



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadiqi, 2013
    ONCA 250

DATE: 20130422

DOCKET: C53524

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Hasibullah Sadiqi

Appellant

Apple Newton-Smith, for the appellant

Christine Tier, for the respondent

Heard and released orally:  April 4, 2013

On appeal from the conviction entered by a jury presided
    over by Justice Rutherford of the Superior Court of Justice, dated May 28, 2009,
    and the sentence imposed on May 28, 2009.

By the Court:


I



[1]

The appellant was convicted of two counts of first degree murder.  He
    appealed from his convictions alleging that:

·

the trial judge improperly admitted certain expert evidence; and

·

the trial judge failed to give a 
W.D.
 instruction;

[2]

The court dismissed the appeal after oral argument with reasons to
    follow.


II



[3]

The appellant is the older brother of Khatera Sadiqi, one of the
    victims.  Khatera was engaged to marry Feroz Mangal, the other victim.  The
    appellants family and the Mangal family immigrated to Canada from Afghanistan.

[4]

The defence conceded at trial that the appellant shot both victims.  The
    defence also conceded that the appellant intended to kill both victims.

[5]

The defence contended that the appellant was provoked by insulting
    comments made by Mr. Mangal at the end of an evening during which the appellant
    had attempted, unsuccessfully, to reconcile with his sister.  According to the
    defence, Mr. Mangals insulting comments, which included references to the
    appellants father, caused the appellant to suddenly lose control, go to his
    car, retrieve a loaded handgun that happened to be in his car, return to the victims
    car, shoot his sister who was seated in the drivers seat at close range in the
    head, and then shoot Mr. Mangal who was seated in the front passenger seat.  In
    total, the appellant fired six shots.  There was a time lapse of about 30
    seconds between the fifth and sixth shot.

[6]

The appellant acknowledged in his testimony that his relationship with
    his sister had been strained as a result of her refusal to allow their father
    to be involved in her upcoming wedding and Khateras insistence that she would
    make her own decisions about who she married and where she lived.  On the night
    of the homicides, the appellant had arranged to have dinner with his sister and
    Mr. Mangal.  He hoped to put their relationship on better terms. Things went
    well during the evening until the appellant spoke to Khatera about their
    father.  They began to argue and Mr. Mangal told the appellant to let it be. 
    Things became tense and the appellant decided to leave.  As he walked away from
    the vehicle in which his sister and Mr. Mangal were seated, Mr. Mangal said:

Fuck you, fuck your father, fuck your sister.  Ill bring your
    sisters dead body to the wedding before I ever let her talk to your father. 
    Fuck you.

[7]

According to the appellant, he exploded.  He professed to have no
    recollection of the subsequent events until he found himself driving away from
    the scene of the double homicide.

[8]

The Crown maintained that the murder was not provoked, but was planned
    and deliberate.  The Crown contended that Khatera and her father had been
    estranged for years.  Khateras mother had fled the marriage and divorced Khateras
    father.  Khatera had completely disassociated herself from her father who she
    alleged was abusive.  She wanted nothing to do with him.  Khatera had become
    engaged to Mr. Mangal and was living with his family.  She had taken these
    steps without consulting her father.  Khatera did not want her father involved
    in the wedding.

[9]

According to the Crowns theory, the appellant strongly believed that
    Khateras conduct disrespected their father and brought shame to their family. 
    On the Crowns theory, the appellant decided to vindicate the family honour by
    killing his sister.  Statements made by the appellant prior to the shooting, his
    actions towards his sister before the shooting, the events immediately
    surrounding the shooting, and certain post-shooting conduct by the appellant
    gave credence to the Crowns theory.


III



the admissibility of the experts evidence

[10]

At
    trial, the Crown tendered the evidence of Dr. Mojab, an acknowledged expert in
    the phenomenon of honour killings within the traditional cultures of the Middle
    East, including Afghanistan.  The Crown sought to elicit Dr. Mojabs opinion as
    to the relationship between culture, religion, patriarchy and violence against
    women in the Middle East and diasporas around the world, specifically as those
    issues relate to honour killings.

[11]

On
    the
voir dire
to determine admissibility, the defence did not
    challenge Dr. Mojabs expertise, did not suggest that her description of honour
    killings was inaccurate in any way, and did not suggest that evidence like that
    proffered by the Crown would not be helpful to the jury.  In fact, the defence readily
    acknowledged that evidence of the Afghan culture and the cultural
    perspective of the parties were relevant to both the issue of provocation and
    the issue of planning and deliberation.  The defence told the trial judge that
    it would be calling expert evidence to give the context of the Islamic
    culture.

[12]

The
    defence resisted the admissibility of Dr. Mojabs evidence on the basis that
    her background as a strong advocate for womens rights made her incapable of
    providing the kind of objective description of the relevant cultural context
    that could assist the jury.  The defence argued that Dr. Mojabs advocacy,
    combined with the inherently prejudicial use of the phrase honour killings, could
    turn the focus of the trial away from whether the Crown had proved the
    appellants culpability, to domestic abuse in general and, in particular, domestic
    abuse fostered by cultural beliefs that are antithetical to the beliefs
    underlying Canadian culture.

[13]

In
    rejecting the defence argument based on Dr. Mojabs bias, the trial judge said,
    at para. 45:

I dont see that Dr. Mojabs objectives in educating people,
    including judges, lawyers and police officers about an odious cultural
    phenomenon affecting women inhumanely and in an effort to bring about change to
    improve the rights of women preclude her from being an acceptable expert
    witness in a case like this one.  No attack has been made on the correctness or
    integrity of her description of the phenomenon of honour killing.

