COURT FILE NO.: CR-20-70000256

DATE: 20211105

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ABDULLAHI OSMAN

Robert M. Wright and Elizabeth Moore

for the Crown

Jessie DiCecca

for the accused

HEARD in person and via zoom video, September 8, 13, 14, 15, 16, 17, 20, 21, 22, 23, 27

G. ROBERTS J.:

OVERVIEW

[1] On June 6, 2019, Hassan Ali's body was found in the bathroom of his bedroom unit in the Fred Victor housing complex at 145 Queen Street East. The bathroom was covered in blood. Mr. Ali's ankles, hands and neck were bound by a white coaxial cable that was tightly fastened to the bathroom door. The process of decomposition was well underway by the time the body was discovered, but the autopsy revealed that Mr. Ali had been badly beaten. His traumatic injuries were lethal without treatment. So was the co-axial cable secured tightly around his neck. The cause of death was "ligature neck compression in a man with sharp force and blunt force injuries."

[2] Surveillance video from the Fred Victor complex revealed that the last time Mr. Ali was seen alive was in the early hours of May 11, 2019. He was in the company of the accused, Abdullahi Osman. Forensic evidence also linked Mr. Osman to the crime scene. Mr. Osman was charged with first degree murder.

[3] The Crown's case consists of evidence of opportunity, forensic evidence, and evidence of after-the-fact conduct. It is the Crown’s position that, considered in totality, the evidence overwhelming establishes that Mr. Osman murdered Mr. Ali while unlawfully confining him. Torture is not too strong a word to describe the pain and suffering deliberately inflicted on Mr. Ali before he died.

[4] Mr. Osman did not testify or call evidence, but the defence relies on Mr. Osman's exculpatory statement tendered by the Crown. If the statement fails to raise a reasonable doubt, it is the defence position that the Crown has failed to prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman murdered Mr. Ali. In the event this is proven, however, the murder is not first degree because the Crown has failed to prove that the only reasonable inference is that the confinement preceded the murder.

[5] Both counsel agreed that the essential issues in the case are the following:

1. Identity: Did the Crown prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman is the person who beat and bound Mr. Ali?

2. Mens rea: If yes, did the Crown prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman had one of the two requisite intents for murder in light of the evidence of intoxication?

3. First degree murder: If yes, did the Crown prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman murdered Mr. Ali in the course of unlawfully confining him?

THE EVIDENCE

Background facts

[6] The Fred Victor housing complex at the south east corner of Queen street and Jarvis street in the city of Toronto provides permanent housing for 76 low-income residents and transient housing for 20 individuals struggling with substance abuse. It also provides a number of services for its residents and for the wider community, such as a restaurant on the main floor serving low cost meals, a drop-in centre, housing workers, a doctor who comes in weekly, and personal support workers. The two front doors are unlocked between 8:30 and 5:30 when these services are open, permitting people into the main lobby area. Outside these times, a fob is necessary to unlock each front door.

[7] There is a security office in the main lobby, directly across from the front doors. It is staffed with a receptionist between 8:30 am to 5:30 pm. At all other times it is staffed with a security guard, but that individual may step away from the desk from time to time to attend to various duties. There is a housing office just off the east side of the main lobby. It is staffed with a housing officer 24 hours a day. Anyone visiting a resident must register with the housing office, provide identification, and remain with a resident at all times. Surveillance cameras cover the area of Queen Street in front of the building, the corner of Queen and Jarvis, the front entrance of the building, the front lobby, the elevator lobby, and each elevator.

[8] The residential units are accessed through a locked door (opened with a fob) off the main lobby, which leads to the elevator lobby. The residential units can only be accessed through the elevators. A fob is required to activate the elevator to go to a floor, and will only permit a resident to travel to their own floor. A record is kept of the time and place each fob is used. The elevators can be taken to the ground floor without a fob. There are stairs, but they are for emergency use only; they are locked with magnetic locks which only open during a fire alarm.

[9] The permanent rooms consist of a bedroom and ensuite bathroom, inside an apartment unit with a shared living room and kitchen. A key for a deadbolt is required to enter each apartment unit. A separate key for another deadbolt is required to enter each bedroom and ensuite bathroom. Each resident is provided with a single fob which is necessary to access the elevator lobby and to activate the elevator to go to the floor of the resident's unit. In addition, outside business hours, the fob is required to enter both front doors to the building.

[10] Mr. Ali lived in the Fred Victor housing complex in room 423, inside apartment 420. Robin Masterson, who was the director of housing for the Fred Victor housing complex in 2019, and still is, knew him and identified him on the surveillance video from May 11, 2019. She noted that, at that time, he had been a tenant for about a year. Before moving in, he had been a member of the community. Ms. Masterson recalled that Mr. Ali was quiet, and their contact generally consisted of a passing hello about once a week.

[11] Prakash Mehta, who filled in day and evening shifts at 145 Queen East in 2019, and has since been hired permanently as an addiction prevention worker, also knew Mr. Ali as a tenant. He called him "Hassan". Mr. Mehta noted that Mr. Ali would often come down around 10 am, go into the drop in centre and then stop by the housing office and say hello from the entrance. He noted that Mr. Ali was aloof and closed, from both staff and residents, but socialized with a group of other people from Somalia who lived in apartment unit 510 on the fifth floor. He agreed with the suggestion that he last saw Mr. Ali 14-15 days before they found his body.

[12] Mr. Osman used to live in the Fred Victor housing complex, but stopped living there in February of 2019. Ms. Masterson identified him on the surveillance video from May 11, 2019, and in the zoom court room. Ms. Masterson knew Mr. Osman better than she knew Mr. Ali. Mr. Osman lived at the Fred Victor complex for about 3 years, and remained in the community after moving out. He moved to a shelter on Jarvis Street, and continued to use the restaurant and services at 145 Queen Street East, other than housing, which he was not allowed to access. People called Mr. Osman "Bambino" or "Osman". Ms. Masterson recalled seeing Mr. Osman in the lobby on a daily basis from the time he was evicted up until about two or three weeks before June 6, 2019, when Mr. Ali's body was found. Ms. Masterson did not see Mr. Osman around after this time. She did not believe that she remarked on this at the time, but only after the fact.

[13] Mr. Mehta knew Mr. Osman since beginning to work at the Fred Victor complex in 2018. He identified Mr. Osman in the zoom court room. He explained that he knew him "very well". He was a tenant and came by many times to chat, invariably cracking a joke. He knew him as "Bambino". Mr. Mehta used to see Mr. Osman in the lobby in April-May, 2019 and understood that he was staying in unit 503 on the fifth floor. Mr. Mehta did not notice any change in the frequency with which he saw Mr. Osman at 145 Queen East; Mr. Osman was always around. He never saw Mr. Osman together with Mr. Ali but knew that they both socialized with people in unit 510.

[14] In April and May 2019, Jorel (River) Murnaghan worked 3 or 4 nights a week in the housing office at 145 Queen Street East, and had done so for a number of years. The night shift ran from 11:30 pm to 9 am. This position involved signing visitors into the building, responding to complaints, dealing with emergencies, and monitoring cameras. The housing office kept an incident log. They would not note trivial things, such as a simple noise complaint, but would note anything of importance, such as having to shut someone down because of noise, or a false fire alarm.

[15] Mr. Murnaghan explained that prior to 2019, the garbage chutes (located next to the elevators) were closed to residents as a result of a number of incidents (such as a fire being started and a cat being thrown inside). Instead residents could leave their garbage on the floor near the garbage chutes and it would be picked up by a maintenance person daily.

[16] Mr. Murnaghan explained that people trying to sneak into the building was an on-going problem. He would not necessarily note a "pathetic" attempt to sneak into the building in the incident log kept by the housing office, but he would certainly note a serious attempt, such as the fire alarm being pulled (which unlocked the magnetic doors to the stair well and the exterior fire doors). He would try to get to the bottom of a serious attempt. Mr. Murnaghan did not believe people could sneak in past both the housing office and the security desk.

[17] Mr. Murnaghan knew both Mr. Ali and Mr. Osman as tenants in the building, and believed he recognized them in the surveillance video he was shown in court. As of April/May 2019, Mr. Murnaghan believed Mr. Ali had been a tenant for at least a year. Mr. Osman was no longer living in the building in April/May 2019, but had previously been a tenant for several years, and was still around the building on a regular basis. Mr. Murnaghan would usually see him once or twice a night. Mr. Murnaghan would not require him to sign in as a visitor because he knew him. Mr. Murnaghan did not recall any change in the frequency of Mr. Osman's attendance at the building in June 2019.

[18] Mr. Murnaghan recalled seeing Mr. Ali and Mr. Osman together, but not often. He believed that they both liked to drink. The last time he saw them he was working the overnight shift, and recalled seeing them come back a bit "drunk and jovial". He also recalled seeing some sort of altercation in the elevator through the surveillance video. He did not know what it was about, or whether it was between them or another tenant. He characterized it as "boys will be boys". Mr. Murnaghan was not working in the early hours of May 11, 2019. Only one person worked the night shift in the housing office; Michael Jacobs was working during the early hours of May 11, 2019.

