R. v. Hashemian, 2020 ONCJ 75

ONTARIO COURT OF JUSTICE CITATION: R. v. Hashemian, 2020 ONCJ 75 DATE: 2020·02·07 NEWMARKET BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMMAD HASAN HASHEMIAN JUDGMENT Evidence Heard: February 5, 6, 2020. Delivered: February 7, 2020. Mr. Kevin Stewart .................................................................................... counsel for the Crown Mr. Sayed Hafizi ................................................................................. counsel for the defendant KENKEL J.: Introduction [1] Mr.

Hashemian is alleged to have uttered threats to kill Canadians in a phone conversation with a social services manager.York Regional Police officers detained Mr. Hashemian under the Mental Health Act RSO 1990 c M7. He was searched on detention,and police seized a large folding knife that was concealed under the waistband of his pants. Mr. Hashemian is charged with utteringdeath threats and possession of a weapon for a dangerous purpose. [2] Both parties called evidence. The credibility of the witnesses is the central issue on both counts.

The analysis below beganwith an assessment of all of the evidence as a whole, then specific findings of fact were made in that context. The framework in R v WD, (SCC), [1991] SCJ No 26 applies. The Evidence [3] Ms. Abdelkader works as a Program Manager at COSTI, an agency that provides social services to newcomers to Canada.She was asked to follow up on complaints made by one of their clients, Mr. Hashemian, who was dissatisfied with their English instruction classes and with services provided by other agencies. She called Mr. Hashemian on April 10th, 25th and 26th of 2019. [4] On April 10th, Mr.

Hashemian told Ms. Abdelkader that he was dissatisfied with a number of social agencies including herown. He said he had hired a lawyer and wanted to file complaints against them. He disliked Canada and wanted to move to anothercountry. At the end of their discussion, he appeared to be in a more positive mood and he thanked her several times. Ms. Abdelkader saidthat she sympathized with Mr. Hashemian, and she thought it was common for newcomers to feel disenfranchised. [5] On April 25th Ms. Abdelkader was advised that Mr. Hashemian had come to an agency office to see her without anappointment.

She was told he was very agitated and spent two hours waiting even though she was unavailable. He had called one of the

women at the agency a “motherfucker”. Ms. Abdelkader called Mr. Hashemian and they discussed his complaints again at length. In that conversation he said that Canada had been bad to him and he really didn’t care about the children and adults of Canada. He told that her he knew that his words were threatening, but he didn’t care. Canada had accepted him as a refugee, but Mr. Hashemian said that “Canada has taken everything from me.” She did not call police as she didn’t think that Mr. Hashemian would act on those vague threats. [ 6 ] On April 26 th Ms. Abdelkader had another extended conversation with the accused.

During that conversation he made specific threats that caused her to fear for the safety of her co-workers. She recorded the following statements: • I am the killer of bad Canadians • I can get rights by my own power • I want my rights and I will take them by force • I want everyone to know what happened to me because when I do something, I want them to know I wasn’t crazy and bad [ 7 ] When Mr. Hashemian said he was a “killer of bad Canadians” Ms. Abdelkader had him repeat himself several times so there was no misunderstanding. She had no difficulty understanding him.

She explained to him that she would have to call the police if he continued making those statements and he said he understood. He told her he had a plan, but he would not give her the details. He wanted her to explain to others after he carried out his plan that he was a good person. Ms. Abdelkader called the Toronto Police Service and they notified the York Regional Police (YRP) as Mr. Hashemian was at home in Richmond Hill at the time of the call. [ 8 ] Three York officers attended at Mr. Hashemian’s home. At the time they had general information about threats, and they were aware that Mr.

Hashemian might have been suffering from a mental illness. Their intent was to determine if Mr. Hashemian was a threat to himself or others such that he needed to be apprehended under the Mental Health Act . As PC Weston explained, the officers were hoping Mr. Hashemian would say that it was a misunderstanding. Mr. Hashemian stepped outside to have a cigarette and to speak with the officers. The officers testified that he didn’t respond directly to their questions. Each officer spoke with Mr.

