R. v. Humaid (A.A.), (2006) 210 O.A.C. 68 (CA)

• Judge: Doherty, Weiler and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 10, 2005
• Jurisdiction: Ontario
• Citations: (2006), 210 O.A.C. 68 (CA)

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AP.072

Her Majesty the Queen (respondent) v. Adi Abdel Humaid (appellant)

(C39927)

Indexed As: R. v. Humaid (A.A.)

Ontario Court of Appeal

Doherty, Weiler and Moldaver, JJ.A.

April 19, 2006.

Summary:

A jury convicted the accused of first degree murder. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - The Ontario Court of Appeal reviewed the defence of provocation to a charge of murder - See paragraphs 63 to 66.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - An accused was charged with murdering his wife - He raised the defence of provocation based on his wife’s alleged infidelity and the significance of infidelity to his Islamic religion and culture - He was convicted of first degree murder - He appealed - The Ontario Court of Appeal stated that even if there was an air of reality to the provocation defence, any error in respect of the instructions on that defence could not have affected the verdict - It was implicit in the verdict, that the jury was satisfied beyond a reasonable doubt that the murder was planned and deliberate - The jury instruction on planning and deliberation was accurate, balanced and thorough - There was also ample evidence to support the jury's finding that the murder was planned and deliberate - The verdict left no room for a successful provocation defence - See paragraphs 87 to 90.

Criminal Law - Topic 1281

Offences against person and reputation - Murder - Provocation - What constitutes “sudden provocation" - An accused was charged with murdering his wife - He raised the defence of provocation based on his wife’s alleged infidelity and the significance of infidelity to his Islamic religion and culture - The Ontario Court of Appeal stated that “A provocation claim rests on the assertion that an accused in a state of extreme anger lost his ability to fully control his actions and acted while in that state. Provocation does not shield an accused who has not lost self-control, but has instead acted out of a sense of revenge or a culturally driven sense of the appropriate response to someone else's misconduct. An accused who acts out of a sense of retribution fuelled by a belief system that entitles a husband to punish his wife's perceived infidelity has not lost control, but has taken action that, according to his belief system, is a justified response to the situation” - See paragraph 85.

Criminal Law - Topic 1283

Offences against person and reputation - Murder - Provocation - What constitutes an “insult” - An accused was charged with murdering his wife - He raised the defence of provocation based on the wife’s alleged admission of infidelity and the significance of infidelity to his Islamic religion and culture - On appeal from conviction for first degree murder, the accused asserted that the trial judge erred in telling the jury that his cultural background and religious beliefs could not be considered when determining whether the insult was sufficient to deprive the ordinary person of self-control - The Ontario Court of Appeal stated that, assuming that the accused’s beliefs were relevant, the expert evidence did not assist him - There was no evidence that he shared the religious and cultural beliefs that the expert attributed to Muslims in general - It was not enough to lead evidence that Muslims, or any other group, had certain religious or cultural beliefs that could affect the gravity of the provocative conduct in issue and that the accused was a member of that group - As the expert acknowledged, the extent to which any individual Muslim held those views and would act on them would depend on a myriad of individual factors - Accordingly, on the totality of the evidence, even if the wife’s comment was understood by the accused as an admission of infidelity, that admission could not have amounted to an insult capable of causing an ordinary person to lose self-control - See paragraphs 80 to 84.

Criminal Law - Topic 1284

Offences against person and reputation - Murder - Provocation - Ordinary person - What constitutes - An accused was charged with murdering his wife - He raised the defence of provocation based on the wife’s alleged infidelity and the significance of infidelity to his Islamic religion and culture - On appeal from conviction for first degree murder, the accused asserted that the trial judge erred in telling the jury that his cultural background and religious beliefs were not to be factored into the “ordinary person” test - The Ontario Court of Appeal, without considering the merits of the assertion, stated that in some situations an accused's beliefs would be attributed to the ordinary person to properly apply the test - In this case, however, the accused’s beliefs were not the target of the alleged insult - Rather, his beliefs were said to render the words spoken highly insulting - The problem was that the alleged beliefs were premised on the notion that women were inferior to men and that violence against women was in some circumstances accepted, if not encouraged - These beliefs were antithetical to fundamental Canadian values, including gender equality - It was arguable that as a matter of criminal law policy, the "ordinary person" could not be fixed with beliefs that were irreconcilable with fundamental Canadian values - Criminal law might simply not accept that such a belief system should somehow provide the basis for a partial defence to murder - See paragraphs 91 to 94.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - [See second Criminal Law - Topic 1280 ].

Criminal Law - Topic 1289

Offences against person and reputation - Murder - Provocation - Evidence and proof - [See Criminal Law - Topic 1283 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - An accused was charged with murdering his wife (Aysar) - It was part of the Crown’s case that Aysar did not know that the accused was coming to Ottawa where the killing occurred - The accused asserted that Aysar knew that he was coming and proffered the evidence of the front desk clerk at Aysar’s hotel - On a voir dire, Stevenson testified that Aysar told her, inter alia, to give the accused a room key when he arrived - The trial judge excluded Stevenson’s evidence - The Ontario Court of Appeal held that the evidence should have been admitted - It was doubtful that the statements were hearsay in the traditional sense - They were offered only to show Aysar's state of mind when she made the statements - Assuming that the evidence was hearsay, it fell within the recognized "state of mind" exception to the rule excluding hearsay evidence - The exception was consistent with the requirements of necessity and reliability - However, exclusion did not affect the verdict - What was important to the Crown's case was that the accused travelled to Ottawa without any forewarning to Aysar, not that he arrived secretly and unannounced - Evidence that Aysar knew of his arrival a few hours in advance was not inconsistent with the Crown's case - See paragraphs 58 to 62.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The Ontario Court of Appeal stated that “A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence ... There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator's evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion. If the evidence was tendered by the defence, the discretion could be exercised only where the potential prejudice substantially outweighed the potential probative value to the defence of the out-of-court statement ...“ - See paragraph 57.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - [See Criminal Law - Topic 5037 and Criminal Law - Topic 5209 ].

