COURT FILE NO.: CR-18-50000359-0000
DATE: 20191213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Mohamed Nazir
Defendant/Applicant
David Tice & Victoria Nevin, for the Crown
Sorina Cojocaru, for the Defendant/Applicant
HEARD at Toronto: November 12, 13, 14, 15, 18, and 20, 2019
Low J.
[1] Mr. Nazir is charged with attempted murder of Rakhee Nazir, of Wazila Nazir, and of Alyssa Nazir.
[2] He is charged with threatening, by word of mouth, to kill or to cause bodily harm to Wazila Nazir and to Alyssa Nazir.
[3] He is charged with aggravated assault of Rakhee Nazir.
[4] He is charged with failure to comply with a term of a probation order of the Ontario Court of Justice dated August 18, 2016 to keep the peace and be of good behavior and with failure to comply with the same probation order by possessing a weapon.
[5] The offence date is July 30, 2017. The incidents occurred in Toronto. Identity is not in issue.
[6] The defendant and the complaints are all members of an extended family that reside in a house at 349 Evans Avenue in Toronto. The defendant, born 1962, is the brother-in-law of Rakhee Nazir and of Wazila Nazir who are the wives of two of his brothers. He is the uncle of Alyssa Nazir who is Wazila’s daughter.
[7] Although the defendant and the complainants lived in the same house, the complainants had no relationship with the defendant. They did not share meals or socialize together. The defendant’s own marriage was broken and his wife and child lived in Guyana.
[8] The defendant was a chronic user of alcohol to the point of intoxication. When the defendant drank, he was belligerent and swore at everyone. He started arguments with Rakhee and Wazila. He made violent threats of death and bodily harm to Wazila. His behavior when drunk was of sufficient concern that, prior to July 30, 2017, family members called police on several occasions to remove him from the house. Those contacts did not lead to criminal charges, however, and the defendant was permitted to remain in the house. When he was not drinking, he was, according to Wazila Nazir, a different person.
[9] The defendant spent Sunday afternoon, July 30, 2017, drinking with two other individuals in a neighbour’s yard. Rakhee, Wazila and Alyssa were at home watching television. Rakhee was in and out of the house hanging up laundry in the yard.
[10] The defendant was also in and out of the house.
[11] At one point, as Rakhee came out of the house with more laundry to hang, she saw the defendant breaking the clothes pins apart. She asked him why he was doing so. The defendant did not answer. Rakhee realized from his expression that he was very angry and decided to leave him alone. She was afraid and went back inside into the kitchen. The defendant followed her into the house, took a kitchen knife and started to stab her. He stabbed her 17 times. She screamed and called out to her sister-in-law Wazila who was in the living room.
[12] From the living room, Wazila heard the defendant say to Rakhee, “Don’t call out -- she can’t help you today.” She also heard the defendant say to Rakhee, “I’ll finish what I started”. She could not see Rakhee but she was afraid. Wazila and her daughter Alyssa, then 19, ran upstairs and locked themselves in the bathroom.
[13] Rakhee could not defend herself. She testified that the defendant did stop stabbing her in response to her telling him to stop and that the defendant then just stared.
[14] Rakhee testified that the defendant had not threatened or physically attacked her before, that she had never given him any reason to have a grudge against her and that there were no recent issues between them. The attack was a complete shock to her.
[15] Rakhee, covered in blood, ran out the front door to an adjacent house. The neighbor called 911.
[16] Taken by ambulance to the trauma unit at St. Michael’s Hospital, Rakhee was treated for hemorrhagic shock and stab wounds to her torso, neck, abdomen, earl chest, trapezium, shoulder armpit, breast, elbow, scapula and the rear of her skull. She was treated with blood transfusions and underwent a major vascular exploration of the right subclavian artery because a wound measuring 5 cm long and 5 cm deep was within 1 to 2 cm of the right carotid artery and within a cm of the right subclavian artery. She suffered extensive muscle injury beneath this wound. Her overall injury severity score was put at greater than 16, indicating a severe life-threatening injury.
[17] At the commencement of trial, the defendant pleaded guilty to the charge of aggravated assault and to the two counts of breach of probation, Counts 2, 7 and 8.
