



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2019 ONCA 2

DATE: 20190104

DOCKET: C62941

Hoy A.C.J.O., Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Hafizi

Appellant

Philip Campbell and Catriona Verner, for the appellant

Susan Reid, for the respondent

Heard: December 3, 2018

On appeal from the
    conviction entered by Justice Kevin B. Phillips of the Superior Court of
    Justice, sitting with a jury, on March 4, 2016.

Benotto J.A.:

[1]

The appellant went out with a few friends to an Ottawa nightclub. While
    there, they clashed with a group of about twelve men. This led to an
    altercation. Even though the appellant did not initiate the altercation, he was
    told to leave the bar. Sixteen minutes later the main aggressor from the other
    group left the club alone. The appellant ran at him and fatally stabbed him.

[2]

The appellant was convicted of first degree murder. He appeals the
    conviction on several grounds.

[3]

For the reasons that follow, I would dismiss the appeal, but substitute
    a conviction for second degree murder.

FACTS

[4]

On the night of January 20, 2012, the appellant went with a friend and an
    acquaintance to a nightclub in Ottawa, where they met a few more friends. The
    appellant was a high school student who had turned 18 three weeks earlier. The
    nightclub was on the second floor of a building near the corner of Dalhousie
    and Rideau Streets. It was accessible by two staircases: one from Dalhousie and
    the other from Rideau.

[5]

Navid Niran, a 24-year-old man, was at the club with about twelve of his
    friends. The appellants group and Nirans group did not know each other. The
    two groups clashed several times during the evening. During one confrontation,
    one of Nirans friends hit the appellant in the face with an elbow causing him
    to bleed. The appellant and Niran swore at each other. Ahmad Haidari, Nirans
    friend, testified that he heard the appellant say, Im going to fuck you up
    or Im going to fucking catch you. The appellant was asked to leave the club
    by the bouncers. At trial, one of the bouncers testified that the appellant was
    not at fault, but because the other group had booked a table and was spending a
    lot of money, it was the appellant who was told to leave. The appellant left by
    the staircase that led to Dalhousie Street. Video surveillance captured the
    events that followed.

[6]

The appellant spent about 12 minutes in the stairwell and made some
    phone calls. While he was there, he was told by one of his friends that they
    would bring their car around. They came along Dalhousie and stopped in front of
    the stairwell. The appellant got into the back seat of the car. He was in the
    back seat for three and a half minutes when Niran emerged  alone  from the same
    staircase that the appellant had used, onto Dalhousie Street. Eighteen seconds
    later, the appellant opened the car door, ran toward Niran and swung at him. Their
    altercation lasted 9-11 seconds. Niran sustained four stab wounds: two in the
    chest, 8 cm deep and two in the abdomen, 3 cm deep. The knife used to stab him had
    a 9 cm blade and a locking mechanism.

[7]

The appellant fled, folding the knife into his pocket, and a few
    minutes later, threw it away into a snow bank on a nearby street. He got into a
    taxi and went to the apartment of someone he knew to use the phone. He was
    distraught and expressed remorse. The appellant admitted to stabbing and
    causing Nirans death.

[8]

The appellant testified at trial and raised self-defence. He said that
    he did not have the knife when he charged Niran. Instead, Niran produced the
    knife and he wrestled it away. The Crowns position was that the appellant had
    the knife all along. In part, this was based on the fact that the locking
    mechanism on the knife required two hands to open.

[9]

The Crown also argued that the murder was planned and deliberate. The
    Crown relied on the evidence of the appellants encounters with the deceased
    inside the club, Haidaris evidence about what the appellant said to Niran, the
    amount of time the appellant had to plan and deliberate after leaving the club,
    and the fact that he was waiting in a car outside when the deceased left the
    club.

[10]

The
    appellant argued that there was no evidence that the murder was planned and
    deliberate.

ISSUES

[11]

The
    appellant appeals his conviction on the basis that the trial judge erred:

1.

in refusing to
    correct the suggestion made in the charge to the jury that the appellant was
    guilty of murder if he would have foreseen that two stab wounds to the chest
    were likely to cause death;

2.

by inviting the
    jury to rely upon the fact that the appellant attacked the deceased as
    corroboration for
Haidaris
evidence that the
    appellant had threatened the deceased; and

3.

by including a
    series of rhetorical questions, prejudicial to the defence, in his charge to
    the jury.

