



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esrabian, 2013 ONCA 761

DATE: 20131218

DOCKET: C49134

Doherty, Blair and Watt JJ.A.

Her Majesty the Queen

Respondent

and

Shant Esrabian

Appellant

Howard C. Krongold, for the appellant

Susan Ficek and Avene Derwa, for the respondent

Heard:  November 22, 2013

On appeal from the conviction on a charge of first degree
    murder returned by a jury presided over by Justice Albert J. Roy of the Superior
    Court of Justice on June 21, 2008.

By the Court:


I



[1]

The appellant appeals his conviction on a charge of first degree murder. 
    Counsel asserts errors in the charge to the jury and in two evidentiary rulings
    made by the trial judge.

[2]

The appellant had a bilingual trial.  However, he requested an appeal
    before an English-speaking panel.


II



[3]

The deceased (Hussein El-Hajj Hassan) was lured to a remote dead end
    road west of Ottawa on the evening of August 20, 2004 where he was shot twice
    and killed.  He was buried in a shallow grave dug about 60 metres from where he
    was shot.  His right arm was severed at the forearm and his skull was fractured
    in at least two places.  Those injuries were inflicted around the time of death. 
    His body was found about a year later.

[4]

The Crown alleged that Hassan, a cocaine dealer in Ottawa, was murdered
    because he planned to circumvent his cocaine supplier, Fadi Saleh, and deal
    directly with Salehs supplier.  When Saleh found out about Hassans plan, he
    became very angry and decided to kill him.  Saleh enlisted the help of his
    enforcer, Mark Yegin, and the appellant, his friend and fellow drug
    trafficker.

[5]

The Crown maintained that the three men agreed to kill Hassan and that
    pursuant to that agreement, Yegin, who was Hassans friend, took him to a
    remote area under the pretense of introducing him to a powerful local drug
    dealer.  Instead, the appellant and Saleh arrived at the scene.  Hassan was
    shot twice and killed.  There was conflicting evidence as to who fired the
    fatal shots.  On the Crowns theory, it did not matter.

[6]

The case for the Crown rested in part on various statements made by
    Yegin that were admitted for their truth after Yegin refused to testify at the
    appellants trial.  These statements included several recorded interviews with
    the police and Yegins testimony at the appellants preliminary inquiry and
    Salehs preliminary inquiry.

[7]

Yegin told various stories in his statements.  He began by denying any
    involvement in the murder, but later conceded he was present at the murder
    scene and took the police to Hassans body.  Yegin also gave different accounts
    of the actual shooting.  In one account, Saleh shot Hassan much to the surprise
    of both the appellant and Yegin.  In Yegins final version of the shooting, the
    appellant shot the deceased twice and Saleh fired a third shot into the
    deceased.

[8]

Yegin was a thoroughly disreputable person.  The trial judge gave a
    strong
Vetrovec
warning with respect to reliance on the statements
    made by Yegin.

[9]

The Crown also relied on circumstantial evidence to implicate the
    appellant in the murder.  That evidence was reasonably capable of supporting
    the following inferences:

·

There was a close, ongoing personal and business relationship between
    the appellant and Saleh.  The business relationship involved trafficking in
    narcotics.

·

Saleh and the appellant had a mutual financial interest in
    preventing Hassan from circumventing Saleh by dealing directly with Salehs supplier
    of the cocaine.

·

The appellant and Saleh both directly benefitted financially from
    Hassans death.

·

Saleh and the appellant were together at or near the scene of the
    murder on the afternoon of the murder.

·

The grave where Hassans body was buried was partially dug prior
    to the murder.

·

Saleh, the appellant, and Yegin were present when Hassan was
    murdered and all three were involved in burying Hassan.

·

Beginning with the burial and stretching over several months, the
    appellant was involved in a series of activities designed to conceal the
    commission of the murder.

[10]

Much
    of the circumstantial evidence, especially as it related to the appellants involvement
    in the extensive efforts to conceal the murder, was unchallenged, although the
    appellant offered an innocent explanation for his actions.

[11]

We
    need not review the circumstantial evidence in detail.  Suffice it to say, and,
    of course, subject to the jurys assessment of the appellants testimony, the
    circumstantial evidence made out a formidable case against the appellant.

[12]

The
    appellant testified.  He acknowledged that he was a drug dealer, trafficking in
    both cocaine and marijuana.  He and Saleh were friends.  The appellant often
    accompanied Saleh on his drug deliveries and cash collections.  He knew Saleh
    to be both a drug trafficker and a loan shark.