[18] The defendant stabbed Rakhee Nazir some 17 times in a vicious attack. Rakhee Nazir was significantly wounded and sustained life-threatening injury. A conviction will therefore be entered on Count 2, the charge of aggravated assault.
[19] A conviction will also be entered on Counts 7 and 8 by reason of the facts constituting the offence of aggravated assault.
[20] The issue to be decided in relation to the two counts of uttering threats is whether a threat was uttered.
[21] The central issue to be tried in relation to the three counts of attempted murder is whether the defendant had an intention to cause death.
[22] There is also an issue of voluntariness relating to the utterances made by the defendant to Officer Litster-MacLeod while he was being transported by ambulance to a hospital emergency room and at the emergency room when he was being attended to for the facial injury sustained in the course of his arrest.
[23] At the request of counsel for prosecution and defence, the evidence going to the voluntariness issue was heard blended with the evidence going to the merits as the defence position was that the evidence supporting an inference of lack of an operating mind in relation to the utterances would equally support an inference of absence of capacity to form an intention to cause death.
[24] On the afternoon of July 30, 2017, three 911 calls concerning events at 349 Evans Avenue were received by the Toronto Emergency Services. One was made by the neighbor approached by Rakhee Nazir after she escaped from 349 Evans Avenue. The other two were made by Wazila and Alyssa Nazir. They spoke with the 911 operator from the bathroom on the upper floor of the house. Audiotapes of the calls were adduced in evidence. It is apparent from the audiotapes that the women were terrified and in fear for their lives. In the latter part of the audiotape of Alyssa’s call, Wazila could be heard emitting intermittent screams.
[25] At 18:22, emergency dispatch issued a top priority callout to the address. Officers Snyckers and Bandari were first on the scene and found Rakhee Nazir at the house next door to 349 Evans Avenue, wounded and covered in blood. Officer Snyckers administered first aid while Officer Bandari provided cover. Within a very short period of time, Officers Litster-MacLeod, Kovacic, Dyke and Sgt. Jackson arrived.
[26] The defendant, having ceased his attack on Rakhee, went upstairs to look for Wazila and Alyssa. He took with him with two knives and a screwdriver. One of the knives was a Cuisinart French knife with multiple blood stains on it.
[27] It is reasonable to infer that, as Wazila testified, he first went to Wazila and Alyssa’s bedroom to seek them out. The post-incident photograph of blood stains on their bedroom door supports this. The women were not in the bedroom as they had locked themselves in the bathroom. The defendant turned then to the bathroom. He banged on the door and cursed. He tried to pry the door open with a screwdriver. He made numerous significant prying marks on the door around the lock area as evidenced by the post-event photographs of the bathroom door.
[28] While in the locked bathroom, Wazila heard defendant say, “You bitch, I’ll cut your hand off. You’re just like your mom.” Alyssa heard the defendant say that he would kill both her and her mom and cut both their arms off. He also said, “You two think alike”. These are reasonably understood to be threats of death or of bodily harm. In the context in which they were uttered, they were, in my view, clearly threats of death or of bodily harm.
[29] It was argued that Wazila and Alyssa could not possibly have heard those threats from the defendant because Wazila was screaming and the defendant was on the other side of the door. As well, although it is possible to hear a police officer say, at one point toward the end of the call, “Drop the knife”, it is not possible to hear the defendant. In my view, the fact that the voice of the defendant cannot be heard intelligibly on the 911 audiotape is not indicative of an absence of utterances. The audiotape picks up only that which is transmitted with sufficient clarity and volume through the caller’s telephone to register on the 911 operator’s tape. It is plausible that the occupants of the bathroom would be able to hear sounds emanating from outside the bathroom that the 911 tape will not pick up. With respect to the presence on the 911 tape of Officer Kovacic’s command to drop the knife, it was the officer’s evidence, which I accept, that he shouted the words at the defendant as loudly as he possibly could. With respect to the suggestion that the women could not possibly have heard the defendant over Wazila’s screaming, the audiotape discloses that the screaming was intermittent and occurred toward the latter end of the call.