[12]

In
    the alternative, the appellant asks that a conviction for second degree murder be
    substituted for the first degree murder conviction on the grounds that the
    verdict was unreasonable as there was no evidence of planning and deliberation.

[13]

The
    appellant also raises the following issues with respect to planning and
    deliberation, arguing that the trial judge erred: in failing to relate the
    evidence to the issue of planning and deliberation; and in failing to correct
    the Crowns suggestion that the appellant admitted the element of deliberation.

ANALYSIS

[14]

I
    begin with the conviction appeal generally and then consider the submission
    that the verdict of first degree murder was unreasonable. In light of my
    conclusions, it will not be necessary to consider the additional issues raised
    with respect to planning and deliberation.

(1)

The Conviction Appeal

[15]

The
    appellant seeks a new trial on three bases.

[16]

First,
    he submits that the trial judge erred by instructing the jury that its finding
    on the
mens rea
turned on whether the appellant would have foreseen
    the likelihood of death. In doing so, he erred by failing to point out the
    appellant needed to have the subjective foresight of the likelihood of death in
    order to be convicted of murder.

[17]

I
    do not accept this submission. The trial judges instructions on the
mens
    rea
for murder were correct when considered in the full context of the
    trial record including the entire jury charge and the addresses of counsel. The
    trial judge instructed the jury that it had to find a subjective foreseeability
    of death. There is no realistic risk that the jury would have applied the wrong
    test in determining the
mens rea
, particularly considering the
    seriousness of the wounds, which were realistically only consistent with
    intent.

[18]

Second,
    the appellant submits that the trial judge erred in failing to provide a
Vetrovec
instruction with respect to the
    evidence of Haidari. Instead, the trial judge invited the jury to find that
    Haidaris evidence of a threat was corroborated by the fact that the appellant
    did in fact attack the deceased.

[19]

I
    do not agree that Haidari was a disreputable or unsavoury witness such that a
Vetrovec
caution should have been given. However, I do agree with the appellant that
    the trial judge erred by suggesting the fact of the killing could prove that
    the threat was spoken. This invited circular reasoning which was compounded by
    a bad analogy when the trial judge gave the example of a person saying they
    were going to mail a letter and then mailing it. That said, in the
    circumstances here, the error caused no unfairness or miscarriage of justice. The
    trial judge fully canvassed the frailties of Haidaris evidence, including the
    fact that there was more than a years delay before he disclosed the threats,
    he was inconsistent about whether he remembered the exact words, it was a loud
    environment, and no other witness heard the alleged threats. More importantly,
    the evidence of Haidari was put forth as part of the Crowns submission on
    planning and deliberation. In light of my conclusion on the reasonableness of
    the verdict, the error is of no moment.

[20]

Third,
    the appellant submits that the trial judge erred by including a series of
    rhetorical questions in his charge to the jury. I agree that rhetorical
    questions should be avoided in the jury charge: see
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at para. 146. However, doing so did not result
    in a miscarriage of justice. The trial judge repeatedly reminded the jurors
    that they were the judges of the facts and his comments on the evidence could
    be ignored.

[21]

I
    would therefore not give effect to the conviction appeal.

[22]

I
    turn now to the primary issue raised by the appellant: the unreasonable
    verdict.

(2)

Unreasonable Verdict

[23]

The authority for a court of
    appeal to determine whether a jury reached an unreasonable verdict is found in
s.
    686(1)
(a)(i) of the
Criminal Code
, R.S.C.
    1985, c. C-46
, which reads:

686. (1)
On the hearing of an appeal against a
    conviction ... the court of appeal


(a)
may allow the appeal where it is of the opinion
    that

(i)
the verdict should be set aside on the ground
    that it is unreasonable or cannot be supported by the evidence.