[13]

The
    appellant testified that on the evening of the murder he drove with Saleh to an
    anticipated meeting with Hassan.  The appellant knew Saleh was angry about Hassans
    attempts to deal directly with Salehs supplier.  The appellant anticipated
    that Hassan would be told in no uncertain terms that he could deal only with
    Saleh.  The appellant also anticipated that if Hassan balked at Salehs
    demands, Saleh and his enforcer, Yegin, could resort to violence.  The
    appellant thought that they might slap or kick Hassan.  He did not expect that
    anyone would be shot.   The appellant indicated that he was not surprised that
    the meeting with Hassan occurred in a remote isolated area, or that Yegin would
    drive Hassan to the meeting in a separate car.

[14]

According
    to the appellant, when he and Saleh arrived at the meeting place, he saw Yegin
    order Hassan out of the car.  Yegin and Hassan spoke briefly.  While the
    appellant and Saleh were still in their car, Yegin hit Hassan with his gun and
    shot him twice.  The appellant heard a third shot seconds after he and Saleh
    had exited their car.

[15]

The
    appellant testified that he panicked when Yegin shot Hassan. Saleh told him to
    relax.  Yegin dragged the body into the nearby woods.  Saleh and the appellant
    retrieved the shovel and pick axe from the trunk of the car they had driven to
    the murder scene.  Yegin and the appellant dug a grave.  They placed the body
    in the grave, covered it with soil, and left the murder scene.  The three men
    returned to Salehs home, showered, changed, and disposed of their soiled
    clothes.  They also moved Hassans car, abandoning it in downtown Ottawa.  The trio
    then visited a casino and finished the evening by watching a movie together at
    Salehs home.

[16]

The
    appellant explained that, while he wanted nothing to do with Saleh after the murder,
    he was worried that Saleh would become suspicious if he immediately cut off all
    contact with Saleh.  He admitted that he received $30,000 from Saleh within a
    few days of the murder.  There was evidence that the $30,000 came from funds Hassan
    had given to Salehs drug supplier.

[17]

The
    appellant also admitted that he did other things to conceal the murder, such as
    sending a message on Hassans BlackBerry after the murder to make it appear as though
    Hassan was still alive.  The appellant insisted that he did these things
    because he feared for his life and for his familys well-being if he did not cooperate
    with Saleh and Yegin.

[18]

As
    with many of the witnesses in this case, there were significant problems with
    the appellants credibility.  He admitted he had lied under oath at his bail
    hearing, and he refused to identify an individual who, according to the
    appellants testimony, could confirm or refute an important part of the
    appellants testimony explaining the appellants presence at or near the murder
    scene on the afternoon of the murder.


III



the grounds of appeal

(A)

The Charge to the Jury

[19]

Counsel
    for the appellant argued that the trial judge:

1.

failed to
    instruct the jury that the Crown had to prove not only that the murder was
    planned and deliberate, but also that the appellant knew he was aiding and
    abetting a planned and deliberate murder when he provided assistance or encouragement
    to Saleh and/or Yegin;

2.

failed to relate
    the elements of first degree murder to liability as an aider and abetter, but instead
    limited his instructions to potential liability as the perpetrator of a first
    degree murder;

3.

failed to
    outline for the jury the factual findings it would have to make to find the
    appellant guilty as a participant in a first degree murder;

4.

misdirected the
    jury on the
mens rea
for murder required in s. 229(a)(ii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46; and

5.

misdirected the
    jury as to the appellants potential liability for manslaughter under s. 21(2) by
    instructing the jury that manslaughter was available only if the jury was not
    satisfied that Saleh and Yegin had committed a planned and deliberated murder.

[20]

Before
    examining each complaint, we note that most of the arguments raised on appeal
    were also raised by way of objections to the charge at trial.  The charge to
    the jury would have been better had the jury been recharged in accordance with
    several of counsels objections.  The question on appeal, however, is not
    whether a better charge could have been given, but whether the charge given
    reveals reversible error.

[21]

The
    first three arguments outlined above allege errors in the instruction on first
    degree murder.  They can be conveniently considered together.

[22]

Jury
    instructions must, of course, be considered as a whole and in the context of
    the trial.  That context includes the evidence adduced and the positions
    advanced by the Crown and defence.

[23]

The
    trial judge correctly instructed the jury on the concepts of aiding and
    abetting in reference to the charge of first degree murder.  For example, in
    reference to aiding, he said:

An aider may help another person commit an offence by doing
    something, or failing to do something.  It is not enough that the aider does or
    fails to do [something] that has the effect of helping the other person commit
    the offence.  The aider must intend to help the other person commit the offence.
     Actual assistance is necessary.  It is not enough that a person was simply
    there when the crime was committed by someone else.

