



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nur, 2018 ONCA 8

DATE: 20180105

DOCKET: C58643

Sharpe, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hussein Jama Nur

Appellant

Ariel Herscovitch, for the appellant

Christine E. Bartlett-Hughes, for the respondent

Heard: December 20, 2017

On appeal from the conviction entered on May 27, 2013 by
    Justice Brian Trafford of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant and two of his three co-accused were found guilty of
    manslaughter in the death of a fellow inmate at the Don Jail. The Crown alleged
    that the appellant was a member of a group that grabbed the deceased, punched
    him in the face, kicked and stomped on him, dragged him into a shower, and dragged
    him back to his cell where he was later found dead.

[2]

The appellant submits that the trial judge erred in his charge to the
    jury on post-offence conduct and that he further erred by failing to relate the
    evidence against the appellant specifically to the elements of manslaughter.
    The appellant concedes that no single error standing alone is sufficient to
    require a new trial, but submits that their cumulative effect is fatal to the
    conviction.

[3]

At the conclusion of the appeal, we indicated that despite the very
    capable argument of Mr. Herscovitch, we did not need to call upon the Crown and
    that our reasons for dismissing the appeal would follow. These are our reasons.

1.

Did the trial judge err in his instruction on the use
    the jury could make of evidence of post offence conduct?

[4]

The Crown relied on the evidence that the appellant had been involved in
    moving the deceased into the shower, washing him, and then dragging him back to
    his cell as evidence of post-offence conduct from which the jury could infer
    that the appellant had participated in the assault that led to the death.

(a)

The alleged 
Hall
 error

[5]

The trial judge instructed the jury that if you find that the
    defendant(s) did those things because they were conscious of having committed
    the assault, you may consider this evidence, together with all the other
    evidence, in reaching your determination of the issue of the identity of the
    perpetrators of the assault.

[6]

The appellant submits that this amounted to an invitation to engage in
    the kind of impermissible circular reasoning identified by this Court in
R.
    v. Hall
, 2010 ONCA 724.

[7]

We do not accept this submission. The impugned passage in the charge was
    preceded by a reminder to the jury that it should consider the post-offence
    conduct evidence in the context of the evidence as a whole. It was immediately
    followed by a caution to be careful not to immediately conclude that the
    defendant(s) did these things because they were conscious of having committed
    the assault. Immediately thereafter, the trial judge instructed the jury to
    consider any innocent explanation for the post offence conduct, such as an
    intention to revive the deceased, or to follow the jail culture of interfering
    with the evidence of crime to frustrate a police investigation even if one were
    not involved in the crime itself. The trial judge also properly characterized
    the evidence of post-offence conduct as circumstantial evidence that could be
    considered, together with the rest of the evidence, in the determination of
    guilt: see
R. v. Taylor
, 2015 ONCA 448 at para. 142. In this case, as
    in
R. v. Moffit
, 2015 ONCA 412, at para. 55, the jury was not invited
    to jump directly to the issue of guilt as in
Hall
: see
R. v. Salah
,
    2015 ONCA 23, at para. 242.

[8]

We note as well that the so-called 
Hall
 error, standing on
    its own, is not fatal:
Hall
at para. 146;
Taylor
, at para.
    141.

[9]

Moreover, very experienced trial counsel did not object to this aspect
    of the charge. The failure to object is, of course, not fatal on appeal, but it
    does suggest that if even if there were an error, it was neither serious nor
    significant in the mind of experienced trial counsel who was in the best
    position to assess its impact: see
Taylor,
at paras. 142, 145.

(b)

Post-offence conduct evidence and the defence of prevention of the use
    of force.

[10]

The
    appellant submits that the trial judge erred by instructing the jury that it
    could consider evidence of post-offence conduct in assessing the defence of
    preventing the use of force. The appellant argues that the post-offence conduct
    evidence had no probative value on that issue, absent evidence that the
    appellant had the requisite knowledge to understand that the assault on the
    deceased could have been legally justified. Even if the appellant had that
    knowledge, in the context of a prison assault leading to death, the jury should
    have been instructed that a participant might well attempt to hide his
    involvement to avoid prosecution and the risk of conviction, even if he thought
    he was legally justified.

[11]

We
    disagree with those submissions.

[12]

The
    trial judge paraphrased s. 34(1) of the
Criminal Code
as the basis of
    his instructions on what he termed the defence of preventing the use of
    force. The justification for which s. 34(1) provides has three requirements:

·

(reasonable) belief

·

purpose

·

(reasonable) response.

[13]

Neither
    the appellant nor any other defendant expressly relied on this justification or
    asked the trial judge to leave it to the jury as arising on the evidence
    advanced at trial. The evidence to support the defence of preventing the use
    of force was at best tenuous. None of the defendants testified that the force
    they used was for the purpose of preventing themselves or others from actual or
    threatened force from the deceased. In addition to the absence of evidence on
    what we have designated the belief and purpose elements of the justification,
    the nature and extent of the injuries inflicted on the deceased by the several
    assailants seem irreconcilable with the requirement of a reasonable response in
    s. 34(1)(c).

[14]

In
    any event, we are satisfied that given the manner in which this issue was left
    with the jury, there is no risk that the appellant could have suffered any
    prejudice.

[15]

The
    jury was properly instructed that it should consider any possible innocent
    explanation for the post-offence conduct. In the context of this case and this
    evidence, the jury would have understood that a possible innocent explanation
    was that the accused believed that they were justified in using force against
    the deceased.

[16]

We
    observe that here again, there was no objection to the charge, indicating that
    the alleged frailty in the charge urged on appeal did not exist in the mind of
    the experienced defence counsel who had close familiarity with how the evidence
    had unfolded at trial. Even if for tactical reasons counsel did not wish to
    emphasize the prevention of force defence in his submissions to the jury, he
    could easily have asked the trial judge to make more explicit the instruction
    requested on appeal if he thought that there was a realistic possibility that
    the jury would not understand this specific innocent explanation for the
    post-offence conduct.

2.

Did the trial judge err by failing to relate the
    evidence pertaining to the appellant on the issue of
mens rea
for
    manslaughter?

[17]

The
    appellant submitted in his factum that the trial judge failed properly to
    relate the evidence pertaining to the appellant on the issue of the
mens
    rea
required for manslaughter.

[18]

We
    disagree. The instruction on the legal requirement of
mens rea
for
    manslaughter must be read in the light of the trial judges detailed review of
    the evidence and the positions of the parties. The jury was properly instructed
    on the
mens rea
issue and, in our view, when the instruction is read as
    a whole, the evidence relating to the appellant on the issue of
mens rea
was fully and fairly presented. The jury was instructed to consider the
    evidence related to each accused separately and the situation of the appellant
    was distinguished from that of the other accused. Accordingly, we would not
    give effect to this ground of appeal.

Disposition

[19]

For
    these reasons, the appeal against conviction is dismissed.

Robert J. Sharpe
    J.A.

David Watt J.A.

L.B. Roberts
    J.A.