Discovery of Mr. Ali's body on June 6, 2019

[19] Residents of the Fred Victor housing complex are required to confirm their income once a year in order to qualify for subsidized rent. This is normally done in May and June, and 2019 was no exception. Mr. Mehta had asked Mr. Ali for his documentation around the beginning of May, but Mr. Ali had not provided it. Mr. Mehta knew that Mr. Ali did not like to be hassled, so had initially left him alone, but then had not seen him. Mr. Ali also did not answer Mr. Mehta's telephone calls. By June 6, 2019, almost all the residents had provided the necessary documentation except Mr. Ali. Neither Ms. Masterson nor Mr. Mehta had seen Mr. Ali for some time. Ms. Masterson checked the fob usage log and saw that the last time Mr. Ali's fob was used was around 3:40 am on May 11 on the door to enter the elevator lobby. Ms. Masterson decided that they should check Mr. Ali's room to make sure he was alright.

[20] When Ms. Masterson and Mr. Mehta got off the elevator on the fourth floor Ms. Masterson could smell a faint odor. They knocked on the door to apartment 420, announced themselves, and entered. Ms. Masterson noted that the door was locked and used her key. The odor was stronger inside. Ms. Masterson knocked on Mr. Ali's bedroom door (423) and entered. She did not recall whether the door was unlocked; at this point she was focused on Mr. Ali, believing she would find him dead inside his unit. The room was disheveled. There was broken glass on the floor and the bed was pulled partially across the entrance to the bathroom. Ms. Masterson saw a body inside the bathroom and pushed Mr. Mehta back to protect him and told him to wait for first responders on the ground floor. The smell was terrible.

[21] The body was bound at the ankles and hands by a white electrical cord. There was also a cord around the neck which was tied to a door handle. There was a dark reddish-brown substance on the floor and walls which Ms. Masterson thought was blood or feces. Ms. Masterson looked over the body to see the face to make sure the person was not breathing, just in case she could help. The face was so discoloured she could not recognize it. Ms. Masterson did not disturb anything, but noticed that her shoes were sticky afterwards, and she provided them to police. She stayed in the apartment until police arrived so no other tenants would enter.

Surveillance video from the last time Mr. Ali seen alive

[22] Police seized surveillance video from the cameras in the building for the period between May 5 and June 6, 2019. DC Hodges reviewed almost all of it, beginning on May 11 and going forward to June 6, 2019, focusing in particular on the elevator cameras. The last time Mr. Ali was seen on the surveillance video was around 3:20 am on May 11. The last time Mr. Ali's fob was used was around 3:40 am on May 11, by Mr. Osman alone. The following is a summary of what I see on the surveillance video for the morning of May 11, 2019, supplemented by the visitor logs:

Visit from Kelly Fraser around 1:30-2:05 am

[23] Around 1:30 am Kelly Fraser arrives at the building. Mr. Osman and Mr. Ali get on the elevator at the 4th floor and travel to the lobby. Mr. Osman points at Mr. Ali while speaking to him in the elevator, as if for emphasis. He reaches over to fix Mr. Ali's hat. Mr. Osman lets Ms. Fraser into the lobby and hugs her. Mr. Ali goes outside. Mr. Osman and Ms. Fraser appear to wait for Mr. Ali inside the lobby, and then Mr. Osman goes outside and appears to usher Mr. Ali back inside, pointing toward the door. They go to the housing office. Ms. Fraser signs in as a guest of Mr. Ali (the exact time is hard to read - based on the subsequent entries it is sometime between 1 am and 1:30 am; she does not sign out which is not unusual based on the log). Mr. Osman holds the door to the elevator lobby open for Ms. Fraser; he then shoves Mr. Ali through and follows. When the elevator arrives, they get on and Mr. Osman shoves Mr. Ali inside. They take the elevator to the 4th floor - Mr. Osman pushes the button as Mr. Ali holds his fob to the panel. Around 2:05 am Ms. Fraser gets on the elevator by herself and travels to the ground floor. She exits into the vestibule area between the two front doors, and hangs out there before leaving with another man around 15 minutes later.

[24] Mr. Ali appears impaired to me. He is noticeably wobbly at points, and walks with a stiff-legged unbalanced gait. He is wearing a red toque, a heavy brown coat with fur or faux fur trim, a dark blue almost greyish hoody underneath, bright blue pants, and white sneakers. He is wearing his fob on a lanyard - at some points it is possible to see white strings around his neck.

[25] Mr. Osman does not appear impaired to me. His walks and moves with balance, and he appears to interact with those around him normally. He is wearing a light coloured ball cap; a hoody with a black body and light grey hood (the arms cannot be seen at this point because the jacket is over top); a jean jacket, blue jeans, and black shoes.

Excursion to Jarvis street around 3:04-3:20 am

[26] Around 3:04 am Mr. Osman and Mr. Ali get on the elevator from the 4th floor, go to the ground floor, leave the building, walk to Jarvis street and then south on Jarvis until they disappear from view. Just over 10 minutes later they reappear in the same view they were last seen, walking north up Jarvis to Queen. Mr. Osman appears to be gesticulating towards Mr. Ali. Mr. Ali is still walking stiffly as if intoxicated. They re-enter the building. Mr. Ali appears to lose his balance when fobbing into the front entrance. They take the elevator back up. Inside the elevator Mr. Osman rubs the head of another man, and then hugs him.

[27] Mr. Osman and Mr. Ali are wearing similar clothing as earlier, though Mr. Ali is now wearing his hood up and has a back pack on. He is not wearing the toque. Mr. Osman also has his hood up; he takes his jean jacket off when he re-enters the building, providing a good view of the hoody, showing the body is black and the hood and arms are light grey.

Brief excursion outside by Mr. Osman between around 3:34-3:41 am.

[28] Around 3:34 am Mr. Osman gets on the elevator at the 4th floor. He takes off his hat and hugs the woman in the elevator. He travels to the ground floor, goes outside to Queen street, walks west to the south east corner of Queen and Jarvis, looks south down Jarvis street, and then returns to 145 Queen street East. He goes into the housing office and picks up what looks like food or a drink and takes the elevator back to the fourth floor. He appears to chat to the other men in the elevator. He tips his hat in an elaborate goodbye after getting off.

[29] Mr. Osman is no longer wearing a coat or hoody. He is dressed in a short-sleeved blue t-shirt, and what appear to be the same jeans and black shoes as earlier. He appears to be holding a fob on white strings in his right hand, which he uses to re-enter the building, and then puts into his right front pocket.

Mr. Osman leaves the building around 9:41 am.

[30] Mr. Osman gets on the elevator at the 4th floor around 9:41 am. He takes the elevator to the ground floor and leaves the building. He walks to Jarvis street, and then south on Jarvis. He meets someone he appears to know whom he greets with a hug. As he turns to leave, he loses his balance and falls to the ground and the friend helps him up.

[31] Mr. Osman is wearing the same light coloured baseball cap and blue jean jacket. He is also still wearing the short-sleeve blue t-shirt, but it now has a mark or stain on the top right chest area. The rest of his clothing is different: he is now wearing brownish pants and white sneakers. He is not wearing or carrying the hoody he had on earlier.

The scene and DNA

[32] Mr. Ali's bedroom and the adjoining bathroom were disheveled. There was garbage, clothing, filters from smoked cigarettes, and broken beer bottle glass lying on the floor of the bedroom. There was a lot blood on the floors and walls of the bathroom, particularly in the area between the toilet and the south wall. In addition, various items were strewn around the bathroom: a table was overturned with only 3 legs, the 4th leg was under Mr. Ali's body; one of the doors from the vanity cupboard under the sink was missing and was lying on top of Mr. Ali's body; the toilet seat was on the ground opposite the toilet; the lid of the toilet was in the corner near the toilet; there was a folding red chair; there was debris lying on the floor, including a black running shoe, newspaper, a black mug, and a broken flashlight and batteries. There was red staining on many of these items.

[33] DC James Adrejishyn was one of the first FIS officers on scene. He tried to document the scene before anything was touched (see exhibits 32 and 33). The door to the bedroom showed no sign of forced entry. He did not see a hoody with a black body and grey hood and arms, such as the one Mr. Osman could be seen wearing on the surveillance video from May 11. Nor did the TPS seize such a sweatshirt.

[34] The was a grey and black sock lying on the floor not far from the door to the bedroom. There was blood on the bottom of the sock; Mr. Ali could not be excluded as the source of the blood. In addition, a part of the sock near the ankle, which did not contain blood, was tested for DNA to see if a profile associated to the wearer could be developed. It could: the DNA was likely a mixture with Mr. Ali being the dominant contributor. For both locations tested, it was over a trillion times more likely that the DNA came from Mr. Ali than from an unknown male. There was a trace amount of DNA from another source at the ankle location, but not enough to yield a profile.

[35] Mr. Ali's blood was on the bottom of the table leg partially under the front of his body (a DNA profile was developed from the blood which was more than a trillion times more likely to come from Mr. Ali than an unrelated unknown person). There were also other visible areas of spatter on the table leg. The top of the broken leg was swabbed, avoiding areas which appeared to have blood, in order to try and see if an additional DNA profile could be obtained for whoever handled the table leg. It could not.

[36] Mr. Ali's body was lying on its right side in the ensuite bathroom of his bedroom unit. A long white coaxial cable was looped securely around both handles of the bathroom door and tied tightly to Mr. Ali's neck (though the cord would not have been tight if Mr. Ali was in a different position like sitting up). The same cable was also looped tightly twice around Mr. Ali’s neck. The same cable tightly bound his ankles, and loosely bound his hands. The same cable was also around Mr. Ali’s waist. There was a leather belt and lanyard around Mr. Ali’s ankles (on top of the white cable). A black elastic cord attached the leather belt to the white cable around Mr. Ali’s waist. The cable was also looped around one of the (immovable) legs of the vanity cupboard underneath the sink. A pillow was under Mr. Ali’s head (which matched another pillow on the bed). In addition, a smaller red audio cable was wrapped tightly around Mr. Ali's right wrist. The same or similar red cable together with black shoe laces was tied to the toilet paper roll holder attached to the south side of the vanity.

