



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Kazragy, 2018 ONCA 40

DATE: 20180119

DOCKET: C55728, C56431, C56570, C63611

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/

Appellant by way of
    cross-appeal

and

Mohammad Al-Kazragy,
    Payam Khastou and
Arash Arashvand

Appellants/

Respondent by way of
    cross-appeal

Erika Chozik, for the appellant Payam Khastou

Naomi Lutes, for the appellant, Mohammad Al-Kazragy

Richard Posner and Lance Beechener, for the appellant Arash
    Arashvand

Elise Nakelsky and Peter Scrutton, for the respondent
    Crown

Heard: December 11-13, 2017

On appeal from the convictions entered by Justice Michelle
    Fuerst of the Superior Court of Justice, sitting with a jury, on June 13, 2012.

CRIMINAL  First and second degree
    murder conviction appeals  Verdicts neither inconsistent nor unreasonable 
    Trial judge did not err in post-offence conduct instructions  Trial judge did
    not err in circumstantial evidence instructions   Trial judge did not err
    in review of evidence in charge  Trial judge did not err in admitting expert
    evidence.

By the Court:

OVERVIEW

[1]

Mr. Al-Kazragy and Mr. Khastou appeal from their convictions for first
    degree murder. Mr. Arashvand appeals from his conviction for second degree
    murder. The appellants seek to have their convictions set aside and a new trial
    ordered. The Crown appeals against Arashvands acquittal on first degree murder.
    The Crown submits that the trial judge erred by failing to leave constructive
    first degree murder through unlawful confinement for the jurys consideration. The
    Crown only pursues this appeal, however, if Arashvands appeal from his second
    degree murder conviction succeeds.

[2]

The appellants raise a variety of grounds of appeal, most of which are
    directed at alleged errors in the trial judges charge to the jury. For the
    reasons that follow, we dismiss the appeals. In light of this conclusion, we do
    not reach the Crowns cross-appeal.

FACTUAL CONTEXT

[3]

The Crown led evidence that the appellants were close friends. Prior to
    the murder, each of the appellants expressed a dislike for the deceased. While
    their expressions of dislike varied in degree, Arashvand and Khastous
    statements included threats to kill. It appears that the appellants thought
    that the deceased had engaged in inappropriate behaviour with certain young
    women who were the appellants friends. These young women denied any such
    inappropriate behaviour by the deceased.

[4]

During the early evening of November 6, 2008, the deceased was last seen
    alive in north Toronto. A few hours later, his body was found burning in a
    ditch on a deserted road near Barrie. He had been stabbed over 20 times. Two of
    the stab wounds penetrated his heart and three pierced his lung.

[5]

A few hours after the deceaseds burning body was found, the appellants
    showed up, unannounced, at a friends home in the Toronto area in the middle of
    the night. Among other things, the friend testified about seeing blood on
    Al-Kazragys clothes, a knife, and Khastous car being cleaned. A few hours
    later, the appellants proceeded to an auto repair shop, where they were caught
    on video conducting a thorough cleaning of Khastous vehicle. This included
    burning items taken from the car. A few days later, the appellants fled to
    Vancouver. Over a week later, Khastou and Al-Kazragy were apprehended in
    Calgary. Arashvand returned to Toronto and eventually turned himself in to the
    police.

[6]

Given the amount and location of blood in Khastous vehicle, the Crown
    theorized that the deceased was stabbed multiple times in the front passenger
    seat of the car and his body was then placed into the trunk and transported to the
    deserted road where it was set on fire. Tire tracks found at the deserted road were
    consistent with Khastous vehicle. The cell towers used by Arashvand and
    Khastous cell phones show a pattern consistent with a route north from Toronto
    toward the Barrie area where the deceaseds body was found.

[7]

The Crown led evidence that Khastou purchased duct tape and a gas can
    only hours before the murder. Around the same time that Khastou made these purchases,
    Arashvand purchased a SIM card, apparently for his girlfriend, at a store less
    than 100 metres away. A short time later, Khastou and Al-Kazragy were caught on
    video at an Esso station where Khastou purchased ethanol gasoline.

[8]

The appellants were jointly tried for first degree murder. The jury
    trial took about six months to complete. The live issue at trial was the identity
    of the perpetrator or perpetrators of the murder. Each of the appellants
    alleged, in essence, that they did not participate in the murder but that the
    other two appellants likely did. Although they did not testify, each of the
    appellants claimed, through their counsels closing addresses, that they only
    assisted the others in their subsequent attempt to conceal the killing.