[30] I accept the evidence of Wazila and Alyssa that the defendant uttered words to them through the locked bathroom door that he intended to cause them death or bodily harm. The testimony as to the words said are sufficiently vivid, detailed and consonant with the contemporaneous physical acts of the defendant that I do not accept the submission that they are mere fabrications. The evidence of Alyssa that the defendant threatened to kill her and her mom, while not a quotation, is nevertheless credible, particularly in the context of the defendant having armed himself with two knives and a screwdriver, the screwdriver being a tool necessary to get access to the women and the knives to inflict harm. As well, the defendant had made a past threat against Wazila. As well, the level of terror of the women evidenced in the 911 audiotapes is consistent with the threats having being made.
[31] I found both women to be credible witnesses whose truthfulness was not successfully impugned on cross-examination. Further, I did not perceive in either of them any animus toward the defendant despite the events that transpired on July 30, 2017; to the contrary, Wazila expressed, at the close of her testimony, her hope that the defendant would get the help that he needed. I am satisfied beyond a reasonable doubt that the defendant uttered words that were reasonably understood as threats to kill or cause bodily harm to Wazila Nazir and to Alyssa Nazir.
[32] I therefore find the defendant guilty on Counts 4 and 6.
[33] The next issue is whether or not the defendant possessed an intention to cause death to Rakhee Nazir and to Wazila and Alyssa Nazir.
[34] Relevant to this issue are utterances by the defendant after the event and the defendant’s level of inebriation.
[35] The first officer to come upon the defendant at the head of the stairs was Officer Kovacic. He was first in the line of five officers proceeding up the narrow staircase to the upper level of the house where the defendant was found outside the bathroom door. Officer Kovacic heard loud banging and screaming as he mounted the stairs. The defendant had a knife in his hand. He turned toward the officer and pointed the knife at him, staring, and not immediately complying with the command to drop the knife. According to Officer Kovacic, as the defendant stood and stared at him, knife in hand, it seemed to him that the defendant was contemplating his next step. Officer Kovacic also testified that as the defendant was staring at him, it was almost like he didn’t know what was going on. The defendant did eventually drop the knife but resisted arrest and was forced face first into the wall by two officers trying to bring him under control.
[36] Once the defendant was brought under control, he was taken down the stairs and on to the lawn.
[37] Officer Litster-MacLeod took over supervision of the defendant to allow Officer Kovacic to decompress. Because the defendant was cuffed to the rear, the officer placed the defendant into recovery position to protect his airway.
[38] Officer Kovacic returned and advised the defendant that he was being charged with attempted murder. He read him his rights to counsel and gave the primary and secondary cautions about utterances. The defendant confirmed that he understood the cautions and, asked if he wished to call a lawyer, responded that he did not.
[39] Officer Litster-MacLeod encouraged the defendant to remain in the recovery position and explained the reason for putting him in that position. The defendant replied, “I’m breathing just fine.” Advised by Officer Litster-MacLeod that an ambulance was coming to check him over because he had sustained a facial injury during the arrest, the defendant said that he understood. Asked whether he remembered her from prior calls, he replied that he did.
[40] At 18:50, the defendant was in the ambulance accompanied by Officer Litster-MacLeod. The officer testified that she did not have any concerns that the defendant was not aware of what was going on. He was able to answer questions with appropriate responses. The officer smelled a bit of alcohol on the defendant’s breath, which she described as a faint odour as the defendant was speaking but not an overwhelming smell, and he was not sweating alcohol. In her observation, the defendant was very coherent and was not slurring his speech.
[41] On the way to the emergency room, the defendant and the officer started to have a conversation. It seemed to the officer that the defendant wanted to “get stuff off his chest”. He seemed to her to be comfortable talking to her. She attributed this to the fact that she had had at least three prior interactions with him on calls to 349 Evans Avenue.
[42] In my view, in the circumstances of this case, the best evidence as to whether there was an operating mind making the utterances is the content of the utterances themselves.
[43] When asked by the paramedic at 18:50 whether he had been drinking that day, the defendant said that he had had several drinks that day and that he was intoxicated.
[44] The defendant told officer Litster-MacLeod that he had been drinking at a neighbour’s house with two other people that day and that they had a bottle of Crown Royal Black.
