R. v. Myftari, 2013 ONCJ 642

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO s.539 OF THE CRIMINAL CODE BY ORDER OF HIS HONOUR JUSTICE N. S. DOUGLAS, ONTARIO COURT OF JUSTICE DATED SEPTEMBER 30, 2013 Information No. 4611-998-121644 Citation: R. v. Myftari , 2013 ONCJ 642 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. XHEVAHIR MYFTARI R U L I N G O N C O M M I T T A L BEFORE THE HONOURABLE JUSTICE N. S. DOUGLAS On October 10, 2013, at GUELPH, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO s.539 OF THE CRIMINAL CODE BY ORDER OF HIS HONOUR JUSTICE N. S. DOUGLAS, ONTARIO COURT OF JUSTICE DATED SEPTEMBER 30,2013 APPEARANCES : J. MacDonald and G. Spartinos Counsel for the Crown C. Gill Counsel for X. Myftari ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Ruling on Committal Page 1 Xhevahir Myftari – Referred to also as Xhevi and Jeff. Xhuljeta Vlashi – Referred to also as Julia.

Transcript Ordered: October 11, 2013 Transcript Completed: November 20, 2013 Ordering Party Notified: November 21, 2013 THURSDAY, OCTOBER 10, 2013 THE COURT: Constable, would you bring in Mr. Myftari please? You may be seated. Thank you, Mr. Interpreter. MS. MACDONALD: And, Madam Clerk, I wonder if you could also page Detective Hooper and Beckon please. THE COURT: Page those people too please. R U L I N G O N C O M M I T T A L DOUGLAS, J. (Orally): Xhevahir Myftari is charged that on or about the 27 th of August 2012, at the Township of Guelph Eramosa did commit first degree on the person of Xhuljeta Vlashi.

Section 229 of the Criminal Code says this: Murder. Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death.

Section 231 of the Criminal Code classifies two types of murder. It reads:

(1) Murder is first degree murder or second degree murder. Subsection (2) of that

section says this:

(2) Murder is first degree murder when it is planned and deliberate.

First degree murder is an intentional killing that is both planned and deliberate. The planning and deliberation must precede the commencement of a homicide. There must be some evidence the killing was the result of a scheme or design previously formulated or designed by the accused, and the killing was the implementation of that scheme or design. It is obvious a murder committed on a sudden impulse and without prior consideration even though the intent to kill is clearly proven would not constitute a planned murder.

It may well be that the killing was deliberate, however even if it was there could only be a verdict of first degree murder if the evidence established as well that the murder was planned. This preliminary inquiry to determine whether the accused should be committed to stand trial for first degree murder commenced September 30 th and I have now heard over five days of evidence from approximately thirty witnesses. There have been two agreed statements of fact filed. There have been Centre of Forensic Science reports filed and a total of 11 exhibits.

My duty as a preliminary inquiry justice is as follows: The question for the preliminary inquiry judge is whether there is any evidence on which a reasonable jury, properly instructed, could convict. Where the prosecution adduces direct evidence of each element of the offence the accused must be ordered to stand trial. Where the prosecution’s case consists of, or includes circumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence to determine whether a reasonable jury, properly instructed, could return a verdict of guilty.

This limited weighing of evidence in which a preliminary inquiry judge engages where the prosecution’s case consists of or includes circumstantial evidence does not involve drawing inferences, assessing credibility, or considering inherent reliability. The judge’s task is to decide whether if the prosecution’s evidence were believed it would be reasonable for a properly instructed jury to infer guilt. Limited weighing involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

The duty imposed upon a justice presiding at a preliminary inquiry is the same that governs a trial judge sitting with a jury and deciding whether the evidence is sufficient to justify her or him withdrawing the case from the jury. Therefore, the accused should be committed for trial where there is admissible evidence that could, if it were believed, result in a conviction. The evidence before me has established that the accused suffers from a mental illness.

There is evidence that he is suffering from schizophrenia and there is substantial evidence that he stabbed to death the one person in his life that was caring for him, and he did so while she was at her computer talking to her niece on Skype and therefore the attack on her was witnessed by the niece.

After all of the evidence was called a few days ago I asked the Crown for assistance in her submissions specifically what evidence she was relying on of this murder being planned and what evidence she was relying on that this murder was deliberate in the legal sense of that word, and although motive is not something the Crown must prove at a trial, or even lead evidence on at a preliminary inquiry, I asked her to provide me with the Crown’s theory why this murder was planned and deliberate. Why did he kill her, I wanted to know the Crown’s position on that. Why would he kill her?

There must be some theory that the Crown has to argue that this murder was planned and deliberate. It seemed that the evidence was disclosing as each day went on that this killing was done on impulse by an obviously sick man. That is why I needed some assistance because the evidence was, in my view, all pointing to a murder that was second degree as opposed to first degree. And so I kept an open mind and I listened carefully to her submissions. It appears to me that while her submissions were clearly founded on the fact that he meant to kill her, that does not make it first degree murder.

