



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamade, 2015 ONCA 802

DATE: 20151120

DOCKET: C56253

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Hamade

Appellant

Catriona Verner, for the appellant

John Patton, for the respondent

Heard: November 18, 2015

On appeal from the conviction entered by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting with a jury, on March 6, 2012,
    and the sentence imposed on June 25, 2012.

Pardu J.A.:

[1]

The appellant was convicted of second degree murder of his neighbour. He
    appeals from conviction and from the 15 year period of parole ineligibility
    imposed by the trial judge.

[2]

Turning first to the conviction appeal, he submits that the trial judge made
    two errors:

1.

The trial judge
    erred in failing to caution against reasoning by propensity, in failing to give
    a limiting instruction with respect to demeanour evidence, and in inviting the
    jury to rely upon the appellants callousness to find he was the type of person
    to have committed this offence; and

2.

The trial judge
    further erred in refusing to give a no probative value instruction on some of
    the post offence conduct.

[3]

The only substantial issue at trial was the identity of the killer. The
    victim, 81 years old, was murdered in her own apartment on January 6, 2009. She
    was struck 90 times in the head, neck, back and chest with a blunt object,
    scissors and a knife. She bled to death.

[4]

The accused testified that on the morning of January 6, he knocked on
    the victims door. She told him that she was going to take a bath and he told
    her he would come back later. He testified that he knocked on the victims door
    again and had a brief conversation with a woman who told him that the victim
    was busy. He testified that he heard a man say Be quiet. Be quiet.

[5]

According to the accuseds testimony, he went back to his apartment. On
    his way out of the apartment to catch a bus, he found a key and a credit card
    on the floor. He noticed that the victims door was propped open with a
    newspaper. After knocking and hearing no response, he walked in and found the
    victim dead. He checked her pulse, and then washed his hands in the sink. He
    started to call 9-1-1 but stopped out of fear. He left the apartment and tried
    to lock it with the key he found, but it did not lock the door. He went to drop
    off the key and the credit card to the superintendent, but he was not there.
    The credit card and keys belonged to the victim. Later that day, he used the
    credit card to buy groceries.

[6]

He continued to use the credit card over the next few days and spent
    approximately $1,400. The appellant returned to her apartment before her body
    was discovered to retrieve milk he had stored in the refrigerator. On January
    8, the victims son discovered her body in the office in her apartment. The
    appellant gave a statement to the police. He lied about being in the victims
    apartment after she died and did not tell the police about the man and woman he
    heard. The police examined the appellants jacket on consent. It had the
    victims blood on it, as well as white marks that were similar to white marks
    found in the victims apartment, later determined to be a type of cleaner. His
    pants were later tested as well, which had some of the victims blood on the
    knee. The appellants fingerprint was also found on the outside of the victims
    office door, in the victims blood.

A.

The relationship between the appellant and the victim

[7]

I turn first to the evidence of the relationship between the victim and
    the appellant. The Crown introduced evidence suggesting that the appellant was
    a nuisance to the victim and to other neighbours in the building. In contrast,
    the appellant testified that he was like a son to the victim. The victims
    family and other neighbours testified that the appellant was a pest. The victim
    told him not to come knocking at her door. She covered the peephole in the door
    to her apartment so that the appellant could not look through it. She told him
    he could no longer bring his children into her apartment. Several months before
    the homicide, the victim scolded the appellant for taking her newspaper. She
    said she feared he was going to ask her for money and told her son she would
    refuse if asked. The victims granddaughter stayed with her for a time and
    observed the appellants incessant knocking at her grandmothers door.

[8]

The appellant argues that this was prejudicial bad character evidence.

[9]

We agree with the application judges
[1]
observation that:

It is inconceivable to me that a reasonable jury could convict
    a man of murder on the basis that he had been a pest and/or the possibility
    that he might have been inclined to ask the victim to lend him some money. The
    prejudice, if any, from evidence that the deceased thought the accused to be a
    pest is, at the highest, minimal.



It seems fair to say that pestering an elderly lady to the
    point that she feels the need to take the steps Mrs. Lyons apparently took is
    not something that will be apt to endear the accused to the jury. Having said
    that, on a continuum of evidence of prior discreditable conduct, in my opinion,
    the discreditable nature of the evidence proffered in this case is almost de
    minimus.

[10]

The
    application judge ultimately concluded that the probative value of the evidence
    outweighed any prejudice, concluding that without the admission of the
    evidence, the trier would be deprived of potentially significant information as
    to the deceaseds state of mind.