[24]

The
    Supreme Court of Canada explained the test for an appellate court to determine
    whether the verdict of a jury is unreasonable or cannot be supported by the
    evidence in
R. v. Yebes
, [1987] 2 S.C.R. 168. At p. 186, McIntyre J.
    wrote for the court:

The Court must determine on the
    whole of the evidence whether the verdict is one that a properly instructed
    jury, acting judicially, could reasonably have rendered. While the Court of
    Appeal must not merely substitute its view for that of the jury, in order to
    apply the test the Court must re-examine and to some extent reweigh and
    consider the effect of the evidence.

[25]

The
    Supreme Court in
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at
    para. 36, further explained that the test imports both an objective and a
    subjective assessment. The reviewing court first looks at the sufficiency of
    the evidence objectively to determine if it is capable of supporting the
    verdict. The subjective element requires the reviewing court to examine the
    weight of the evidence rather than its bare sufficiency.

[26]

When
    a jury verdict that does not involve errors in the charge is perceived as
    unreasonable, it was held in
Biniaris
that the only rational inference
    is that the jury was not acting judicially. Justice Arbour explained this at
    para. 39:

This conclusion does not imply an
    impeachment of the integrity of the jury. It may be that the jury reached its
    verdict pursuant to an analytical flaw similar to the errors occasionally
    incurred in the analysis of trial judges and revealed in their reasons for
    judgment. Such error would of course not be apparent on the face of the verdict
    by a jury.
But the unreasonableness itself of the verdict would be apparent
    to the legally trained reviewer when, in all the circumstances of a given case,
    judicial fact-finding precludes the conclusion reached by the jury
.
    [Emphasis added.]

[27]

An
    appeal court, in considering a claim that a jury verdict is unreasonable, must therefore
    engage in a limited weighing of the evidence. Justice Cromwell described the
    boundaries of this exercise in
R. v. W.H.
, 2013 SCC 22, [2013] 2
    S.C.R. 180, at paras. 27-28:

On one hand, the reviewing court must give due weight to the
    advantages of the jury as the trier of fact who was present throughout the
    trial and saw and heard the evidence as it unfolded. The reviewing court must
    not act as a 13th juror or simply give effect to vague unease or lurking
    doubt based on its own review of the written record or find that a verdict is
    unreasonable simply because the reviewing court has a reasonable doubt based on
    its review of the record.

On the other hand, however, the
    review cannot be limited to assessing the sufficiency of the evidence. A
    positive answer to the question of whether there is some evidence which, if
    believed, supports the conviction does not exhaust the role of the reviewing
    court. Rather, the court is required to review, analyse and, within the limits
    of appellate disadvantage, weigh the evidence and consider through the lens of
    judicial experience, whether judicial fact-finding
precludes
the conclusion reached by the jury. Thus, in deciding whether the verdict is
    one which a properly instructed jury acting judicially could reasonably have
    rendered, the reviewing court must ask not only whether there is evidence in
    the record to support the verdict, but also whether the jurys conclusion
    conflicts with the bulk of judicial experience. [Citations omitted; emphasis in
    original.]

[28]

The
    judicial experience component to the analysis gains particular significance
    when the jury is called upon to make subtle distinctions as this court
    explained in
R. v. Robinson
,
2017 ONCA 645, 352 C.C.C. (3d) 503. When considering the distinction between
    the mental state for murder and planning and deliberation, Doherty J. A. said at
    paras. 36-37:

As in almost all cases, the evidence relevant to the
mens
    rea
issues, save the appellants testimony as to his state of mind,
    was circumstantial. Much of that evidence had relevance, both to the
mens
    rea
component of murder, and the
mens rea
required for planning
    and deliberation.

A lay jury, unaccustomed to the
    sometimes subtle distinctions drawn in the criminal law among various culpable
    mental states, might move quickly from a finding that the appellant decided to
    inflict bodily harm that he knew would probably cause death, to a finding that
    the appellant had planned to inflict harm that he knew was likely to cause
    death. Looking at the evidence through the lens of judicial experience, an
    appeal court must have regard to the real risk that evidence demonstrating the

intention

to commit
    murder under s. 229(a)(ii) could be improperly treated by a jury as equally
    cogent evidence of planning, if not deliberation.