Every second degree murder by definition means that he meant to kill her. So, what separates this killing from second degree murder to elevate it to first degree murder? She used the term ‘ambush’ several times, that the Crown’s theory was that this accused planned to kill her for some reason, anger was one theory suggested. The need for money was another theory suggested and he, therefore, ambushed her. Well, the evidence is not that he lay in wait for her. That is what an ambush is, and laid a trap for her. That is what an ambush is. He killed her knowing she was on Skype with her niece.

I could not discern from the Crown’s submissions where she sees a difference between second degree and first degree murder. I agree with her that the evidence clearly shows the killing was deliberate in the sense of the layman’s understanding of that word, i.e. it was intentional and the very nature of the killing means he meant to cause her death at the time of the killing. But deliberate in the legal sense means “carefully thought out”, “carefully thought out, not hasty or rash, weighing the pros and cons of his intended actions”. That is what deliberate means.

The Crown could not point to any evidence that would make this killing qualify for planned and deliberate. Now regarding the mental illness issue, and that no doubt will be the main issue before the jury. There is not really much issue that he killed her, and that he killed her savagely. There is no question that this is a sad, sad tragedy. The evidence is clear what he did.

The main issue it seems to me in this case is going to be, and I could be wrong, whether or not he was criminally responsible for what he did because of his mental illness and was it a mental illness to such a degree that he would qualify under s.16 of the Criminal Code . I agree with the Crown on this issue that that is not an issue for the preliminary inquiry justice. The ultimate determination of this case will be for a jury to determine whether the accused is criminally responsible for the death of Xhuljeta Vlashi.

I want to quote from R. v. Sawicki, [2009] N.J. No. 389 found at tab three of the book of authorities submitted by Mr. Gill because it is right on point. Paragraph 64 of that case says as follows, and I am going to read paragraphs 64 through 66. 64. The Crown has submitted that the mental health of Christopher Sawicki should not be a consideration by the Court in this decision, yet the Crown has asked me to consider his demeanour and his actions subsequent to the commission of the offence. On the other hand, the Defence submits that the Court should consider the mental state of the accused. Mr.

Ralph argues that it is fair to say that Mr. Sawicki’s mind was disordered. Mr. Ralph argues that Mr. Sawicki’s post offence conduct does not establish whether this Court should commit on first degree or second degree murder. 65. With respect to these matters and upon a very thorough review of the case law, I’m of the opinion that the mental state of Christopher Sawicki at the time of the offence is relevant to the issue of the test before me.

However, I am not asked nor am I willing to make any determination with respect to the accused’s culpability with respect to any mental disorder and the only expert testimony which was given on that preliminary inquiry in that regard was that given by Dr. Ladha. 66. I am taking into consideration all of the evidence which was presented at the preliminary inquiry by the Crown which suggests that there were a number of different observations of the mental state or the intention of Mr. Sawicki and his disposition and demeanour throughout the days immediately prior to the death of George Benoit.

It is impossible to properly assess whether I can draw the inference sought by the Crown in this case without considering all of that evidence. And for the purposes of the preliminary inquiry, whether Mr. Sawicki was suffering from mental disorder at the time he committed the offence is not determinative of the question before me, nor is it really a factor with respect to the issue of disorder itself. Here is the part that I want to stress. His state of mind, however, with respect to determining any kind of intention certainly is.

All of the cases which have been submitted by both counsel for consideration confirm that in finding whether there is some evidence upon which a properly instructed jury could convict on first degree, I must take into consideration the totality of the evidence presented. I now go to the Crown’s book of authorities, tab three, R. v. Fatima. Paragraphs 64 and 66 outline what the Crown must prove at a trial and what the Crown must show at the preliminary inquiry that there is some evidence of planned and deliberate. Quoting from paragraph 64: What is meant by the expression planned and deliberate.

Again, gentlemen, let me repeat that it is a question of fact for you to decide whether there was that here. Secondly, that expression should be given its ordinary natural meaning. It certainly does not include a killing which is perpetrated in hot blood without any premeditation, all of a sudden, without consideration, upon impulse or on the spur of the moment. Killing as a result of any of those things would not be a planned and deliberate killing. I pause here to say that all of the evidence before me points to a sudden impulsive act. Everyone was shocked. No one saw this coming.

It is not like somebody had a motive, a long-standing hatred, an expression of some intention to do bad things to somebody. Those are the stuffings of planned and deliberate killings. This killing was out of the blue and for the Crown to say well he was angry because, you know, they had an argument an hour before, that is such a stretch to say well therefore it is not a sudden impulsive killing. I go on to quote: I think that in the Code planned is to be assigned.

I think its natural meaning of the calculated scheme or design which has been carefully thought out and the nature and consequences of which have been considered and weighed. That does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate. The important element, it seems to me, so far as time is concerned is the time involved in developing a plan, not the time between the development of the plan and the doing of the act.

One can carefully prepare a plan and immediately it is prepared to set out to do the planned act, or alternatively, you can wait an appreciable time to do it once it has been formed. As far as the word deliberate is concerned, I think that the Code means that it should also carry its natural meaning of considered, not impulsive, slow and deciding, cautious, implying that the accused must take time to weigh the advantages and disadvantages of his intended action. That is what, it seems to me, deliberate means. The planning and deliberation must precede the commencement of the conduct that causes death. In R. v.

