R. v. Ahmed, 2011 ONCJ 832

ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN E. Stimec and T. Dimuzio For the Crown — AND — J. Fitzmaurice MIZAN AHMED For the Defendant Heard: January 4, 5, 6, 7, 8, 13, 14, 15, 19, 22, 25, 26, 27, 28 and 29, March 15, 16, 17, 18, September 20, 21, 22, 23, 27, 28 and 30, October 19, 25, 26, 27 and 28, November 2, 3, 4, 15, 16, 18, 22, 23 24 and 29, December 1, 2, 7, 8, 13, 14, 15, 16, 17, 20 and 21, 2010 and January 19 and 20, 2011 Citation: R. v. Ahmed , 2011 ONCJ 832 REASONS for COMMITTAL MELVYN GREEN, J.: A.

INTRODUCTION [ 1 ] The defendant, Mizan Ahmed, is charged with the second degree murder of his wife, Tahmina Yeasmin, on or about August 2 8 , 2008. His fragmented preliminary inquiry included the testimony of some 36 witnesses heard over the course of 55 court days spanning more than a calendar year. The case presented by the Crown is entirely circumstantial. Crown counsel says it amply supports the defendant’s committal on the offence charged.

The defence says the evidence falls short of the requisite standard for committal and that a discharge should follow. [ 2 ] Identification of the relevant issues and an appreciation of their factual underpinnings does not here require punctilious recitation of the evidence led at the defendant’s preliminary inquiry. A jury, in the end, will be instructed that they can believe all, some or none of the evidence of any witness. While the testimony of the defendant’s family members, and some others, was sometimes inconsistent both internally and inter-witness, the

summary that follows is founded on evidence that, in my view, is open to a reasonable jury to accept. B. THE EVIDENCE [ 3 ] In very brief compass, the defendant with his parents and sisters emigrated from Bangladesh to Canada in 2002. The defendant’s older sister (Nilufa Ahmed), the family’s immigration sponsor, had moved to Canada in 1995 and later settled with her husband and young son in Brampton. Nilufa was 30 years old when she testified.

The defendant, who is about 24, and the rest of his family resided in a townhouse at 188 Vanauley Walk in central Toronto at the time of the alleged offence. [ 4 ] In early February 2007, the defendant and his immediate family, but for Nilufa, returned to their hometown in Bangladesh. A marriage was arranged according to local customs and the defendant and the now-deceased Tahmina (known as “Lima”) were wed on March 18, 2007. The defendant and his family returned to their home in Toronto on April 20th.

The defendant’s new bride joined him in October 2007 once his immigration sponsorship of her was approved. [ 5 ] Tahmina (who then about 22 years of age) and the defendant lived in a second floor bedroom at the Vanauley Walk townhouse. A bathroom separated their room from the bedroom occupied by the defendant’s parents, Azir Ahmed and his wife Selima

Khatun. The defendant’s three younger sisters (Jony, Mily and Nila, who, respectively, were then about 19, 17 and 12) shared two bedrooms on the third floor. The main or ground floor was composed of a living room and kitchen/dining-room. The basement housed a washer and dryer. Jony is developmentally challenged, easily frustrated and sometimes reacts violently to family efforts to keep her from harm’s way. She was the only member of the defendant’s immediate family who did not testify at this preliminary inquiry. [ 6 ] Tahmina had never previously lived away from home.

She had no immediate family in Toronto and spoke almost no English. Her life in Toronto was cloistered: she almost never left the Vanauley Walk townhouse on her own; she had little money; she was physically separated from family and friends. The latter concern was particularly distressing as Tahmina had enjoyed a very close relationship with a girlfriend (Lupa Begum or “Tuni”) in Bangladesh.

Tahmina’s efforts to remain in communication with Tuni, and the cost and frequency of these phone calls, caused occasional resentment on the part of the defendant and tension within the Ahmed family and between Tahmina and her new in-laws. Some members of the defendant’s family believed, as one testified, that Tahmina “loved Tuni too much”, and that they had in fact been gay lovers. Tuni denied that there was any sexual dimension to their mutual affection when she testified at this preliminary inquiry. [ 7 ] The defendant occasionally experienced episodes of aberrant behavior.

On March 6, 2008 he called 911 and reported that he had been threatened. When the police attended he told the officer that his brother-in-law (Nilufa’s husband) had threatened to cut his throat with a knife. Similar threats, he said, were made a week or two earlier. As explained by the defendant at the time, these threats were somehow related to his brother-in-law encouraging Tahmina to return to Bangladesh. The defendant also reported that he had seen his father having sexual relations with his wife that same day.