[45] He told her that he was confronted by his sisters-in-law when he got back. He said that his sisters-in-law disapproved of his drinking and yelled at him about coming home drunk again. He said that he felt his sisters-in-law gang up on him and that no one loves him in the house. He said that he felt lonely and isolated and that he had just lost it and was fed up with them yelling at him all the time.
[46] He referred to one sister-in-law as the “mastermind” and said that she turns the other sisters-in-law against him. He said that he feels that they gang up to make him feel like an outcast and that he is the black sheep.
[47] The defendant told Officer Litster-MacLeod that alcohol was his biggest problem and that he had been a heavy drinker since he was 13. He said that alcohol was what ruined his marriage and that his wife was in Guyana with his son.
[48] He told the officer that he was one of 11 children and that his parents had been hard on him but that that was what Guyanese parents are like. He told the officer about some siblings of his who had died and he told the officer in some detail about the circumstances leading to his missing his own mother’s funeral. He told her that he was not a driver. On the day of the funeral he was on a job site and lost his phone. He went drinking and got intoxicated. He was upset because no one offered him a ride to the funeral. He was enraged that his sisters-in-law said negative things about him implying that he intentionally missed his mother’s funeral.
[49] The officer asked the defendant if he had stabbed the “mastermind” sister-in-law and the defendant replied that he had stabbed the other one, the older brother’s wife, and that it was the younger brother’s wife who was the “mastermind”.
[50] When they reached the emergency room, the defendant began to talk very loudly but when told by the officer to keep his voice down, he complied. He stated that he still wanted to talk. He said that his life was over, that he will end up spending his life in goal, and that no one will love him anymore. He said that whatever happens is meant to be.
[51] He asked the officer about the attempt murder charge and the officer told the defendant that Rakhee was taken to hospital. He asked her what would happen to him if she died, and the officer told him that his charges would be upgraded to murder. His response was “oh well if she dies, it was meant to be.” Officer Litster-MacLeod testified that, in her perception, the defendant said this coldly and without feeling. He said he would just live out the rest of his life in prison. He said also that he does not want to hurt anyone because he loves them but he lost control.
[52] The defendant arrived at St. Joseph’s Hospital at 19:13. The triage nurse noted an injury on the left side of his face and that the defendant was verbally abusive and agitated on arrival. On triage assessment, he was normally oriented to person, place and time, did not present with any psychiatric symptoms and had a normal level of consciousness. His vital signs were within normal guidelines. A blood sample taken from the defendant at 20:03 showed an ethanol level of 62 millimoles per litre (mmol/L).
[53] In the ER treatment room, the defendant flirted verbally with the nurse. He said to her that he had been drinking and asked if he could “drink her love”. Officer Litster MacLeod told the defendant that he needed to be respectful to hospital staff and the defendant replied that he would make no further comment. The officer observed that the defendant was appropriate with hospital staff thereafter.
[54] The defendant also tried to flirt with the officer, and when told that that was not appropriate, the defendant desisted.
[55] The defendant then asked Officer Litster-MacLeod “what happened today?”. The Officer told him he had stabbed his sister-in-law. The defendant responded that he did not remember that.
[56] The defendant spoke with Officer Litster-MacLeod and did not speak with any other officer. I am satisfied that there is no suggestion of any threat or inducement to make utterances or disclosures. The defendant spoke with Officer Litster-MacLeod spontaneously. I am not persuaded that a re-cautioning was required when the defendant started to speak to the officer. The defendant was cautioned and indicated that he understood the caution. There is no evidence that he did not understand the caution. There is no suggestion of a Charter violation.
[57] I am satisfied that there were no inducements or threats to the defendant in relation to his utterances to Officer Litster-MacLeod and that while he had an estimated BAC of 250 to 310mg/100 ml as calculated by the toxicologist Dr. Mayer, a level which is indicative of impairment, the defendant nevertheless had an operating mind as evidenced by the lucidity, detail and cogency of the substance of his statements to the officer. Further evidence of the presence of an operating mind is the fact of compliance by the defendant with the officer’s admonition to be respectful of hospital staff, and subsequently of her when he made verbal attempts to flirt with her.
