





CITATION:
R. v. Mohamed, 2011
          ONCA 260



DATE:  20110405



DOCKET: C48749 and C49202



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Rosenberg and Goudge JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Abdi Omar Mohamed and Mohamed Hassan



Appellants



Apple Newton-Smith, for the appellant Abdi Omar Mohamed



Timothy Breen and Diana
Lumba
, for
          the appellant Mohamed Hassan



Lucy
Cecchetto
, for the respondent

Heard: February 22 and 23, 2011



On appeal from the convictions for second degree murder
          entered by Justice Todd Ducharme of the Superior Court of Justice, sitting
          with a jury, dated December 20, 2007 and sentences imposed on April 24, 2008.



By the Court:



[1]

The appellants Abdi Mohamed and Mohamed Hassan appeal
    from their conviction by a court composed of T. Ducharme J. and a jury on a
    charge of second degree murder.  For the
    following reasons the appeals are dismissed.

THE FACTS

[2]

On August 19, 2004, the victim, Ahmed Ali, was stabbed
    to death in a Toronto apartment following a brief argument.  In all, there were eight persons in the
    apartment at the time.  Most of them had
    been drinking for several hours.  Only
    one person, Yasmin Kamil, claimed to have actually witnessed the stabbing.  The appellants, who are brothers, did not
    testify.

[3]

The argument that led to the killing began when Mohamed
    demanded that another of the occupants give him his do-rag.  When the deceased intervened, Mohamed slapped
    him and then went out to the balcony.  The
    deceased began throwing beer bottles in Mohameds direction but none of them
    hit him.  Hassan and Ms. Kamil intervened
    to stop the deceased from throwing the bottles.  A fight then broke out between Hassan and the deceased.  The fight began in the living room but
    continued into a short hallway leading to the entrance door.  According to Ms.
Kamil
,
    the fight ended with Hassan and the deceased lying on the hallway floor
    apparently exhausted.  Hassan had a wound
    to his forearm.  The deceased was on the
    floor on his knees, facing the entrance door.  The deceased had a serious wound to his head. The floor of the apartment
    was littered with broken glass.

[4]

According to Ms.
Kamil
,
    Mohamed then came in from the balcony and stabbed the deceased several times in
    the back.  She did not see Hassan stab
    the deceased and did not see him with a weapon.  The appellants fled the apartment. However, Hassan briefly returned,
    stuck his head in the door and said thats how we do it.  The police recovered a knife with the
    deceaseds blood on it in a nearby park. Immediately after the killing, the
    appellants purchased bus tickets to Edmonton. They were arrested several hours
    later in Thunder Bay.

[5]

In all, the deceased sustained 31 sharp force
    injuries.  The most serious wounds,
    described by the pathologist as medically significant in that each alone
    could have caused death, were three deep wounds to the torso, one to the back
    and one to the head.  The most serious of
    the wounds to the torso was a deep wound to the heart.  The other two serious wounds to the torso cut
    the liver and the spleen.  There was a
    medically significant wound to the right side of the back and a deep injury
    extending through the thickness of the scalp and muscles to the surface of the
    bony skull.  There were a number of other
    sharp force injuries to the torso, face, head and upper limbs.  The deceased had defensive wounds to his hands.  The pathologist could not say what caused the
    injuries other than that they were caused by a cutting instrument with a sharp
    edge and a blunt edge.  The ultimate
    cause of death was blood loss.

[6]

Mohameds defence was a simple denial that he stabbed
    the deceased, although the trial judge put to the jury that they could find
    Mohamed was acting in defence of Hassan.  Counsel for Mohamed also sought to have the trial judge put provocation
    to the jury.  Hassan also denied stabbing
    the victim and he relied on Ms.
Kamils
testimony,
    since, as indicated, she saw only Mohamed stab the victim.

MOHAMEDS GROUNDS OF APPEAL


1.        The Answer to the Jurys Question
    Regarding Consensual Fight

[7]

During a break in the charge to the jury, the jury sent
    three questions to the trial judge, two of which were as follows:

Are we to understand/accept as fact/evidence that
    Abdi Mohamed sought to (a) defend his brother from an unlawful assault to the
    exclusion of (b) a consensual fight?

Is the jury permitted to interpret the nature of
    the initial conflict?

[8]

By this time, the trial judge had charged the jury on
    the defence of others under s. 37 of the
Criminal Code
, R.S.C. 1985,
c
. C-46.  In those directions, the trial judge had
    correctly broken down the elements of the s. 37 defence and told the jury that
    the first question they had to consider was whether Mohamed reasonably believed
    that Hassan was being unlawfully assaulted.  The trial judge had directed the jury as follows:

An unlawful assault is the intentional application
    of force, directly or indirectly, by any means, to the body of another person
    without the other persons consent. It does not matter whether Mohamed Hassan
    provoked the assault or even assaulted Mr. Ali first, nor is it necessary that
    Mohamed Hassan was actually assaulted, provided that Abdi Mohamed reasonably
    believed that Mohamed Hassan was being unlawfully assaulted.