[37] Various sections of the bindings were swabbed for DNA. The areas were chosen because they appeared likely to have been handled by the perpetrator (such as knots or a cut fragment of the white cable), and did not contain visible red staining (so DNA from blood did not "swamp" other possible DNA present). A mixture of DNA was found at five locations. In each of these five locations, Mr. Ali could not be excluded as the source of the dominant profile, and Mr. Osman could not be excluded as the source of the secondary profile. In each case, it was at least a trillion times more likely that the mixture resulted from Mr. Ali and Mr. Osman than from Mr. Ali and an unrelated unknown person. Kelly Jo Walden, the biologist with the Centre of Forensic Science (CFS) who directed and interpreted the results of the DNA testing, believed that the dominant profile came from blood (Mr. Ali's blood). She did not know the source of the secondary profile (what part of Mr. Osman's body it came from). The mixtures were found on the following locations:

• The knot and adjacent ends of the black elastic cord with the end of the leather belt that had been around Mr. Ali's ankles. As noted, the black elastic cord had attached the belt to the white coaxial cable at Mr. Ali's waist (see area circled in yellow in exhibit 11E). (There were actually 3 contributors to this mixture. It was more than a trillion times more likely that the mixture came from Mr. Ali and Mr. Osman and an unknown, than Mr. Ali and two unknowns). [MIXTURE 3]

• The black shoe lace pieces tied to the red audio cable, including the knot, attached to the toilet paper roll holder (seen in exhibit 8X). [MIXTURE 1]

• Around the knot of the pieces of red audio cable attached to the toilet paper roll holder (see area circled in yellow in exhibit 11D). [MIXTURE 4]

• The short piece of cut coaxial cable on the floor near the edge of the toilet. [MIXTURE 5]

• The white coaxial cable tied around the bathroom door handle, specifically around 16 centimeters from each end. Ms. Walden explained that she had the police send her photographs of the cable as it looked at the scene so that she could decide the best place to swab (see exhibit 12). She focused on 16 centimeters from each end in order to minimize the possibility of transfer from the door handle. She also tried to avoid areas of blood staining to avoid a secondary profile being "swamped" by DNA from Mr. Ali's blood. [MIXTURE 6]

[38] A swab was taken from a bloody palm print (R1) on the wall above the toilet and adjacent to the shower, above waist height and below shoulder height. (The print did not contain sufficient ridge detail for comparison.) The swab was taken from a part of the print which did not contain visible blood stain, roughly in the location where the thumb met the palm. The swab contained a mixture of DNA. Mr. Ali could not be excluded as a contributor: it was more than a trillion times more likely that the DNA came from Mr. Ali and an unknown than two unknown persons unrelated to Mr. Ali. Mr. Osman also could not be excluded as a contributor: it was 1200 times more likely that the DNA came from Mr. Osman and an unknown than two unknown persons unrelated to Mr. Osman. The lower likelihood ratio in relation to Mr. Osman reflected the fact that the secondary profile contained less information. [MIXTURE 2]

[39] Ms. Walden explained that the she could not say when the DNA in the mixtures was deposited (i.e. at the same or different times). Nor could she say how it was deposited. The DNA could have been deposited directly, or it could have resulted from an indirect transfer. She explained, in general, that the length of time DNA persists on a surface depends on factors like exposure to water, bacteria, and contact, with all these things hastening its disappearance.

[40] Ms. Walden also explained that DNA resides in cellular material, found in bodily fluids such as blood, saliva, semen, nasal secretions, or skin particles such as may be attached to hairs. Simply handling an item is unlikely to leave DNA behind, unless an individual has bodily fluid on their hands, for example from coughing on their hands or touching a fluid, or friction has caused cells to slough off.

Blood stain analysis

[41] There was some blood staining in the bedroom, and a lot of blood staining in the bathroom, especially in the area of the south wall between the shower and the toilet. There were also goudge marks on this wall (DC Grevette counted 44 individual strike marks), some of which had blood inside or underneath, some of which did not, suggesting some were made before and some after whatever events deposited blood in the area. The scene as a whole suggested that there were multiple events causing blood staining throughout the bedroom and bathroom.

[42] There were at least two spatter producing events near the north wall in the bedroom, based on the different direction suggested by the elliptical spatter on the wall, some of which was travelling in an easterly direction, some in a westerly direction. A sample of the blood spatter in this location was attributed to Mr. Ali (TPS 145/CFS 035).

[43] There was a spatter producing event in the area of the east end of the bathtub. The shape of the spatter ranged from round to near round indicating eastbound directionality. It went up to a height of about 117 cm. In addition, there was round spatter mixed with amalyze that could have been caused by someone who was bleeding coughing or aspirating, though this was only one possibility. DC Albrecht could not tell whether the blood and amylze were deposited at the same time. A sample of the blood spatter in this area was attributed to Mr. Ali (TPS 103/CFS019). In addition, there were transfer swipe and wipe patterns on the east wall of the bathroom, suggesting that an object or person wet with blood came in contact with the east wall of the bathroom.

[44] At least three spatter-producing events occurred in the area between the toilet and the south wall just west of the bathtub. DC Albrecht estimated that two occurred between the floor and the toilet bowl, and the third between the floor and half way up the toilet tank. There were also transfer patterns produced by swipes and wipes in this area, suggesting an object or person wet with blood and in motion came in contact with the outside of the north edge of the bathtub and the adjacent south wall. There were flow marks from gravity pulling down deposited blood, and a significant amount of diluted blood pooled on the floor. Cast-off spatter was present on the south wall above this area, suggesting an object wet with blood was swung through the air. DC Albrecht did not see the kind of spatter in this area that he would expect if an object hit a pool of blood on the floor, namely long narrow spine-shaped spatter shooting out, plus spatter radiating out in all directions. Samples of the blood staining in this area were attributed to Mr. Ali (TPS 107/CFS 030; TPS 112/CFS 022; TPS 114/CFS 023; TPS116/CFS024; TPS 113/CFS 025; TPS 128/CFS 026; TPS 130/CFS 027). DC Albrecht opined that the bloodstaining in this area was consistent with someone with bleeding wounds moving and sustaining a number of blows in this area.

[45] Spatter was on the south side of the vanity under the sink, distributed up to a height of approximately 80 cm. It was possible that the spatter was caused by the same events as near the toilet, or a new event or events. There was also a transfer swipe pattern in this location. A sample of the blood staining on the south side of the vanity was attributed to Mr. Ali (TPS 135/CFS 029). Additional blood stains were on the counter of the vanity and the floor under it; both were diluted with a liquid.

[46] There was blood spatter on the north wall distributed up to a height of approximately 99 cm above the floor. DC Albrecht believed that the event or events that caused it occurred relatively close to the wall, as the spatter was round. Gravity would begin to pull the spatter down, causing elliptical shapes, if the event producing it occurred a distance from the wall. There were also transfer swipes and wipes along this wall, up to about 60 cm, including what appeared to be transfer from bloody hair.

[47] A second bloody palm print (R2) was on the south wall between the shower and the toilet, directly below R1 (described above). The print was not visible to the naked eye but was identified by the TPS after Leucocrystal violet (which reacts to hemoglobin in blood) and Hungarian red (which reacts to protein in blood) were applied to the area. It is an agreed fact that Mr. Osman is the source of the palm print. It is not agreed that blood was on Mr. Osman's hand at the time he left the print, but DC Albrecht believed this was the most likely scenario. He could not say it was impossible that the palm print was already on the wall and blood or diluted blood subsequently washed over it, reacting to the friction ridge detail, but he thought this unlikely. He explained that Leucocrystal violet is extremely sensitive to blood so if the latter scenario occurred, he would have expected to see the whole area light up, including adjacent parts of the wall, over edges, and between ridge details. Instead the chemical lit up only on the friction ridge detail of the palm print. DC Albrecht could not say when the bloody impression was left.

[48] There were transfer patterns produced by swipes near the top of the shower at the west end adjacent to the south wall. There were patterns on the edge of the bathtub near the west end which appeared diluted, and to contain footwear impressions.

[49] There were a variety of swipe and wipe transfer patterns on the inside, outside and swing edge of the bathroom door.

[50] There were what appeared to be footwear impressions in blood and diluted blood throughout the floor of the bathroom. There was so much blood on the floor it was hard to tell what was happening beyond a lot of activity. Staining in the bedroom revealed what appeared to be a footwear impression, and an impression caused by fabric such as a sock.

Forensic Pathology

[51] Dr. Christopher Ball, a forensic pathologist with the Ontario Forensic Pathology Service, performed an autopsy on Mr. Ali on June 7, 2019. Decomposition was well underway at this point. Dr. Ball observed and documented Mr. Ali's appearance and injuries, beginning with his external appearance, including his clothing, fob and wrist band, and the various bindings tied around him; external injuries; and internal injuries, some of which were observed through dissection, and some through a CT scan done before the body was even removed from the body bag. Dr. Ball believed that all the injuries he noted occurred while Mr. Ali was alive, at or around the time of death. He could not determine the order in which they were received. Dr. Ball organized his observations of Mr. Ali's injuries by beginning at the head and moving down the body, assuming the body was upright, facing forward. Dr. Ball concluded that the cause of death was "ligature neck compression in a man with sharp force and blunt force injuries".