MacKinnon, an Ontario Court of Appeal decision, Doherty, J.A. explained the use of after the fact conduct to support an inference about a state of mind. Evidence of after the fact conduct is a type of circumstantial evidence. Its potential, probative value will depend upon the nature of the evidence, the issues in the case and the positions of the parties. Often evidence of after the fact conduct will be probative of the accused’s participation in the crime alleged but will have no probative value in determining the level of the accused’s culpability.

Sometimes, however, as a matter of common sense and human experience the evidence will be capable of supporting an inference that an accused had a particular state of mind. Those passages that I just quoted come from the Crown’s brief. Well, what is the plan here, according to the Crown? What did he do? In the state of mind that he was in and that I take into account his mental illness, he kills the one woman who has not abandoned him in his life in front of her niece. He leaves her body there. He leaves bloody footprints all over the place. He leaves the knives in the sink

and he takes her car and he takes off. If you put that against the law, the Crown says this is the law, planned and deliberate, it does not add up to the Crown’s theory. It just does not. It negates the Crown’s theory. There is no dispute on the evidence that Xhevahir Myftari savagely killed Xhuljeta Vlashi shortly before nine o’clock on August 27, 2012. Xhevi, the evidence shows, was the brother of Fatos Myftari, and Fatos was the husband of Xhuljeta. They had been married for some time but had been separated and that marriage was disintegrating.

It was clear that she was seeking a divorce and it is also clear that although Fatos had got his brother Xhevi to Canada from Albania. That is where they were from. I am not sure whether he came directly from Albania or whether he came from Belgium but he came from out of the country and it was Fatos, it seems to me the evidence shows, who was instrumental in getting him here knowing that he suffered from a serious illness, as a visitor. Then there is evidence that he, that is Fatos, arranged a sham marriage so that his brother could stay in Canada.

Then Fatos brings his brother to live with Fatos and his wife, the deceased, in Rockwood. Julia suspected Fatos of having an affair. Fatos takes a job in California and leaves his sick brother with the deceased to care for and look after while he is off in California. The evidence show that Julia worked long hours as a dental hygienist. She gets home around seven o’clock in the evening and then has to cook supper and look after the accused.

The evidence shows that Xhevi had two people in his life that he needed at that time, two, Julia who looked after him and cared for him, and his brother Fatos who abandoned him. All of the evidence, even that of the family and friends of Julia was that there was no animosity between Xhevi, the accused, and Julia, the deceased. To the contrary, it seems from the evidence that Xhevi was very close to his sister-in-law and depended on her. She has been described in the evidence as an angel.

It is probably the only piece of evidence that I was not sceptical of from Fatos and I predict that the jury would also have its issues with Fatos’ testimony. But that is one thing he said, and probably is accurate, as accurate as can be, if anyone can be called an angel but it seems to me this evidence shows that she was an innocent victim of a tragic story. On the night in question there is no evidence before me to suggest that this accused had any rational reason to assault the victim, let alone kill her. Every piece of evidence supports the conclusion that this killing was out of the blue.

I am mindful and cautious about a preliminary inquiry justice’s role not to usurp the jury’s function but I also am not a rubber stamp. I have a sworn duty. Even without any evidence, and there is strong evidence, that this accused suffers from a serious mental illness documented for years, this killing the evidence shows was impulsive, rash, irrational, without any animus towards the victim, no previous expressions of harm to her, or threats to her, the sloppiness of the killing and his futile, almost childish efforts to flee, where he had nowhere to go makes no sense. The Crown says he killed her out of anger.

Well, if so, that is second degree murder. It would not be right nor is there any jurisdiction for me on the evidence to commit him on first degree murder because there is no evidence upon which a properly instructed jury, acting reasonably, could convict him of first degree murder. While it may be that a jury will find him not criminally responsible because of his mental illness, and that he qualifies for a s.16 defence, there is evidence before me that a jury could reject that defence, if proffered, and find him guilty of second degree murder. Therefore that is the charge on which I commit him to stand trial.

The next sitting of the Superior Court. MS. MACDONALD: It is October 28 th I believe. THE COURT: October 28 th . Is that too soon or is that where you want to go? MS. MACDONALD: I think that we should go there give that he is in custody, Your Honour. THE COURT: Mr. Gill, are you available then? After that it is not until December. It is just an assignment court. MS. MACDONALD: Right, but a pre-trial date could be assigned at that court so I think in order to keep the matter moving along it should be on that date as opposed to the December date. MR. GILL: That’s fine, October 28 th .

THE COURT: Would you stand up please sir. Having heard the evidence, I commit you to stand trial on the charge of second degree murder, and I order you to attend at the Superior Court on Monday, October 28 th , 2013 at ten a.m., and you are remanded in custody until then. I want to thank all counsel for your hard work in this matter. You certainly got it done a lot sooner than we had originally anticipated. My thanks to both of you, to all three of you. Thank you. MR. GILL: Thank you. C O U R T A D J O U R N E D