[9]

While the trial judge initially interpreted the first
    question as relating to the initial fight between the deceased and Hassan, by
    the time he came to answer the question he seems to have viewed the question as
    relating to Mohameds actions in relation to the deceased.  He told the jury as follows:

With respect to the issue of whether you have to
    accept that Abdi Mohamed sought to defend his brother from an unlawful assault
    as opposed to a consensual fight, thats a good question, because it focuses on
    an important question you have to consider in terms of the justification of
    self-defence of others. And thats question  under Question 3B, which is, Did
    Abdi Mohamed use force to defend Mohamed Hassan from what he reasonably
    believed was an unlawful assault, as I told you, that focuses on the purpose
    with which Abdi Mohamed acted. If he acted to protect his brother, you continue
    on. If it was a consensual fight, if he just decided that he was going to fight
    Mr. Ali, then he did not have the intent to protect his brother.

Now, keep in mind, dont confuse, if you decide 
    you dont want to conflate the two issues in the sense that if Mr. Ali decides
    to fight or  sorry. If Abdi Mohamed decides to fight Mr. Ali, that doesnt
    necessarily make it a consensual fight. You have to consider why hes doing
    that. If hes doing it to protect his brother, thats the issue.

[10]

The trial judge immediately then excused the jury at
    the request of Mohameds trial counsel (not Ms. Newton-Smith).  Trial counsel objected to one aspect of the
    trial judges answer because, in summarizing the Crown and defence positions,
    he had suggested that defence counsels position was that Mohamed was acting to
    protect his brother.  Defence counsels
    objection was to suggest that his position was that Mohamed was acting to
    defend his brother when in fact Mohameds defence was a complete denial that he
    stabbed the victim.  When the jury
    returned, the trial judge clarified defence counsels position.  Defence counsel raised no objection to the
    trial judges answer to the question about the consensual fight.

[11]

On appeal, Mohamed now submits that, in answering the
    question, the trial judge erred in failing to focus on the initial fight
    between the deceased and Hassan and to define for the jury the difference
    between an unlawful assault and a consensual fight.  In particular, counsel submits that the trial
    judge should have instructed the jury that, as a matter of law, individuals cannot
    legally consent to an assault causing serious hurt or non-trivial bodily
    harm.  Thus, counsel does not submit that
    the trial judges instructions were legally wrong, but rather the trial judge
    erred in failing to introduce into the jurys deliberation another issue, namely,
    the definition of a consensual fight.

[12]

We would not give effect to this submission.  The trial judges answer to the question
    refocused the jurys attention to Mohameds intent in stabbing the deceased and,
    in particular, whether he was acting to protect his brother.  The s. 37 defence was a weak one at
    best.  By the time Mohamed stabbed the
    deceased, the fight with Hassan was over and there was no evidence that Hassan
    was in fact in any danger.  The only
    possible way that Mohamed could rely on the s. 37 defence was if the jury had a
    reasonable doubt that he was using force because he reasonably believed Hassan
    was being unlawfully assaulted.  A
    diversion into issues about whether in fact the fight between Hassan and the
    deceased could have been consensual would not have assisted Mohamed.

2.         Failure
    to Leave Provocation

[13]

Although, as indicated, Mohameds defence was a
    complete denial, his counsel nevertheless urged the trial judge to put the defence
    of provocation to the jury on the basis that the deceased had thrown beer
    bottles in Mohameds direction.  The
    trial judge held that there was no air of reality to provocation.  On appeal, counsel submits that there was an
    air of reality to provocation based on the throwing of the beer bottles and the
    fight between the deceased and Hassan.  We agree with the trial judge that there was no air of reality to
    provocation.  In
R. v. Tran
(2010), 261 C.C.C. (3d) 435 (S.C.C.),
    at
para
. 23, Charron J. adopted the following summary
    of the elements of the provocation defence:

First, there must be a wrongful act or insult of
    such a nature that it is sufficient to deprive an ordinary person of the power
    of self-control as the objective element. Second, the subjective element
    requires that the accused act upon that insult on the sudden and before there
    was time for his passion to cool.

[14]

There was simply no evidence of a wrongful act or
    insult sufficient to deprive an ordinary person of self-control.  While the deceased may have thrown beer
    bottles in Mohameds direction, he was not hit or injured in any way.  He went out to the balcony and did not
    respond to the incident.  It is unclear
    how the fight between Hassan and the deceased could amount to a wrongful act or
    insult that was sudden and unexpected and would have deprived an ordinary
    person of self-control.  Mohamed had
    started the incident by slapping the deceased, but he then left the area.  When he returned, the fight was over.  The element of acting on the sudden in
    response to a wrongful act or insult is simply missing.