Ligature neck compression

[52] Dr. Ball noted the following signs of ligature neck compression:

• The white co-axial cable was wound twice around Mr. Ali's neck tightly, and secured with an unnamable knot (see exhibit 28E). This cable was also tied around Mr. Ali's waist, wrists and ankles, and tied to both handles of the bathroom door. Officers at the scene noted that the cable was tight between Mr. Ali's neck and the door handles, but agreed that it would not have been tight had Mr. Ali been sitting up for example (he was found lying on his right side). The cable was also tight around Mr. Ali's ankles. A belt and a lanyard were also around the ankle, on top of the cable.

• There were horizontal ligature furrows around the circumference of Mr. Ali's neck. Dr. Ball did not note any bruises or abrasions associated with the ligature or the furrow, both of which are signs of blunt injury.

• Mr. Ali's hyoid bone was fractured.

[53] Dr. Ball opined that the ligature compressed "the vital structures" of Mr. Ali's neck, restricting the flow of blood and oxygen and fracturing the hyoid bone. The ligature was fatal if not removed.

Sharp and/or blunt force trauma

[54] Dr. Ball noted the following signs of sharp force and blunt force injuries:

• Sharp and blunt force injuries to Mr. Ali's face and head, including: 8 wounds to Mr. Ali's face, a number of which had a crescent shape; 3 wounds to Mr. Ali's head, the most serious of which was a 6 cm elongated wave shaped injury to the right side of the head which penetrated to the skull but did not fracture the skull.

• Blunt force injuries to Mr. Ali's face, including fractures to the following: the right zygoma (cheekbone); both orbital bones; the left zygomatico-maxillary complex (cheekbone and upper jaw).

• Blunt force injuries to Mr. Ali's torso, including fractures to the left 6th rib; the right 9th and 10th ribs, and fractures of the 2nd and 3rd lumbar vertebrae.

• Mr. Ali had fractures to both the right and left fibula at the ankles. In addition, the left fibula was also fractured near the knee. Hemorrhage was associated with both fractures.

[55] Dr. Ball estimated that these injuries were caused by between 5 and 16 blows. It was possible that they were caused by a table leg. This was just one possibility, though Dr. Ball believed this mechanism was more likely than a closed fist, for example. Dr. Ball could not say how much force was used to cause the injuries, but noted that the fractured vertebrae were protected by musculature and, in his experience, less common than the fractured ribs.

[56] The scene and Mr. Ali's clothing showed that Mr. Ali was bleeding heavily from his wounds. Dr. Ball noted that Mr. Ali had 400 ml of what appeared to be altered blood (blood that has reacted to stomach acid) in his stomach. Dr. Ball did not see an internal source for this blood and noted it could have resulted from Mr. Ali bleeding profusely from the face and swallowing the blood. Dr. Ball agreed that the ligature could make swallowing difficult and prevent the blood from the head injuries being swallowed.

[57] Dr. Ball opined that Mr. Ali's wounds were fatal if they were not treated.

Other injuries observed by Dr. Ball:

[58] Mr. Ali had sub-cutaneous soft tissue hemorrhage of the circumference of both wrists and forearms. It went from the wrist almost to the elbow on the right arm. It was around the wrist on the left arm. Dr. Ball believed that these injuries were caused by the bindings, either from the bindings being applied tightly, or from Mr. Ali struggling against them. When the body was discovered, both of Mr. Ali's wrists appeared to be loosely bound by the white coaxial cable (see exhibit 9B). The right wrist was also bound by a red audio cable (see exhibit 28F).

[59] Samples from liver tissue (no blood remained in the body) revealed the presence of cocaine and two of its metabolites (benzoylecgonine and cocaethylene).

[60] Dr. Ball noted a fragment of glass in Mr. Ali's left ring finger on the palm side. Dr. Ball did not note any injuries, either offensive, or defensive, to Mr. Ali's hands. Dr. Ball agreed that it was possible that Mr. Ali did not use his hands to defend himself because he was tied up, or unconscious.

[61] Dr. Ball could not say anything about the order of Mr. Ali's injuries. It was possible that Mr. Ali was struck unconscious, and then bound. It was also possible that Mr. Ali was struck and killed by the traumatic blows, and then bound after he was dead, but Dr. Ball thought this unlikely as the hyoid bone would have to be fractured by a mechanism other than the ligature, and there were no signs of trauma in the immediate area, though Dr. Ball acknowledged he could not rule out the possibility that he could not see such signs due to post-mortem changes.

Mr. Osman's Statement

[62] On Sunday, June 9, 2019 police found Mr. Osman in Allan Gardens. He was not a suspect at the time, but a person of interest. Mr. Osman was too intoxicated to provide a statement. He agreed to return the next day, which he did. Beginning shortly before 9 am on June 10, 2019, Mr. Osman gave a fully cautioned video-recorded statement under affirmation to tell the truth. On its face, the statement is exculpatory, but the Crown tendered it on the basis that it was a fabrication.

[63] In the statement, Mr. Osman told the police the following, almost invariably unprompted by any related question:

• On the last occasion thatMr. Osman was with Mr. Ali, they stayed up all night drinking and taking cocaine.

• Mr. Osman never entered Mr. Ali's bedroom or bathroom on that occasion; Mr. Osman urinated into a bottle which he dumped in the kitchen sink rather than use Mr. Ali's bathroom. The reason for this was that Mr. Ali had "one guy and ah and one girl" inside his bedroom. They were already there when Mr. Osman arrived.

o The man was Somalian, tall, balding, with particular hair.

o The girl was a white "working girl" he had never seen. When later shown Kelly Fraser's photograph, Mr. Osman claimed he did not know her and that it was not her. Still later, he denied the woman in Mr. Ali's apartment was the girl on the surveillance video (Kelly Fraser). When later asked if the woman was Tracey (a name Mr. Osman had suggested), he replied "Well, she looked like Tracey".

• This occasion took place (Mr. Osman can been seen counting on his fingers) “16, 17 days ago" (the last time Mr. Ali was seen, or his fob used (which was found on his body), was approximately 30 days earlier).

• Mr. Osman did not directly see Mr. Ali after the evening they spent together, but either 2 or 3 days later (he gives both numbers at different points in his statement) he was at 145 Queen Street East and heard a dispute. He was told it involved "Gutaly", the name he knew Mr. Ali by. The elevator doors closed before Mr. Osman could actually see Mr. Ali.

• When it was put to Mr. Osman that he was inside Mr. Ali's bedroom/bathroom, Mr. Osman offered that he had previously been inside Mr. Ali's bathroom, and stayed over, as a result DNA from his skin and hair would likely be found in both places. His shoes would also be there and "a couple shirts maybe".

• Mr. Osman offered that on the last occasion he partied with Mr. Ali, he had bad shoes so Mr. Ali gave him "his old shoes"; "old Nike"; "white…Nike red and white…broken". The shoes Mr. Osman left were Italian leather shoes; "brand new one". Mr. Osman also left his coat behind in Mr. Ali's unit because the weather was changing and he was homeless so Mr. Ali's unit was a safe place to leave his coat.

• Mr. Osman never did anything to Mr. Ali. Mr. Ali was alive and well the last time Mr. Osman saw him. Mr. Ali planned to kick out the man staying with him and perhaps let the woman stay.

• Mr. Osman was adamant that he never used Mr. Ali's fob.

• Mr. Osman was aware that there were security cameras throughout 145 Queen Street East. He explained that people would pull the fire alarm in order to sneak guests in.

• Mr. Ali was a tough guy who argued with everyone.

• Mr. Osman kept his luggage at unit 513, which was occupied by a man with Alzheimers.

APPLICABLE LEGAL PRINCIPLES

The burden and standard of proof

[64] Mr. Osman is presumed innocent. He remains securely cloaked in this presumption unless and until the Crown proves all the essential elements of murder beyond a reasonable doubt. This standard, in a nutshell, requires that I be sure the Crown has proven all the essential elements: R. v. Lifchus: 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Given that the Crown's case is circumstantial, this standard requires that the Crown establish that the required inculpatory inferences are the only reasonable inferences that can be drawn in all the circumstances, including the evidence and the absence of evidence.

[65] In considering all the circumstances in order to determine what inferences may reasonably be drawn, I must be mindful of the following:

• The danger of unconsciously "filling the blanks" or "bridging the gaps" in the circumstantial evidence and jumping to unwarranted conclusions.

• All the evidence must be considered in determining what inferences may reasonably be drawn. The fact that a piece of evidence, considered alone, is open to an innocent explanation, is not determinative, and not the proper approach. An individual item of circumstantial evidence is simply a building block, “not the final product”. All the evidence must be considered, together, including its cumulative effect: R. v. Uhrig, 2012 ONCA 470, at para.13; R. v. Hudson, 2021 ONCA 772 at para.70.

• A reasonable doubt may arise from the evidence, or the absence of evidence.

• Alternative inferences must be reasonable, not merely conceivable or possible.