[29]

When,
    as here, the analysis of a verdict engages circumstantial evidence, there is a
    further component to consider. Again, it was Cromwell J. who discussed this in
R.
    v. Villaroman
,
2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 55:

Where the Crowns case depends on circumstantial
    evidence, the question becomes whether the trier of fact, acting judicially,
    could reasonably be satisfied that the accuseds guilt was the only reasonable
    conclusion available on the totality of the evidence.
[Citations
    omitted.]

[30]

Applying
    these legal principles to the evidence relied on by the Crown to prove planning
    and deliberation, I conclude that the verdict of first degree murder is unreasonable.
    In coming to this conclusion, I have examined the Crowns evidence individually
    and in the context of the evidence as a whole.

[31]

The
    Crown submits that the only reasonable inference from the evidence is that the
    appellant committed a planned and deliberate murder.

[32]

The
    Crowns position is that, in the 16 minutes between the time the appellant last
    encountered Niran in the bar to the time of the stabbing, the appellant planned
    and deliberated about the murder. The Crown submits that Haidaris evidence constituted
    evidence of a threat to kill Niran and that this threat was the commencement of
    the plan, which continued while the appellant was in the stairwell and in the
    car, and then crystallized when he got out of the car on Dalhousie Street. The Crown
    says the triggering event was when the appellant saw Niran leaving the club. The
    fact that the appellant bolted from the car shows that he was acting in
    furtherance of a planned attack and that he had already engaged in
    deliberation.

[33]

I
    do not accept that, on the whole of the evidence, acting judicially, the jury
    could have been satisfied that the only reasonable conclusion was that the
    murder was planned and deliberate. There are several aspects of the evidence
    that indicate otherwise. In particular:

·

The appellant could not have known which staircase Niran would use
    to leave. If the appellant planned to kill him and was lying in wait to do so,
    he would not have placed himself in a position where he could not see both
    exits from the club.

·

If the appellant was planning to kill Niran, he would not have
    gotten into the car on Dalhousie Street. First, from the car, he could not have
    seen the Rideau Street exit. Second, as there was no suggestion that the driver
    played any role in the murder, he could have driven away at any time.

·

Niran was with a group of 12 friends, one of whom had hit the
    appellant earlier in the evening. The appellant had no reason to expect that Niran
    would come out of the club alone.

·

The evidence of the appellants words as related by Haidari, at
    its highest, amounted to no more than evidence of a threat to harm, not kill.

[34]

The
    Crown relied on the swiftness of the attack to support the allegation of
    planning. In my view, this is also evidence of an impulsive act. In
Robinson
,
para. 40, Doherty J. A. said:

A
    finding that the appellant decided seconds or a few minutes before inflicting
    the harm, to intentionally inflict bodily harm knowing that death was likely to
    ensue, is not the same as concluding that the appellant planned and deliberated
    upon the attack before commencing that attack. To borrow the language of the
    case law, there has to be evidence from which a jury could reasonably infer
    that the appellants attack on [the deceased] was the product of a calculated
    scheme, arrived at after weighing the nature and consequences of that scheme.
    In addition to evidence of planning, there had to be evidence that having made
    the plan, the appellant deliberated, that is weighed the pros and cons of
    putting the plan into action.

[35]

Here,
    the evidence falls short of establishing that the only reasonable conclusion
    was that the murder was the product of a calculated scheme, arrived at after
    weighing the nature and consequences of that scheme. Further, there is no
    evidence that having made the plan, the appellant deliberated, by weighing
    the pros and cons of putting the plan into action.

[36]

As
    I conclude the verdict of first degree murder was unreasonable, it is not
    necessary to address the additional issues raised with respect to planning and
    deliberation.

DISPOSITION

[37]

I
    would dismiss the appeal but substitute a conviction for second degree murder.

[38]

If
    the Crown seeks a period of parole eligibility in excess of ten years, I would
    invite written submissions (including victim impact statements, if any) from
    the Crown within 15 days of the release of these reasons and responding
    submissions within 10 days thereafter.

Released: January 4, 2019

M.L. Benotto J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree K. Feldman
    J.A.