In the officer’s opinion, no one in the house appeared agitated and there were no signs of struggle. Further, none of the family members confirmed the defendant’s allegations of threatening behaviour or of his wife’s and father’s indiscretion. The defendant soon asked forgiveness of the offended parties and begged Tahmina not to leave him. The defendant’s family reasoned he had mental health issues and encouraged him to see a doctor.

One medical consultation with a family doctor followed, but the defendant resisted repeated family pressure for follow-up visits and denied that he was “crazy”. [ 8 ] On June 14, 2008 the defendant, in what may have been his first experience with alcohol, came home somewhat intoxicated. As reported at the time, he got into a physical altercation with his wife and his sister Mily. The latter called the police.

As a result of the 911 call, the defendant was arrested, charged with assault and threatening and released on a surety recognizance, in the amount of $7500, requiring him, among other terms, to have no contact with his wife or Mily and not to attend at the Vanauley Walk residence. But for a few weeks in mid-July when he temporarily changed his surety, the defendant was also required to reside at his older sister Nilufa’s home in Brampton. [ 9 ] (At trial, Mily testified that she was upset with her brother and called the police to get him out of the house and have him seen by a doctor.

She denied telling the police that her brother had done anything to Tahmina, only that she feared he might. Confronted with a prior inconsistent statement regarding the events of June 14 th , Mily recanted her earlier allegations of criminal conduct and said she had “lied” to the police.) [ 10 ] The bail conditions imposed on the defendant were quickly dishonoured. He maintained routine phone contact with his wife throughout his bail and, on occasion, would spend the night with her at Nilufa’s home or, increasingly, in their bedroom at Vanauley Walk.

In the first few weeks after his June arrest, the defendant believed that his lawyer and family were colluding to separate him from his wife. [ 11 ] Some of Tahmina’s family lived in England. One, her sister-in-law Khadija Begun, testified that the defendant had confirmed in a telephone conversation that he had once placed a knife close to his wife’s abdomen and threatened her. His parents, he explained, had been subverting his relationship with Tahmina and he feared she was subscribing to the negative things they were saying about him.

It is unclear to me whether the defendant’s admission to Khadija related to the same transaction that led to his arrest in mid-June 2008 or a completely different occurrence, although the former seems more likely. [ 12 ] Tahmina was not happy at Vanauley Walk. She and the defendant’s parents had very different expectations about her role in the house and her performance there. According to both of the defendant’s parents, Tahmina had acknowledged, if vaguely, trying to take her own life by hanging herself from a shower rod in the second floor bathroom.

Likewise the defendant, during his first police interview after his wife’s death, spoke of once having interrupted Tahmina while she tried to hang herself at the same location. It was apparent that Selima, and perhaps the defendant, had shared their concerns about Tahmina with others in their family. No one outside the Vanauley Walk household and Nilufa’s in Brampton testified to having been told that Tahmina had exhibited suicidal ideation.

Her extended family members understood Tahmina to be sad, frustrated, fearful and homesick within the Vanauley Walk house, but not suicidally depressed and certainly not after the birth of her child. [ 13 ] Tahmina’s extended family in Toronto, Montreal and overseas were concerned about Tahmina’s welfare in her in-laws’ home, particularly regarding her apparent isolation, the difficulty they encountered reaching her, and the seemingly close surveillance by the defendant’s parents of her lifestyle and phone-calls. News of the domestic assault allegations only exacerbated their concern.

Some of them prevailed upon the defendant and his parents to allow her a visit with a Toronto-based in-law, Mohammed Azad, and his family. Tahmina ended up spending a few days in the third week of July 2008 at the Azad apartment. The defendant joined her there, as did members of Tahmina’s extended family from Montreal. Tahmina and the defendant both spoke of his parents’ disappointment with Tahmina and of their suggestion that he divorce her and marry another. At one point, a verbal argument between the defendant and Tahmina was overheard.

However, the general impression of those in contact with Tahmina and the defendant in that July window was that they wished to be together and that things would return to normal once the defendant’s criminal charges finally resolved and the bail conditions were terminated. Tahmina did not want to return to the Vanauley Walk residence; she would have preferred to live elsewhere with the defendant but, in the circumstances that then prevailed, she was persuaded to return to her in-laws. [ 14 ] Tahmina was pregnant throughout the period the defendant was on bail. Her child, a son, was delivered on August 17, 2008.

