confusing to the jury. However, there is probative value to the evidence on the evidentiary premise described in Foreman.

[30] Several other points should be made concerning probative value. Given Justice Binnie’s admonition in Handy to reduce to its essentials the issue upon which the evidence is probative, it is important to scrutinize the other evidence to be adduced in the Crown’s case: R. v. D. (L.E.), [1989] 2 S.C.R. 111, 50 C.C.C. (3d) 142, at p. 123. I am thinking here of the accused’s confession and other statements on the day of the crime, as well as the cause of death evidence.

[31] In his confession, the accused talked about arguments with his mother and about breaking the bannister and punching a hole in the dry wall. This evidence is in the same vein as much of the extrinsic evidence sought to be admitted by the Crown. Admittedly, coming exclusively from the accused — albeit against his interest — it is not of the same quality as evidence from other sources. But in evaluating probative value, and in weighing prejudicial impact, the evidence must be kept in mind. The fact is that some of what the Crown wants the jury to draw from the proposed evidence is already on the record from the accused himself.

[32] Lastly, I must also look at the other evidence bearing on the mental element for murder. Strong evidence of an intention to kill arising from the forensic evidence may reduce the probative value of the proposed evidence towards proof of this element. Here, one of the two causes of death was neck compression caused by manual strangulation. Strangulation is a particularly direct means of causing death. The conclusions alternative to the intention to kill are few. Unlike Moo where blows to the head were administered, manual strangulation is a deliberate, calculated act and protracted in its application. The effect — death — is generally apparent to the assaulter. Strangulation is arguably stronger evidence on the mental element for murder than other means of death.

Prejudicial Effect

[33] The tendered evidence shows antagonism towards the deceased, the accused’s violent destruction of property and the deceased’s fear of the accused. No doubt, this evidence is on a totally different scale than the evidence of the killing the jury will hear. Prejudice is magnified when the proposed evidence is more serious than the allegation in the indictment: see Sopinka J. in R. v. D. (L.E.), at para. 61. That is not the case here.

[34] However, in this case there is a concern with the sheer volume of evidence tendered by the Crown. There is a critical mass threshold after which the evidence accumulates only meagre additional probative value but continues to contribute to the well of emotional distaste for the accused. It may well also distract the jury. My instinct is that on this record, the past acts will generate substantial moral prejudice and some reasoning prejudice as well.

[35] The case law makes it clear that with respect to evidence of this kind, a limiting bad character instruction is not required. The evidence being pertinent exclusively to motive and intent, it would be contradictory to give a bad character instruction. A wealth of authority supports this proposition: Moo at para. 100; Pasqualino, at para. 65; R. v. Merz, [1999] 46 O.R. (3d) 161 (Ont. C.A.), at para. 59; Carroll, at para. 123; R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.), at 168-169; R. v. Krugel, [2000] 129 O.A.C 182, 143 C.C.C. (3d) 367, at para. 90.

[36] The defence did not argue that the proposed evidence’s prejudice is more damning because no classic bad character instruction can be crafted. I think they were correct not to take this tack. The careful and precise delineation of what the evidence can be used for ought to greatly reduce bad character aspersions from seeping into the minds of the jury.

[37] I now turn to the evidence tendered by the Crown. Although breaking the evidence into the categories below, I have considered the admissibility of the proposed evidence as a whole.

The 911 Calls

[38] There are two calls from the deceased to 911 emergency assistance: October 28, 2010 and September 10, 2012. In the first, the deceased tells the operator that the accused was breaking walls in her house — he kept doing it over and over again — and that she could not take it anymore. He had an anger problem, she said. A police officer attended and spoke to the deceased and the accused. He viewed the dent in the wall. The two complained about each other, the mother saying that she wanted the accused to leave for the day and that they could speak when he was calmer. The accused complained about her constant nagging, which he said he wanted to stop.

[39] In the second call, the deceased said she was calling from her car because she was afraid of her son, who had anger problems. He had punched a hole in the wall and broken a bannister. Again, a police officer arrived. The deceased asked that her son be removed from the home.

[40] The 911 calls are inadmissible. A main factor is that the accused was 18 years old (having just turned 18 a few weeks before) and 20 years old at the time of these two calls. At the time of the offence alleged, he was almost 24 years old. The calls were too distant in time to possess sufficient probative value.

[41] The years between 18 and 24 are not just any six years. The developmental disparity between the two ages is potentially enormous. Adolescence is often a time of volatility and rebellion. A difficult teenager may well settle down and become a well-adjusted adult. This is a common phenomenon. The leap between the past events and the murder allegations is not one which the jury should be asked to make.

[42] In addition, punching holes in the wall and arguments with his mother will go into evidence via the accused’s statements to the police. Furthermore, with respect to prejudice, hearing the dead woman’s teary and distraught voice could be gut wrenching for the jury and tempt them to depart from the dispassionate and analytical approach to the case required.