3.         Rolled-up
    Charge

[15]

Mohamed submits that the trial judge did not
    sufficiently direct the jury on the issue of intent for murder.  Counsel submits that even if provocation was
    not available as a defence, the various acts such as the throwing of the beer
    bottles and the fight with Hassan were relevant to the question of intent and
    should have been rolled-in to the charge on intent.  Counsel submits that these incidents could
    have clouded Mohameds judgment and caused him to act instinctively without considering
    the consequences of his actions.

[16]

In our view, the charge to the jury on intent was
    correct and sufficiently alerted the jury to the need to consider all the
    circumstances in deciding whether the appellant had the requisite intent for
    murder.  The trial judge told the jury to
    consider all of the evidence in dealing with the question of intent.  While he focused particularly on alcohol
    consumption as that might affect the question of intent, he did not do so to
    the exclusion of other relevant factors.  For example, the trial judge told the jury to consider how the fight
    started, the description of the fight and the speed with which the events
    occurred.  The following passage, near
    the end of the directions on intent, specifically dealt with the question of
    whether Mohamed acted instinctively:

And again, I remind you, Yasmin Kamil described
    Abdi Mohameds involvement as happening very suddenly and taking place very
    quickly.

You should consider this evidence, not just with
    respect to intoxication, but along with other evidence that might suggest that
    either Abdi Mohamed or Mohamed Hassan acted instinctively in the sudden
    excitement of the moment, without thinking of the consequences of what he did,
    and without either state of mind necessary to make the unlawful killing of
    Ahmed Ali murder.

If you have a reasonable doubt about either Mr.
    Mohamed -- Mr. Abdi Mohameds or Mr. Mohamed Hassans state of mind, you must
    not conclude he intended or meant to bring about the predictable consequences
    of what he did.

If, after taking into account the evidence of the
    consumption of alcohol, along with the rest of the evidence, you are not
    satisfied beyond a reasonable doubt that Abdi Mohamed had the required state of
    mind for second degree murder, you must find him not guilty of second degree
    murder but guilty of manslaughter. Your deliberations with respect to him would
    be over.

[17]

The purpose of the so-called rolled-up charge is to
    alert the jury to the need to consider all of the evidence that may be relevant
    to intent, and not to compartmentalize the evidence by restricting it to
    defences such as self-defence or provocation.  The concern that the jury will compartmentalize the evidence is greatest
    where a discrete defence has been left to the jury.  The danger is that the jury having rejected a
    defence, such as provocation, may fail to again consider the provocation
    evidence when dealing with the issue of intent.

[18]

In this case, however, provocation was not left to the
    jury as a separate defence and the trial judge did tell the jury to consider
    all of the circumstances, including whether the appellant acted instinctively
    in the sudden excitement of the moment.  There could be no concern that the jury would not consider all of the
    circumstances in the face of explicit and repeated instructions to do so.  Provocation not having been left to the jury
    as a discrete defence, there was no need for the trial judge to refer to
    provocation or provocative acts as an element of a rolled-up charge; what was
    required was a reference to the need to consider the evidence and how that
    might affect Mohameds state of mind.  The charge to the jury did that.

[19]

Accordingly, Mohameds appeal from conviction is dismissed.

HASSANS GROUNDS OF APPEAL

1.         The
    Crowns Jury Address

[20]

The trial judge ruled that he would not instruct the
    jury that Hassan could be guilty of murder on the basis that he was a party to
    a killing by Mohamed.  Hassan submits,
    however, that the trial judge erred in failing to correct a portion of the
    Crowns jury address where he invited the jury to convict Hassan on the basis
    of party liability.  We do not agree with
    this characterization of the Crowns jury address.  The Crowns position was that both accused
    were responsible for the killing.  Crown
    counsel was entitled to rely on the
accuseds
 acts,
    including the acts that they did together such as fleeing the scene together
    and Hassans statement to the occupants of the apartment:  thats how we do it.  That comment was a particularly damning piece
    of evidence against Hassan and Crown counsel was careful to remind the jury
    that it was evidence against only Hassan.  He did not attempt to leverage the comment into an admission of party
    liability.  As Crown counsel said:

Im only asking you to consider what it tells you
    about what Mohamed Hassans attitude was about what he did and his own
    understanding of his own action in the context of what he did and what he must
    have observed his brother doing.  At the
    very least, it shows Mr. Hassan acknowledged participating in what had just
    happened, and in view of his own conduct as taken quickly with his brother.

[21]

This was an entirely appropriate comment by Crown
    counsel and in no way suggested that Hassan was liable for murder simply as a
    party.  In his charge to the jury, the
    trial judge told the jury that they had to determine the individual liability
    of each accused.  There was no suggestion
    of party liability.  We would not give
    effect to this ground of appeal.

