COURT FILE NO.: CR-18-9410 DATE: 2022-04-21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – MOHAMMED YOUNUS

Before: The Honourable Justice Catrina D. Braid

Counsel: Michael Michaud and Ryan Iaquinta, Counsel for the Crown Barry Fox and Arif Hussain, Counsel for Younus

Heard: April 6-9, 12-16, 19-22; June 17-18, 21-25, 28-30; August 18-20, 24-25; September 13; October 1, 13, 25, 28, 2021; March 4, 10, 11; April 6, 2022; and written submissions

JUDGMENT

I. OVERVIEW

[1] Mohammed Younus stabbed and killed his brother, Shamsul Alamshah. Mr. Younus was tried before me at a judge-alone trial on a charge of first-degree murder. Mr. Younus agrees that his actions caused the death of his brother.

[2] For oral reasons given on June 30, 2021, I granted the defence motion for a directed verdict. The trial then proceeded on the charge of second-degree murder.

[3] I must now determine whether the Crown has proven, beyond a reasonable doubt, that Mohammed Younus intended to cause Shamsul Alamshah’s death, or intended to cause bodily harm that he knew was likely to cause his death. In addressing this question, the following issues arise:

A. Were the actions of Mr. Younus an accident? B. Did Mr. Younus act in self-defence? C. Does provocation apply to reduce the charge of murder to manslaughter? D. Has the Crown proven mens rea beyond a reasonable doubt?

[4] For the reasons set out below, I find Mr. Younus guilty of second-degree murder.

II. AGREED STATEMENT OF FACTS

[5] In these reasons, I shall refer to Mohammed Younus as “Younus” and Shamsul Alamshah as “Shamsul”. I mean no disrespect when I decline to use formal titles when speaking about the main individuals involved in this case. Counsel for both the Crown and defence used these names when referring to these individuals during their examination of witnesses and in their submissions. I will continue to do so, in order to make these reasons easier to follow.

[6] The parties filed an Agreed Statement of Facts, which stated the following:

1. It is admitted that the offence occurred on August 27, 2017, at or around 101 Mooregate Crescent unit F in Kitchener, Ontario.
2. The accused (Younus) and the victim (Shamsul) were brothers.
3. Identity of both the accused and the victim is admitted.
4. In July 2014, Younus loaned $27,000 to Shamsul to assist him in purchasing his house. In August of 2017, Younus demanded repayment of the money.
5. It is an agreed fact that Younus demanded immediate repayment of the $27,000 loan due to his anger with his brother (Shamsul) for failing to follow through with a task (helping Younus sponsor his son to Canada). Younus was not in need of any money.
6. Emergency services responded to the scene and attempted life-saving measures on Shamsul, who was transported to St. Mary’s Hospital. He was pronounced dead at 7:40pm on August 27.
7. Shamsul suffered four knife wounds in total. Three of the wounds were superficial. The stab wound to the victim’s heart was fatal. The pathologist report of Pathologist Doctor Elena Bulakhtina is admitted.
8. It is admitted that Younus’ actions on August 27 resulted in the death of Shamsul. The issue in this trial is whether Younus’ actions constitute manslaughter, murder in the second degree, or murder in the first degree.
9. Waterloo Regional Police Service took a series of photographs, including photographs of the scene, persons, and objects. The continuity of all photographs are admitted, and they may be tendered into evidence by either party without the necessity of calling a witness.
10. A search of Younus’ townhouse located the bloody knife in the kitchen sink and Younus’ bloody clothing. Blood samples were also collected behind Younus’ ear.
11. The blood on the knife and behind Younus’ ear were tested by the Centre for Forensic Sciences and were a match to Shamsul. Trevor Claxton’s Biology report dated November 16, 2017 is admitted.
12. The incident was observed by 10-year-old Abdulaziz Mahmud. Mr. Mahmud now resides in Kenya with his family. As such, the parties agree that his original video statement can be played/filed and a transcript of his preliminary hearing evidence filed.
13. Younus was arrested on August 27, 2017. He received treatment for a minor cut to his right knee at Grand River Hospital, and was discharged back to the custody of the police.

[7] The pathologist report, which was admitted, states that Shamsul suffered three superficial wounds which were located on his upper right chest, back of his upper arm and his left mid back. The thrust that caused the fatal wound to the chest was directed from front to back and downward. The blade on the knife that caused the fatal wound was 15cm long.

III. EVIDENCE OF CROWN WITNESSES

[8] Younus testified at trial. His evidence was significantly different than the other witnesses on a number of important issues. I shall therefore provide a summary of the Crown witnesses’ evidence on the salient points.

a. Evidence of Maria Fayyaz

[9] Maria Fayyaz (“Maria”) was Shamsul’s wife. She testified that the relationship between the two brothers was not good, because there was an argument over bringing Younus’ son to Canada. Younus demanded that Shamsul return money that Younus had allegedly loaned to him, and said “sell your house or sell your wife.”

[10] She and Shamsul brought $27,000 to Younus’ house on the day of the incident. When they arrived, they went into the living room and started counting the money. Younus walked in and snatched money from Maria’s hand. He said there is no need to give the money and his head was too hot for that. There was an argument over counting the money. Younus then said, “Maria divorce Zubair.” Younus suggested Almas, the brothers’ sister-in-law, could marry Shamsul instead.

[11] Younus slapped Maria after snatching the money from her, which started a fight. She told Shamsul not to stand up or rise up because Younus was looking for a reason to fight, and Shamsul did nothing in response to the slap. Younus grabbed Shamsul by the collar and Shamsul then punched Younus. Maria stated that Shamsul did not assault Younus but hit him with his fists in order to protect her, and that Shamsul said, “You're about to give this money to a terrorist, and I'm going to call police.” There was a physical altercation and they were separated by the women with a lot of difficulty.

[12] Once the fight was over, she saw Shamsul bleeding under his right ear. Nobody had a serious injury. Shamsul told her to pick up the bag with the money and to call the police, because Younus wanted to give the money to a terror group. Younus then said he was just joking about giving the money to a terror group.

[13] Shamsul still wanted to call the police, but Almas told them to go away from there. Maria and her husband Shamsul wanted to leave in order to avoid the fight. They left out the living room door which leads to a grassy area outside. They left their shoes and Shamsul’s cell phone in the house. She was in her bare feet. They left the bag of money inside the house.