Hashemian without success until PC Weston asked him again directly if he planned to hurt or kill anyone that day or in the future. PC Weston and PC Fleming both testified that the accused smiled at that question and nodded yes. [ 9 ] Based on that affirmative response, Mr. Hashemian was detained under the Mental Health Act . At the time of his detention, Mr. Hashemian was searched and a knife was found concealed under the waistband of his pants. The knife was seized and Mr. Hashemian was driven the short distance to the MacKenzie Health hospital.

While in the parking lot, PC Weston received further details of the Toronto complaint. He learned about specific statements that the accused uttered about wanting to kill Canadians and about having a plan in that regard. He also learned about the many grievances Mr. Hashemian had with the various agencies trying to help him and the persons who appeared to be at risk given the threats. Based on the further information, Mr. Hashemian was not taken inside the hospital but his detention was continued as an arrest for uttering death threats. A caution and right to counsel advice was provided. [ 10 ] Mr.

Hashemian testified that he was generally upset and angry about his dealings with numerous social agencies including COSTI. He wished to punish all of the people who had caused him so much suffering by abusing him mentally, emotionally and physically. He was pursuing complaints with multiple agencies, and he also intended to contact a lawyer in Turkey to appeal to a United Nations office for assistance. [ 11 ] Mr. Hashemian recalled some details of the two-hour April 26 th conversation with Ms. Abdelkader. He mentioned being sent a complaint form and trying to arrange a further meeting.

When asked in examination-in-chief whether he made the comment attributed to him by the manager, Mr. Hashemian said he didn’t know. He wanted to speak to Ms. Abdelkader “very strongly and seriously” about his complaints, but he doesn’t now believe he would have said the specific threats alleged as he intended at the time to leave Canada. He would have had no reason to make such a statement. As far as he recalled, the conversation was simply about making a further appointment with her.

He also testified that he has since researched the word killer and he thinks that if the word was used, perhaps it was as a mistaken continuation of words like bad, very bad, terrible, and rude, used to express his frustration with all of the people who have harmed him. In cross-examination, Mr. Hashemian appeared to become more certain that he did not say the threatening words attributed to him. [ 12 ] When the police arrived at his residence, Mr. Hashemian was just getting ready to go out. The knife found under his waistband was purchased that day.

He bought the knife to try to fix an insert in his shoe but then decided it wasn’t the right tool and he intended to bring the knife back. He was careful in opening the package to ensure he would be able to return it. He testified that was leaving to take the knife back to the store when the police happened to arrive. The Submissions of Counsel [ 13 ] The defence submits that Mr. Hashemian was a credible witness. He didn’t utter the alleged threats, but if he did it was simply a misuse of language. There’s no credible evidence that he intended to threaten anyone. The defence submits that Ms.

Abdelkader was not a credible witness. Her evidence was “all over the place.” At first she testified that there was no threat, but then after a break she changed her testimony with new allegations of specific threats. She was neither credible nor reliable. The circumstances of the possession of the knife do not show it was a weapon or that it was carried for a dangerous purpose. [ 14 ] The Crown submits that Ms. Abdelkader gave consistent, credible evidence. She was able to recall specific details after refreshing her memory by reviewing her original statement to police during the morning break.

She was sympathetic to the accused throughout. She was responsive to questions both in examination-in-chief and cross-examination. The Crown submits that Mr. Hashemian was unresponsive to questions both in examination-in-chief and in cross-examination. He was evasive and often provided long, rambling replies. His testimony was incredible and unreliable and should be rejected. The circumstances of possession of the knife show that it was a weapon intended to be used for a purpose dangerous to the public peace.