[9]

We now turn to the arguments on the appeals.

ISSUES AND ANALYSIS

(i)

Inconsistent verdicts

[10]

The
    appellants all rely on this ground of appeal. They submit that the convictions
    of two of them for first degree murder, and the third for second degree murder,
    are inconsistent and/or unreasonable verdicts. In particular, the appellants
    suggest that the jury reached an improper compromise verdict by convicting
    Arashvand of second degree murder when the evidence, properly considered, did
    not allow them to differentiate among the appellants in terms of their levels
    of participation in the murder. We do not agree.

[11]

For
    an appellate court to interfere with a verdict on the basis that it is
    inconsistent, the court must conclude that the verdict is unreasonable:
R.
    v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6. Whether the
    result is properly characterized as an inconsistent or unreasonable verdict,
    the test to reach such a conclusion is high. In
Pittiman
, Charron J.
    said, at para. 7:

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence. The jury is entitled to accept or reject some, all
    or none of any witnesss testimony. Indeed, individual members of the jury need
    not take the same view of the evidence so long as the ultimate verdict is
    unanimous. Similarly, the jury is not bound by the theories advanced by either
    the Crown or the defence. The question is whether the verdicts are supportable
    on any theory of the evidence consistent with the legal instructions given by
    the trial judge.

[12]

On
    this point, we also refer to
R. v. Catton
, 2015 ONCA 13, 329 O.A.C.
    354, where Doherty J.A. said, at para. 22:

Verdicts that may at first impression appear inconsistent can
    often be explained by distinctions in the essential elements of the different
    offences or in the quality of the evidence relevant to the different offences.

[13]

The
    differing verdicts in this case are explainable.

[14]

The
    evidence relating to Arashvand was different than the evidence relating to the
    other two, particularly in the period of time leading up to when the deceased
    was last seen alive. There was direct evidence connecting Khastou to the
    purchase of the gas can and duct tape and direct evidence connecting Khastou
    and Al-Kazragy to the purchase of the gas. Although he was nearby, Arashvand
    was not involved in these purchases. This was important evidence upon which the
    jury could draw an inference of planning and deliberation. It was evidence upon
    which the jurors, as the sole judges of the facts, may well have drawn a
    distinction between Arashvand and the others.

[15]

The
    verdicts are understandable in light of this different body of evidence. They
    are neither inconsistent nor unreasonable. This ground of appeal must fail.

(ii)

Post-offence conduct

[16]

Among
    other things, the post-offence conduct involved the burning of the deceaseds
    body; the clean-up of Khastous vehicle; the flight to Vancouver; and certain
    statements made on arrest. The appellants agree that the burning of the deceaseds
    body was relevant to the issue of planning and deliberation, and take no
    objection to the trial judges charge in this regard. Their objection relates
    to the trial judges treatment of the other post-offence conduct.

[17]

The
    appellants submit that the trial judge should have removed the post-offence
    conduct from the jurys consideration in determining whether any of them was a
    party to the murder. They maintain that because the post-offence conduct
    evidence is equally consistent with them being accessories after the fact to
    murder, as it is with them being parties to the murder, the jury should have
    been instructed to ignore the evidence as it related to the primary issue for
    determination: who committed the murder? The appellants take the position that,
    at a minimum, the post-offence conduct evidence relating to flight should have
    been taken from the jurys consideration on the issue of identity. The
    appellants rely upon
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433 (
White
    (2011)
), where Rothstein J. said, at para. 37:

Arcangioli
, and
    its successor case
White (1998)
,
    stand for the proposition that a no probative value instruction will be
    required when the accused's post-offence conduct is equally explained by or equally
    consistent with two or more offences (
White
    (1998)
, at para. 28;
Arcangioli
,
    at pp. 145 and 147).

[18]

We
    see no error in the trial judges approach to the post-offence conduct evidence
    in this case. She gave a careful ruling and correctly noted that in
White
    (2011)
, at para. 137, Binnie J. commented that it is generally for the
    jury to decide,

on the basis of the evidence as a whole, whether the
    post-offence conduct put in evidence against the accused is related to the
    commission of the crime before them rather than to something else, and if so,
    how much weight, if any, such evidence should be accorded in the final determination
    of guilt or innocence.

[19]

The
    trial judge correctly noted that while Binnie J. was in dissent in the result,
    his legal analysis on this point formed the majority view: see
White (2011)
,
    at para. 105.

