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CRIMINAL CODE OFFENCES - Homicide - First degree murder

Thursday, November 07, 2019 @ 6:25 AM  

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Appeal by Saleh from his conviction, by a jury at his re-trial, of first degree murder. The appellant acted as a middleman between the victim, a drug dealer who sold cocaine, and the supplier Ebrekdjian. Yegin, who had also been charged with the victim’s murder, testified he witnessed the appellant and Esrabian both shoot the victim in a secluded, rural area. Esrabian was convicted of first degree murder. He further testified the appellant told him the victim tried to purchase drugs directly from Ebrekdjian. He was adamant the appellant shot the victim in the head, despite the pathologist’s evidence that although the victim had been shot twice, there was no wound to the victim’s head. Yegin was acquitted for the same murder. He was admitted into the witness protection program upon his agreement to testify at the appellant’s re-trial. In 2013, the Court of Appeal overturned the appellant’s conviction for first degree murder.

HELD: Appeal allowed; new trial ordered. The evidence of Yegin and the pathologist was not mutually exclusive, and the scenario of the appellant as fatal shooter was supported by some evidence and not speculative. The trial judge’s instructions on party liability as an aider or abettor were not adequate as she failed to instruct the jury properly on the fault element required to convict the appellant as an aider or abettor for a planned and deliberate murder. Her instructions were confusing and incomplete in respect of the elements of party liability. The trial judge failed to relate the evidence to the appellant’s potential liability as an aider or abettor. The trial judge did not err in leaving constructive murder under s. 231(5)(e) of the Criminal Code with the jury but failed to assist the jury in understanding how, having rejected a planned and deliberate murder, the evidence could support a finding of guilt under s. 231(5)(e) using kidnapping as the predicate offence. The trial judge erred in her Vetrovec caution by leaving hearsay evidence with the jury as an example of independent confirmatory evidence. The trial judge’s errors were serious and required a new trial.

R. v. Saleh, [2019] O.J. No. 5204, Ontario Court of Appeal, D.M. Brown, L.B. Roberts and B. Zarnett JJ.A., October 15, 2019. Digest No. TLD-November42019011