COURT FILE NO.: CR-20-19806
DATE: 2021/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOADD MAADANI
– and –
ISLAM RASHED
Defendants
Counsel: Mike Boyce and Chantal Lefebvre, for the Crown Michael Edelson and Gabriel Edelson, for Moadd Maadani Oliver Abergel, for Islam Rashed
HEARD: December 8 and 9, 2021
Reasons for DECISION
Parfett J.
[1] Mr. Maadani is charged with second-degree murder contrary to s. 235(1) of the Criminal Code in relation to the shooting death of Ryan Kabuya. He is also charged with possession of a loaded, restricted weapon without authorization or a licence permitting him to possess that weapon contrary to s.95(2) of the Code.
[2] Mr. Rashed is charged with accessory after the fact to murder contrary to s.240 of the Code and accessory after the fact to possession of a loaded, restricted weapon without authorization contrary to s.463 of the Code.
[3] At the outset of the trial, Mr. Maadani pleaded guilty to the offence of possession of a loaded, restricted weapon without authorization or licence permitting him to possess that weapon.
[4] Defence counsel requested that the defences of self-defence and provocation be put to the jury. Crown counsel agreed there was an air of reality to self-defence, but argued that there was no air of reality to the partial defence of provocation.
[5] During the pre-charge conference, counsel for Mr. Rashed asked for a directed verdict on both the accessory after the fact charges.
[6] I ruled there was an air of reality to the partial defence of provocation in relation to Mr. Maadani. With respect to Mr. Rashed, I ruled that there was some evidence on each element of the charge of accessory after the fact to possession of a loaded, restricted weapon. On the other hand, I ruled there should be a directed verdict of acquittal on the charge of accessory after the fact to murder.
[7] I advised counsel that written reasons would follow. These are the written reasons.
BACKGROUND
[8] On July 1, 2019, two groups of young men were celebrating Canada Day in the Byward Market of Ottawa.
[9] Earlier in the evening, both groups had been at the PPL bar on George Street. After the bar closed, everyone who was in the bar spilled out onto George Street and began milling around.
[10] There is no evidence that either group interacted in the bar. For reasons that will never be understood by anyone other than the participants themselves, the two groups began to interact while they were on Dalhousie Street. A fight broke out. There were pushes, shoves and some punches thrown.
[11] The deceased, Mr. Ryan Kabuya, punched Mr. Maadani. He was then pulled back by friends. He broke free of his friends and ran towards Mr. Maadani. Mr. Maadani fired on Mr. Kabuya striking him four or five times. Mr. Kabuya also fired a gun once and struck Mr. Maadani in the leg.
[12] Virtually all this evidence was captured on video surveillance cameras in the vicinity of George and Dalhousie streets. This evidence was distilled into frame-by-frame videos.
[13] Mr. Maadani was not seriously injured. However, Mr. Kabuya was struck in the chest and approximately two and a half hours after the shooting, he died of catastrophic blood loss.
[14] Mr. Maadani and his friend, Mr. Islam Rashed fled the scene and went to Montreal where they attended first the Jewish General Hospital and then the Montreal General Hospital to have Mr. Maadani’s leg wound treated. Because the wound was caused by a gunshot, police were called. Mr. Maadani and Mr. Rashed both gave statements to the police in relation to how Mr. Maadani came to be injured. These statements were demonstrably false.
ISSUES
[15] There are two issues to be determined:
Is there an air of reality to the partial defence of provocation?
Should there be a directed verdict of acquittal on either or both of the charges faced by Islam Rashed?
DEFENCE OF PROVOCATION
[16] The test for air of reality is set out in R. v. Cinous. When it is proposed that a defence be put to the jury, the basic principles are as follows:
The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury. This is so even when the defence lacking an air of reality represents the accused's only chance for an acquittal, as illustrated by R. v. Latimer.[^1]
[17] When the air of reality test is applied to the partial defence of provocation, it is intended to assess whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the subjective and objective elements of the defence of provocation are made out.
[18] The objective element of the defence of provocation asks whether there was some evidence upon which a jury could have a reasonable doubt that an ordinary person in Mr. Maadani’s circumstances would be deprived of the power of self-control by Mr. Kabuya’s behaviour.