[58] I am satisfied beyond a reasonable doubt that the statements that the defendant made to Officer Litster-MacLeod were voluntary.
[59] In argument, counsel for the defendant sought to use statements made by the defendant as a baseline against which to gauge the truthfulness of the complainant witnesses. It was suggested that whereas the defendant stated to the officer that he came back to the house to recriminations by his sisters-in-law about his drinking, the complainants did not testify that this happened and that, to the contrary, Rakhee testified that she had done nothing to cause the defendant to have a grudge against her. It was suggested that because of this conflict, the evidence of the complainants should not be accepted. That would, in my view, be an improper use of the defendant’s utterances.
[60] The defendant’s utterances disclose his state of mind, his attitudes, his feelings and beliefs. They disclose, inter alia, an animus and resentment toward his sisters-in-law.
[61] The defendant’s view of his sisters-in-law as ganging up on him to make him feel isolated and unloved would probably not, in a sober person, ripen into any physical action. Alcohol, however, has a disinhibiting effect such that its influence may induce action that is socially unacceptable, disproportionate, improvident, disadvantageous, unwise or tragically criminal. The fact alone, however, that an accused has consumed alcohol prior to performing acts which are criminal is not a defence and the mere fact of intoxication without more does not negative the capacity to have the intention to do that which has been done, or, in the case of the charge of attempted murder, the capacity to form the specific intention to cause death.
[62] In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at paragraphs 41- 48, the Supreme Court describes the three legally relevant degrees of intoxication: mild intoxication, which relaxes inhibitions and socially acceptable behavior, advanced intoxication – that is to the point where an accused lacks specific intent to the extent of an impairment of the accused’s foresight of the consequences of his act, and extreme intoxication akin to automatism which negates voluntariness and is a complete defence to criminal responsibility.
[63] There is no suggestion here of extreme intoxication akin to automatism. What the defence relies upon is the defendant’s blood alcohol concentration ( hereinafter “BAC”) in support of the argument that the defendant had no capacity to form the specific intent to cause death.
[64] The defendant called the evidence of Dr. Joel Mayer, a toxicologist. Using the hospital test result of 62 millimoles of ethanol per litre from blood drawn at 20:03 and presumed to have been tested on serum rather than whole blood at St. Joseph’s Hospital, Dr. Mayer calculated the defendant’s BAC to be in the range of 250 to 310 mg/100 ml at the time of the offence by multiplying the millimoles result by 4.61 and subtracting 15% to account for the higher concentration of ethanol in serum than in whole blood. The range of 250 to 310 is to account for the possibility that the defendant’s BAC may have been at maximum and declining or may have been at plateau from 18:15 to 20:03.
[65] Dr. Mayer testified that in an average drinker, a BAC in that range would represent substantial to severe intoxication. There would be impairment of psychomotor functions and cognitive functions. There would be difficulty walking and speaking and that level of BAC could produce stupor. He testified also, however, that some individuals develop tolerance and a person with much experience of alcohol use may be able to mask the effects; the brain can attenuate the effect of alcohol with long experience. The effects of alcohol vary with the individual. Dr. Mayer testified that even with a BAC in the range of 250 – 310, it is quite possible that a person would still be able to walk and talk and interact with others. He stated that instances exist where an individual with BAC of some 600 mg/100 ml has self-presented in an emergency room, aware of a need for treatment. It is not possible to say the precise nature of the impact of alcohol on an individual at a given BAC.
[66] As he had no opportunity to examine and test the defendant, Dr. Mayer was not in a position to opine on the defendant’s actual level of impairment. He acknowledged that BAC is not itself sufficient to determine the mental function of an individual and that physical observations are relevant in that regard. Dr. Mayer noted also that it was not within his area of expertise to opine on whether the defendant had the ability to form the intent to commit a specific crime and he was not able to opine on the defendant’s ability to foresee the consequences of his actions.
[67] The defendant was a person with long experience of alcohol use. According to his disclosure to Officer Litster-MacLeod, he had been drinking since the age of 13 and alcohol was his biggest problem. According to the complainants, he drank a lot.