On the other hand, if a person knows that someone intends to
    commit an offence, and goes to, or is present at the place where the offence is
    committed, to help the other person commit the offence, that person is an aider
    of the other of other offences and equally guilty of it.

Aiding relates to a specific offence, an aider must intend
    that the offence be committed, or know that the person intends to commit it,
    intends to help that person accomplish his goal.
It does not matter, as
    far as the aider is concerned, whether the person whom he aids are [
sic
]
    not on trial or cannot be convicted of the offence.  [Emphasis added.]

[24]

Prior
    to this instruction, the trial judge had read the indictment to the jury and
    reminded them that the offence in question was the offence of first degree
    murder.  The Crown relied only on the planning and deliberation definition of
    first degree murder.  The jury would have understood that the instruction on
    aiding and abetting as it related to knowledge of the offence and the intention
    to commit the offence referred to a planned and deliberate murder.

[25]

The
    trial judges instructions on the essential elements of the crime of first
    degree murder are problematic in that they presume that the Crowns case is
    based on the claim that the appellant was the shooter when in fact the Crowns
    case was that the appellant, Yegin, and Saleh had agreed to kill the deceased
    and that his murder was committed in furtherance of that plan.  The Crowns
    case turned not on the contention that the appellant was the shooter, but on
    the contention that he participated in the planned execution of Hassan.

[26]

For
    example, the trial judge, in instructing the jury on the elements of first
    degree murder, referred to causation and the commission of an unlawful act as
    two of the elements of the offence.  That instruction is no doubt essential in
    most cases of first degree murder where the Crown alleges that the accused
    perpetrated the murder.  In this case, however, there was no doubt that whoever
    shot the deceased caused his death and no doubt that the shooting amounted to
    an unlawful act.  The real question was whether the shooting was in furtherance
    of an agreement to kill the deceased and, if so, whether the appellant had been
    privy to that agreement.

[27]

We
    are satisfied, however, despite the misplaced focus of the instruction on the
    essential elements of first degree murder, that the trial judge adequately
    conveyed to the jury the essential questions that it had to determine in
    rendering a verdict.

[28]

Early
    in his instructions on the elements of first degree murder, the trial judge
    told the jury:

The Crowns theory, based on all of the evidence, is that it
    doesnt matter who shot Mr. Hassan,
this was a planned initiative on the
    part of three people, friends and business associates who decided together to
    murder the victim Mr. Hassan.
[Emphasis added.]

[29]

The
    trial judge then reviewed some of the evidence relevant to whether the three
    men had planned and deliberated the murder.  While the trial judge
    mischaracterized this as a causation issue, the instruction did convey the
    essential factual question to be determined: was the murder the result of a
    planned initiative on the part of the three people?

[30]

The
    trial judge effectively made the same point in discussing the element of
    planning and deliberation:

Now, again, what [the] Crown is relying on are the provisions
    of section 21, the party section, that
this was a planned and deliberate
    murder that was orchestrated and organized by three friends and business
    associates.
Thats what the Crowns position is on this.  That they
    worked, they planned this together.  [Emphasis added.]

[31]

The
    trial judge referred to some of the evidence that could assist the jury in
    determining whether the three friends and business associates had planned the
    murder together.

[32]

The
    trial judge also made it clear to the jury in outlining the positions of the
    defence and the Crown that the Crowns case on first degree murder rested on
    the contention that the appellant and his two friends had executed this
    planned and deliberate murder together.

[33]

Finally,
    in outlining the position of the defence, the trial judge referred to the
    appellants evidence that, while he was aware of a plan to confront and perhaps
    assault the deceased, he was unaware of any plan to kill him.  The trial judge told
    the members of the jury that if they believed or had a reasonable doubt about
    the appellants evidence, they must acquit the appellant.

[34]

Considering
    the instructions as a whole in the context of the evidence placed before this
    jury, we are satisfied that the jury would not have convicted the appellant of
    first degree murder on these instructions unless the jury was satisfied beyond
    a reasonable doubt that the appellant, with Saleh and Yegin, planned and then
    executed the murder of the deceased.  Any deficiencies in the charge did not
    undermine that essential and determinative finding.

[35]

The
    fourth alleged misdirection arises out of the trial judges instructions on the
    elements of murder as defined in s. 229(a)(ii) of the
Criminal Code
. 
    The trial judge told the jury:

Crown counsel must prove that Mr. Esrabian either meant to kill
    Mr. Hassan, or meant to cause Mr. Hassan bodily harm that Mr. Esrabian knew was
    likely to kill Mr. Hassan,
or
was reckless whether Mr. Hassan died or not. 
    [Emphasis added.]