[11]

Trial
    counsel relied on this evidence to suggest that it demonstrated that the
    appellant had no propensity for violence:

So we can understand how [the appellant] can
    be seen as a pest and a nuisance, aggravating and annoying from time to time,
but
    nothing more than that. Nothing worse than that.

No one felt
    threatened or intimidated
by [the appellant]. And that
    includes Marion Lyons. So said her son, Randy Lyons; and her granddaughter,
    Kristie.

So there seems to be, on the evidence we have,
    no evidence, nothing in [the appellants] character or behaviour, or his
    demeanour as we have witnessed it personally, that would indicate a penchant
    for violence.
[2]
[Emphasis added]

[12]

The trial judge instructed the jury as to the
    use it could make of this evidence:

members of the jury, you might wonder what
    use can you make of these particular comments about [the appellant], if you
    find them to be accurately reported or reliable. If you choose, you may use
    them to support other evidence that [the appellant] had some
financial
    difficulties
. You may also use them to shed some
    additional light on the nature of the
relationship
between [the appellant] and Ms. Lyons, and the reason she placed
    tissue in her peephole. But theres one thing you must be careful about. Ms.
    Lyons is reported to have said that she thought [the appellant] was going to
    ask her for money. You
cannot use
this
    particular evidence to reach the conclusion that he actually did ask her for
    money when she returned from having visited her sister in London. Ms. Lyons
    obviously could not have actually known in advance that [the appellant] was
    going to ask her for money when she returned from London.
[3]
[Emphasis added]

[13]

Given the nature of this evidence, it was not
    necessary to caution the jury that they should not infer from the appellants
    behaviour before the killing that he had a propensity to commit murder.

[14]

An accuseds communications with and actions
    towards a deceased person can be relevant to identity, animus, motive and
    intention. Even if this evidence tends to portray the accused in a negative
    way, no limiting caution is necessary about propensity reasoning:
R.
    v. Pasqualino
, 2008 ONCA 554, 233 C.C.C. (3d) 319;
R.
    v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139;
R.
    v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373.

B.

Conduct after the killing

[15]

The appellant acknowledged when he testified
    that he:

1.

failed to contact the police to tell them the victim was dead;

2.

discarded his blood stained shirt;

3.

used the victims credit card for several days; and

4.

returned to her apartment to retrieve milk he had stored in her
    refrigerator.

[16]

The appellant submits that this evidence was
    prejudicial because it tended to show that he was a callous, strange man, and
    because this was equivocal demeanour evidence. The appellant submits that this
    evidence had little to no probative value and that the trial judge ought to
    have warned the jury about the dangers of this kind of evidence.

[17]

The accuseds actions after the killing went
    well beyond equivocal demeanour evidence, or odd statements made in stressful
    circumstances. Identity of the killer was the only real issue at trial. The
    accuseds use of the victims credit card in the days shortly after her killing
    was highly probative of the identity of the killer. The disposal of the blood
    stained shirt suggests an intention to destroy evidence.

[18]

The trial judge carefully instructed the jury
    about the use they could make of the appellants conduct after the killing:

Evidence about what a person said or did after
    an offence was committed may help you decide
whether it was that
    person who committed it
. It may help, or it may not. I
    will refer to this kind of evidence as post-offence conduct.

Sometimes, according to human experience and
    logic, a persons post-offence conduct is consistent with the conduct of a
    person who committed the offence and inconsistent with conduct of someone who
    did not do it. Sometimes, its not. And
sometimes theres another
    explanation
for post-offence conduct,
something
    unconnected with participation
in the offence charged.



you must be
careful not to immediately
    conclude
that he said or did them because he killed Ms.
    Lyons. Before coming to a conclusion about the reason or reasons for what [the
    appellant] said or did,
you must consider other possible
    explanations
.
Of particular importance are [the
    appellants] own explanations
for his conduct. [Emphasis
    added]

[19]

The trial judge reviewed some of the inculpatory
    inferences they could draw from the appellants conduct:

1. First, there is the fact that [the
    appellant], who said that he considered Ms. Lyons to be like a mother to him,
    and who, he said, considered him to be a second son, did not call the police
    and tell them that Ms. Lyons was dead when he said he discovered her dead body
    in her apartment, or at any other time over the next few days before her body
    was discovered by her son. You may consider this to be consistent with the
    actions of a person who killed Ms. Lyons, and wished to avoid detection.

2. There is [the appellants] evidence that he
    discarded the shirt that he was wearing when he discovered Ms. Lyons
    body, and which he knew had Ms. Lyons blood on it, into a remote garbage bin.
    You may consider this to be consistent with the actions of a person who killed
    Ms. Lyons, and wishes to avoid detection.