[14]

The
    trial judge next considered whether the potential prejudicial effect of Dr.
    Mojabs evidence outweighed its probative potential.  He observed that Dr.
    Mojab did not know any of the parties and would not testify in any way about any
    of the facts of the case.  Dr. Mojab would not offer any opinion as to whether
    the homicides were honour killings.  Nor would she offer any opinion based on
    any hypothetical fact situation.  Dr. Mojabs evidence would provide context that
    could assist the jury in deciding what inferences to draw as to the appellants
    state of mind from the facts that the jury found the Crown had established.

[15]

After
    noting that the doctors evidence would be straightforward and easy to
    understand, the trial judge concluded his assessment of the potential probative
    value of the expert evidence with this observation:

I am supported in my conclusion by the defence assertion that
    evidence of Afghan culture and of the cultural perspective of the parties is
    relevant and that a defence expert on the subject will be presented as well.  I
    see no significant prejudice that would flow from Dr. Mojabs testimony and
    there is no rule of evidence to hold against its admission.

[16]

We
    see no error in the trial judges analysis.  The necessity for and relevance of
    the proffered expert evidence, although challenged on appeal, are obvious given
    that provocation and planning and deliberation were in issue at the trial.  Both
    the theory of the Crown and the position of the defence made the evidence
    relevant.  The defence at trial conceded the need for and relevance of the
    expert evidence.  Indeed, the defence told the trial judge that it intended to
    call similar expert evidence.  The defence objection at trial targeted the
    witness the Crown wanted to call and not the nature of the evidence the Crown
    intended to elicit.  Indeed, at one point in the submissions, defence counsel
    went so far as to suggest that it would have no objection if the Crown elicited
    its evidence through the expert the defence proposed to call.

[17]

We
    agree with the trial judges finding that Dr. Mojab was an appropriate
    witness.  A review of the evidence she actually gave fully supports the trial
    judges ruling.  Dr. Mojab made it clear that she had no knowledge of this
    specific case and that her evidence about cultural phenomena could not be
    assumed to be applicable to any particular individual within the culture.  As
    she put it:

The immigrant and refugee or any of the ethnic groups within
    Canada are as diverse as the entire Canadian society, and that is very
    important that we do not homogenize the community and actually appreciate the
    diversity within all these communities.

[18]

The
    balanced nature of Dr. Mojabs evidence is perhaps best indicated by the
    defence decision not to call its expert.  Presumably, the defence got the necessary
    cultural context evidence it needed from Dr. Mojab.

[19]

The
    trial judges balancing of the probative value versus the potential prejudicial
    effect of the evidence is entitled to deference in this court.  We see no error
    in principle in his analysis of the relevant considerations; nor was his
    ultimate assessment unreasonable.  Like the trial judge, we think it important
    in assessing the potential prejudicial effect that the expert offered no
    opinion on the facts of the case.  There was no danger that the jury would cede
    its fact finding responsibilities to the expert.

[20]

Lastly,
    we note that the trial judges instructions, both when the expert evidence was
    admitted and at the end of the trial, carefully and accurately described the
    use the jury could make of Dr. Mojabs evidence.  The jury would no doubt have
    understood that the expert evidence was simply part of the evidentiary mosaic
    against which to consider the actions of the appellant as the jury ultimately
    found those actions to be.


IV



the failure to give an explicit
w.d.
instruciton

[21]

After
    hearing extensive submissions from counsel, the trial judge decided not to give
    the usual
W.D.
instruction.  The trial judge was motivated both by the
    defence acknowledgement of liability for manslaughter, and the nature of the
    provocation defence.  Given the objective component of the provocation defence,
    the jury could have accepted the appellants evidence and still have been
    satisfied beyond a reasonable doubt that provocation was unavailable.  The
    traditional
W.D.
formulation did not work in respect of provocation.

[22]

The
    instructions given by the trial judge did, however, make it crystal clear that
    the burden to prove each and every element of the offence and to negate
    provocation never shifted from the Crown.  Nor, in light of the instructions,
    would the jury have approached the case by choosing between alternative
    versions of events.  The trial judge repeatedly told the jury that the onus
    rested on the Crown to prove its case beyond a reasonable doubt.  Having regard
    to the issues raised at trial, the nature of the evidence, and the entirety of
    the reasonable doubt instruction, the failure to give a specific
W.D.
instruction was not an error.

[23]

Counsel
    for the appellant submitted that the failure to give a
W.D.
instruction
    was particularly significant because the case was presented to the jury as one
    in which the jury had to make a choice between the experts testimony and the
    appellants description of his state of mind.  We do not read the charge to the
    jury as setting up a credibility contest between the appellants testimony
    and the experts evidence.  The Crowns case rested on a strong web of
    circumstantial evidence. The Crown argued that the appellant had evinced an
    intention to kill his sister long before he did so.  The Crown argued that when
    the appellant in fact killed his sister, it was fair to infer that he had done
    what he had said sometime earlier he was going to do.  This straightforward and
    powerful logic had nothing to do with Dr. Mojabs evidence and made for a
    strong case of planning and deliberation.


V



[24]

For
    the reasons set out above, the appeal is dismissed.

RELEASED: Apr 22, 2013                                                Doherty
    J.A.


DD                                                                            Paul
    Rouleau J.A.


Gloria
    Epstein J.A.