[68] After arrest, there is no evidence that the defendant’s speech was impaired. To the contrary, the evidence of Officer Litster-MacLeod was that his speech was not slurred. There is no evidence that the defendant’s ability to walk was impaired and, after being arrested and put into handcuffs, he walked down the stairs to the lawn.
[69] In the course of being transported to the hospital by ambulance, the defendant related to Officer Litster-MacLeod lucid, cogent and detailed particulars of his family history, personal circumstances, feelings, attitudes and concerns. In particular, he expressed an understanding of consequences of what he had done – namely that he might have to spend the rest of his life in goal and that no one would be able to love him after that.
[70] At triage, he was found to be normally oriented to person, place and time and without any psychiatric symptoms.
[71] He responded appropriately to questions and requests, for example, to the admonition to behave respectfully to hospital staff.
[72] These are all observations made within the minutes up to one hour following the stabbing of Rakhee. They are indicative of a person who, while having a high BAC, was nevertheless lucid, oriented and able to interact appropriately with others. These observations are not consistent, in my view, with an absence of ability to foresee the consequences of one’s actions. To the contrary, they are consistent with an ability to foresee the consequence of one’s actions.
[73] During the time that the defendant was inflicting stab wounds on Rakhee and she was calling out to her sister-in law, the defendant told Rakhee not to call out to Wazila, that she couldn’t help her, and he told her that he was going to finish what he started. What he had started was a storm of stabbings with a kitchen knife that caused severe wounding and blood loss. The finish would have been death. In my view, the statement was a declaration of intent to kill Rakhee. The inference is inescapable that during the time that he was in the act of inflicting multiple stab wounds on Rakhee and making the statement that he was going to finish what he started, the defendant had an intent to cause death.
[74] The defendant did, however, after having inflicted numerous and serious wounds to Rakhee, respond to her plea to him to stop. In my view, the defendant had an intention to cause death while he was stabbing Rakhee but ceased to have that intent when he left off his attack. The latter event, however, does not nullify the existence of the intention to cause death that was present at the time that the defendant was in the process of repeatedly stabbing Rakhee Nazir. There will therefore be a finding of guilt on Count 1.
[75] After Rakhee’s escape, the defendant’s attention turned to Wazila and Alyssa. The defendant had sufficient presence of mind to notice that they had retreated upstairs. He had sufficient mental powers of organization and planning to know that he needed a tool to get at them if they were behind a locked door and thus he armed himself with two knives and a long screwdriver and mounted the stairs to get to them.
[76] As he banged on the bathroom door and tried to force it open with the screwdriver, he threatened the two women with death and dismemberment. He had the knives with him to carry out the threat and he was in the process of breaking the door open when police arrived to interrupt him.
[77] Neither contemporaneity of a verbal declaration to cause death nor a verbal utterance evidencing an intention to cause death are necessary elements of the existence of intent to cause death. In the circumstances at bar, I am satisfied that the existence and contemporaneity of the verbal death threat with the bringing of the knives in readiness to carry out the kind of harm verbalized together with the vigorous attempt to break open the bathroom door to do so lead only to an inference that at that time and place, the defendant had an intent to cause death.
[78] While defence did not join issue on the question of whether the defendant’s actions amounted to mere preparation, I am satisfied beyond a reasonable doubt that the totality of the defendant’s acts amount to more than mere preparation, and that he was in the process of carrying out his attack on the two women. In this, the facts are similar to those in R. v. Mantley, [2013] N.S.J. No. 66 where the Nova Scotia Court of Appeal upheld a conviction for attempted murder where the accused, having expressed an intention to kill his wife, had armed himself with weapons and was in the process of trying to get access to the room in the hospital where she was located. In that case, the accused was intercepted before he got to the room.
[79] As I am satisfied beyond reasonable doubt that the defendant had a specific intent to cause death to Wazila and to Alyssa Nazir and that his actions in furtherance of that intention constituted an attempt and not mere preparation, there will be a finding of guilt on Counts 3 and 5.
___________________________ Low J.
Released: December 13, 2019
COURT FILE NO.: CR-18-50000359-0000
DATE: 20191213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Mohamed Nazir
Defendant/Applicant
REASONS FOR JUDGMENT
Low J.
Released: December 13, 2019