[14] They were walking to the car. Suddenly, Younus came running from behind. Younus came from the side, he pushed Shamsul from behind and attacked him with a knife. Younus pushed Shamsul and he fell face first onto the ground. Younus attacked Shamsul with a knife. Younus stabbed Shamsul about four times. He also tried to run the knife over Shamsul’s throat, but Maria was holding his hand tightly with a lot of difficulty. Younus slapped her. Younus said that if she tried to save Shamsul, he would stab her too.

[15] Shamsul said, “Brother, why did you do this to me?” When Maria tried to stop Younus, he said “It’s going to be good if he dies.” Toward the end of the attack, he turned Shamsul over to his front, sat on his stomach and then stabbed him.

[16] She stated that the struggle on the ground lasted one to two minutes, but then said that she could not precisely estimate how long it was.

[17] Although there were some inconsistencies in Maria’s evidence regarding the amount of money that Shamsul owed to Younus, it is clear that she was not directly involved in the lending or borrowing of funds. She merely testified as to her belief and understanding of the funds, which may or may not have been correct based on the information that she received from her husband.

[18] Maria testified that Younus threatened to kill Shamsul a few days before the incident, and that he threatened to do something serious with a knife outside the house. While I do not accept that those exact words were uttered, I find that Younus was angry and demanded his money from Shamsul because Shamsul had refused to help him bring his son to Canada.

[19] Although Maria states that Younus struck first, I find that Shamsul struck Younus first inside the townhouse, either in defence of his wife or as an immediate reaction to Younus being mean and hostile upon entering the room. I accept that the confrontation happened quickly and find that this one inconsistency does not cause me concerns with respect to the rest of Maria’s evidence.

b. Evidence of Ayasa Khatun

[20] Ayasa Khatun (Ayasa) is Younus’ wife. She believed that Shamsul owed $41,000 to Younus. She stated that Shamsul and Younus normally had a good relationship and that they had never argued in the past. Because of Younus’ health issues, Shamsul was stronger and slightly bigger than Younus.

[21] When Shamsul began counting money in the living room with Almas and Maria, Ayasa heard Shamsul say that he could not bring Younus’ son over to Canada and that was why the money was being returned. The fight in the living room began with an argument over the money. Shamsul put his hands around Younus’ neck and punched him once in the face while saying “motherfucker”. Younus hit him back. She denies the word “terrorist” being used.

[22] At some point, Younus poked Maria with his finger in the living room during the fight. Ayasa heard Younus say “help” and to call 9-11. He asked Ayasa to call the police and then slapped her in the face. Almas and Ayasa broke the brothers apart.

[23] Ayasa wanted Shamsul and Maria to leave because she was worried the fight would start up again. Almas, Maria and Shamsul exited the rear door and they were heading for their car in the parking lot. Younus came out after about one to two minutes later with a knife.

[24] Ayasa tried to take the knife from Younus and told him to stop. He had already stabbed Shamsul once. She told Younus that she had the money. She said, “why are you hitting your brother and why did you bring the knife?” He was not hearing or listening to Ayasa due to his huge anger, and he went at his brother again.

[25] Ayasa’s hand was cut trying to take the knife away from her husband. She tried to take the knife away “a lot”, and with all her strength. When she was holding the knife, Younus was still trying to get to his brother. The fight continued after she got cut.

[26] Ayasa got in between Shamsul and Younus. She pushed Younus and he was leaning with one hand on the ground and the other holding the knife. Younus would not give her the knife so Ayasa went back to her unit because she was afraid.

[27] Younus changed his clothes after he stabbed Shamsul.

c. Evidence of Almas Khatun

[28] Almas Khatun (“Almas”) is the sister-in-law of both brothers and had positive relationships with both families. She stated that the brothers had a close relationship. Shamsul invited her to go with them to Younus’ home.

[29] They went to sit in the living room. Everyone was getting along, and Shamsul and Maria were handling the money. When Younus entered the room, he asked them why they had not counted the money at home. He said this immediately after entering the room and asked why they were counting the money here. He was a bit angry, aggressive, and loud. He had a raised voice.

[30] Younus spoke to Almas about things back home. They were mean things, and she had not said anything bad to him. It made her cry and she felt sad.

[31] Maria looked gloomy. Almas does not know what caused Maria to become upset. She did not see Younus hit Maria. She admitted it was possible it happened but that she did not see it.

[32] Shamsul looked at his wife and realized she was sad. Once he saw this, he swore at Younus in Rohingya and said that he would not give him the money, and they started fighting. Shamsul hit first. He grabbed Younus and said, “Motherfucker, I will not give you the money.”

[33] Both brothers were screaming and fighting, and they both wanted to fight. They were grabbing each other strongly and punching each other. Almas believes they were both equal in strength. She acknowledged that Shamsul was younger and heavier than Younus, and that Younus was weaker because of his 2004 operation. She could not tell who was winning the fight. She believes it lasted 20 minutes.

[34] Almas stated that Younus slapped Ayasa when he entered the room, and before the fight had started. She does not know why Younus slapped his wife. Ayasa did not seem happy about being slapped.

[35] During the fight, Younus was screaming for help and to call 9-11. Almas does not remember if Younus slapped his wife after asking her to call 9-11. It is possible that the slap happened at that time, but she cannot remember.

[36] Eventually the women were able to separate the two men. Younus then went to the kitchen. Almas pushed Shamsul and Maria out the door so they would leave. It was not the same door they had come in. She did not want any more fighting and just wanted to go home. She was scared and did not want it to continue.

[37] She initially left with them but returned when she realized she had forgotten her daughter inside. When she went back inside, Younus was coming out of the house. He was holding something, but she could not see what it was.

[38] Almas believes she was inside the Younus household for four to five minutes looking for her daughter. During that time period Younus did not return to the home. She got her daughter and they went outside. She saw Shamsul lying in the yard.

d. Evidence of Katie (Mary) Burgess

[39] Katie (Mary) Burgess lived next door to Younus’ townhouse unit. She heard fairly loud voices in another language that sounded like an argument. She then heard “thumping”, which sounded similar to stomping on the floor. She then heard the screen door to her neighbour’s home open and close, and she went to her own door to look out.

[40] She observed them walking toward the parking lot. Less than 50 seconds later, Mohammed (Younus) walked up with a knife in his hand. He looked very serious, not necessarily angry or anything, just very straight faced.

[41] They all started struggling. Younus was trying to stab at the man (Shamsul), and the man and the women were trying to push him away. They were struggling and pushing to get away. There were a lot of arms flying and trying to defend, Younus was trying to stab in between arms and would try different angles, but people were grabbing or blocking Younus from stabbing, making it hard to make contact. The ladies were trying to separate them. Shamsul’s path forward was stopped by what Younus did.