The Evidence of Jermaine Peters

[43] Mr. Peters is a friend of the accused, having met him about 10 years before this incident. Peters witnessed several arguments between the deceased and the accused at their various residences. He saw the accused punch a hole in the wall and flip a table. However, Peters said these events happened when they were younger and did not reoccur as they got older.

[44] This evidence may well have been admissible were it not for the fact that Mr. Peters said the conduct tapered off completely as the accused became older. This deflates the probative value of the evidence. It is inadmissible.

The Evidence of Nadira Dindyal

[45] Ms. Dindyal was a long-time friend of the deceased. She first met her when the deceased, who was a hairstylist, worked at the Bramalea City Centre. She saw the deceased in her various residences. The last time was April of 2015. The deceased’s son lived with her on and off but when she went to live at the 33 Kennedy Road apartment in January 2015, he did not move in with her. The deceased said this was better because they would have a better relationship.

[46] Ms. Dindyal heard from the deceased about how the accused disrespected her at times. She was told about altercations between the two. The deceased pointed out holes in the walls which she said the deceased made about a year before the offence date. The deceased also told her that the accused called her horrible names and they had fights. Ms. Dindyal witnessed an argument between mother and son in which Ms. Dindyal told the accused not to speak to his mother the way he was.

[47] Ms. Dindyal’s evidence is admissible. It was not hindered by having taken place in a different stage of life, when the accused was an adolescent. It confirms the accused’s statements to the police about not getting along with his mother and punching holes in the walls. The prejudice is not insubstantial, but does not outweigh the probative value.

[48] I will want to have a conversation with counsel about several parts of this witness’ evidence that are of questionable admissibility.

The Evidence of Marissa Vella

[49] The deceased was Ms. Vella’s hairdresser for four years. Her hair appointments were every six to seven weeks. The last time Ms. Vella had her hair done, the accused was back living with the deceased. She heard from the deceased that her son had a bad temper. Once, when she asked about an out of date calendar on the wall at the deceased’s home while having her hair done, the deceased lifted it up and behind it there was a hole in the wall. The deceased said that the accused had become upset and punched a hole in the wall.

[50] Ms. Vella’s evidence duplicates in many respects Ms. Dindyal’s evidence but is less detailed. Ms. Vella was not as close to the deceased as was Ms. Dindyal. Ms. Vella’s evidence adds very little in probative value. There is a corresponding rise in prejudicial effect from the jury seeing another witness on the stand testifying to the poor relationship and the holes in the wall. I would not admit Ms. Vella’s evidence.

The Evidence of Sandy Allen

[51] Ms. Allen was the superintendent of the deceased’s apartment building at 33 Kennedy Road for the six-month period from December 2014 to June 2015. She became friendly with the deceased and had her hair done three times. The deceased said that she was happy to sell her house and get away from her son. She moved into a one-bedroom apartment so that her son could not move in. The deceased told Ms. Allen that her relationship with her son was not close, that they fought all the time, and that she could not take it anymore.

[52] Again, Ms. Dindyal’s evidence is of higher quality because she witnessed one of the fights and was closer to the deceased than Ms. Allen. It does not strike me that there will be a significant credibility or reliability attack on Ms. Dindyal by the defence. Her evidence does essentially everything that Ms. Allen’s evidence would do and more.

[53] The addition of Ms. Allen, given the admission of Ms. Dindyal’s evidence, would add little probative value while increasing the prejudice by having another witness attest to the accused’s discreditable conduct and character. Ms. Allen’s evidence is inadmissible.

The Hearsay Nature of the Evidence

[54] Except for the argument she witnessed and the holes in the wall, Ms. Dindyal’s evidence is hearsay. The parties argued the hearsay aspect of all the ante-mortem statements in this motion. Most of the cases I have cited above also considered the hearsay aspect and concluded that the evidence was admissible under the principled exception to the hearsay rule: see e.g. Moo, at paras. 104-107; Pasqualino, at para. 57.

[55] The same is true in this case. Necessity is manifest. The deceased is not available to testify. With respect to circumstantial proof of reliability, the deceased had no motive to fabricate, the statements were quite spontaneous, the deceased did not simply adopt leading questions from Ms. Dindyal, and there was no influence used to elicit the utterances from the deceased.

[56] In conclusion, the only witness whose evidence is admissible is that of Ms. Dindyal. The others are inadmissible. I note that this ruling is based on the anticipated evidence in this trial. If there are any twists or turns in the road, including a Section 16 issue, it may be necessary to reconsider admissibility.

D.E. HARRIS J. Released: September 24, 2018

Footnotes

[1] For ease of reference, I will refer to an intention to kill as the mental element for murder found in section 229(a)(i) of the Code. In fact, the mental element for murder includes the infliction of bodily harm which the accused knows is likely to cause death: Section 229 (a)(ii) of the Criminal Code.

[2] In another lifetime, I was appellate counsel for Mr. Moo on his unsuccessful appeal to the Court of Appeal and leave to appeal to the Supreme Court of Canada.