[20]

The
    trial judge concluded that the live issue at trial was the identity of the
    perpetrators, specifically, whether the appellants caused the death. She found
    that the post-offence conduct had a tendency, as a matter of logic, common
    sense and human experience, to help resolve the live issue for the jurys
    determination. While the evidence may also have been informative of their
    involvement in the crime of accessory after the fact to murder, it was evidence
    that could be used by the jury on the issue of identity. It had nothing to do
    with the level of culpability.

[21]

In
R. v. White
, [1998] 2 S.C.R. 72 (
White (1998)
), the court
    observed that a no probative value instruction is not required where the
    accused denies involvement in the charged offence, and seeks to explain his or
    her conduct by an unrelated culpable act. In these circumstances, it will
    almost invariably fall to the jury to decide whether the evidence of
    post-offence conduct can be attributed to one culpable act rather than another:
White (1998)
, at para. 29. See also:
R. v. Kostyk
, 2014 ONCA
    447, 321 O.A.C. 256, at paras. 92-95. The trial judge did not commit any error
    in coming to a similar conclusion here.

[22]

The
    trial judge gave a clear instruction to the jury about the post-offence
    conduct. She said:

You must be very careful not to immediately conclude that what
    a particular defendant said or did after [the deceased]s death is related to
    the killing itself. The position on behalf of each defendant is that he did not
    participate in the killing itself but he was involved in steps to conceal the
    killing after it happened, which is itself a serious matter. The position of
    each defendant is that what he did or said after [the deceased]s death is
    related to his involvement in concealing the killing and not to the killing
    itself. Additionally, the position on behalf of Mr. Al-Kazragy is that lying
    about his identity to the police in Calgary is related to possession of drugs
    and not to the killing itself.

[23]

The
    jury was made aware of how to approach the evidence. We see no error in the
    trial judges conclusion on this point, nor any unfairness in the manner in
    which she instructed the jury on the post-offence conduct. The evidence was potentially
    all relevant to the issue of identity. It was up to the jury to decide whether
    they would draw the inference urged upon them by the Crown.

(iii)

R. v. Villaroman

[24]

Al-Kazragy
    and Khastou submit that the trial judges charge on circumstantial evidence
    does not comply with the requirements set out in
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000. In particular, the appellants claim that the
    trial judge should have provided the jury with an example, like the one set out
    in
Villaroman
, highlighting how to approach the circumstantial
    evidence in this case.

[25]

The
    decision in
Villaroman,
released
    subsequent to the jury charge,
did not establish any set
    instructions that must be included in a jury charge on the subject of
    circumstantial evidence. Justice Cromwell noted in
Villaroman
, at
    para. 22, that while it may be helpful for the jury to receive instructions
    that will assist them to understand the nature of circumstantial evidence and
    the relationship between proof by circumstantial evidence and the requirement
    of proof beyond reasonable doubt, no set instructions are required.

[26]

Justice
    Cromwell emphasized that there are various ways in which to provide assistance
    to the jury so that they understand the risk of jumping to conclusions, and
    that trial judges will provide this assistance in the manner they consider
    most appropriate in the circumstances:
Villaroman
, at para. 31.

[27]

We
    are satisfied that the trial judge provided the jury with the assistance
    necessary to understand how to approach this largely circumstantial case. The
    trial judge instructed the jury in accordance with the model jury instructions.
    The trial judge told the jury:

This case rests on circumstantial evidence. I will speak with
    you shortly about the difference between direct and circumstantial evidence. In
    order to convict a particular defendant in this case, you must be satisfied
    beyond a reasonable doubt that the only rational inference that can be drawn
    from the circumstantial evidence is that the particular defendant is guilty.
    Bear in mind that the standard of proof beyond reasonable doubt does not apply
    to the individual pieces of evidence that make up the Crowns case, but to the
    total body of evidence upon which the Crown relies to prove guilt.

[28]

The
    jury was clearly instructed on the difference between direct and circumstantial
    evidence. The jury was also instructed that they must not speculate. We are
    satisfied that the jury properly understood how to approach the use of
    circumstantial evidence and how it related to the issue of reasonable doubt.