[42] They struggled while upright and eventually the two men toppled to the ground. They rolled around a couple times and face to face rolling a little. The women were still trying to pull them apart and they were screaming at that point. She estimates they were on the ground for 10 to 30 seconds and believes the whole event was between 20 seconds to two minutes. After that, Younus just got up and walked back towards his house.

[43] Ms. Burgess observed Younus as the sole aggressor. Shamsul was not doing anything just trying to push him away. Shamsul did not want to fight, he was just trying to get away the whole time. It was mostly Younus going after Shamsul, who wanted no part of the fight outside.

e. Evidence of 10-year-old Abdulaziz Mahmud

[44] Ten-year-old Abdulaziz Mahmud was outside playing with his friends, including one of Younus’ daughters, Amina.

[45] His friend Amina’s dad (Younus) came out with a cooking knife, started running, trying to kill him (Shamsul). He believed Younus was really mad and trying to kill the man because he was running at him, mad, with a knife pointing at him. Younus tried to stab him once and it did not work. When Younus was trying to stab him, Shamsul was scared, afraid and terrified, and was screaming “no, no, no” to Younus. He fell, they were wrestling on the floor, and the moms grabbed Younus by the hand, trying to stop him from killing his brother but it did not work. He was grabbed and stopped by Amina's mom (Ayasa). Younus used his other hand and threw his wife and the brother’s wife’s (Maria’s) hands off of him, and then just stabbed Shamsul in the chest area.

f. Evidence of Malia Brophy

[46] Malia Brophy could see the courtyard from her living room window, which was 30 to 40 feet away. She looked out and saw the two men on the ground wrestling for 15 to 30 seconds. Younus was on top virtually the whole time. She saw women trying to separate the men.

[47] The other man (Shamsul) was on his back on the ground and Younus was chest to chest on top of him for virtually the whole time that she was watching, which was approximately 20 seconds. She did not observe any punches or kicks. Shamsul could not get up, due to Younus being on top of him. Ms. Brophy’s evidence describes Shamsul being dominated by Younus. She observed Younus to be holding a knife when he got up and walked back to his home.

g. Evidence of Maria Nadeau

[48] Ms. Nadeau’s attention was drawn outside of her home as a result of hearing women yelling and screaming. Her evidence and observations were limited. She was unable to testify about what led up to the stabbing.

[49] She looked out and saw the two men on the ground. She observed a man (Shamsul) on the grass and another man (Younus) was on top of his chest. It looked like an embrace, and Younus was overtop of him. Shamsul was not free to move.

[50] Then Shamsul’s knees bent, flopped, and went still. She thought that meant that he was dead. She thought Younus had a knife but also thought maybe she was imagining it, because it just seemed surreal. The whole thing lasted less than 30 seconds.

h. Credibility and Reliability of the Crown Witnesses Generally

[51] Although Maria was the wife of the deceased, she generally gave her evidence in a fair manner. While her evidence was imperfect, much of her evidence was internally consistent and externally consistent with other witnesses. I accept her evidence as being credible.

[52] I have some reliability concerns with Ayasa’s evidence as it was internally inconsistent at times. However, even though Ayasa is Younus’ wife, she presented as a credible witness who was trying her best to articulate how she saw things.

[53] Even though Ayasa was not an impartial witness, she did not support Younus’ version that there was peaceful negotiation or discussion outside. Her evidence was consistent with every other witness (except Younus) who described Younus immediately attacking and stabbing Shamsul outside.

[54] Almas was an unbiased witness, as she had a positive relationship with the family members and looked upon both brothers favourably. Her evidence was consistent with that of Maria regarding the fight in the house on a number of key points: that Younus was angry and causing conflict, and that he was aggressive and loud. She saw Younus slap Ayasa. She did not see him slap Maria, but it is possible she missed it. Almas was a credible and reliable witness.

[55] The neighbours who testified at trial all gave credible, reliable and unbiased evidence. They all had either a neutral or a positive relationship with Younus. Ms. Burgess and young Mr. Mahmud had positive relationships with Younus. Ms. Burgess liked Younus, and Mr. Mahmud played with his children. They both had an excellent opportunity to witness the entire interaction outside, and both described Younus as the aggressor. Both described Younus trying to stab Shamsul multiple times, and the women and Shamsul struggling to push Younus away. The neighbours and Maria described how Shamsul was on the ground when Younus was on top of Shamsul and stabbed him in the chest, which was the fatal blow.

[56] Notably, none of the Crown witnesses saw Shamsul attack Younus or ever get a physical advantage over top of Younus at any point outside. No one saw Shamsul on top of Younus with his knee on him. No one saw Younus stabbing back blindly in defence of himself. They all describe Younus as the only aggressor outside.

IV. CREDIBILITY OF MOHAMMED YOUNUS

a) W.(D.) Analysis

[57] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada set out the test on an issue of credibility at p. 758:

i. First, if you believe the evidence of the accused, obviously you must acquit. ii. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. iii. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[58] It is not essential that the trial judge rigidly follow the three steps in the W.(D.) instruction. The determination of whether the accused’s evidence is believed, or raises a reasonable doubt, must only be made after considering that evidence in the context of the evidence as a whole: see R. v. W(D).

b) Overview of Younus’ Evidence

[59] Younus testified that Shamsul, Maria and Almas came to the house. He went to the living room where he saw Shamsul and Maria counting money. Younus testified that he did not know why they were counting the money but a verbal altercation quickly ensued with Shamsul using bad words. Although the substance of that verbal altercation is somewhat unclear from Younus’ evidence, he testified that he told them to leave the money and go.

[60] Younus testified that Shamsul got angry and said, “motherfucker”. Then he said, “motherfucker, I won’t give it to you, you will send it to a terrorist group.” Younus told him to leave and Shamsul said “I will kill you.” Shamsul came at Younus very quickly, grabbed him by the throat and punched him in the mouth. Younus testified that he was screaming saying help, and yelling for someone to call 9-11. He was trying to get to the phone, but Maria pushed it away so he could not get it. Maria came and held his right hand. Ayasa and Almas were trying to take them apart.

[61] Younus said “Look, you came to my house to fight with me and look what it has been.” Shamsul was still grabbing Younus by the collar and throat. He pressed so tight that Younus could not talk or call for help. They were trying to pull Younus outside, Shamsul was trying to take him to the police.