[19] The subjective element asks whether there was some evidence upon which a jury could have a reasonable doubt that Mr. Maadani in fact acted in response to the provocation before his passion had time to cool.
[20] Finally, the case law notes that ‘while judges must ensure that there is an evidential foundation for the defence, they should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury.’[^2]
[21] The Crown argued in the present case that if there was provocation, it was self-induced.
[22] As noted in R. v. Cairney,
Self-induced provocation refers to the situation where the accused initiates or invites the act or insult he says provoked him. It is not a special category of the defence of provocation. The fact that the accused initiated or invited the provocation is simply a contextual factor in determining whether the subjective and objective elements of the defence are met.[^3]
[23] Where there is evidence that the accused initiated the confrontation, the analysis is that if the accused subjectively expected the victim’s reaction to his behaviour, then it cannot be said that the accused acted on the sudden. Equally, where the accused precipitated the victim’s wrongful act by aggressively confronting him, the victim’s response may fall within a range of reasonably predictable reactions and consequently, an ordinary person would not have lost self-control.[^4]
[24] There is no hard and fast rule that if the accused is the initial aggressor that the defence of provocation is not available. Rather, it is a contextual factor to take into consideration in assessing the air of reality to both the objective and subjective components of the defence.[^5]
[25] In the present case, there are several important aspects to the evidence.
[26] First, the shooting was preceded by a physical confrontation. The deceased acted first in shoving one of the other participants. Other participants got involved. Mr. Kabuya then punched Mr. Maadani.
[27] Second, Mr. Maadani reached into his satchel on several occasions: twice during the initial physical confrontation and once after he was punched. It is conceded by defence that Mr. Maadani’s gun was in that satchel. Mr. Maadani then engaged in gestures that are suggestive of egging Mr. Kabuya on, although there was evidence from an eyewitness who indicated he thought the gestures were an effort by Mr. Maadani to scare Mr. Kabuya off.
[28] Third, the Defence theory was that Mr. Kabuya either shot first or alternatively ran at Mr. Maadani with a gun in his hand.
[29] Finally, the last three shots fired by Mr. Maadani were fired is a very short period of time.
[30] As noted earlier, a live issue at trial was who shot first. It was Crown’s theory that Mr. Maadani shot first. There was evidence to support that conclusion, including evidence that, at the precise moment when Crown alleges the shot was fired, Mr. Maadani was pointing at Mr. Kabuya, that bystanders reacted to something at the moment it is alleged Mr. Maadani fired his gun, and immediately following the alleged shot, Mr. Kabuya fell to the ground.
[31] However, there was also evidence that undermined the conclusion that Mr. Maadani fired his gun at that moment. This evidence could support the inference that Mr. Maadani did not fire first. The physical evidence, including the fact there were five 9mm casings found at the scene, supports the conclusion that five shots were fired by Mr. Maadani. The video evidence shows four muzzle flashes coming from Mr. Maadani’s gun. Consequently, one shot is missing from the video evidence.
[32] Crown says that the missing shot is the one that occurred when Mr. Maadani’s arm was first raised, and the muzzle flash is not seen because it was concealed by a parking pay meter that is between the gun and the video camera. Defence led evidence in cross-examination of the Crown’s firearms expert that muzzle flashes occur very quickly and it is possible that one would not be recorded by a video surveillance camera.
[33] Defence also points to the fact that although people in the video reacted to something, there is no evidence in relation to what they were reacting to.
[34] At the stage of inquiring into whether there is an air of reality to provocation, the trial judge does not weigh competing inferences, but rather determines whether there is some evidence that could lead a properly instructed jury to have a reasonable doubt. In the present case, there is some evidence that Mr. Maadani did not fire first.
[35] If Mr. Kabuya fired first, an ordinary person in Mr. Maadani’s position – being the person shot at and injured by that shot – could lose the power of self-control.
[36] The next question is whether Mr. Maadani did lose the power of self-control and fired his weapon before his passion had time to cool.
[37] Mr. Maadani did not testify and as a result, there is no direct evidence of Mr. Maadani’s thoughts at the time he was shot. However, there is some circumstantial evidence. The time between Mr. Kabuya’s shot and Mr. Maadani’s first visible shot is less than two seconds. The time between the last three shots fired is approximately one second. In my view, a properly instructed jury could conclude that the speed of the shots is evidence of a loss of self-control and that Mr. Maadani fired the four visible shots before his passion had time to cool.