2.         Causation

[22]

Hassan submits that, since he could not be convicted as
    a party to the offence, the Crown had to establish that his own acts caused the
    death of the deceased.  He submits that
    the trial judge had to direct the jury that they could find that Mohameds acts
    of stabbing the deceased were intervening acts breaking the chain of causation
    from the acts of Hassan.  In our view,
    the charge to the jury was sufficient.  The trial judge directed the jury as follows concerning the need for
    proof of causation:

Now, for an act to cause someones death, it must
    be a significant contributing cause of death.
There must not be anything that
    somebody else does later that results in the acts of either Abdi Mohamed or
    Mohamed Hassan no longer being a contributing cause of Mr. Alis death.
It is of no concern to you that proper
    medical treatment might have saved Mr. Alis life.  [Emphasis added.]

[23]

Trial counsel for Mr. Hassan, not Mr. Breen, did not
    object to the charge to the jury on causation.  In any event, intervening act was not a real issue in the case.  The deceased suffered over 30 wounds.  He died from loss of blood caused by multiple
    sharp force injuries.  The testimony from
    Ms. Kamil, which was so central to Hassans defence, described only injuries
    inflicted by Mohamed to the deceaseds back.  Her testimony did not account for the serious wounds to the torso,
    including the deep wound to the heart.  This was not a case calling for an explicit direction on intervening act
    beyond the correct instructions set out above.  The intentional acts of both accused in stabbing the deceased were
    significant contributing causes of death through loss of blood.

3.         Self-defence

[24]

Hassan submits that the trial judge erred in failing to
    leave self-defence to the jury.  We agree
    with the trial judge that there was no air of reality to self-defence on
    Hassans part.  There was no evidence
    from any witness from which it could be found that Hassan stabbed the deceased
    in self-defence.  And, there was nothing
    in the circumstances that could raise a reasonable doubt that Hassan stabbed
    the deceased in self-defence.  There was
    no evidence that Hassan stabbed the wounded victim to defend himself.

4.         The Jurys Question about Yasmin Kamils
    Evidence

[25]

During their deliberations, the jury asked the
    following question:

At one point [
Yasmin

Kamil
] made a statement that nobody stabbed anybody except
    the two brothers. That is what I want to tell you. This statement was either
    made to the police or at the preliminary trial. When asked during the
    examination or cross-examination did she accept saying the statement? Does she
    acknowledge making this statement? Does she acknowledge that this was true? If
    not, what does she change the statement to?

[26]

The trial judge responded to the question by repeating
    verbatim the portion of Ms. Kamils evidence to which the jury was
    referring, which arose in re-examination.  He concluded his review of the re-examination with this part of Ms.
    Kamils evidence:

What I mean is that three people involved in the
    fighting, two of them were boxing each other, struggling in all this, a
nd the other one stabbed and killed
.  [Emphasis added.]

[27]

Given Ms. Kamils evidence, the jury could have no
    doubt that her reference to the other one stabbed and killed was to Mohamed,
    not Hassan.  The trial judge then directed
    the jury as follows:

So returning to your question, obviously Yasmin
    Kamil did acknowledge making the statement, and there is no issue that the
    question -- the statement you asked about was made to the police at 11:18 on
    the evening of these events.

You asked,
Does
she accept
    that this was true?

She was not asked whether or not this statement was
    true, and as it came out in re-examination, there was no opportunity for her to
    be cross-examined about it.

You asked,
If
not, what
    does she change the statement to?

Now, given that she wasnt asked if it was true,
    the if not doesnt arise, but given that youve asked about changes to her
    testimony, I think I should review with you the inconsistencies in her
    statements about this and what she said about those.

[28]

The trial judge then dealt at length with some of the
    inconsistencies with Ms. Kamils evidence in a way that was favourable to
    Hassan, concluding by reminding the jury that Ms. Kamil testified that she did
    not see a weapon in Hassans hands at any point during his fight with the
    deceased.  Hassan submits, however, that
    the trial judge should have instructed the jury that while Ms.
Kamil
acknowledged making the statement, she did not adopt
    the statement as true in the sense of saying that she had seen both brothers
    stab the deceased.

[29]

We would not give effect to this submission.  The trial judge was bound by the evidentiary
    record.  In the charge to the jury, the
    trial judge had correctly instructed the jury about the use of prior
    inconsistent statements.  In his answer
    to the jurys question, he correctly set out the portion of the testimony that
    related to the jurys question and, in fairness to Hassan, went on to remind
    the jury about her testimony concerning whether Hassan had a weapon.  There was nothing more the trial judge could
    do or should have done.

[30]

Accordingly, Hassans appeal from conviction is
    dismissed.

Signed: Winkler C.J.O.

M.
    Rosenberg J.A.

S.T.
    Goudge J.A.

RELEASED: WW April 5, 2011