[62] Younus asked for the money back, Shamsul said, “motherfucker did you hear what I just said, I am not going to pay this money to you” and then he went outside. He was going to the police so they could catch Younus.

[63] Younus got very angry and his head was hot. He lost control because it was a crazy day. He got like that because “My home, my money, using profanities”. Younus testified that he has a normal temper, although he is a traumatized refugee. He said that Shamsul had beaten him “within a half-life” and that he was injured on the inside.

[64] He said that Shamsul is a bad guy and a robber. Younus told the police that Satan made him do it. The Crown suggested that this does not sound like an accident, Younus stated that the devil is him (Shamsul), and that he did not harm Shamsul, he harmed the devil and the robber. He stated that the devil made him beat the other devil. He believed that Shamsul and Almas had a plan to kill him.

[65] After Shamsul left the residence, Younus ran to the kitchen, grabbed a knife and left through the living room door. Younus agreed that it is not reasonable to kill someone over an argument or because of losing a fistfight. He agreed it would be unreasonable to chase someone with a knife who was running away but he said he did not do that.

[66] Younus testified that he went outside and said, “Oh unfaithful, please leave from here.” Shamsul turned and said “Motherfucker, I already told you a couple of times that I will not give you the money. I will not give you the money.” Shamsul approached and Younus brandished the knife and held it above his head and waved it from left to right. Shamsul got closer and “when he tried to catch my collar again while I was moving the knife”, Shamsul got a cut on his arm.

[67] Younus said that someone threw him and he ended up on the ground. Then Ayasa held his head down. Shamsul held him down with his knee on him and with his right hand on the back of Younus’ neck. Younus said Maria was attempting to remove the knife from his hand and could not and this caused her to bite his arm. The struggle continued with Younus being pinned down. Younus was swinging the knife backward and did not know where it was touching. At this point in his evidence, Younus demonstrated with repeated motions of blindly stabbing behind him.

[68] Eventually the altercation came to an end and Younus returned to his home. He observed blood on his hands. He returned the knife to the kitchen, partially washed his hands and ran to his bedroom to remove the blood-stained clothes he was wearing.

[69] Younus had a small superficial cut on his knee after the fight. The police did not observe any other injuries. Younus made an unsolicited statement to police, “he tried to kill me”.

c) Browne v. Dunn Issue

[70] At numerous points during Younus’s evidence, he testified about a version of events that was significantly different than the evidence of other witnesses. The rule in Browne v. Dunn generally required defence counsel to put Younus’ version of events to those other witnesses. That did not occur in this case.

[71] The rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) is one of fairness. It is not a fixed or invariable rule, much less a rule of admissibility. The extent of its application rests within the discretion of the trial judge, a discretion that is subject to significant deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 76-77 and 80, leave to appeal refused, [2016] S.C.C.A. No. 203.

[72] Compliance with the rule in Browne v. Dunn requires a cross-examiner to confront the witness with matters of substance on which the cross-examining party seeks to call contradictory evidence on disputed factual issues. Since it is a rule of fairness, no single or exclusive remedy follows from the breach of the rule in Browne v. Dunn. It is for the trial judge to say what remedy is best suited to maintain fairness in the trial process, whether it be recall of the witness, a jury instruction about the impact of the failure to cross-examine on the jury's assessment of credibility and reliability, or something else entirely. A remedy decision also attracts deference on appeal: R. v. Vassel, 2018 ONCA 721 at paras. 120-122.

[73] Where a central feature of a witness’ testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a telling effect on an accused’s credibility: see R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.).

[74] In this particular case, I find that the rule in Browne v. Dunn was breached. Defence counsel failed to put Younus’ version of events to the numerous witnesses who testified about their observations of the stabbing. In particular, Younus stated that Shamsul was the aggressor during the confrontation outside and suggested that the fatal stab wound may have been as a result of Younus swinging the knife behind him while he was being pinned down by Shamsul. All of the other witnesses who described the fatal blow said that Shamsul was lying on the ground with Younus on top of him.

[75] In some cases, it makes sense for the court to allow a party to recall witnesses. However, even if the rule in Browne v. Dunn had been complied with, I find that all of the Crown witnesses would have disagreed with the suggestion that it was Younus who was pinned down and swinging the knife wildly behind him. Recalling the witnesses would have further extended the trial that had already gone well past the time estimate, would disrupt trial continuity, would have a limited utility, and would not be an appropriate use of judicial resources.

[76] Although the failure to comply with the rule in Browne v. Dunn is a factor that I may consider in assessing the credibility and reliability of Younus as a witness, I do not put a lot of weight on this factor. As I will explain in a moment, the quality of Younus’ evidence was so poor that I have largely rejected it, independent of any consideration of the breach of this rule.

d) Do I Believe the Evidence of the Accused?

[77] Younus’ evidence in chief lasted just over two hours. However, cross-examination of Younus lasted approximately seven days, mainly as a result of Younus giving lengthy answers and often failing to answer the question that was asked. Even defence counsel admitted that Younus’ evidence was quite confusing at times and difficult to follow.

[78] In considering Younus’ evidence, I have taken the following into account:

a. Even though we had interpreter issues early in the trial, we have had two excellent Rohingya interpreters. The parties admit the quality and accuracy of their interpretation. However, I recognize that, even with accurate interpretation, there are things that may get lost in translation from Rohingya to English and vice versa. b. Younus has faced upheaval and trauma in his life. He was born in Myanmar (formerly known as Burma). He lived in a refugee camp in Bangladesh after his family fled from persecution in Myanmar, and then came to Canada as a Rohingya refugee who does not speak, read or write English. In the courtroom, he was almost always respectful, at times referring to me as “like the mother of everyone in the courtroom”. However, as a refugee and a person of colour, I accept that Younus may be distrustful of authority and this may have impacted his manner of testifying or dealing with police. The court system is unfamiliar to him. I accept that, at times, his inability to answer certain questions and his demeanour may have been a product of this background. When assessing his evidence, I put little to no weight on the fact that he frequently failed to answer questions that were asked during cross-examination. c. When Younus was being cross-examined in August 2021, he stated that his dead brother was standing beside him in the courtroom, beating on him. I ordered a fitness assessment, and Younus was found fit to stand trial. When he was assessed, he was well aware that his brother is deceased. The forensic psychiatrist commented that Younus may be experiencing a complicated type of bereavement which may have a cultural component. The psychiatrist was not surprised that the symptoms worsened in the context of the trial and specifically during the stressful time of testifying. I have never received any documentation establishing that Younus has a particular psychiatric disorder. However, I accept that Younus has mental health issues, which likely impacted his demeanour and the manner in which he testified.