[66] Mr. Osman did not testify or call any evidence, but, as noted, the Crown tendered a statement he gave to police as part of its case in chief, arguing that it is a fabrication. The statement, on its face, is exculpatory. If I believe it, or if it causes me to have a reasonable doubt, I must find Mr. Osman not guilty. Even if I reject the statement, I must still go on and decide whether the Crown has proven the case beyond a reasonable doubt: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para.11. As just noted, because the Crown's case is circumstantial, in order to be satisfied beyond a reasonable doubt that Mr. Osman is guilty of murder, I must be satisfied that the circumstantial evidence, assessed logically, in light of human experience, excludes any other reasonable alternative other than guilt. If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt, and I must find Mr. Osman not guilty: R. v. Villaroman, 2016 SCC 33.

The elements of murder

[67] In order to prove murder, the Crown must establish that Mr. Osman committed an unlawful act which caused Mr. Ali's death (the actus reus or physical element).

[68] There is no question that the beating and neck compression with coaxial cable were unlawful acts. Nor is there any question that they caused Mr. Ali's death. It is well-established that it does not matter that medical treatment might have prevented death as long as the accused's actions contributed significantly to the death: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488. The issue in this case is identity: who beat and bound Mr. Ali?

[69] If the Crown establishes that Mr. Osman was the person who beat Mr. Ali, and bound him up with the coaxial and other cables, the Crown must also prove that Mr. Osman either meant to cause death, or meant to cause bodily harm which he knew was likely to cause death and was reckless as to whether death ensued (the mens rea or fault element).

[70] The Crown does not have to prove that the fault element (either mental state) continued throughout the entire unlawful act which caused Mr. Ali's death. Where the death has resulted from the continuing conduct of Mr. Osman, I must simply be satisfied beyond a reasonable doubt that he, at some time during that continuing conduct, either meant to cause death, or meant to cause bodily harm which he knew was likely to cause death and was reckless about whether or not it caused death.

[71] The surveillance video and Mr. Osman's statement, combined with the fact that Mr. Osman spent the evening with someone who appeared to be intoxicated, and had cocaine and its metabolites in his system, suggest that intoxication may have been a factor in this case. The Crown concedes that the possible effect of intoxication on mens rea must be considered. As I result I must be very cautious before drawing the common sense inference that "a person usually knows what the predictable consequences of his or her actions are, and means to bring them about": R. v. Walle, 2012 SCC 41 at para.64. Someone who is intoxicated may not foresee the natural consequences of their actions, in particular that bodily harm inflicted was likely to cause death.

[72] In assessing whether Mr. Osman has one of the specific intents required for murder, I must consider all the evidence that could realistically bear on Mr. Osman's mental state. If I have reasonable doubt that he had the requisite mental intent, I must find Mr. Osman not guilty of murder.

What could elevate this murder to first degree murder

[73] First degree murder is an aggravated form of murder, punishable by an increased mandatory minimum period of incarceration. A murder becomes first degree murder when it is committed with a particular intention, or in particular circumstances.

[74] Murder can become first degree murder where it is committed while committing one of the offences listed in s.231(5) of the Criminal Code. The listed offences all involve some form of domination, and include unlawful confinement contrary to s.279(2). Section 231(5) effectively deems "a murder committed by someone already abusing his power by illegally dominating another" as particularly blameworthy: R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618 (S.C.C.), at p. 632-33.

[75] In order for the Crown to establish first degree murder pursuant to s. 231(5) of the Criminal Code, the Crown must prove beyond a reasonable doubt:

(i) That Mr. Osman is guilty of the murder of Mr. Ali.

(ii) That Mr. Osman's participation in the murder was such that his actions were a substantial cause of Mr. Ali's death.

(iii) That Mr. Osman is guilty of the underlying offence of unlawful confinement. An unlawful confinement is established "if for any significant period of time" a victim was "coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire": R. v. Pritchard, 2008 SCC 59 at para. 24.

(iv) Finally, that Mr. Ali's death was caused by Mr. Osman while he was committing (or attempting to commit) the offence of unlawful confinement.

[76] Section 231 (5) is engaged if the listed offence of domination (unlawful confinement in this case) is a distinct offence committed in the same transaction as the murder. Courts should not take a technical or formalistic approach in assessing this. The two offences need not be simultaneous nor sequential; they need only be distinct and part of the same transaction. The confinement may be "for any significant time", and the means used to effect it can be the same as the means of the killing, such as the gun in R. v. Pritchard, 2008 SCC 59 at paras.27, 37. However, the confinement cannot be limited to what was an integral part of the murder itself. If the act of confinement is consumed in the very act of killing, if they are "one and the same", liability for first degree murder under s. 231(5)(e) is not made out. On the other hand, if the confinement is separate, and the murder occurs while the victim is rendered helpless and subject to the will of the killer, the section is engaged. As Justice Doherty explained in R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont.C.A.) at paras.108-10:

…[A] confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first degree murder. Thus, for example, if, with the requisite intent for murder, the appellants had struck and killed Dr. Warrick as she left the elevator and then took her purse, there would be no basis upon which the appellants could be convicted of first degree murder under s. 231(5)(e). On this example, the act of confinement and the act of killing are one and the same. Where, however, there is a confinement and then in the course of the same series of events, the victim is murdered while under the unlawful domination of the killer, the rationale underlying s. 231(5)(e) is fully engaged. There is not only a murder, but there is a murder of a person under the domination of the attacker.

On the evidence, the appellants restrained Dr. Warrick as she left the elevator. They physically disabled her and dragged her some twenty-seven feet to the end of the ramp. They then exploited their position of dominance, not just by taking her money, but by also taking her life. They did so with one of the mental states required for murder as defined in s.229. I have no difficulty concluding that their conduct fits easily within the definition of unlawful confinement and falls four square within the kind of conduct Parliament sought to denounce by elevating certain murders to the status of first degree murder.

After the fact conduct

[77] Both counsel rely on certain events following the attack on Mr. Ali as providing relevant circumstantial evidence. The Crown argues that Mr. Osman changed his clothing, and threw out the hoody, pants and shoes he can be seen wearing in the early hours of May 11, which provides circumstantial evidence relevant to identity. The Crown also argues that Mr. Osman fabricated his statement to police and this also provides circumstantial evidence relevant to identity. I will deal with the statement separately, as it is subject to particular rules over and above those governing after the fact conduct.

[78] Defence counsel argues that Mr. Osman's demeanour on the surveillance video when he leaves the building is inconsistent with that of someone who has just committed a vicious murder.

[79] After the fact conduct is a special kind of circumstantial evidence. Like all circumstantial evidence, its relevance and utility is a function of the inferences it reasonably supports in all the circumstances based on logic, common sense and human experience. However, it is treated with caution because it carries a heightened risk of misapplication and prejudice. Specifically, it involves "retrospectant" reasoning. This combines the danger of hindsight with the human desire to make sense of events with a coherent narrative: events which are actually random or of little significance may be ascribed meaning they cannot bear, including giving them meaning at all or too much meaning: R. v. Calnen, 2019 SCC 6 at paras. 106, 111, 116, 117; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 20; Figueroa, 2008 ONCA 106 at 31, 33, 39; R. v. Oland, 2016 NBCA 58 at paras.71-72.

Change of clothing

[80] The Crown argues that Mr. Ali changed his pants and shoes, and threw out the pants and shoes he had been wearing, together with the hoody, because these clothes had Mr. Ali's blood on them. The Crown called evidence, which was not challenged, that residents could leave garbage outside the elevators on each floor. The Crown argues that these clothes were bloody, and Mr. Osman threw them away, because Mr. Osman was the person who beat and bound Mr. Ali.

[81] Defence counsel does not suggest that Mr. Osman did not change, or leave without the hoody he had been wearing. The surveillance video is clear that Mr. Osman did change his pants and shoes, and did leave without the hoody he had been wearing earlier. Rather, the defence argues that I cannot be satisfied that there is no innocent explanation for these actions, such as the one Mr. Osman offered, without prompting, in his statement: his shoes were "bad"; the weather was changing and he was homeless so he left his jacket with Mr. Ali.

[82] When I consider the change of clothing in light of all the circumstances, including the absence of evidence, I reject the explanation suggested by the defence. It does not make sense to me. Not only is there no evidence that the weather changed significantly between 4 and 9 am on May 11, but Mr. Osman does not materially change what he was wearing. Rather he puts on different pants and different shoes. It does not make sense that Mr. Osman would exchange his "bad" but brand new Italian leather shoes for Mr. Ali's old broken Nike sneakers because it was May and warm weather was on its way. Further, the hoody he claimed to leave behind was not in Mr. Ali's bedroom or bathroom.

[83] I am satisfied that it is an available inference that Mr. Osman disposed of his clothing because it had blood on it. I note that this inference is supported by the surveillance video which shows that there was a mark or stain on the upper right side of Mr. Osman's t-shirt when he left at 9:40 am which was not present at 3:40 am when he can be seen wearing the same t-shirt. This inference is relevant to the identity of the person who beat and bound Mr. Ali. I will consider the change of clothing together with all the circumstances when I consider whether the Crown has proven identity beyond a reasonable doubt.

Demeanour when leaving the building at 9:40 am

[84] Defence counsel argues that Mr. Osman's demeanour when leaving the building at 9:40 in the morning is inconsistent with someone who has just committed a brutal murder.

