



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nazir, 2022 ONCA 176

DATE: 20220302

DOCKET: C69180

Tulloch, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Nazir

Appellant

Dan Stein, for the appellant

Alexander Hrybinsky, for the respondent

Heard: February 23, 2022 by video conference

On appeal from the conviction entered on December 13,
    2019 and the sentence imposed on September 3, 2020 by Justice Wailan Low of the
    Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of three counts of attempt murder,
    aggravated assault, two counts of uttering threats, and two counts of failure
    to comply with probation. He was sentenced to 13 years in prison, less credit
    for pretrial custody. He appeals against conviction and sentence.

[2]

The convictions arose out of the appellants knife attack on two of his
    sisters-in-law and his niece at the family home. One sister-in-law, Rakhee, was
    injured severely. The other sister-in-law, Wazila, protected herself and her
    daughter Alyssa from the attack by locking themselves in an upstairs bathroom
    until the police came to arrest the appellant. The issue at trial was whether
    the appellant formed the intent to kill. The voluntariness of his utterances to
    the police following the attacks was also in issue.

[3]

The appellant raises four issues on appeal:

1.

Did the trial
    judge err by focusing exclusively on capacity to form intent rather than actual
    intent?

2.

Did the trial
    judge err by admitting opinion evidence regarding the appellants credibility
    and demeanour?

3.

Did the trial
    judge misapprehend the evidence as to the appellants intoxication and state of
    mind?

4.

Did the trial
    judge err with respect to the use of the appellants out-of-court statement
    made to Officer Litster-MacLeod?

[4]

In addition, the appellant seeks leave to appeal sentence, arguing that the
    sentence is excessive.

[5]

The appeal is dismissed for the reasons that follow.

The trial judge did not err by focusing exclusively on
    capacity to form intent rather than actual intent

[6]

The appellants argument focuses on the convictions for the attempted murder
    of Wazila and Alyssa Nazir. He says that the trial judge focused on capacity
    and failed to consider whether he had the actual intention required.

[7]

There is no merit to this argument.

[8]

The trial judge correctly framed the issue of whether the appellant had
    the intention to cause death. She fairly set out the appellants position and
    specifically responded to it, finding that it was an inescapable inference
    that the appellant had the intention to cause the death of Rakhee. In essence,
    this was a continuous series of events: the appellants intention to kill
    Rakhee was redirected to Wazila and Alyssa once Rakhee escaped. The trial judge
    found that the existence and contemporaneity of the verbal death threat,
    following them upstairs, bringing knives, and attempting to pry open the
    bathroom door with a screwdriver led only to the inference that the appellant
    intended to cause their death. These findings are amply supported by the record
    and there is no basis to impugn them.

The trial judge did not err by admitting opinion evidence
    regarding the appellants credibility and demeanour

[9]

The appellant submits that Officer Lister-MacLeod was permitted to
    testify as to his demeanour, honesty, malingering, and other inappropriate
    matters, which infected the trial judges reasoning process. He acknowledges
    that trial counsel did not object to this evidence and that one of the most
    egregious comments was elicited in cross-examination of the officer.

[10]

There
    is no merit to this submission. This was a judge-alone trial, and it is
    apparent that the trial judge did not rely upon inadmissible opinion evidence
    in reaching her conclusion. The trial judge is presumed to know the law, and it
    cannot be assumed in the absence of a self-instruction that she improperly
    relied on the opinion evidence. There is no basis to suggest that she
    implicitly embraced this evidence or that there is an appearance of
    unfairness.

The trial judge did not misapprehend the evidence

[11]

The
    appellant argues that the trial judge wrongly relied on the evidence of Officer
    Lister-MacLeod and failed to address inconsistent evidence concerning the
    appellants impairment, including the expert toxicology evidence of Dr. Mayer.

[12]

There
    is no merit to this argument.

[13]

The
    trial judge reviewed the degrees of intoxication set out by the Supreme Court
    in
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 and carefully
    reviewed the toxicology evidence of Dr. Mayer. She noted that although Dr.
    Mayer calculated that the appellant had an estimated BAC level indicative of
    impairment, it was not possible to determine the precise nature of the impact
    of alcohol on an individual. Dr. Mayer also could not opine on the appellants
    actual level of impairment, his ability to form the requisite intent or his
    ability to foresee the consequences of his actions.

[14]

The
    trial judge reviewed the conduct of the appellant following his arrest and made
    findings that were open to her on the evidence. The appellants speech was not
    slurred, his gait was not impaired, and he related lucid, cogent, and detailed
    particulars to Officer Lister-MacLeod. This was indicative of an operating
    mind. So too was the appellants ability to respond to questions and requests,
    along with his compliance with Officer Lister-MacLeods admonition when he
    flirted with her and the hospital staff. It was open to the trial judge to find
    that he was able to appreciate the consequences of his actions despite a high
    BAC level.

The trial judges use of the appellants out-of-court statements
    occasioned no prejudice

[15]

The
    appellant argues that the trial judge erred in characterizing his statements as
    an attempt to undermine the credibility of the complainants. The appellant
    submits that his statements demonstrated his inaccurate, confused recollection,
    suggesting a higher degree of impairment, which affected the
mens rea
for attempt murder.

[16]

The
    respondent argues that any mischaracterization of the defence position at trial
    was insignificant in the context of the trial and could not have affected the
    outcome. We agree.

[17]

There
    was ample evidence supporting the trial judges conclusion that the appellants
    memory was not impaired. Moreover, even if trial counsels submission was
    mischaracterized, the trial judge did not fail to apply even scrutiny to the
    appellants statement. She acknowledged exculpatory aspects of the appellants
    statement but based her decision on the evidence as a whole. This ground of
    appeal fails.

The sentence was fit

[18]

We
    see no error in law or in principle, nor was the 13-year sentence imposed
    demonstrably unfit, having regard to the brutal and vicious nature of the
    attack. There is no basis for this court to interfere with the sentence
    imposed.

Conclusion

[19]

The
    appeal from conviction is dismissed. Leave to appeal sentence is granted, but
    the appeal is dismissed.

M. Tulloch J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