[36]

The
    trial judge misstated the requirements of s. 229(a)(ii).  The word and should
    have been used instead of the word or.  Murder under s. 229(a)(ii) requires
    that the accused intend to cause bodily harm that he or she knows is likely to
    cause death
and
the accused must be reckless whether death ensues or
    not.

[37]

This
    error, unnoticed at trial, could not have had any effect on the jurys
    verdict.  The Crown argued that this was an execution.  The defence did not
    take issue with that assertion, but instead argued that the appellant did not
    know of the planned execution.  The jurys determination that the appellant was
    guilty of first degree murder indicates that the jury was satisfied that the appellant,
    Saleh, and Yegin had agreed to kill the deceased and had followed through with
    that plan.  On that view, only the definition of murder in s. 229(a)(i), which
    requires that an accused mean to cause death, could have possibly been
    engaged.  The minimally wider definition of the
mens rea
of murder in
    s. 229(a)(ii), misstated by the trial judge, could not have played any role in
    the jurys verdict.

[38]

The
    final alleged error in the jury instruction arises out of the trial judges
    instruction on the appellants potential liability for manslaughter pursuant to
    s. 21(2) of the
Criminal Code
.  Often where an accused is convicted of
    the full offence charged in an indictment, an error that relates only to
    potential liability for a lesser and included offence will be rendered harmless
    by the conviction on the full offence.  Counsel for the appellant submits,
    however, that the trial judges instruction effectively took manslaughter away
    from the jury and left the jury to choose between a conviction on first degree
    murder and the unpalatable alternative of an outright acquittal.  Counsel
    submits that given the appellants admitted involvement in the events
    surrounding and following the murder, the jury would have been reluctant to
    acquit him.  On this argument, the absence of a proper instruction on potential
    liability for the lesser offence could have driven the jury to convict on the
    full charge, rendering the misdirection on manslaughter far from harmless
    despite the conviction on the main charge.

[39]

The
    initial instruction on the appellants potential liability for manslaughter
    under s. 21(2) was confusing and, in at least one respect, overly favourable to
    the appellant.  The recharge cleared up some, but not all, of the confusion
    arising out of the initial charge.  We are satisfied, however, that the
    confusion could not have prejudiced the appellant.

[40]

As
    we read the s. 21(2) instruction on manslaughter, that instruction was premised
    on the appellants participation in an agreement to do some form of harm to Hassan
    short of killing him.  The appellants potential liability for manslaughter
    under s. 21(2) depended on the jury accepting the appellants contention that
    he was party to a plan involving some form of assault, but not murder.  The
    jurys verdict demonstrates that it was satisfied beyond a reasonable doubt
    that the appellant participated in the planned execution of Hassan.  The jury, therefore,
    was never called upon to consider the appellants liability for manslaughter as
    a participant in some agreement short of the agreement to execute Hassan.

(B)

The Evidentiary Rulings

(i)

Salehs
    statements

[41]

In
    one or more of the out-of-court statements made by Yegin and admitted at the
    appellants trial under the principled exception to the hearsay rule, Yegin
    stated that some two or three months after the murder, Saleh told him that he
    wanted to move the deceaseds body because he did not trust the appellant. 
    Saleh also asked Yegin to kill the appellant.  It was unclear exactly when
    these statements were made and whether they were made in two different
    conversations or in the same conversation.

[42]

The
    jury was aware of these alleged statements in that they were in the transcripts
    of Yegins statements read to and given to the jury.  The defence, however,
    asked that the trial judge instruct the jury that the statements were evidence
    of Salehs state of mind toward the appellant and that Salehs mistrust of and animosity
    toward the appellant were evidence that the appellant had not been a party to
    the plan to murder Hassan.

[43]

The
    statements, attributed to Saleh by Yegin some months after the murder, could
    not have assisted the jury in determining the nature of the appellants
    participation in the murder of the deceased.  To the extent that Salehs
    statements were offered as evidence from which his state of mind could be
    inferred, Salehs state of mind months after the homicide had no logical
    connection to the nature of the appellants participation in that homicide. 
    Evidence that, some months after the murder, Saleh had come to intensely dislike
    and distrust the appellant could not logically give rise to any inference about
    the nature of the appellants involvement or non-involvement in the planning
    and murder of Hassan.

[44]

To
    the extent that the appellant offers the statements as implied assertions by
    Saleh that the appellant was not a participant in the plan to murder Hassan,
    those statements are now classified as hearsay and were admissible only if the
    necessity and reliability criteria were met:  see
R. v. Baldree
, 2013 SCC
    35, 298 C.C.C. (3d) 425, at paras. 44-54.  Neither criterion is met.