The Alleged Death Threats [ 15 ] Mr. Hashemian is well-spoken in Persian (through translation) and it’s plain he has a good command of the English language. Ms. Abdelkader described his English as “eloquent” compared to most newcomers. She had no difficulty understanding him. When Mr. Hashemian testified at trial, he responded to the affirmation in English despite the presence of the translator, and he responded to several questions in English before switching to the use of the translator.

Throughout his testimony he used English words while speaking Persian for terms like “agency,” “newcomer,” “honestly.” When he explained that he researched the word “killer” and came to think if it was used it might have been used as a continuation of words like bad, very bad, terrible and rude, he said all of those words in English. [ 16 ] While it’s plain Mr. Hashemian is an intelligent person, considering his evidence in the context of all of the evidence at trial I find I am unable to accept his testimony as credible or reliable. As the Crown noted, he was unresponsive to questions from both counsel.

His long responses quickly veered off topic and were internally disorganized. It did not appear he was deliberately trying to be evasive with either lawyer, but he was not able to answer even simple questions without adding other things that he wanted to say. Mr. Hashemian’s list of grievances against all of the social agencies who’ve tried to help him including emotional and physical abuse and torture seemed unlikely and incredible. [ 17 ] Mr. Hashemian testified in examination-in-chief that he didn’t remember details of the two-hour conversation, but he wanted to talk to Ms.

Abdelkader “very strongly and seriously” about his grievances. With respect to the central allegation of threats, when first asked he seemed to suggest that if the word killer was used it was a language mistake as he wanted to emphasize his complaints. At other points in his testimony he seemed to specifically deny that that word and the other alleged threats were said at all. When his counsel returned to the statement about being a killer and asked him if he uttered those words he said, “I don’t know.” He doesn’t now believe that he had a reason to make that statement.

In cross-examination he specifically denied making the statement. [ 18 ] Mr. Hashemian’s testimony was confusing and internally inconsistent on the central points related to the threats. It’s understandable that he does not recall the specifics of a lengthy conversation from April of last year as he did not make any notes at the time that would assist his recollection.

His present conclusion that he did not have any reason in April to make the statements alleged is contradicted by the very strong terms in which he described his grievances with doctors, teachers and social agencies who he said were torturing and hurting him. I find that Mr. Hashemian’s present recollection is neither credible nor reliable and is contradicted by external, credible direct and circumstantial evidence. [ 19 ] Ms. Abdelkader testified in a straightforward manner. She was responsive to questions from both the Crown and defence counsel.

Her answers were logical and consistent with external circumstances. She was plainly sympathetic to the accused and she mentioned that as someone who works with newcomers she saw herself as Mr. Hashemian’s advocate even though he was complaining about her agency and the other agencies who were helping him. She spoke to him at length several times as it seemed to help him to express his grievances and she wanted to get him some help. [ 20 ] Ms. Abdelkader initially described the threats in the April 26 th conversation in general terms. She said that Mr.

Hashemian told her in an unusually calm voice that he intended to attack others. That Canadians would see. After he executed his plan he wanted her to tell others that he had complaints and was otherwise a good person. He wouldn’t give her details of the plan. He just said he would “get” all Canadians. After the morning break, Ms. Abdelkader said that she’d finally reviewed her initial statement to the police. She also reviewed notes she made at the time of the phone conversation with Mr. Hashemian.

She had not refreshed her memory prior to trial as there was late service of the subpoena due to an address change and in the time after service she’d been dealing with serious personal issues at home. Her delay in refreshing her memory was reasonably explained. [ 21 ] While she did not remember the exact words from memory, Ms. Abdelkader took notes on a “sticky pad” which she showed to the police and had with her at trial She also provided a statement to the police.

Once her memory was refreshed by reviewing those documents, she was able to describe the accused’s threatening statements verbatim: • I am a killer for bad Canadians • I can get rights by my own power • I want my rights and will take them by force • I want everyone to know what happened to me because when I do something I want them to know I wasn’t crazy and bad [ 22 ] Ms. Abdelkader testified that her memory of the two-hour conversation was generally “fuzzy.” It’s understandable that she couldn’t recite verbatim much of the conversation from last April that was not written down.