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - An accused was charged with the first degree murder of his wife (Aysar) - It was part of the Crown’s case that Aysar did not know that the accused was coming to Ottawa where the killing occurred - The accused asserted that Aysar knew that he was coming to Ottawa and proffered the evidence of the front desk clerk at the hotel where Aysar was staying - On a voir dire, Stevenson testified that Aysar told her that the accused was arriving and to give him a room key when he arrived - In conducting a reliability inquiry, the trial judge focussed on Stevenson’s credibility, held that her evidence was fraught with inconsistencies and was utterly untrustworthy and excluded the evidence - The Ontario Court of Appeal held that the trial judge erred in holding that Stevenson’s credibility was relevant - The credibility and reliability of the narrator of the out-of-court statement was not relevant to the threshold reliability inquiry - The trial judge should have looked for circumstantial guarantees of trustworthiness arising out of the circumstances in which the statements were made - If the threshold reliability hurdle was cleared, ultimate reliability was for the trier of fact - See paragraphs 43 to 56.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See Criminal Law - Topic 5209 ].

Evidence - Topic 1504

Hearsay - Hearsay rule - General principles and definitions - What constitutes hearsay - [See Criminal Law - Topic 5037 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 5037 and second Criminal Law - Topic 5420 ].

Evidence - Topic 1626

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - General principles - [See Criminal Law - Topic 5037 and second Criminal Law - Topic 5420 ].

Cases Noticed:

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 47].

R. v. Smith (A.L.) (1992), 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 50].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), leave to appeal refused (2005), 344 N.R. 194; 208 O.A.C. 396 (S.C.C.), refd to. [para. 50].

R. v. Meaney (A.J.) (1996), 145 Nfld. & P.E.I.R. 306; 453 A.P.R. 306; 111 C.C.C.(3d) 55 (Nfld. C.A.), leave to appeal refused (1997), 212 N.R. 82; 151 Nfld. & P.E.I.R. 90; 471 A.P.R. 90; 112 C.C.C.(3d) vii (S.C.C.), consd. [para. 52].

R. v. G.N.D. (1993), 62 O.A.C. 122; 81 C.C.C.(3d) 65 (C.A.), leave to appeal refused (1993), 158 N.R. 319; 65 O.A.C. 79; 82 C.C.C.(3d) vi (S.C.C.), refd to. [para. 55].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1; 27 C.R.(4th) 141 (C.A.), affd. [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [para. 57].

R. v. Seaboyer and Gayme (1991), 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 57].

R. v. Arcangioli (G.) (1994), 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 57].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 63].

R. v. Gilling (S.M.) (1997), 101 O.A.C. 297; 117 C.C.C.(3d) 444 (C.A.), refd to. [para. 63].

R. v. Gibson (J.T.) (2001), 153 B.C.A.C. 61; 251 W.A.C. 61; 153 C.C.C.(3d) 465 (C.A.), refd to. [para. 63].

R. v. Kent (P.S.) (2005), 212 B.C.A.C. 98; 350 W.A.C. 98; 196 C.C.C.(3d) 528 (C.A.), refd to. [para. 63].

R. v. Flegel (D.R.) (2005), 197 O.A.C. 57; 196 C.C.C.(3d) 146 (C.A.), refd to. [para. 63].

R. v. Parent (R.) (2001), 268 N.R. 372; 154 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 65].

R. v. Thibert (N.E.) (1996), 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321; 104 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 77].

R. v. Cinous (J.) (2002), 285 N.R. 1; 162 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 80].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 80].

R. v. Dincer, [1983] 1 V.R. 450 (Vic. S.C.), refd to. [para. 85].

R. v. Haughton (D.) (1994), 179 N.R. 1; 79 O.A.C. 319; 93 C.C.C.(3d) 99 (S.C.C.), refd to. [para. 88].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 140 C.C.C.(3d) 259 (C.A.), leave to appeal refused (2000), 263 N.R. 391; 141 O.A.C. 398 (S.C.C.), refd to. [para. 88].

R. v. Nahar (D.S.) (2004), 193 B.C.A.C. 217; 316 W.A.C. 217; 181 C.C.C.(3d) 449 (C.A.), refd to. [para. 94].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 232 [para. 64].

Authors and Works Noticed:

Boyle, Christine, Chun, Dorothy, and Grant, Isabelle, The Law of Homicide (1994), pp. 6 to 17 [para. 94].

Bronitt, Simon, and McSherry, Bernadette, Principles of Criminal Law (2001), pp. 371, 372 [para. 94].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003), p. 7-64 [para. 51].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 257, 258, 259 [para. 58].

Counsel:

Richard J. Bosada and Diane Magas, for the appellant;

Riun Shandler, for the respondent.

This appeal was heard on November 10, 2005, by Doherty, Weiler and Moldaver, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on April 19, 2006.