(iv)

Functional approach in the jury charge

[29]

Al-Kazragy
    maintains that the case against him was much weaker than the case against his
    co-accused. He suggests that the trial judge erred in failing to specifically
    relate the weak evidence against him to the main issue to be decided: whether
    he participated in the killing. He places a particular emphasis on the fact
    that there was no evidence directly linking him to the purchase of the gas can,
    duct tape, or gas. On the latter point, while there was video evidence placing Al-Kazragy
    at the gas station shortly after Khastou bought the gas can, Al-Kazragy
    emphasizes that there was no direct evidence actually showing him present when
    the gas can was filled.

[30]

Al-Kazragy
    also emphasizes that, unlike his co-accused, his cell phone did not bounce off
    towers in a pattern indicative of a journey to Barrie, where the deceaseds
    body was found on fire. However, this was also consistent with him not using
    his cell phone during this period of time. Also, this submission must be seen
    in the context of the evidence that showed Al-Kazragy with the other accused
    before and after the murder. Since there was no evidence of there being any car
    other than the one belonging to Kastou (which was clearly implicated in the
    murder), there was nothing to detract from the available inference that
    Al-Kazragy was likely travelling with the other two.

[31]

We
    do not find any error on this ground. The trial judge thoroughly reviewed all
    of the evidence in this very lengthy trial. Indeed, all counsel commended the
    quality and thoroughness of the charge in this regard. We are satisfied that,
    at the completion of this review, the jury would have well understood any
    difference in the strength of the evidence as it related to each accused. With
    respect to the cell phone evidence, the trial judge specifically highlighted
    for the jurys attention that the Al-Kazragy cell phone did not make or receive
    calls during the time period when the body would have been transferred to
    Barrie. In addition, insofar as the jury needed a roadmap through the evidence,
    this was provided by the trial judge when she summarized counsels closing
    submissions.

[32]

This
    ground of appeal must also fail.

(v)

Blood expert

[33]

Al-Kazragy
    also takes issue with the expert evidence regarding whether the deceaseds
    blood found under a ring that he was wearing was diluted or not. The Crowns theory
    was that if the blood was not diluted, then it settled on the ring during the
    murder and not during the clean-up where water was used. An expert was
    permitted to testify about the non-diluted nature of the blood on the ring.

[34]

This
    challenge is based both on the alleged lack of qualifications of the expert and
    the methodology that he used in reaching his opinion. On the first point, the
    trial judge accepted that the expert was properly qualified. He had many years
    of experience as a forensic biologist with the Centre of Forensic Sciences. No
    suggestion was made as to what other qualifications the proposed expert would
    be expected to have to be qualified to give this opinion. Similarly, the
    methodology that the expert used to reach his opinion was not countered by any
    suggestion of a different or better methodology that ought to have been used.
    The trial judge concluded that the opinion was probative of an issue, and that
    its probative value exceeded any possible prejudicial effect. It was up to the
    jury to decide what use to make of it. The jury received a proper and detailed
    instruction about how to properly approach the expert evidence. Further, the
    conclusions of the trial judge on these matters are entitled to deference.

(vi)

The 9:27 telephone call from Mason to Arashvand

[35]

Arashvand
    takes issue with the trial judges instruction to the jury regarding a
    telephone call that took place at 9:27 p.m., between his phone and another
    phone that apparently belonged to an individual named Mason. The call was
    connected for one minute and 14 seconds. Mason did not give evidence at the
    trial. Arashvand submits that this telephone call had the potential to
    establish that he was not with the other two accused at the time that the
    deceased was killed. In particular, Arashvands trial counsel suggested to the
    jury that Arashvand would not have taken a telephone call if he was in the
    middle of participating in the murder. He also made a suggestion that there was
    some impropriety on the part of the Crown by failing to call Mason as a
    witness.

[36]

Both
    the Crown and counsel for Khastou took objection to the Mason comments made
    during the closing address of Arashvands counsel. The trial judge gave an
    immediate curative instruction, including telling the jury that the Crown was
    under no obligation to call Mason as a witness.

[37]

Arashvand
    does not take issue with the immediate curative instruction. Instead, he
    focuses on the trial judges charge related to the Mason call. The impugned
    instruction follows:

With respect to that call, there is no evidence before you that
    Mr. Arashvand took a call in the sense of speaking to anyone. There is no
    evidence of a conversation, or whether a conversation even took place, or of
    the relationship between Mr. Arashvand and the caller.