[79] I have taken into account that Younus’ evidence may have been impacted by the factors listed above. Even after doing so, I find that his evidence was internally and externally inconsistent, confusing, bizarre, and simply incapable of belief. At various points during his testimony, it appeared that he was simply saying whatever he could in the moment that he believed would make himself look better. I find that Younus was an incredible and unreliable witness, and I reject his evidence outright. The following are some examples of the inconsistencies in his evidence:

i. His Relationship with Shamsul

[80] Younus originally testified that he had a good relationship with Shamsul, that he loved him, that he was happy to see him that day and that he enjoyed spending time with him. Later, he said that there was a long history of Shamsul beating him, monthly and yearly. He said that he would have left had he known Shamsul was coming that day, and that his brother was a snake, robber, terrorist and the devil, and stated that he had to kill the devil.

ii. The Money

[81] Younus testified that it was a surprise to him that Shamsul and Maria arrived that day with $27,000, and that he did not know they were coming over. He admitted that he told Shamsul in July either to sell his home or sell his wife and give him his money. He then denied telling Shamsul to sell his wife but suggested that he sell his wife’s jewelry. Younus suggested that the fight in July was over and they asked for forgiveness.

[82] He said that he was not surprised to see them with the money. He did not ask them what the money was for, and he did not know who the money was for. He said he had no problem with them counting the money there and was not angry about it. Since he did not expect the money to be returned, he would have had no issue if Shamsul picked up the money and left. At another point in his evidence, he testified that he told Shamsul to take the money and go. Later in his evidence, he admitted that one of the two main reasons that he killed Shamsul was because Shamsul was taking the money.

[83] Younus initially told the police that Shamsul did not borrow any money. He testified that he lied to save his brother and have the burden on himself. It makes no sense that he was lying to protect his brother even though he said that his brother just tried to kill him.

[84] It also makes no sense that Shamsul and Maria would withdraw so much money and sell valuable personal possessions to repay this money without a demand for repayment. I find that they did so due to Younus’s angry demand for immediate repayment.

iii. Younus’ Emotions That Day

[85] Younus denied that he was in a bad mood when Shamsul and Maria arrived. He denied that he was angry that they were counting the money. He later admitted that he was angry with Shamsul that he was not following through on his promise to help Younus’ son come to Canada. He agreed that was why he was upset and sad. He admitted that Almas cried because of what he said to her, and that he spoke to her in a cold manner. Later in his cross-examination, he denied saying mean things to Almas.

iv. The Fight Inside the Townhouse

[86] Younus said that the fight started after discussion about the Qurbani sacrifice. Younus said that he asked Shamsul politely to leave, saying “for the sake of God please go”, and then Shamsul responded “hey motherfucker I will kill you.” Younus said that he was being polite, respectful, calm, and even bowing to Shamsul, even when he was being beaten. Younus maintained his position that he continued to treat Shamsul with respect even after Shamsul was swearing and beating him up. This evidence is in direct contradiction with the evidence of the three women who were inside the townhouse.

[87] Younus testified that Shamsul tried to pull him outside, and even tore his shirt when pulling him. However, no one else saw this. Younus disagreed with the suggestion that it was Almas who was pushing Shamsul out the door.

v. Contacting the Police

[88] Younus stated that he wanted someone to call the police during the altercation in the house. He even slapped his wife in an attempt to get her to call the police. However, when Shamsul left, Younus made no attempt to call the police. When Younus thought Shamsul was going to the police, he became so angry that he went after him carrying the large kitchen knife.

vi. The Events Outside

[89] Younus admitted that he was angry. He stated that he went after Shamsul because he could not handle losing the fight and he lost control of himself, he said “I lost my brain and my mind.” He stated that it was reasonable for him to lose complete control of his mind just because he lost the fight with his brother.

[90] Younus denied being safe even though Shamsul had left, although he agreed he could have just locked the door. He said it was a bad day and he was mentally affected. After Shamsul left, Younus said he lost his way, he lost his path. He stated that he went outside with a knife and told Shamsul “oh, betrayer, give me the money and go.”

[91] He testified that he told Shamsul to give him the money and that he wanted his money back. He said he peaceably asked his brother to leave. However, every other witness, including numerous independent witnesses, testified that Younus pursued Shamsul and attacked him with the knife.

vii. Obtaining the Knife

[92] The Crown suggested to Younus that he deliberately chose a large, sharp knife that could kill. Younus disagreed and said that he took the first thing that he saw. The following exchange took place:

Q: So you’re saying that you could have just grabbed a - a package of eggs and run outside after your brother? A: How can someone kill with eggs? So bad thing – bad things can kill, so knife is something bad.

[93] Younus then acknowledged that he took the knife to threaten his brother to get the money and because he was angry that his brother beat him up. He thought Shamsul would feel threatened by the knife, and that he would have the knife ready to defend himself if Shamsul started again.

[94] Younus stated that he got a weapon because Shamsul came to his home, throwing poison. He lost the fight to his younger brother and he did not like it. He stated that the devil was telling him what to do, and that Satan said “it’s your house and your money and he’s beating you and he’s torturing you.” He believed that it was the Satan who made him do it.

viii. The Stabbing

[95] Younus’ account of Shamsul being the aggressor and holding him down is wholly at odds with the evidence from every other witness in this trial. I find that Younus was the aggressor outside. Shamsul wanted nothing to do with the fight, he was just trying to get away and save himself from being stabbed. Younus repeatedly tried to stab Shamsul and was on top of Shamsul before plunging the knife into his chest.

[96] Younus admitted that he holds significant animus against his brother. He called him a snake, devil, and robber. He was angry and embarrassed over losing a fight. Younus said he came to Canada to not be beaten by anyone, and he could not bear losing a fight in his home. He also wanted his money and was not going to allow Shamsul to leave with it. Younus agreed that the two main reasons why he became angry with and killed Shamsul were that 1) Younus lost the fight; and 2) Shamsul took the money.

e) Even Though I Do Not Believe the Testimony of The Accused, Am I Left in a Reasonable Doubt By It?

[97] In addition to not believing Younus, his evidence does not leave me in a reasonable doubt about the essential elements of the offence. In addition, on the basis of the evidence that I do accept, I am convinced of Younus’ guilt beyond a reasonable doubt. In a moment, I will explain why I reject the defences of accident, self-defence and provocation.

