



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kassim, 2015 ONCA 863

DATE: 20151209

DOCKET: C55615

MacPherson, MacFarland and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amin Mohamed Kassim

Appellant

Amin Mohamed Kassim, appearing in person

Ian R. Smith and Amy J. Ohler,
amici curiae

John Neander, for the respondent

Heard: December 2, 2015

On appeal from the conviction entered on April 25, 2011
    by Justice Robert A. Clark of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT


[1]

The appellant was convicted of first degree murder in the shooting death
    of his wife and the attempted murder of a taxi driver shortly after the
    appellant left the residence where he had killed his wife by shooting her four
    times in the head. The appellant appeals these convictions.

[2]

The appellant made brief oral submissions at the appeal hearing in
    Kingston on December 3, 2015. None of his submissions advanced his appeal.

[3]

Amici
(Ian Smith and Amy Ohler) studied the appeal materials in
    a comprehensive fashion and considered four potential grounds of appeal. At the
    hearing,
amici
informed the court that they did not think that two of
    the potential issues could be successfully advanced. Thus,
amici
presented two issues for the courts consideration.

[4]

First,
amici
submits that the trial judge erred in ruling that
    three witnesses the appellant proposed to call had no relevant evidence to
    give, which resulted in an impermissible interference with the conduct of the
    appellants defence.

[5]

We do not accept this submission. The appellant repeatedly refused to
    tell the trial judge why he wanted to call these witnesses even though the
    trial judge, with remarkable tolerance and in clear language, explained his
    gatekeeper role in ensuring that only relevant evidence was introduced at the
    trial. Accordingly, there was nothing to suggest that the proposed witnesses
    Mahid Ali, the deceaseds brother, and Hamza Kalifah, the husband of a friend
    of the deceased, were even remotely relevant to any potential defence the
    appellant might advance.

[6]

With respect to the third potential defence witness, Salihi Sami,
    another of the deceaseds friends, the trial judge, with the appellants
    consent, reviewed the notes of Ms. Samis police interview and her
    video-recorded statement. The trial judge decided that the appellant could not
    call Ms. Sami (who lived in British Columbia) as a witness. He described her
    potential testimony as worse than anything else thats already gone in, in
    terms of potential prejudice for the defence. Trial
amicus
, Richard
    Litkowski, agreed with the trial judge: I fully respect Mr. Kassims right to
    his autonomy and his right to conduct his own defence but youre right in some
    respect, he doesnt have the right to slit his own wrists proverbially.

[7]

Before leaving this issue, we want to observe that the appellant was a
    very difficult, bordering on impossible, person to deal with throughout his
    trial. In our view, the trial judge and trial
amicus
treated the
    appellant with genuine concern and respect and strove diligently, within the
    bounds of their respective roles, to assist the appellant who chose to
    represent himself.

[8]

Second,
amici
contend that the trial judge failed to adequately
    charge the jury on a potentially exculpatory conversation with a family friend
    the night of the shooting. The appellant, knowing the police might be
    listening, said:

I hit her with my hand too much. If I leave her like that I
    thought shes going to put me in trouble then I dropped her into the living
    room,
then I was mistaken and pulled the trigger
.
    Shot her once and continue shooting.                                                                              [Emphasis
    added.]

[9]

Amici
submit that the trial judge did not point out
    sufficiently to the jury that the emphasized portion of this passage had a
    potentially exculpatory meaning.

[10]

We
    disagree. In his jury charge, the trial judge set out the contents of the
    appellants telephone statement and said: On the one hand, that could suggest
    that at least the first shot was an accident. Later, he also said:

You must also take account of the fact that in his telephone
    conversation with Ms. Mahdi, the transcript reveals that Mr. Kassim told her
    that the first shot was mistaken. It you are left with a reasonable doubt
    whether the first shot was accidental, you must ask yourselves whether in
    firing the second, third and fourth shots, Mr. Kassim intended to kill Ms.
    Ali.

[11]

In
    our view, this instruction properly drew the jurys attention to the
    potentially exculpatory component of the appellants statement and properly
    pointed out the inquiry that would follow.

[12]

Amici
also submit that the trial judge should have charged the jury that if they thought
    that the first shot was accidental and killed the deceased, then they could not
    convict for first degree murder because the medical evidence could not
    determine which of the four bullets to her head killed her.

[13]

This
    is an artificial, far-fetched argument in light of the appellants statement to
    his friend shortly after the shooting: shot her once and continue shooting.

[14]

The
    appeal is dismissed.

J.C. MacPherson J.A.

J. MacFarland J.A.

L.B.
    Roberts J.A.