But she was very careful to write Mr. Hashemian’s exact words in the statements she did record. She had him repeat those statements to confirm what she heard. She had no difficulty understanding him. She explained to him that those types of statements would not be confidential and might require her to report the matter. He told her he was aware of that. She inferred that’s why he would not share details of his plan. [ 23 ] There was testimony that was “all over the place” at this trial, but that is not a fair characterization of Ms. Abdelkader’s evidence.

Her general description of the accused’s statements was explained in more detail once she’d had an opportunity to refresh her memory from the verbatim notes. She gave a statement to the police at the time of the events and there was no suggestion in cross- examination that anything in her evidence either before or after she refreshed her memory was inconsistent with that original statement. [ 24 ] Ms. Abdelkader’s testimony that she made careful notes of those statements and had him repeat and confirm the statements is logical and credible given the alarming assertions made.

Her subsequent action in consulting with others then calling the police is consistent with her testimony. The fact that the accused was apprehended while carrying a concealed weapon is a circumstance that is also consistent with the threats she described. [ 25 ] I am unable to accept Mr. Hashemian’s testimony nor do I find it reasonably could leave a doubt either alone or in combination with any other evidence. I accept Ms. Abdelkader’s evidence as credible and reliable. The statements made in the context of

Mr. Hashemian’s admitted anger about his various grievances plainly convey a serious threat of death to others. There is no credible evidence which reasonably could leave a doubt on this count. The Knife [ 26 ] Mr. Hashemian testified that he was getting ready to leave his apartment when the police knocked on his door. He was going to return a knife he had purchased earlier that day. He brought the package for that knife to court (Exhibit 1) and explained how he carefully cut the plastic so that the knife could be returned if he didn’t like it.

The knife wasn’t suitable for the shoe repair he tried at home so he was about to return it when the police arrived. He testified that the police “easily lie and they change their stories.” [ 27 ] The officers found the knife under the waistband of Mr. Hashemian’s pants. It was a folding knife almost 8 inches long when extended with a blade just less than half that length. One of the officers thought the knife looked new which is consistent with Mr. Hashemian’s evidence that he bought it that day. While I accept that Mr.

Hashemian was leaving his residence as he described, it’s plain that he was not about to return the knife to the store. He did not have the packaging with him that he said was cut in a particular way so that the knife could be returned. He didn’t have the receipt. There would be no reason to conceal the knife in his pants if he was simply returning it to the store. I find Mr. Hashemian’s testimony regarding his purpose and intention for possessing the knife is inconsistent with the circumstances and incredible. [ 28 ] The evidence of the officers was given in a professional and neutral manner. They dealt with Mr.

Hashemian in a sympathetic fashion. Their evidence logically described the events that led to the arrest and their evidence was internally consistent. Mr. Hashemian agreed with their evidence about the description of the knife and the location of the knife on his person. I accept the evidence of both officers. [ 29 ] The evidence as a whole shows that Mr. Hashemian made threats to kill Canadians and he said he had a plan to do so. Once his plan was executed, it appears he did not think he would be available to explain his actions, so he asked Ms.

Abdelkader to tell Canadians of his grievances and that he was otherwise a good person. He left his house armed with a knife he purchased that day – the day he formed his plan to kill and made his threats. The knife was concealed in his pants in a manner inconsistent with carry for a peaceful purpose. The Crown has proved that there is only one reasonable inference arising from these circumstances – that Mr. Hashemian possessed the knife for a purpose dangerous to the public peace. Conclusion [ 30 ] I can find no credible evidence that could reasonably leave a doubt on either count.

I find the Crown has proved both charges beyond a reasonable doubt. There will be findings of guilt on each count. Delivered: February 7, 2019. Justice Joseph F. Kenkel