[98] I find that Shamsul left the townhouse and was walking towards his car with Maria, in a retreat from the fight. Younus came out with the knife, stabbing at Shamsul. Younus was the aggressor at all times during this altercation. Many of the initial stabs were blocked. Younus stabbed Shamsul three times, all of which were not life-threatening wounds. After they struggled for awhile, Shamsul was lying with his back to the ground. Younus got on top of and stabbed him in the chest, which was the fourth, fatal blow.

V. ANALYSIS

A. Were the Actions of Mr. Younus an Accident?

[99] Defence counsel submits that the court should consider the so-called defence of “accident” as the term was described by the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 186. Accident, according to the Supreme Court, is used to signal one or both of the following: that the act in question was involuntary (thus negating the actus reus of the offence) or the accused did not have the requisite mens rea: Barton, at para. 186. Counsel suggests that Younus did not have the requisite mens rea.

[100] In assessing whether an “accident” negated mens rea, the court must determine the relevant mens rea requirement. Mens rea requirements vary and include (1) a subjective intention to bring about a prohibited consequence; (2) a subjective awareness of prohibited circumstances; and (3) objective fault: Barton, at para. 187.

[101] Where the offence charged requires proof of subjective intent to bring about the particular consequence, the claim that the accused did not intend to bring about the consequence, making it a mere accident, is legally relevant, as it could negate the mens rea required for a conviction: see Barton at para. 189.

[102] To the extent that the defence submissions may suggest an accident in the sense of a chance occurrence that may not have been foreseeable, I do not accept that this applies here.

[103] Defence counsel argues that the accused did not intend to cause the death of Shamsul and that the stabbing occurred during the physical altercation. There is overwhelming evidence that Younus sought out and killed Shamsul as he tried to leave. For example, as I mentioned above, Younus explained his actions in retrieving the knife, and testified, “How can someone kill with eggs?” His intent on causing fatal harm is evident.

[104] The only evidence that this stabbing could have been an accident comes from Younus, whose evidence I do not believe.

[105] Instead of suggesting an accident in the usual sense of the word, it seems counsel may be arguing that the Crown cannot prove intent beyond a reasonable doubt because of issues of self-defence and provocation. I shall therefore examine those issues.

B. Did Mr. Younus Act in Self-defence?

[106] Defence counsel submits that Younus should be acquitted because he acted in self-defence, and in doing so caused the death of his brother. Defence counsel further submits that, if the court concludes that Younus may have acted in self-defence but the number of stab wounds exceeds that which was reasonably necessary, a verdict of manslaughter would be appropriate.

[107] The defence of self-defence is enumerated in s. 34 of the Criminal Code, R.S.C. 1985, c. C-46.

[108] Self-defence is comprised of three central elements:

1. the accused person must reasonably believe that force or a threat of force is being used against them or someone else: s. 34(1)(a) [the catalyst];
2. the subjective purpose for responding to the threat must be to protect oneself or others: s. 34(1)(b) [the motive]; and,
3. the accused’s act must be reasonable in the circumstances: s. 34(1)(c) [the response].

See R. v. Khill, 2021 SCC 37, at paras. 37, 51.

[109] As with any defence, self-defence is only to be considered by the trier of fact if each of its constituent elements has an air of reality. The accused person bears the onus of showing that an air of reality exists, namely that a properly instructed jury, acting reasonably, could acquit the accused person on the basis of the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49 and 51.

[110] Once the defence is shown to have an air of reality, the onus is on the Crown to disprove any one of the three elements of self-defence beyond a reasonable doubt: R. v. McPhee, 2018 ONCA 1016, 143 O.R. (3d) 763, at para. 15.

[111] An air of reality may arise on the accused’s evidence or may arise from a consideration of all the evidence: see e.g. R. v. Neepin, 2020 MBCA 55 at para. 17 and R. v. Angelis, 2013 ONCA 70 at paras. 32-33. If there is evidence upon which a jury acting reasonably could acquit if the evidence is believed, the defence must be left: Cinous, at para. 49.

[112] In this case, I find that there is no air of reality that Younus acted in self-defence when he killed Shamsul. Younus could have locked the door and not pursued Shamsul. Younus believed Shamsul may have gone outside to call the police, which should have been a relief if Younus truly felt threatened. Even if one accepts that Younus left to talk to Shamsul, and Shamsul somehow ended up on Younus’ back, it was not a reasonable response to swing blindly backward with a large, sharp knife stabbing anyone who might be in its path simply because someone had his knee on him.

[113] Even if Younus’ own evidence were believed, Younus left the safety of the house, pursued the unarmed Shamsul outside with a knife in order to retrieve money from him and out of anger over the fight inside the house. He then stabbed Shamsul four times. Even taking Younus’ evidence at its highest, a jury could not find self-defence.

[114] In the event that I am wrong regarding the absence of an air of reality to self-defence, the Crown has still disproven self-defence beyond a reasonable doubt, for the following reasons:

1. Reasonable Belief (the Catalyst)

[115] The initiating or triggering element of self-defence requires both subjective and objective analyses. Self-defence is unavailable where the accused person does not subjectively believe that force was being used or threatened against them or another person: see Khill, at para. 52. An honest but mistaken belief can be reasonable and does not bar a claim to self-defence: see Khill, at para 57.

[116] The accused person’s subjective belief alone, however, is insufficient. The accused’s belief must also be based on reasonable grounds, in light of all of the circumstances, for self-defence to be triggered. Reasonableness of the accused’s belief is determined on a modified objective standard: Khill, at para. 54.

[117] On a modified objective standard, the court must consider what a reasonable person with the accused’s characteristics and experiences would have perceived: see Khill at paras. 53-57.

[118] An accused person’s history of violence with the complainant, or their knowledge of the complainant’s propensity for violence, would be appropriate considerations under this modified objective test: see s. 34(2)(f.1) and Khill at paras. 55 and 64. Similarly, an accused person’s size, age, gender and physical or mental capabilities would properly inform the objective reasonableness of the accused person’s subjective belief. Many of these same considerations are repeated in the response (third) element outlined below, and are specifically enumerated in s. 34(2)(e) of the Code. Mental capabilities are not included under the response branch, as that is relevant to the reasonableness of the act itself, not the accused person’s belief underlying it: see Khill at paras. 55-56.