[45]

The
    defence did not attempt to call Saleh or offer any explanation for an inability
    to call Saleh.  Necessity is not demonstrated.

[46]

Nor
    is the evidence sufficiently reliable as an implied assertion that the
    appellant was not involved in the plan to execute the deceased to justify its
    admission into evidence.  Reading an implied assertion into Salehs comments to
    the effect that the appellant was not involved in the killing is no more
    tenable a reading of those statements than one implying that the appellant was
    involved, but could no longer be trusted.  The nature of the statements simply
    does not allow any reliable conclusion as to the implied assertion, if any,
    contained in the statements.  Any determination as to what, if anything, Saleh
    implied about the appellants involvement in the murder in his statements to
    Yegin would be entirely unreliable absent any opportunity to question Saleh
    under oath.

[47]

The
    trial judge correctly declined to admit Salehs statements, as reported by
    Yegin, as evidence going to the question of whether the appellant participated
    in the plan to murder Hassan.  On appeal, counsel suggested other possible uses
    of those statements  for example, to challenge Yegins credibility on certain
    points.  We do not understand the trial judge to have precluded that kind of
    use of Salehs statements at trial.

(ii)

The
    wiretaps

[48]

Over
    defence counsels objection, Crown counsel was allowed to introduce some
    intercepted conversations involving the appellant.  In those conversations, the
    appellant threatened individuals who owed him money, or spoke of threatening
    others who had in some way disrespected him or failed to pay money owed to
    him.  Some of the language used in the conversations is jarringly crude.  The
    conversations occurred a few months after the murder.

[49]

The
    trial judge did not err in admitting the intercepted conversations.  At trial,
    the Crown argued that Yegin, Saleh, and the appellant were all involved in the drug
    trafficking business and that they executed Hassan because he was attempting to
    avoid his direct financial responsibilities to Saleh, his drug supplier.  On
    the Crowns theory, Hassan was not only interfering with Salehs operation, but
    was also indirectly compromising the appellants financial interest in the drugs
    purchased from Saleh by Hassan.  Evidence of the way the appellant responded to
    those he perceived as cheating him or failing to meet obligations owed to him
    in the course of his criminal activities was relevant to the case as advanced
    by the Crown.

[50]

Evidence
    of the way the appellant reacted when he did not receive money due to him in
    the course of his criminal activities became more significant when the
    appellant testified.  He admitted that he was a drug trafficker and that the
    meeting which culminated in Hassans murder was precipitated by Salehs anger
    over Hassans attempt to cut Saleh out of the chain of supply.  The appellant
    insisted, however, that he did not anticipate the kind of violence used by his associates
    and fellow drug traffickers, Saleh and Yegin.  Evidence from the intercepted
    conversations could assist the jury in assessing the credibility of the
    appellants assertion that he thought that Hassan would suffer nothing more
    than a slap or a kick.

[51]

We
    also agree with Crown counsels submission that, having regard to the kind of the
    evidence necessitated by both the nature of the Crowns case and the nature of
    the appellants defence, there was little danger that the conduct revealed by
    the intercepted communications would prejudice the appellant in the sense that
    it would cause the jury to convict the appellant because of his bad character. 
    It was crystal clear from all of the evidence, including the defence, that the
    appellant operated in and was part of the violent world of drug trafficking. 
    Indeed, the violence associated with the drug trafficking world was central to the
    appellants explanation of his apparent cooperation with Yegin and Saleh in the
    months after the murder.  On his evidence, he feared for his life and the lives
    of his family members if he did not cooperate with Saleh and Yegin.

[52]

The
    trial judge made it clear to the jury that it could not use the contents of the
    wiretaps to infer that, because the appellant was a person of bad character, he
    was guilty of the offences charged.  Nor did the intercepted communications
    reveal conduct by the appellant that was significantly different or worse than
    the conduct acknowledged by the appellant in his evidence.  Setting aside the crude
    language used in the conversations, the tenor of those communications was
    consistent with the appellants own evidence about the nature of the drug
    business.

[53]

Ultimately,
    the intercepted communications were but a small part of the evidence heard by
    the jury.  Even if those conversations could not significantly advance the
    Crowns case, their admission could not have prejudiced the appellant in any
    meaningful way.

(C)

Conclusion

[54]

The
    appeal is dismissed.

RELEASED:  DD  DEC 18 2013

Doherty J.A.

R.A. Blair J.A.

David Watt J.A.