3. Next, there is [the appellants] use of Ms.
    Lyons Mastercard after her death on January 6 and 7, 2009. You may consider
    this to be consistent with the actions of a man who had no compunctions about
    having killed Ms. Lyons, and was therefore willing to exploit her death for his
    own ends.

4. Next, there is [the appellants] evidence that
    he returned to Ms. Lyons apartment after he knew she was dead to get his milk
    out of the refrigerator. You may consider this to be a callous disregard for
    the death of Ms. Lyons, consistent with the actions of the man who killed her.

5. Next, there is [the appellants] untruthful
    statement to the police that he had not been in Ms. Lyons apartment for a
    year. Once again, you may consider this to be consistent with the actions of a
    person who killed Ms. Lyons, and wishes to avoid detection.

[20]

The trial judge reviewed the appellants own
    explanations for his conduct:

1. First, regarding [the appellants] failure
    to call the police and report Ms. Lyons death, you may think that this might
    be the action of an innocent person who didnt want to get involved in an
    investigation out of fear of becoming a suspect, particularly because he was a
    Muslim who might be seen as a terrorist, or out of fear -- out of fear of the
    real killers, who [the appellant] said knew his identity, or, as he testified,
    because in a hurry to go shopping when he first started to dial 911.

2. Second, regarding [the appellant]
    discarding the shirt with Ms. Lyons blood on it, you may think that this might
    be the action of an innocent person who didnt want to get involved in the
    investigation out of fear of becoming a suspect, particularly because he was a
    Muslim who might be seen as a terrorist, or out of fear of the real killers who
    knew his identity, or, as he testified, because he couldnt risk bringing the
    shirt to the mosque because blood might drip on the floor.

3. Third, with regard to [the appellants]
    using Ms. Lyons Mastercard the day she was killed and the next day, you may
    think this might be the action of a person addicted to shopping who had nothing
    to do with the killing, but was willing to take advantage of it, or you might
    consider, as [the appellant] testified, that these might be the actions of a
    man who thought, well, Ms. Lyons is dead so she wont have to pay for my
    shopping.

4. Fourth, with regard to [the appellants]
    evidence that he returned to Ms. Lyons apartment after he knew she was dead to
    get his milk out of the refrigerator, you may think that this might be the
    action of an innocent man who had an unusual indifference to her death.

5. And fifth, with regard to [the appellants]
    untruthful statement to the police that he had not been in Ms. Lyons
    apartment for a year, you may think that this might be the action of an
    innocent person who didnt want to get involved in the investigation, again,
    out of fear of becoming a suspect, particularly because he was a Muslim who
    might be seen as a terrorist, or out of fear of the real killers who, he said,
    knew his identity, or, as he suggested, to avoid being suspected of using Ms.
    Lyons credit card.

[21]

Finally, the trial judge instructed the jury:

Remember, members of the jury,
you
    must exercise caution
in inferring guilt from
    post-offence conduct, because the conduct
might be explained in an
    alternative manner
. [The appellants] post-offence
    conduct
can only be used by you
to support an
    inference of guilt
if you reject any other innocent explanation
for the conduct. [Emphasis added.]

[22]

In these circumstances, where the identity of
    the killer was in issue, the trial judge was not required to tell the jury
    that, because of the repugnant nature of his conduct after the killing, they
    could not infer that the accused committed the murder. As a matter of logic and
    human experience, a person in a mother and son relationship with a deceased
    might not leave her body for days without saying anything to anyone. A jury
    could legitimately conclude that the accuseds use of the victims credit card
    after the killing established that he had been in her apartment at the time of
    the killing (in addition to the fingerprint he left there in the victims
    blood) and in combination with all of the evidence established that he was the
    killer.

C.

Failure to give a no probative value instruction

[23]

The appellant also argues that the accuseds
    conduct after the killing was equally consistent with guilt of theft of the
    credit card, and that the trial judge ought to have instructed the jury that
    the evidence of his conduct after the killing had no probative value.

[24]

This was not at all a case like
R. v. Arcangioli
, [1994] 1 S.C.R. 129,
    where the accuseds flight was equally consistent with punching or stabbing the
    victim.

[25]

As indicated in
R.
    v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 22-24, there is no general requirement for a special warning about the
    use of post-offence conduct:

The principle that after-the-fact conduct may constitute
    circumstantial evidence of guilt remains good law. At its heart, the question
    of whether such evidence is admissible is simply a matter of relevance[e]vidence
    of post-offence conduct is not fundamentally different from other kinds of
    circumstantial evidence. In some cases it may be highly incriminating, while in
    others it might play only a minor corroborative role. As with all other
    evidence, the relevance and probative value of post-offence conduct must be
    assessed on a case-by-case basis. Consequently, the formulation of limiting
    instructions with respect to the broad category of post-offence conduct is
    governed by the same principles as for all other circumstantial evidence. Thus,
    while the term consciousness of guilt may have fallen out of use, it is still
    permissible for the prosecution to introduce evidence of after-the-fact conduct
    in support of an inference that the accused had behaved as a person who is
    guilty of the offence alleged  provided that, as with all circumstantial
    evidence, its relevance to that inference can be demonstrated.

