



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Hassan, 2013 ONCA 238

DATE: 20130417

DOCKET: C53653

Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Respondent

and

Mustafa Hassan

Applicant (Appellant)

Theodore Sarantis, for the appellant

Tracy Kozlowski, for the respondent

Heard:  April 11, 2013

On appeal from the convictions entered by a jury presided
    over by Justice Robert M. Thompson of the Superior Court of Justice, dated
    December 9, 2010.

ENDORSEMENT

[1]

The appellant was convicted by a jury of aggravated assault and assault
    with a weapon.  Both charges arose out of a fight between the appellant and
    Craig Wheildon.  The appellant stabbed Mr. Wheildon several times.  Mr.
    Wheildon was unarmed.  The appellant claimed he acted in self-defence.  He did
    not testify.

[2]

The appellant appeals conviction only.  There are five grounds of
    appeal.

ground #1  did the trial judge err
    in failing to conduct an inquiry into the allegations of one of the jurors made
    after the verdicts?

[3]

Counsel for the appellant did not press this ground of appeal.

[4]

One of the jurors sent a letter to the trial judge after the verdicts
    were delivered claiming, among other things, that her fellow jurors had coerced
    her into returning a guilty verdict.  The letter also made reference to
    comments made by court officers responsible for the jurors during their
    deliberations.  The trial judge caused statements to be taken from those court
    officers.  He, however, declined to enter upon any further inquiry.

[5]

The trial judge could have conducted a hearing for the purpose of
    creating a record for appellate consideration.  He was not, however, obliged to
    do so.  The appellant has had a full opportunity to create the appropriate
    record for this court.  This ground of appeal fails.

ground #2  do the allegations made
    by the juror vitiate the verdicts?

[6]

We have considered the notes from the juror delivered to the trial judge
    after the verdicts and the statements provided by the court officers.  The vast
    majority of the allegations made by the juror could not be considered under the
    juror secrecy ratio in
R. v. Pan
, [2001] 2 S.C.R. 344.  For example,
    the statement by the juror that others would not allow her to put questions to
    the trial judge during the jurys deliberations is protected by juror secrecy
    and is not admissible on an inquiry into the jurys verdict.

[7]

To the extent that the notes suggest that the jury was subject to outside
    influence in the form of a comment made by a court officer to one of the jurors,
    the jurors notes do refer to a potential outside influence that is beyond the pale
    of juror secrecy.  That reference in the jurors notes is the proper subject
    matter of appellate inquiry into the validity of the verdicts.

[8]

The version of the comment provided by the court officer offers no
    support for any claim of improper influence.  Considered in the context in
    which the officer made the comment, that comment, about the cost of the
    proceedings to the taxpayer, was not inappropriate or capable of influencing
    any juror.  The officers comment was merely a statement of a fact that would
    be obvious to any juror and was offered to the juror as an explanation for the
    officers insistence on strict adherence to the protocols established for the
    jury while they were deliberating.

[9]

In one of the jurors notes to the judge, she said:

Once we returned to the jury room after dinner, it was reported
    that one of the CSOs said that this case was costing the County over $100,000,
    so we better do this right, which was interpreted to mean a guilty verdict.

[10]

The
    source of the report is not identified in the jurors note.  Nor are those
    who interpreted the comment to mean a guilty verdict identified.  The juror
    who wrote the note does not suggest that she heard the officers comment or
    that she was in any way influenced by what she was told.  The jurors
    unsourced, vague reference to something a court officer supposedly said to
    another juror is no reason to doubt the
bona fides
of the verdicts.

ground #3  did the trial judge err
    in failing to put section 37 of the
criminal code
to the jury?

[11]

The
    trial judge charged the jury on self-defence as defined in s. 34(1).  He did
    not instruct the jury on s. 37 even though counsel for the appellant requested
    that instruction.

[12]

The
    appellant says that an instruction on s. 37 was necessary because unlike s.
    34(1), self-defence under s. 37 is available where the appellant provoked the
    initial assault or where the appellant intended to cause death or grievous bodily
    harm to Mr. Wheildon.

[13]

The
    appellants submissions accurately set out the distinctions between
    self-defence as described in s. 34(1) and s. 37.  Neither distinction assists
    the appellant.  The trial judge effectively took provocation as a bar to
    self-defence under s. 34(1) away from the jury.  He said:

I would suggest that there is no evidence that Mr. Hassan
    provoked Mr. Wheildon into assaulting him.

[14]

There
    is no realistic possibility that this jury rejected self-defence under s. 34(1)
    because it was satisfied beyond a reasonable doubt that the appellant provoked
    the assault.

[15]

Nor
    could the appellant have possibly succeeded on a self-defence claim if the jury
    found that he intended to kill or cause bodily harm to Mr. Wheildon.  When the
    appellant stabbed Mr. Wheildon, he had no basis to reasonably apprehend death
    or grievous bodily harm at the hands of Mr. Wheildon.  Absent that reasonable
    apprehension, a response in which the appellant intended to kill or cause
    grievous bodily harm to Mr. Wheildon could not possibly meet the
    proportionality requirement of s. 37(2).  There is no air of reality to a
    self-defence claim premised on conduct of the appellant driven by an intention
    to kill or cause grievous bodily harm.  The failure to instruct on s. 37 was
    not non-direction amounting to an error in law.

ground #4  did the trial judge
    fail to relate the evidence to the defence of self-defence?

[16]

The
    trial judge identified the criteria relevant to the claim of self-defence under
    s. 34(1).  He explained each criterion in the context of the evidence heard by
    the jury.  The trial judge also reviewed the positions of the parties and the
    evidence of the witnesses.

[17]

Counsel
    had a draft of the trial judges charge before it was delivered and took no
    objection to the manner in which the trial judge proposed to deal with the
    evidence.  Counsel made no objection to the charge after it was delivered.

[18]

The
    instructions on self-defence were correct in law, clearly stated, particularly
    having regard to the subject matter, and fairly related the evidence and the
    positions of the parties to the self-defence claim.  A trial judge is not
    required to repeat in detail every argument made by the Crown and the defence,
    or to martial the evidence in support of each argument as would counsel.

[19]

The
    jurys question did not request a more detailed review of the evidence.  The
    trial judge responded to the question by repeating his earlier instructions. 
    Counsel were content with that response.  So are we.  There was no error.

ground #5  did the trial judges
    expression of opinion result in a miscarriage of justice?

[20]

Counsel
    for the appellant did not press this ground of appeal.  While the trial judge
    did comment negatively on the reliability of certain witnesses, he made it
    clear to the jury that it was free to disregard his opinions.  The witnesses
    singled out by the trial judge did not assist the defence any more than they
    did the Crown.  The trial judges comments did not impair the fairness of the
    trial.

[21]

The
    appeal is dismissed.

[22]

The
    trial judges publication ban on the jurors notes and the court officers
    statements continues in force.

Doherty J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