[119] However, not all personal characteristics or experiences are relevant to the modified objective inquiry. Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures: see Khill, at para. 56. As such, a personal moral code that an accused person must “kill now or be killed later” is not a characteristic to be ascribed to the modified reasonable person. An accused person’s readiness to quarrel or fight; or having a combative or argumentative character are likewise excluded from the reasonableness assessment. Parliament incorporated a reasonable grounds component to ensure that self-defence, when successfully raised, still aligns with fundamental Canadian standards, values and the preservation of public order: see Khill at para. 56; R. v. Pilon, 2009 ONCA 248, at para. 75; R. v. Philips, 2017 ONCA 752, at para. 98.

[120] In this case, Younus did not believe that force or a threat of force was being used against him or another person when he pursued Shamsul Alamshah outside to kill him. Any application of force by Shamsul outside of the townhouse occurred only after he was attacked by Younus, and was a justified attempt to stop himself from being stabbed to death by Younus. The only people acting in self defence outside of the townhome were Shamsul (in defence of self), as well as Maria and Ayasa (both in defence of Shamsul).

2. The Purpose (the Motive)

[121] The second element of self-defence requires a purely subjective analysis of the accused’s personal purpose in committing the act in question. The act must be undertaken by the accused to defend or protect themselves or others from the use or threat of force. If there is no defensive or protective purpose, the rationale for the defence disappears. This ensures that the actions are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation. Acts of aggression are the antithesis of acts taken for a defensive or protective purpose: Khill, at para. 59; R. v. Foster, 2019 ONCA 282, at para. 17.

[122] In this case, Younus became enraged after his brother left his home. Although the fight had ended, Younus armed himself with a large, sharp knife and followed Shamsul as he tried to leave. Younus stabbed at Shamsul numerous times, even though Shamsul and the two women tried to block him and get him to stop. Younus stabbed Shamsul four times in a series of acts of aggression, with the final wound being the fatal blow.

[123] There is no credible evidence that Younus stabbed Shamsul due to any fear or threat to himself or anyone else. Younus was safely inside his home after the brief fistfight had ended, and Shamsul had left in a hurry leaving behind his cellphone and shoes. Shamsul did not have a weapon. In fact, Younus himself acknowledged that he was angry, and that he killed his brother because he lost the fight and because Shamsul was taking the money.

3. Reasonableness in the Circumstances (the Response)

[124] The reasonableness of the accused person’s actions is evaluated on an objective basis. The focus at this stage is the reasonableness of the accused person’s actions, not their beliefs: see R. v. Khill, at paras. 66-67.

[125] Section 34(2) of the Code provides a non-exhaustive list of factors with which the trier of fact shall assess the reasonableness of the accused person’s actions. The trier of fact shall weigh the factors to determine whether the act was reasonable. None are determinative: see Khill, at para. 69.

[126] Proportionality, the imminence of the perceived threat and the availability of other means of response, such as retreating, are all subsumed under the analysis in ss. 34(2)(b) and (g) and are not merely preconditions to the section’s application: see R. v. Mohamad, 2018 ONCA 966, at paras. 245-246, leave to appeal refused, [2019] S.C.C.A No. 162.

[127] In the context of self-defence, nature and proportionality require the reasonableness of an accused person's defensive actions to be assessed in light of, and in comparison to, the nature of the threat that prompted those actions: see R. v. Robertson, 2020 SKCA 8, at para. 54.

[128] The person's role in the incident refers to the person's conduct (such as actions, omissions and exercises of judgment) during the course of the incident, that is relevant to whether the ultimate act was reasonable in the circumstances. It includes all relevant conduct that is both temporally and behaviourally relevant to the incident. It calls for a review of the accused’s role, if any, in bringing about the conflict and his responsibility for the final confrontation that culminated in the act: see Khill, at paras. 74, 124.

[129] The reasonableness inquiry must be guided by community norms of conduct. The law of self-defence is grounded in the conduct expected of a reasonable person in the circumstances: see Khill, at para. 62.

[130] Failing to ground the law of self-defence in the conduct expected of a reasonable person in the circumstances might “encourage hot-headedness and unnecessary resorts to violent self-help”: see Khill at para. 62.

[131] In this case, Younus’ response was not proportionate to the use or threat of force during the altercation in the house and is exactly what the law of self-defence is aimed at preventing. At one point during his testimony, Younus candidly admitted that his response was not reasonable, that he was “hot” and that the devil made him do it. He stabbed his brother four times. The multiple stab wounds suffered by the victim demonstrate that Younus used excessive force while his brother was merely trying to get away and defend himself.

[132] I find that there is no air of reality to this defence. Even if I am wrong, I find the Crown has disproven all of the elements of self-defence beyond a reasonable doubt.

C. Does Provocation Apply to Reduce the Charge of Murder to Manslaughter?

[133] Defence counsel submits that the court must consider whether provocation applies to reduce murder to manslaughter. This submission is based on Younus’ testimony indicating that his head was hot from being attacked by Shamsul and being linked by him to a terrorist organization. Counsel states that there was not an appreciable cooling off period, so the court should find Younus guilty of the lesser but included offence of manslaughter.

[134] Section 232 of the Code offers the statutory excuse of provocation that allows the court to reduce murder to manslaughter:

Murder reduced to manslaughter

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and (b) will whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

[135] The evidence to support the defence of provocation may be based on the Crown’s case, including any statements of the accused entered as evidence. There must be an air of reality to the defence before it is left with the trier, meaning there must be an evidential foundation for the defence on each and every element. The trial judge may engage in a limited weighing of the evidence to determine if a jury acting reasonably could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation: Cinous, at para. 91; and, R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420 at para 21.

[136] There is a two-pronged question for determining whether there is an evidential foundation warranting a defence to be put to the trier of fact. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: Cinous, at para. 65 (emphasis mine).

[137] For purposes of this section, provocation requires that the victim do an act that that would constitute an indictable offence punishable by five or more years of imprisonment. In their submissions, defence counsel focused on several wrongful acts or insults, none of which were indictable offences. However, there is an air of reality to provocation based on Younus’ evidence, if it were accepted, as the Cinous test instructs. Younus testified that Shamsul was the aggressor and pinned Younus down, and that he had uttered death threats. Younus made an unprovoked utterance to police that Shamsul tried to kill him. I am satisfied that there is an air of reality to provocation.

[138] The defence of provocation has an objective and subjective component. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool: see R. v. Thibert, [1996] 1 S.C.R. 37 at para. 4.

[139] The objective element is further broken into two steps. First, there must be a wrongful act or insult, and second, the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control: see R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 25. This is guided by the “ordinary person” test. This test takes into account the particular circumstances that the accused finds himself in, in order to measure his conduct: see Tran, at paras. 29-35. As such, the history and background of the relationship between the victim and the accused is relevant to the test. All contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: see Thibert, at para 18.