That being said, though the use of such evidence has an
    extensive history in our criminal jurisprudence, it has also long been
    recognized that the introduction of post-offence conduct for the purpose of
    establishing the accuseds consciousness of guilt carries with it a
    substantial risk of jury error. Jurors may be tempted to jump too quickly from
    evidence of post-offence conduct to an inference of guilt without giving
    proper consideration to alternate explanations for the conduct in question.

In most cases,
the best way for a trial judge to
    address that danger is simply to make sure that the jury are aware of any other
    explanations for the accuseds actions, and that they know they should reserve
    their final judgment about the meaning of the accuseds conduct until all the
    evidence has been considered in the normal course of their deliberations. Beyond
    such
a cautionary instruction
,
    the members of jury should be left to draw whatever inferences they choose from
    the evidence at the end of the day. [Emphasis added
, citations omitted.
]

[26]

As a general rule, it is for the jury to decide,
    on the basis of the evidence as a whole, whether the evidence of an accuseds
    post-offence conduct is related to the commission of the offence charged rather
    than to something else, and if so, how much, if any weight should be accorded
    to the evidence in the final determination of guilt or innocence: Watt's Manual
    of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at pp. 340-341.

[27]

Here the trial judge carefully reviewed
    competing inferences which could be drawn from the post-killing conduct to
    ensure that the jury did not leap immediately to guilt from the appellants
    admitted conduct. No more was required in this case.

D.

Sentence appeal

[28]

The trial judge concluded that a 15 year period
    of parole ineligibility was appropriate in this case. In coming to this
    conclusion, the trial judge noted the following:

·

The appellant had brutally murdered the victim, an 81 year old
    woman. They had a close relationship that deteriorated over time. The appellant
    asked her for money, she refused, and he killed her in a rage.

·

The appellant covered up the murder, took her credit card, and
    went on a shopping spree.

·

The victims family has suffered and will continue to suffer a
    profound sense of loss.

·

The appellant, at the time of sentencing, was 44 years old with
    three children and had no criminal record. He appeared simple minded on the
    stand and was financially irresponsible.

[29]

At trial, the Crown argued that
parole ineligibility should
    be 18 years. The defence argued that 12 years was appropriate in this case. The
    trial judge noted that it is difficult to identify a range for parole
    ineligibility for sub-categories of second degree murder, and to find guidance
    from cases when there are a myriad of different factors in any one case.

[30]

Ultimately,
    the trial judge concluded this case involved a serious murder and called for a
    sentence that emphasized denunciation, deterrence and the protection of the
    community. The trial judge concluded that character of the offender was a
    neutral consideration. There was nothing praiseworthy about him, but he had no
    violent or criminal history. Given the nature and circumstances of the offence,
    its brutality and callousness and that it involved an abuse of trust, as well
    as the character of the offender, the trial judge sentenced the appellant to
    life in prison with a minimum period of parole ineligibility of 15 years.

[31]

The appellant does not suggest that the trial judge failed to
    consider any relevant factors, but that he should have weighed them
    differently. He does assert that the trial judge erred by saying: it is hard
    to find guidance from cases where there are a myriad of different factors in
    any one case.

[32]

I do not accept this submission. The trial judge received and
    considered case law from both parties. He was aware of the ranges proposed by
    both parties, including a range of 12-15 years proposed by the defence. Against
    that backdrop, his comments that there are a myriad of different factors in
    any one case is a truism.

[33]

In summary the trial judges sentencing decision is owed
    deference and I see no basis to interfere.

[34]

The conviction and sentence appeal are dismissed.

Released: (J.M.) November 20, 2015

G. Pardu J.A.

I agree J.C.
    MacPherson J.A.

I agree M. Tulloch
    J.A.





[1]
The first trial, presided over by Clark J., ended in a hung jury and a
    mistrial. Justice Clarks pretrial rulings continued in force in the second
    trial before Dambrot J.



[2]
This was repeated by the trial judge in his charge when he related the defence
    position.



[3]
In addition, the trial judge mentioned the relevance of this body of evidence
    to the relationship and the financial difficulties in relation to his charge on
    identification - which he indicated was the central question.


