R. v. Arnaout (A.M.), (2015) 339 O.A.C. 379 (CA)

• Judge: LaForme, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 30, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 379 (CA);2015 ONCA 655

R. v. Arnaout (A.M.) (2015), 339 O.A.C. 379 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.024

Her Majesty the Queen (respondent) v. Adel Mohamed Arnaout (appellant)

(C56021; 2015 ONCA 655)

Indexed As: R. v. Arnaout (A.M.)

Ontario Court of Appeal

LaForme, Watt and Epstein, JJ.A.

September 30, 2015.

Summary:

The accused was charged with eight counts of attempted murder by sending tampered water bottles to a number of persons and three counts of attempted murder by sending letter bombs to other persons. None of the persons who drank some of the water suffered serious injury. Although the accused admitted injecting a chemical (DMSO) into the water to facilitate the absorption of Ricin (a poison) into the body, and the accused researched Ricin on the internet, there was no evidence of Ricin in the water bottles and no evidence of the accused manufacturing Ricin. The trial judge convicted the accused on all 11 counts of attempted murder, finding that the accused injected Ricin into the bottles. After the accused appealed his convictions, and 17 months after the trial judge's reasons, the trial judge amended his reasons by providing an alternate theory (i.e., that if the accused had not put Ricin in the water he tried to do so). The trial judge stated that the alternative theory was inadvertently omitted from his original reasons. In addition to the already stated grounds of appeal, the accused also now argued that the trial judge's amendment of his reasons rebutted the trial judge's presumption of integrity (i.e., trial judge attempting to justify his reasons that were being appealed).

The Ontario Court of Appeal allowed the appeal in part. The presumption of judicial integrity was rebutted by the amended reasons. A reasonable and informed person would see the amendments as an after-the-fact justification for the verdicts rather than the articulation of the reasoning that led to the verdicts. The remedy was to ignore the amendments and decide the appeal on the original reasons. The court set aside the eight "tampered" water bottle attempted murder convictions, as the evidence did not support that the accused put Ricin in the water and what he admitted putting in was not toxic or harmful. The court rejected the Crown's submission that convictions should be substituted for administering or attempting to administer a noxious substance. The wording of the charge did not permit the latter offence being an included offence to attempted murder by tampering with water bottles. The court affirmed the convictions for attempted murder by sending letter bombs. The matter was remitted for re-sentencing.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The trial judge found the accused guilty on eight counts of attempted murder by sending tampered with bottled water to persons he had issues with - The accused admitted injecting the bottles with a chemical (DMSO) that enhanced the absorption of Ricin (a poison) into the body - Although the accused searched Ricin on the internet, he denied putting Ricin in the bottles, the Crown introduced no forensic evidence that Ricin was present, and there was no evidence of the accused manufacturing Ricin - Further, no one who drank the water fell ill - The trial judge inferred that the accused put Ricin in the water - Seventeen months after the original lengthy reasons for his decision, after the accused filed his appeal, the trial judge advised counsel that he was amending his original reasons to correct an inadvertent omission - The amendment added an alternative theory of guilt; that if the accused did not put Ricin in the water, he would still be guilty because he attempted to do so and failed - The accused claimed that the trial judge's integrity and the appearance of impartiality was rebutted - The Ontario Court of Appeal agreed - The amendments, in the eyes of a reasonable and informed observer, would constitute an after-the-fact justification for the verdict rather than an articulation of the reasoning that led to the convictions - Supporting a finding that the amendments were after-the-fact justification included (1) the weakness of the evidence supporting the attempted murder charges based on Ricin poisoning; (2) the trial judge's statement that he expected the decision to be appealed; and (3) the 17 month delay in amending the original reasons - The amendments strengthened the weakest link in the trial judge's reasoning - The remedy was to ignore the amendments and decide the appeal on the original reasons - See paragraphs 17 to 61.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Courts - Topic 583 ].

