Court File and Parties

Court File No.: CR-23-826 (Hamilton) Date: 2026/01/09 Ontario Superior Court of Justice

Between:

HIS MAJESTY THE KING, Crown

-- and --

JAGAR HASAN and KARZAN KAKAMAD, Defendants

Counsel:

Brian Adsett and Rose Branton, Counsel for the Crown Ryan Handlarski and Trevor Lau, Counsel for Jagar Hasan Christopher Hicks and David Walia, Counsel for Karzan Kakamad

Heard: January 8, 2026

Restriction on Publication

Pursuant to s. 648(1) of the Criminal Code, information regarding any portion of the trial at which the jury is not present shall not be published in any document or broadcasted or transmitted in any way before the jury retires to consider its verdict.

McARTHUR J.:

RULING RECALLING MR. IBISHI & MS. ISLAM TO TESTIFY

Introduction

[1] In my ruling dated January 5, 2025, November 19, 2025, as to the request of counsel for Mr. Kakamad to recall Mr. Ibishi to testify as to broader and general background and character of the deceased beyond the earlier Scopelliti and associated rulings, this court denied the request. Counsel now essentially renews that application as to Mr. Ibishi and requests that Ms. Islam also be recalled.

[2] Counsel for Mr. Kakamad indicates the circumstances and the evidential basis have changed since Mr. Hassan and Mr. Kakamad have now testified. Both claim the deceased pointed a gun at each of them, first at Mr Kakamad standing at the toilet in the stall and then at Mr. Hasan standing near the urinal wall.

[3] Summarized very briefly, both Mr. Hasan and Mr. Kakamad testimonies are that Mr. Hyseni and Mr. Storer enter the bathroom and both claim hearing the words "shoot him, shoot him" with Mr. Hasan testifying he did not know who said this and Mr. Kakamad testifying it was Mr. Storer. Mr. Hasan's testimony then has him engaging in a physical tussling with the deceased where Mr. Hasan grabs the right wrist of the deceased which was holding the gun. Mr. Hasan got his gun and closed his eye expecting to get shot by the deceased, when he pointed his gun toward the deceased and shot four times.

[4] The prior pretrial applications including the Scopelliti application brought by Mr. Hasan's counsel and joined in by counsel for Mr. Kakamad. As was then noted, Mr. Hasan's counsel indicates that the defence at trial will be self-defence in that the deceased confronted Mr. Hasan at gunpoint in the bathroom and a shootout then occurred. Mr. Kakamad's counsel joined in the application, each with separate factums, however the court expressly noted there was no assertion of self-defence or defence otherwise by Mr. Kakamad other than Mr. Ghorbani was the aggressor and Mr. Hyseni and Mr. Storer's were his companions and aggressors.

[5] In that ruling, this court found it had not been persuaded that at the disposition of Mr. Hyseni or Mr. Storer as to violence or firearm use had probative value as to Mr. Ghorbani having been the aggressor where one or both of the defendants may claim being attacked by the deceased in the washroom or is otherwise probative as claimed by defence and went on to address the remaining evidence sought to be admitted by both defence counsels.

[6] The Crown and Mr. Hasan's counsel oppose the request of Mr. Kakamad's counsel which was the same position taken on the earlier request, which was addressed in the January 5, 2026, ruling.

[7] In the initial Scopelliti ruling, I found Ms. Islam's testimony of the deceased pointing a gun at her was a situation the deceased's conduct using threat of violence connected with pointing a weapon upon another person since the evidence was cumulatively capable of supporting an inference of the deceased using weaponized intimidation and has some probative value to assist the jury in relation to self-defence as may be claimed.

[8] I also found that Mr. Ibishi's testimony of the deceased pointing a gun at him in the deceased's car on one occasion was likewise a circumstance of the deceased's conduct using threat of violence connected with pointing a weapon upon another person involving drug business and, along with that evidence of Ms. Islam, was cumulatively capable of supporting an inference that of the deceased using weaponized intimidation and that such evidence had probative value to assist the jury in relation to self-defence as may be claimed.

[9] As I stated in that ruling, the cumulative evidence of the incidents as outlined above were indicative of a disposition involving prior aggression, intimidation, and lack of control with the use of a weapon. This disposition carried probative weight respecting the probability of Mr. Ghorbani acted out aggressively with a weapon on the occasion that this homicide occurred. This court found this is evidence of violence by Mr. Ghorbani was capable and sufficient to support self-defence such that the violence was of such a kind to consider it to be life-threatening.

[10] This court permitted the specific adult records and occurrence reports associated with these particular incidents along with the incident evidence of Ms. Islam and Mr. Ibishi as outlined to be adduced as evidence of prior acts of violence with the use of a weapon, provided that the applicants provide an evidential basis to satisfy the air of reality for self defence in the circumstances of this case. Mr. Hasan subsequently satisfied that test. Mr. Kakamad has not.

[11] The ruling on January 5, 2026, arose when Mr. Hasan's counsel previously called Mr. Ibishi who has testified and was cross-examined by the Crown within the confines of the prior ruling. Counsel for Mr. Kakamad then cross-examination was met with the objection of the Crown when counsel started to ask Mr. Ibishi about the general reputation of the deceased for violence since he was younger. The court ruled that this was neither a proper question and the jury instructed to disregard the question and any utterance by Mr. Ibishi.

[12] Counsel for Mr. Kakamad then issued a subpoena and intendeds to call Mr. Ibishi as his own witness and filed an application to elicit evidence through Mr. Ibishi of the deceased's reputation in the community for violence and aggression and cites three authorities as the legal basis to do so. This court's ruling of January 5, 2026, denied the recalling of Mr. Ibishi. Counsel for Mr. Kakamad now renews this request for both Mr. Ibishi and Ms. Islam on the basis that the evidence now heard in defence open up the issue of propensity of the deceased, Mr. Ghorbani.

[13] It will be unnecessary to outline the law and reasons again since this court adopts and finds that the law and reasons in that regard apply to this request. Accordingly, for those reasons, the request of Counsel for Mr. Kakamad is denied.

M.D. McArthur J.

Released: January 9, 2026