[140] However, it is not so generously tailored as to excuse the conduct of an accused who is abnormally vigilant or fearful. The objective elements seek to answer how an ordinary person with the accused person’s life experiences would be apt to respond: see R v. Land, 2019 ONCA 39, 145 O.R. (3d) 29 at para. 97.

[141] The ordinary person test is directed to a loss of control, not the conduct flowing from that loss of control. The question is not whether an ordinary person would have done as the accused did, but whether an ordinary person would have lost the power of self-control: see R. v. Carpenter (1993), 14 O.R. (3d) 641 (C.A.); and R. v. Hill, 2015 ONCA 616 at paras. 94-95.

[142] In this case, I find that the Crown has disproven provocation beyond a reasonable doubt, for the following reasons:

(i) Was there a wrongful act or insult?

[143] A wrongful act or insult on its own will not constitute provocation. It must be of sufficient gravity or significance to deprive an ordinary person of the power of self-control: see R v. Boukhalfa, 2017 ONCA 660 at para. 50, leave to appeal refused, [2018] S.C.C.A. No. 50.

[144] This is an objective element. The underlying act or insult must be conduct that would constitute an indictable offence and punishable by five or more years of imprisonment. Provocation cannot be based on a trifling event.

[145] In this case, I find that the fight in the living room was a consensual one, which is not an indictable offence. Younus suggested that Shamsul did several things which are not indictable offences and therefore do not qualify under this section: threat to call police on Younus for allegedly being a terrorist; leaving with the money; calling him “motherfucker”; and refusing to hand over the money outside. These are trifling acts under the law of provocation and do not qualify as an underlying act or threat.

[146] If Younus’ evidence were accepted, Shamsul pinned Younus down outside and uttered death threats. These acts could potentially qualify as wrongful acts or insults within the meaning of this section. However, I do not believe Younus’ evidence about these events. I reject his evidence outright and it does not leave me with a doubt. Therefore, this element has not been met.

[147] If anything, Shamsul was acting in self-defence, after the accused instigated the incident outside, so there was no wrongful act or insult on Shamsul’s part: see e.g. Cairney, at paras. 48-52.

[148] Therefore, the Crown has disproven the first branch of provocation.

(ii) Was the wrongful act or insult sufficient to deprive an ordinary person of self-control?

[149] Losing a fistfight in one’s home where no one was injured, would not result in the ordinary person losing their self control, especially if the fight ended and the other individual leaves the area.

[150] In this case, Shamsul produced no weapon and was retreating. The parties had been separated and Shamsul had exited the home. A fight between brothers is not a situation that would deprive an ordinary person of their power of self-control. An ordinary person would not be deprived of self-control by a mere threat of future harm: see R. v. McRae, 2021 ONCA 525, 157 O.R. (3d) 144 at para. 26.

[151] I do not believe Younus’ evidence that he was the recipient of constant beatings at the hands of his brother and that he was beaten on that occasion within a “half life”. One should not lose their self-control over a single lost fistfight which was instigated by the accused himself, and which resulted in no injuries.

(iii) Is there evidence that the wrongful act or insult actually deprived the accused of his self-control?

[152] Anger can play a role in reducing murder to manslaughter when taken into the provocation context. Anger is not a stand-alone defence. To be successful as part of the provocation defence, all other elements of the defence must also be met: see R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, at para. 10.

[153] Younus gave competing versions in his evidence. He testified that he was happy to see Shamsul that day, that he did not care if Shamsul took the money and repaid it later, and that he later peacefully asked Shamsul to leave. Conversely, he also testified that there was a long history of violence by his brother, and that Shamsul was a robber and the devil and that he wanted to get his money back. His own evidence fails to demonstrate that he was deprived of his self-control. He either was peaceful (and did not lose control) or he held significant animus toward Shamsul and wanted his money back, and this was the prime motivation for killing his brother.

[154] I have rejected Younus’ evidence. The evidence of the other witnesses paints the picture of an angry man seeking revenge on his brother after losing a fight and doing whatever he could to get his money back. His actions were cold, calculating, and determined. He acted vengefully and for a specific purpose. He also had the presence of mind to immediately clean up and change his clothes after the killing.

(iv) Did the accused act suddenly before regaining self-control and before there was time for his passion to cool?

[155] Suddenness is a necessary requirement to ensure that the accused did not react with vengeance after being provoked, or for some other purpose or motive. Both the act of provocation and the accused’s reaction must be sudden. To qualify as sudden, the conduct must have caught the accused unprepared and the accused must have reacted to it before there was time for passion to cool. The accused must have killed because he was provoked and not because provocation existed: see Tran, at paras. 36-38.

[156] I have rejected the evidence of Younus and do not accept that Shamsul was the aggressor at any point during the confrontation outside. Therefore, there was no provocation as a result of that confrontation, since Shamsul was merely acting in defence of himself. Even if there had been provocation, there was a cooling off period due to the time that elapsed, the distance between Younus and Shamsul, and other intervening events.

[157] The evidence demonstrates that the initial fistfight had ended and Shamsul left the residence to go home. There was a brief cooling off period as Younus had time to leave the living room, go to the kitchen, and select a knife before exiting the house towards Shamsul, who was already outside and moving away from the area. I accept Ayasa’s evidence that one to two minutes elapsed from when Shamsul exited the house until Younus came outside armed with a knife.

[158] Outside, there was some distance between the parties, given that Shamsul and Maria were walking away from the home toward their car. Further, the three women were yelling at Younus and trying to intervene the entire time. These are all intervening events that contribute to a cooling off period.

(v) Conclusion on Provocation

[159] Although there is an air of reality to the defence of provocation, the Crown has disproven all of the elements beyond a reasonable doubt.

D. Has the Crown Proven Mens Rea Beyond a Reasonable Doubt?

[160] I do not believe Younus’ evidence, nor does it leave me in a doubt. On the basis of the evidence that I do accept, I am convinced of Younus’ guilt beyond a reasonable doubt. I find that neither self-defence nor provocation apply in the present case. The Crown has therefore proven, beyond a reasonable doubt, that Mohammed Younus intended to cause Shamsul Alamshah’s death or intended to cause bodily harm that he knew was likely to cause his death. The offence of second-degree murder has been proven beyond a reasonable doubt.

VI. CONCLUSION

[161] For all of these reasons, I find Mohammed Younus guilty of second-degree murder.

Braid, J. Released: April 21, 2022