Criminal Law - Topic 1263

Murder - General principles - Intention - The accused was charged with eight counts of attempted murder by "tampering" with water bottles - The accused admitted injecting the bottles with a chemical (DMSO) that enhanced the absorption of Ricin (a poison) into the body - Although the accused searched Ricin on the internet, he denied putting Ricin in the bottles, the Crown introduced no forensic evidence that Ricin was present, and there was no evidence of the accused manufacturing Ricin - Further, no one who drank the water fell ill - The Ontario Court of Appeal set aside the convictions for attempted murder and substituted acquittals - The trial judge erred in finding that the evidence supported a finding that the accused had the requisite mens rea for charges of attempting to kill the water bottle recipients by poisoning them with Ricin - The expert evidence that even a small amount of Ricin would be fatal was inconsistent with no one falling ill and was not explained by the trial judge's speculation that they may have only drank a small amount of the water - The verdicts were unreasonable and unsupported by the evidence - See paragraphs 64 to 69.

Criminal Law - Topic 4464

Procedure - Verdicts - Included offences - Inclusion in murder - The accused was charged with eight counts of attempted murder "by sending [named person] tampered bottled water" and "by causing [named person] to receive tampered bottled water" - The accused admitted injecting the bottles with a chemical (DMSO) that enhanced the absorption of Ricin (a poison) into the body - The trial judge convicted the accused, inferring that the accused put Ricin in the water bottles - Those convictions were set aside on appeal, as the evidence did not support a finding that Ricin was present in the bottles - The Crown argued that convictions should be substituted with convictions for administering or attempting to administer a noxious substance (included offence in the charge) - The Ontario Court of Appeal held that the noxious substance offence was not included in the offence charged - The accused could not be convicted of administering a noxious substance unless someone actually drank the water and unless he actually added a noxious substance to the bottle - DMSO was not a noxious substance and the evidence did not support a finding that Ricin was added - The attempted murder charges, as worded, did not necessarily put the accused on notice that he could be convicted of administering a noxious substance - The court stated that "A charge alleging attempted murder by tampered bottled water does not necessarily allege that the accused person tainted the bottled water with a noxious thing" - See paragraphs 70 to 81.

Criminal Law - Topic 4687

Procedure - Judgments and reasons for judgment - Reasons for judgment - Time for - [See Courts - Topic 583 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 1263 ].

Practice - Topic 6037

Judgments and orders - Reasons for judgment after trial or application - Effect of giving judgment "with reasons to follow" - The Ontario Court of Appeal stated that "trial judges may announce a decision with 'reasons to follow'" - However, "A long delay between a decision and reasons may cause an informed and reasonable observer to believe that the trial judge, instead of considering the evidence with an open mind, reasoned in a manner designed to reach the result previously announced. That is, the reasonable observer may believe that the trial judge reasoned with a view to defending the decision rather than arriving at it, even if only subconsciously" - See paragraphs 31, 33.

Cases Noticed:

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, refd to. [para. 18].

R. v. Cunningham (K.) (2011), 281 O.A.C. 7; 106 O.R.(3d) 641; 2011 ONCA 543, refd to. [para. 20].

R. v. Thompson (D.L.) (2010), 263 O.A.C. 185; 256 C.C.C.(3d) 51; 2010 ONCA 463, refd to. [para. 56].

R. v. Port Chevrolet Oldsmobile Ltd. et al. (2009), 274 B.C.A.C. 254; 463 W.A.C. 254; 246 C.C.C.(3d) 355; 2009 BCCA 357, refd to. [para. 57].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 59].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 62].

R. v. G.R., [2005] 2 S.C.R. 371; 337 N.R. 1; 2005 SCC 45, refd to. [para. 74].

R. v. Beyo (D.) (2000), 131 O.A.C. 150; 47 O.R.(3d) 712 (C.A.), leave to appeal refused (2000), 263 N.R. 392; 145 O.A.C. 198 (S.C.C.), refd to. [para. 76].

R. v. Simpson (No. 2) (1981), 58 C.C.C.(2d) 122 (Ont. C.A.), leave to appeal refused [1981] 1 S.C.R. xiii; refd to. [para. 76].

Counsel:

David E. Harris, for the appellant;

John Neander, for the respondent.

This appeal was heard on March 26, 2015, before LaForme, Watt and Epstein, JJ.A., of the Ontario Court of Appeal.

On September 30, 2015, the following judgment was released by the Court.