[85] There is no issue that the surveillance video shows that Mr. Osman stops and has what appears to be a casual and friendly chat with the housing officer. Then, on leaving the exterior doors, Mr. Osman stops and bends to pet a dog and has what appears to be a friendly chat with the owner. Shortly after, he gives someone he meets on Jarvis street a warm hug. My difficulty with this evidence is that there is no standard or "normal" behaviour for someone who has just committed a particularly cruel murder, let alone a murder. As a result, I cannot say that the behaviour exhibited is inconsistent with Mr. Osman being the person who beat and bound Mr. Ali any more than I could say it is consistent with Mr. Osman performing these acts. At its highest, the surveillance video suggests Mr. Osman was behaving in a normal fashion when he left the building. This is equally consistent with him seeking to look and act normal so as not to draw attention to himself.

[86] I will not add Mr. Osman's demeanour on leaving the building to the mix of circumstances I consider when I address the issue of identity. I will, however, consider his behaviour on the surveillance video when I address the issue of intoxication.

[87] Defence counsel also argues that the fact that Mr. Osman continued to attend at the building after May 11, 2019 is inconsistent with him being the murderer. I find the evidence on this point is ambiguous. While the visitor log shows Mr. Osman continued to visit, and Mr. Mehta and Mr. Murnaghan believed he did as well, the very experienced manager, Ms. Masterson, who I found to be a very careful and thoughtful witness, noticed a change in the frequency that Mr. Osman attended at the building and accessed its services around the time of the murder, albeit in hindsight. Even if there was no change in frequency, however, I would not rely on this circumstance as significant. The reality was that Mr. Osman was homeless and relied on services at 145 Queen Street East.

Fabricated statement

[88] The Crown argues that Mr. Osman fabricated his statement to police, specifically lying about the timing and circumstances of the last occasion he was with Mr. Ali, and this can give rise to an inference that he did so in order to deflect suspicion from himself because he was the person who beat and bound Mr. Ali (identity).

[89] Prior to evidence being called, I ruled that Mr. Osman's statement was capable of giving rise to an inference of fabrication, and the Crown could tender it in chief. I deferred the question of whether I would actually draw such an inference to the end of the trial, when I could consider the statement in the totality of the circumstances, including the evidence, the absence of evidence, the issues, and the positions of counsel. Having now reached that point, I decline to draw an inference of fabrication relevant to guilt.

[90] It is well-established that there is a distinction between statements made by an accused that are disbelieved, and thus of no evidentiary value, and statements that are found to be fabricated, and thus of potential value as circumstantial evidence of guilt: R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 450; R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.); R. v. El-Enzi, 2021 ONCA 81 at paras.38-42.

[91] The distinction is conceptually difficult and "cannot be justified as a pure matter of logic", as the inference of fabrication generally flows logically from the disbelief of an accused's statement. However, the distinction is maintained to ensure that the burden of proof is correctly applied. The distinction reduces the risk that a trier of fact may "equate disbelief of an accused's version of events with guilt and…proceed automatically from disbelief of an accused to a guilty verdict": O'Connor, para.18; Coutts at paras. 15-19. It also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation - not all lies are rational or thought through: R. v. Oland, 2016 NBCA 58 at paras.71-72.

[92] The distinction is implemented by requiring independent evidence of fabrication. Independent means apart from the evidence of guilt, or the evidence which contradicts or discredits the version of events advanced by the accused, but not necessarily apart from the statement. Independent evidence of fabrication may subsist in the content of the statement and/or the context or circumstances in which the statement was made. For example, in O'Connor, the fact that the accused gave a detailed exculpatory statement, which effectively amounted to a complete alibi, at a time he was not even a suspect, and which was demonstrably false, tended to support a conclusion that he made the false statement to try and deflect suspicion from himself because he was conscious of having committed the offence. The court explained that it was not the evidence showing that the statements were false which provided evidence of fabrication, but the circumstances in which the statements were made and the detailed nature of the statements: O'Connor para.32; see also El-Enzi at para.53.

[93] Exactly what will amount to independent evidence of fabrication is a highly fact-specific inquiry that will depend on the circumstances; examples include "the timing of the statement; whether the statement was given when the accused was not a suspect; the scope of exculpation in the statement; the degree of detail provided; and post-arrest statements that are inherently implausible": R. v. Carignan, 2021 ONCA 496 at para.41.

[94] Prior to hearing evidence, I found that the following circumstances could amount to independent evidence of fabrication:

(i) Mr. Osman was not a suspect at the time he gave the statement. He was explicitly told that he was simply a "person of interest", because "his background [in] relation to the victim or the opportunity to commit the offence may warrant further inquiry" but that police did not have a basis "to suggest culpability in the commission of the offence being investigated".

(ii) Mr. Osman appeared anxious to explain his position to the police from the very outset of the interview, launching into an account of the last time he saw the deceased even though the interviewer simply asked where he stayed the night before, and whether that was where he usually stayed (Mr. Osman was homeless at the time).

(iii) Mr. Osman told police he stayed one night with the deceased. There were two other people with the deceased at the time, another man and another woman. When subsequently asked when that was, Mr. Osman paused, appeared to count, and said "Ah if I count see, sixteen, seventeen days ago". The last time the deceased was seen alive was 30 days before (the early hours of May 11, 2019).

(iv) Mr. Osman was emphatic that Mr. Ali was fine when he left him. Mr. Ali walked him "to the elevator door". Later in the interview Mr. Osman said "He came into the door he say Bambino I'm gonna coming down this afternoon I'm gonna kicking this guy out, maybe she's gonna stay maybe, you know, I say ok". Still later Mr. Osman noted "he was alive, he was a well and he opened the door say goodbye to me and I go back to get a breakfast, that's all I know". And "he opened the door say goodbye to me and I go back to get a breakfast, that's all I know".

(v) In his initial unprompted account to police at the very beginning of the statement, Mr. Osman explained that "three nights after" he stayed with Mr. Ali, he was staying with another Somali guy with Alzheimer's on his old floor one floor up from Mr. Ali (Mr. Ali lived on the fourth floor and Mr. Osman used to live on the fifth floor). Mr. Osman encountered men who chased Mr. Ali into an elevator. Mr. Osman did not see Mr. Ali but the men told him it was "Gutaly" (the name Mr. Osman knew Mr. Ali by). At the end of the interview, Mr. Osman was asked whether he ever spoke to Mr. Ali again after staying with him. Mr. Osman noted that "two days after" he was up on the fifth floor and heard screaming and he was told it was Gutaly. The door to the elevator closed before he saw Gutaly. There are surveillance cameras in the elevators of the building. As noted, the last time Mr. Ali was seen alive was in the early hours of May 11, 2019.

[95] Having now heard all the evidence, and closing submissions, I decline to draw an inference of fabrication relevant to identity. As noted, in concluding there was independent evidence of fabrication, I relied on the fact that Mr. Osman was not a suspect at the time he gave his statement. Defence counsel now points out that while Mr. Osman may not have been a suspect in the eyes of the police, he was a suspect in the eyes of his community, or certainly believed he was, and thus not surprisingly came into the interview anxious to try and clear his name. When I consider this argument, in light of the totality of the circumstances, I decline to draw an inference of fabrication relevant to identity. While I am satisfied that Mr. Osman fabricated the statement in order to deflect suspicion from himself, I am not certain that this was because he is the person who beat and bound Mr. Ali (consciousness of guilt about having committed the offence), as opposed to because he wished to assuage the suspicions of his community (an innocent explanation). While not relevant as a fabrication, the statement is relevant to intoxication.

ANALYSIS

Do I believe Mr. Osman's statement or does it raise a reasonable doubt?

[96] I do not believe Mr. Osman's statement. Nor does it raise a reasonable doubt in my mind. As just noted, I am satisfied it was a fabrication; I reject it. It is contradicted by the considerable body of circumstantial evidence which show that May 11 around 3:20 am was the last time Mr. Ali was seen alive. Further, I am satisfied that the forensic evidence shows that Mr. Osman was in Mr. Ali's bathroom when Mr. Ali was beaten and bound. I will explain why I reach these conclusions below when I analyze the circumstantial evidence. I believe that Mr. Osman fabricated the statement in order to deflect suspicion from himself, but, as noted, I decline to draw an inference of guilt from the fact of the fabrication. My belief that the statement was fabricated simply supports my decision to reject the statement. As a result, I must go on to consider all the circumstances, including the evidence and the absence of evidence, in order to determine wither the Crown has proven that Mr. Osman's guilt is the only reasonable inference that can be drawn: D.W.; Villaroman.

Identity: Did the Crown prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman is the person who beat and bound Mr. Ali?

[97] Having regard to all the circumstances, there is no doubt that Mr. Osman is the person who beat and bound Mr. Ali. The circumstances include the following:

• Mr. Ali was never seen again after around 3 am on May 11, 2019, when he was in the company of Mr. Osman.

o DC Hodges testified that he went forward in time from the early hours of May 11, 2019, focusing in particular on the elevator cameras as, absent a fire alarm, the elevators were the only way to get to and from the residential floors. He never saw Mr. Ali on the surveillance video after 3:20 am on May 11, 2019.

o Mr. Ali was found wearing the same clothing he can be seen wearing in the early hours of May 11, 2019.

o A fob was necessary to enter the building, the elevator bank, and take the elevator to a residential floor. Mr. Ali's fob was found around his neck when his body was discovered. The last time it was used was when Mr. Osman can be seen using it around 3:40 am on May 11, 2019.

o In the days leading up to May 11, 2019, Mr. Ali had regular visitors. He had no visitors after he can be seen signing in Kelly Fraser around 1:30 am on May 11, 2019.