[38] For these reasons, I find that there is an air of reality to the defence of provocation.
ACCESSORY AFTER THE FACT TO MURDER
[39] Defence counsel raised the issue of an absence of evidence on crucial elements of both offences of accessary after the fact during the pre-charge conference. Crown initially objected to this procedure on the basis that what Defence was asking for was a directed verdict and that should have been done at the close of the Crown’s case.
[40] While I agreed the process was flawed, I provided Crown with the necessary time to prepare a response and entertained Defence counsel’s application for a directed verdict.
[41] My role in assessing whether there should be a directed verdict is a limited one. It is the same role undertaken by a justice on a preliminary hearing. As outlined in R. v. Arcuri,
The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, ‘whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty’... Under this test, a preliminary inquiry judge must commit the accused to trial ‘in any case in which there is admissible evidence which could, if it were believed, result in a conviction’.[^6]
[42] Where there is direct evidence of each of the necessary elements of the offence charged, the trial judge’s task on an application for a directed verdict is easy. However, where the Crown’s case relies on circumstantial evidence, the task becomes more difficult and a limited weighing of the evidence may be required.[^7]
[43] There are four elements to the offence of accessory after the fact:
that Moadd Maadani committed the offence of murder or possession of a loaded, restricted firearm;
that Islam Rashed knew that Mr. Maadani committed murder or the offence of possession of a loaded, restricted firearm;
that Islam Rashed provided assistance to Moadd Maadani; and
that Islam Rashed provided assistance for the purpose of helping Mr. Maadani to escape.
[44] At this point, I will address the offence of accessory after the fact to possession of a loaded, restricted firearm. Mr. Maadani pleaded guilty to the offence of possession of a loaded, restricted firearm without authorization. Consequently, there was evidence in relation to the first element of this offence.
[45] With respect to the second element, there is video evidence that before the physical confrontation started, Mr. Maadani puts his hand in his satchel on a couple of occasions and Mr. Rashed puts his hand on Mr. Maadani’s arm. It is a reasonable inference to draw that he knew Mr. Maadani had a gun in the satchel and was preventing him from taking it out at that point.
[46] Mr. Rashed remains at Mr. Maadani’s side, including during the shooting. The video evidence shows Mr. Rashed turning in various directions during the shooting, but it remains a reasonable inference that he knew Mr. Rashed had a loaded handgun as he was close enough to both see and hear the shots fired.
[47] That, of course, is not enough. Crown has to also provide evidence that Mr. Rashed knew the gun was restricted and that he knew Mr. Maadani did not have an authorization or licence. It is the law in Canada that handguns are either prohibited or restricted. Mr. Rashed is presumed to know the law.
[48] Finally, Mr. Maadani’s behaviour with the gun – concealing it then using it to shoot someone on a crowded downtown street – is strongly suggestive that his possession of it is illegal. At a minimum, in the circumstances, Mr. Rashed’s suspicions on that issue should have been raised to the point that he was obligated to inquire.
[49] Consequently, there is evidence on all aspects of the knowledge element.
[50] There is evidence of the final two elements by virtue of the fact Mr. Rashed takes Mr. Maadani to Montreal and more specifically, to the Jewish General Hospital to get treatment for Mr. Maadani’s wound. He then speaks to Montreal police and provides a demonstrably false statement to them about the origin of Mr. Maadani’s gunshot wound.
[51] In my view, this evidence is capable of supporting the conclusions that Mr. Rashed was assisting Mr. Maadani for the purpose of escaping detection for his crimes in Ottawa. Defence counsel argued strongly that the purpose for these actions was more consistent with assisting Mr. Maadani to avoid the consequences of the shooting and not a weapons offence. I agree that that is a possible interpretation of the evidence, but it is not the only available inference. Where there are competing scenarios, if at least one of those scenarios is consistent with guilt, then the charge should not be taken away from the jury.[^8]
[52] For these reasons, I find that there is some evidence upon which a jury, properly instructed, could convict on the charge of accessory after the fact to possession of a loaded, restricted firearm.
[53] The same cannot be said for the charge of accessory after the fact to murder.
[54] As noted earlier, there are four elements to this offence.