[38]

These
    observations are correct as they relate to the direct evidence. There was no
    direct evidence that Arashvand spoke to Mason. While it might have been
    preferable if the trial judge had used the expression direct evidence (since
    a circumstantial inference of a conversation might have been drawn from the
    length of the call), we do not accept that the jury would have been left in any
    confusion on this point. It would have been clear to the jury that the trial
    judge was referring to direct evidence of a conversation.

[39]

The
    charge must be read in context. In reviewing the closing address of Arashvands
    counsel, the jury was clearly told that Arashvands position was that there
    were five key pieces of evidence that led to the reasonable inference that
    Arashvand was not involved in the murder. In listing these five pieces of
    evidence, the trial judge specifically reviewed the phone records showing the
    Mason call. She went on to explain counsels position that [i]f Mr. Arashvand
    were involved in the killing, he would not have accepted this call at this
    critical time.

[40]

We
    are satisfied that the jury knew they could draw a circumstantial inference
    that Mason and Arashvand spoke for 1 minute and 14 seconds at 9:27 p.m. We
    would add the observation that, even if the jury was satisfied that this conversation
    had taken place, it was dispositive of nothing. The exact timing and location of
    the murder were unknown. The exact location of Arashvand at the time of the
    Mason call was unknown. Even if the conversation occurred, it did not preclude
    Arashvands participation in the murder.

[41]

We
    would not give effect to this ground of appeal.

(vii)

Khastous Objection to Arashvands Closing

[42]

Khastou
    objects to a number of aspects of Arashvands counsels closing address (not
    counsel on appeal), including: (a) commenting on Khastous failure to make out
    the defence of alibi; (b) attacking the credibility and integrity of opposing
    counsel; (c) raising a speculative alibi defence; (d) contravening agreements
    with other counsel and the direction of the trial judge; and (e) misstating the
    evidence. These arguments were advanced to varying degrees in oral argument. We
    do not accept them.

[43]

The
    alibi issue was canvassed ahead of counsels closing. With the input of
    Khastous counsel, parameters were placed on what Arashvands counsel could
    say. In the result, Arashvands counsel did not use the word alibi in his
    closing address.

[44]

It
    was entirely open to counsel for Arashvand to mention the failed effort by
    counsel for Khastou to distance Khastou from the murder, in a situation where
    all counsel knew that all of the appellants were advancing a cut throat
    defence. Further, if the issue was as serious as Khastou now portrays it to be,
    including the submission that the problem was not capable of being remedied by
    the trial judge, it should have been the subject of an application for a
    mistrial. Yet no such application was brought.

[45]

We
    would add that a suggestion by Arashvand that the evidence established Khastou
    was present for the murder was hardly surprising or prejudicial. The murder
    occurred in his vehicle.

[46]

As
    for the suggestion that Arashvands closing impugned the integrity of Khastous
    counsel, there was no objection taken. Trial counsel was in the best position
    to determine whether a curative instruction was necessary. His silence on the
    point is telling.

[47]

Khastou
    also complains that Arashvands counsel led what is characterized as a
    speculative alibi defence. This complaint again relates to the Mason call. 
    We have addressed that issue above. We do not see any prejudice that could
    reasonably be said to have been occasioned to Khastou arising from the fact
    that Arashvand said he could not be involved in the murder because he was on
    the phone with Mason at the time. In any event, having convicted Arashvand of
    murder, the jury clearly rejected the suggestion put by his counsel.

[48]

Khastou
    maintains that Arashvands counsel undermined an agreement regarding the
    treatment of evidence of Arashvands blood in Khastous vehicle. Given the
    agreement in place, Khastou argues that he was the subject of unfair criticism when
    counsel for Arashvand suggested he failed to cross-examine on the point. To the
    extent that Arashvands counsel contravened any prior agreement, it was
    entirely remedied in the charge where the trial judge told the jury to take
    nothing from the failure to ask questions on this issue.

[49]

To
    the extent that Arashvands counsel may have misstated some evidence, or asked
    the jury to draw improper inferences, counsel was directed to correct his
    misstatements and the trial judge took corrective action in her charge. For
    instance, following upon Arashvands counsels suggestion that Khastou failed
    to cross-examine a witness about a matter that counsel later agreed upon, the
    trial judge instructed the jury that they were to take nothing from the fact
    that when [the witness] testified  he was not asked questions on this point.

CONCLUSION

[50]

None
    of the grounds of appeal succeed. The appeals against conviction are dismissed.
    In light of this conclusion, we do not reach the cross-appeal.

Released: January 19, 2018

K. Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer
    J.A.