• Mr. Osman and Mr. Ali were together in the early hours of May 11, 2019. The surveillance video shows them leaving and returning to the 4th floor twice. Except for a brief visit from Kelly Fraser between around 1:30 and 2:00 am, no one else is with them. The last time Mr. Ali's fob is used that night is around 3:40 am by Mr. Osman alone. As noted, the fob was never used again and was found on the lanyard on his dead body, together with keys.

• Mr. Osman left a palm print in Mr. Ali's blood on the wall beside the toilet in a location where the person who beat Mr. Ali could be expected to brace himself.

o Mr. Ali's bathroom was literally covered in blood. Different locations throughout the bathroom were swabbed and tested. DNA was extracted from representative samples, confirming that the substance was blood, specifically Mr. Ali's blood. I agree with the Crown that the only reasonable conclusion is that the blood in Mr. Ali’s bedroom and bathroom came from Mr. Ali.

o Bloodspatter analysis showed a minimum of 6 different spatter producing events, and multiples swipes and wipes showing an object wet with blood moved, or was moved, around the bathroom. Most of the blood was concentrated in the corner by the toilet, including at least 3 spatter producing events, one below the half-way point of the toilet tank, and the other two lower down, below the top of the toilet bowl. The south wall above the toilet also contained a cast off pattern, suggesting an object wet with blood was swung through the air in this area.

o There were 2 bloody palm prints on the south wall above the toilet, both associated with Mr. Osman and Mr. Ali. They are located where someone beating Mr. Ali would brace himself, moving lower, as did the spatter in the area, presumably as Mr. Ali moved lower to the ground with the force of the beating he was receiving. As noted, there was a cast-off pattern in this area which also fit this scenario. There were multiple possible weapons throughout the bathroom and bedroom, including a table leg with Mr. Ali's blood on it under his body.

▪ The first bloody palm print (R1) was between shoulder and waist height. It did not contain sufficient ridge detail for a comparison to be done, but a swab approximately in the area where the thumb meets the palm contained a mixture of Mr. Osman and Mr. Ali's DNA (with Mr. Ali's DNA coming from blood). (I refer to the DNA evidence here and elsewhere in these lay terms but understand that the DNA evidence does not show an actual match but rather a random match probability (RMP). I note further that in this location the DNA was only 1200 times more likely to come from Mr. Osman than an unrelated person, as opposed to the astronomical numbers for the other DNA profiles developed.) The fact that Mr. Osman's DNA (the bodily source could not be identified) is mixed with Mr. Ali's blood does not necessarily mean the DNA from the two sources was deposited at the same time, but the two profiles in the same location is a relevant circumstance.

▪ The second bloody palm print (R2) was immediately below R1. It is an agreed fact that Mr. Osman is the source of this print. R2 only became visible with the application of Leucocrystal violet (which reacts to hemoglobin in blood) and Hungarian Red (which reacts to protein in blood). While these tests are only presumptive for blood, and not definitive, in all the circumstances, including reactions by two different presumptive chemical tests for blood, each reacting to something different, and the fact that this bathroom was literally covered in Mr. Ali's blood, especially in this particular area, I am satisfied that this was blood, specifically Mr. Ali's blood. I am also satisfied that Mr. Ali's blood was deposited in the print because it was on Mr. Osman's hand. I accept DC Albrecht's opinion to this effect for the reasons he gave. Specifically, Leucocrystal violet is very sensitive and could be expected to light up everywhere if blood, or diluted blood, washed over this area. It did not. Apart from some discrete flow patterns, it lit up only on the ridge details of the print.

• A mixture of Mr. Ali’s and Mr. Osman's DNA was found on 4 different locations on the bindings on Mr. Ali, all around areas where the perpetrator tied knots: the black elastic cord which attached the leather belt around Mr. Ali’s ankles to the white coaxial cable around his waist; the black shoe lace pieces tied to the toilet paper roll holder; the red audio cable tied to the toilet paper roll holder; the ends of the coaxial cable tied to the bathroom door handle. In addition, a mixture of DNA from Mr. Ali and Mr. Osman was found on a short piece of the white coaxial cable lying on the floor near the toilet. The piece had been cut, presumably by the perpetrator. I agree with the Crown that the notion of DNA from Mr. Osman being coincidentally transferred to each of these items all associated with Mr. Ali's death flies in the face of common sense.

• Mr. Osman changed his clothing before leaving Mr. Ali's apartment around 9:30 am May 11, 2019. He wears different pants and shoes than earlier, and no longer has the hoody he was wearing earlier. The t-shirt he is wearing has a mark or stain on the top right corner that was not present at 3:40 am when he can be seen wearing the same shirt. DC Albrecht testified that when the blood spatter was produced it would fly everywhere. I am satisfied that Mr. Osman threw out the pants, shoes, and hoody he was wearing earlier because they had Mr. Ali's blood on them.

[98] I do not accept that the absence of footprint evidence is a significant gap in the Crown's case, or suggests that there were more than two people in the unit during the beating and binding. DC Albrecht testified that there was so much blood on the bathroom floor he could not analyze the over-lapping footprints. In the bedroom, however, he was able to see two "manufactured" patterns. One appeared to be made by the fabric of a sock (and a sock with Mr. Ali's blood on it was found in the unit). The other appeared to be made by the herring bone pattern of the sole of a shoe. No shoes were ever seized to attempt any comparison.

[99] I do not accept Mr. Mehta's evidence that he recalled seeing Mr. Ali after May 11. While I find Mr. Mehta to be honest and trying his best, I do not believe his memory is reliable on this point. If Mr. Ali had come down to the ground floor where he could be seen by Mr. Mehta, he would have had to take the elevator. I am satisfied Mr. Ali never entered any elevator in the building after around 3:20 am on May 11, 2019. In addition, the other circumstantial evidence I outline above all supports the conclusion that Mr. Ali never left his unit after around 3:20 am on May 11, 2019.

[100] The fact that the Crown cannot point to any motive for Mr. Osman to want to kill Mr. Ali does not cause me to have a reasonable doubt about identity. It is possible that there is a motive, and we simply do not know what it is. We do not know a lot about either man, or their relationship. Even if there is no motive, however, it is a sad fact of life that sometimes humans need no reason, let alone a good reason, to hurt or even kill someone.

[101] In all the circumstances, I am satisfied that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman is the person who beat and bound Mr. Ali.

Mens rea: If identity is proven, did the Crown prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman had one of the requisite intents for murder in light of the evidence of intoxication?

[102] It is well-established that there are three legally relevant degrees of intoxication: mild (which is not a defence); advanced (which may negate specific intent); and extreme (which is akin to automatism and may negate general intent). It is also well-established that the more obvious the harm, the greater the level of intoxication required to negate foresight of the consequences of the harm: R. v. Daley, 2007 SCC 53.

[103] Defence counsel acknowledged that there was no evidence of extreme intoxication in this case.

[104] Defence counsel also acknowledged that the nature of the crime scene is such that the intoxication would have to be at the far end of advanced in order to negate the foresight that Mr. Ali would die as a result of the beating and binding. I agree. The beating and binding was so brutal and deadly, particularly when combined as was the case, that whoever performed the beating and binding intended to cause death absent very advanced intoxication: R. v. Herlichka, 2020 ONCA 307 at para.30.

[105] Dr. Ball testified that the traumatic blows inflicted on Mr. Ali would kill him eventually if untreated. Almost every bone in Mr. Ali's face was broken, and he was bleeding profusely from injuries to his face and head. His ribs were fractured on both sides; two of his vertebrae were broken. Whoever beat him prevented him from getting treatment. Not only were both of his legs broken, but he was tightly bound with coaxial cable around his neck (twice), wrists, waist, and ankles, and the cable was tightly tied to the bathroom door. The cable was also around an immovable leg of the bathroom vanity. Mr. Ali had a broken hyoid bone which Dr. Ball associated with neck compression (based on the lack of signs of related trauma and the cable wrapped tightly twice around Mr. Ali’s neck). In addition to the main white coaxial cable just described, Mr. Ali's ankles were bound by a belt and a lanyard. The belt was attached to the white coaxial cable at Mr. Ali's waist. Mr. Ali's right wrist was also tied to the toilet paper holder, as if propping him in position, by the red audio cable (broken when the body was found). In light of all this evidence, I am satisfied that Mr. Ali was given lethal injuries and prevented from leaving to get the help he needed. Instead he was left to die, either slowly from his blunt and/or sharp force injuries, or more quickly by ligature neck compression.

[106] There is no direct evidence of intoxication, or any expert evidence about the effect of intoxication, and how it could affect foresight of death or the likelihood of death. However, the surveillance video and Mr. Osman's statement can shed light on the issue of intoxication. The evidence of after the fact conduct can also help. When I consider all the circumstances, I am satisfied that there is nothing to suggest Mr. Osman was in an advanced state of intoxication, let alone such an advanced state of intoxication that he would not understand the consequences of this beating and binding.