[55] At the time of writing this decision, there is still not a verdict on the charge of second-degree murder. However, such a conviction is quite possible as is a conviction for manslaughter, which is a lesser and included offence. In my view, for the purposes of this analysis, there is some evidence that a murder was committed.
[56] For the reasons set out above in relation to the gun offence, in my view, there is also evidence of assistance and evidence that the purpose of that assistance was to help Mr. Maadani escape justice.
[57] The issue is knowledge.
[58] The second element of the offence of accessory after the fact requires that Mr. Rashed have knowledge of the fact Mr. Maadani committed murder.
[59] As noted in R. v. Duong, ‘where the Crown chooses to charge someone with being an accessory after the fact to murder, it cannot gain a conviction based on a more generalized knowledge that the principal had committed some crime.’[^9]
[60] There are two ways to demonstrate knowledge: either actual knowledge or willful blindness to that knowledge. What is critical, however, is that the knowledge required is in relation to murder. Based on the caselaw, in particular, Duong and R. v. Knott, it is not enough that the accused believed death to be a possible result of what he knows, nor that he believes that death is even probable. What the accused must know (or be willfully blind to) is that the victim is dead. This concept is not new. In fact, it dates back as early as 1898. As noted in R. v. B.(A.),
In my view, this old statement of the law in Blackstone’s Commentaries applies equally well today. Until there is death, there can be no accessory after the fact of murder, although it may be possible that a person has been an accessory after the fact of another offence such as assault or assault with a weapon if those offences are charged against the accused. Simply put, until the victim has died there is not yet a homicide.[^10]
[61] In the present case, Mr. Kabuya was not dead until several hours after Mr. Rashed left the scene with Mr. Maadani. Mr. Rashed could not know Mr. Kabuya was dead because he was not yet dead. Equally, he could not be willfully blind to something that had yet to occur.
[62] There is evidence that Mr. Rashed was aware of the shooting given he was beside Mr. Maadani when he fired his gun. There is evidence that he saw Mr. Kabuya fall and therefore, there is evidence from which the inference could be drawn that Mr. Rashed knew Mr. Kabuya had been struck with a bullet and injured. This is the knowledge that the evidence supports. Mr. Rashed then leaves the scene and there is no evidence that Mr. Rashed’s knowledge changed after he left Ottawa. By the time Mr. Kabuya died, Mr. Rashed was well on his way to Montreal. The video evidence from the Jewish General Hospital showed that Mr. Rashed and Mr. Maadani arrived there at 6am. Mr. Kabuya died at 5:43am.
[63] The actus reus of this offence is the flight to Montreal followed by the false statements to the police. Those events were concluded by approximately 11:50am. There is no evidence that anything about the state of Mr. Rashed’s knowledge changed during the time of the actus reus.
[64] The only conclusion that can be drawn is that during the timeframe of the acts that it is alleged Mr. Rashed did to assist Mr. Maadani, Mr. Rashed could not have known Mr. Kabuya was dead. For these reasons, there is no evidence upon which a reasonable jury, properly instructed could return a verdict of guilty on the charge of accessory after the fact to murder because there is no evidence on the second element of the offence. Therefore, there must be a directed verdict on that count.
CONCLUSION
[65] For the reasons set out above, the defence of provocation will be left with the jury as will the charge of accessory after the fact to possession of a loaded, restricted firearm. However, there will be a directed verdict of acquittal on count #2 – accessory after the fact to murder.
The Honourable Madam Justice Julianne Parfett
Released: December 20, 2021
COURT FILE NO.: CR-20-19806
DATE: 2021/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MOADD MAADANI
– and –
ISLAM RASHED
Defendants
REASONS FOR decision
Parfett J.
Released: December 20, 2021
[^1]: At para. 51, citations omitted. [^2]: R. v. Cairney, 2013 SCC 55 at para. 22. [^3]: At para. 42. [^4]: At para. 44. [^5]: At para. 47 & 56. [^6]: (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 21. [^7]: At para. 23. [^8]: Arcuri at para. 28. [^9]: (1998), 1998 CanLII 7124 (ON CA), 124 C.C.C. (3d) 392 (Ont. C.A.) at para. 14. [^10]: [1999] B.C.J. No. 1760 (B.C. S.C.) at para. 21.