[107] According to Mr. Osman's statement, he was up all night drinking and taking cocaine with Mr. Ali. To me, Mr. Ali appears intoxicated on the surveillance video, but Mr. Osman does not. Rather, Mr. Osman appears to be controlling and directing Mr. Ali, ushering him in and out of the elevator lobby and the elevator, and the building at various points. What gives me pause, however, and causes me to question whether Mr. Osman was actually intoxicated despite appearing balanced and normal and in control throughout the surveillance video, is that Mr. Osman loses his balance and falls to the ground after leaving 145 Queen Street East around 9:40 am on May 11, 2019. When I look at this clip very carefully however, it appears to me that after hugging the person he meets, Mr. Osman turns back and leans where he expects to find his friend, but the person has moved. After finding only air where he expected a person, Mr. Osman loses his balance and falls. I find this understandable, and not abnormal, especially after Mr. Osman had been up all night. In all the other parts of the surveillance video, Mr. Osman does not appear intoxicated to me, including immediately before falling. He appears balanced, in control, and appears to have conversations and normal interactions with the people he meets, albeit at points he is perhaps excessively friendly. Just before the falling incident, for example, Mr. Osman can be seen having what appears to be a normal conversation and interaction with the housing officer. He then greets a man and his dog upon leaving the building. He bends way down to pet the dog, and carefully holds his hands out for the dog to sniff before reaching further to touch the dog. In short, I find that the surveillance video does not suggest that Mr. Osman was very intoxicated, let alone at the far end of advanced intoxication.

[108] This conclusion is supported by Mr. Osman's statement. Mr. Osman provides a very detailed account of the evening he spent with Mr. Ali, including where he went, what he did and the people he saw. He was emphatic that he never entered Mr. Ali's bedroom or bathroom, explaining, for example, that he urinated in a bottle and asked Mr. Ali for permission to pour it into the kitchen sink. Without any prompting by the questioner, he offered that Mr. Ali gave him shoes that night, and he left his shoes behind, describing both pairs in considerable detail. He also explained, again unprompted, that because the weather was changing, and he was homeless, he left his jacket with Mr. Ali (it was actually a hoody he left behind).

[109] There are only two comments which potentially bear directly on intoxication, but I find both actually reflect obfuscation. The first is when Mr. Osman is shown still images from the surveillance video of Kelly Fraser and asked who she is. He responds "Mm, I can't see. I don't remember much." When asked to confirm that the woman was with them, however, he has no trouble remembering that she was not. When shown another still, he is emphatic that she was not with them. This is simply not true. As noted above, the surveillance video shows Mr. Osman and Mr. Ali coming down from the 4th floor to let Ms. Fraser into the building, signing her in at the housing office, and then escorting her back to the 4th floor.

[110] The second comment occurs towards the end of the interview when Mr. Osman is being pressed about what happened to Mr. Ali because Mr. Ali was hurt very badly. Mr. Osman is emphatic that Mr. Ali was fine when he left. Det. Choe insists he was not. Mr. Osman then says "I know the (UI), I almost overdose". In context, I believe this is an effort to respond to Det. Choe's insistence that Mr. Ali was not fine by suggesting Mr. Ali was only not fine because he was very intoxicated or impaired by drug use.

[111] Defence counsel argues that the fact that Mr. Osman told police he never used Mr. Ali's fob suggests Mr. Osman was so intoxicated that he had a memory black-out in relation to the evening. Why else tell such an obvious lie? Mr. Osman knew there were security cameras and a fob log. I do not agree that this obvious inaccuracy or lie suggests Mr. Osman had trouble remembering the evening due to a black-out. The statement is replete with lies. Although Mr. Osman knew there were surveillance cameras, he did not appear to appreciate their extent, or what they could show, particularly when considered in their entirety together with all the other circumstances. For example, Mr. Osman also lied about not knowing Kelly Fraser, and not meeting her that night, but the surveillance video, fob-logs, and visitor sign-in sheets show that he and Mr. Ali did meet Ms. Fraser and bring her up to the 4th floor. The statement is also replete with details that Mr. Osman remembers from the night, some of which I have noted.

[112] Finally, the after the fact conduct suggests Mr. Osman was behaving in a thoughtful, rational way, inconsistent with extreme intoxication. He engaged in the very deliberate conduct of changing into new pants and shoes, and disposing of the shoes, pants and hoody he was wearing during the beating and binding. He remembered all this, and provided exculpatory explanations for it in his police statement without any prompting or related questions by the police.

[113] In addition, the crime scene itself suggests deliberate actions consistent only with deliberate intention. Multiple instruments appear to have been used to beat Mr. Ali. The beating appears to have some system to it. None of the injuries were immediately life threatening - no arteries were damaged or cut for example, but the beating is very severe, causing a great deal of bleeding to the face and head, and includes deliberately hobbling Mr. Ali by breaking both of his legs. On top of this Mr. Ali is tied in an extreme and deliberate fashion that prevents his escape. He is also tied into a particular position with multiple additional ties which either caused ligature neck compression at the time, or caused him to effectively asphyxiate himself as he weakened with the passage of time.

[114] Considering all the circumstances in totality I am satisfied that Mr. Osman beat and bound Mr. Ali intending to cause Mr. Ali's death.

First degree murder: If murder is proven, did the Crown prove that the only reasonable inference that can be drawn in all the circumstances is that Mr. Osman murdered Mr. Ali in the course of unlawfully confining him?

[115] Defence counsel argues that I cannot be certain that Mr. Ali was still alive when he was bound. As a result, I cannot convict of first degree murder. I disagree.

[116] Considering all the circumstances, I am satisfied that Mr. Ali was either brutally beaten and deliberately prevented from getting the help he needed (by both the nature of the beating and the binding), or he was brutally beaten and bound in such a manner that he would eventually be forced to effectively asphyxiate himself, or he was brutally beaten and then asphyxiated. All three possible mechanisms of causing death involve Mr. Osman taking physical control of Mr. Ali, dominating him and deliberately inflicting pain before finally causing Mr. Ali's death. Whichever of these three possible mechanisms occurred, this was a particularly cruel murder; Mr. Ali was effectively tortured to death. This murder falls squarely within the ambit of s.231(5) of the Criminal Code.

[117] In addition to the mechanism of death, there was other evidence that showed Mr. Osman unlawfully confined Mr. Ali before causing his death, including:

• The forensic evidence suggested the beating was prolonged, but Dr. Ball saw no sign of any defensive wound. Mr. Osman was beaten in different locations, including at least two blows in the bedroom, and blows in at least three different locations in the bathroom. Mr. Ali had blunt and/or sharp force trauma all over his body. The swipe and wipe transfer patterns suggested his body was moved around the bathroom. There were multiple objects which appeared to have been used as weapons: the broken table leg with Mr. Ali’s blood on it; the stick on the bed; the broken flashlight on the bathroom floor with red staining; the door of the vanity that had been ripped off which had red staining; the toilet seat was ripped off and had red staining; shards of brown beer bottle type glass were on the bedroom floor and imbedded in Mr. Ali's hair. Despite all the evidence of a vicious and prolonged beating, Mr. Ali did not have a single injury to suggest he sought to protect himself or fight back, though Dr. Ball acknowledged that post-mortem changes could have obscured signs of injury. The only evident injury to Mr. Ali's hands was a slight shard of glass on the palm side of the ring finger of his left hand. The absence of defensive injuries suggest Mr. Ali may have been restrained or controlled in some way during the beating. Regardless, the scene shows that the beating was prolonged, with much of it occurring while Mr. Ali was low to the ground in the bathroom.

• Mr. Ali swallowed approximately 400 millilitres of blood. This suggests he was bleeding for some time before he died. It also suggests that Mr. Ali was unable to clear the blood from his face and prevent it going into his mouth and down his throat, perhaps because he was bound, or not conscious. Further, Mr. Ali swallowed the blood before the ligature around his neck was tight; Dr. Ball believed that the ligature compression would have prevented him from swallowing.

• Mr. Ali's clothing was drenched in blood, even his socks, especially on the right side, the side he was lying on when his body was discovered. Both the amount of blood and the fact it was concentrated on the side he was lying on suggest he was bleeding when he was bound, and for some time before he died. Bleeding of course does not occur after the heart stops pumping.

• Dr. Ball believed that the subcutaneous hemorrhaging around both of Mr. Ali's wrists resulted from Mr. Ali being tightly bound or struggling against his bindings. Either way, it suggests Mr. Ali was alive when bound. Dr. Ball did not budge from his opinion that the bindings caused this hemorrhaging. The more extensive hemorrhaging on Mr. Ali’s right arm could be explained by struggling against the additional binding which appeared to have tied Mr. Ali to the toilet paper dispenser (the red audio cord which was broken when the body was found). The fact that the cables around Mr. Ali's wrists were loose when the body was discovered could be explained by loss of mass due to post mortem changes, and also to a possible shift in Mr. Ali’s body (for example, Mr. Ali could have initially been sitting upright).

• The sheer amount of blood in the bathroom suggests that Mr. Ali bled for some time before dying.

• Mr. Ali's hyoid bone was fractured while he was alive. Dr. Ball believed the fracture occurred due to ligature neck compression because the cable around Mr. Ali's neck was tight, and he saw no sign of trauma associated with the fracture. Dr. Ball could not definitively rule out the possibility that signs of trauma were masked by post-mortem changes, but he believed the amount of tightness present in the ligature would fracture the hyoid bone.

[118] In all the circumstances of this case, I believe that the only reasonable conclusion that can be drawn is that Mr. Osman murdered Mr. Ali while unlawfully confining him.

CONCLUSION

[119] Based on my findings, I am satisfied that the only reasonable conclusion that can be drawn in all the circumstances is that Abdullahi Osman is guilty of the first degree murder of Hassan Ali.

G. ROBERTS J.

RELEASED: November 5, 2021

COURT FILE NO.: CR-20-70000256

DATE: 20211105

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

and –

ABDULLAHI OSMAN

REASONS FOR JUDGMENT

G. ROBERTS J.

RELEASED: November 5, 2021