The defendant, fearing police surveillance, did not visit Tahmina in the hospital. He welcomed her at Vanauley Walk when she was released from the hospital and slept there on a few occasions over the next week. Other than some seemingly minor irritable behaviour, those living at Vanauley Walk generally described Tahmina as happier than they had ever seen her after the birth of her son. On August 28th, less than ten days after she returned home from the hospital, Tahmina was dead.

[ 15 ] In their initial police interviews, every member of the defendant’s immediate family uniformly denied he had been at the Vanauley Walk residence on the evening of August 27, 2008. With equal uniformity, they each recanted these denials in the course of their testimony at this preliminary inquiry, explaining that their previous lies were intended, by agreement, to protect Nilufa - the defendant’s older sister and his surety – from risking estreatment of her bail pledge. Tahmina was last seen going upstairs to her room at about 10:30pm.

The defendant, they testified, was watching television in the living room when each of the rest of the family went upstairs and to bed on the evening before his wife’s death. [ 16 ] The defendant’s parents and sisters slept through the night. His mother and father heard the sound of a crying baby when they woke up the next morning, the 28 th of August. Selima searched the house for her son, the defendant, and his wife. The defendant was not in the house. She found her daughter-in-law lying face up in the second floor bathtub; it was sometime between 5 and 5:30am.

Tahmina was partially clothed and a scarf (part of traditional Bengali woman’s attire) was wrapped around her neck, knotted slightly off-centre near her Adam’s apple. Some rudimentary efforts to revive her proved futile. The family gathered, fretted about what to do, consulted Nilufa, and, finally, at about 5:45am, called the police. [ 17 ] Meanwhile, at about 5 o’clock that same morning, the defendant arrived at the front door of his sister Nilufa’s home in Brampton. He told his sister that Tahmina was dead.

He said that he had awakened to the sound of their baby crying at about 3am, picked up the infant and eventually found Tahmina lying in the bathtub with her scarf tightly wrapped around her neck. He believed she had passed away, put the baby to sleep and left. Asked why he did not alert his family, the defendant explained that they would have to call the police and he would then be arrested for violating his bail conditions. He offered the same explanation for not calling an ambulance, adding that, in any event, medical attention would have been futile as Tahmina was already dead.

The defendant was very upset; he was crying and close to collapse. [ 18 ] Police and ambulance personnel quickly responded to the family’s 911 call. By then Tahmina had been placed on her back on the hall floor outside the bathroom. Pursuant to the telephoned directions of the police, the defendant’s father had removed the scarf from Tahmina’s neck and hung it on the nearby shower rod.

Police examination of the residence and inquiries of the residents generated no evidence of intrusion or the presence of strangers. [ 19 ] Michael Patterson was the first Criminal Investigation Bureau detective to attend, arriving at 7:25am.

By then he knew that the address had been the locus of outstanding domestic assault charges involving the same woman who was now deceased, that she had given birth within the previous month, that her husband was subject to bail conditions requiring him to reside in Brampton, and that the information initially conveyed to the police suggested a suicidal hanging from a bathroom shower rod. [ 20 ] The family appeared distraught as Patterson entered the Vanauley Walk townhouse. He examined the deceased.

He observed no obvious signs of struggle or of trauma other than striations about her neck consistent with the application of a ligature. Patterson ruminated that the cause of death, which he inferred was strangulation or suffocation, was self-inflicted. He conducted a cursory inspection of the shower rod. There was a downward bend about halfway along the rod. He determined that the rod was sturdy and strong enough to support the weight of the deceased, although not for a long time.

He theorized that Tahmina had hung herself with her scarf, the scarf eventually slipping away from the plastic cover of the shower rod, thus explaining how she ended up in the bathtub. [ 21 ] Patterson next inspected the deceased’s bedroom. It contained a crib and a large bed. The main bed was completely bare but for a pair of pillows. He reasoned that the baby had soiled the sheeting on the main bed while being changed on it and that this explained the absence of any bedding. There were no signs of struggle in this bedroom or elsewhere in the house.

He interviewed the family members and checked the laundry machines in the basement. There were slightly damp sheets in the washer. (Several days later, when asked by Nilufa why there were no sheets on the bed, the defendant explained that he and Tahmina had been too tired to dress the bed.) [ 22 ] Patterson left at 8:30am and returned to 14 Division. A coroner, Dr. Jones, attended the Vanauley Walk residence. Patterson advised him, through another officer still on scene, that there were no suspicious circumstances.

To his own satisfaction, Patterson had eliminated the possibilities of homicide or suspicious death; he was convinced that Tahmina ’s death was a suicide. Dr. Jones was of the same opinion. By 3pm Det. Patterson had closed the police file. [ 23 ] The file was re-opened the very next day. A cursory review of the Tahmina’s dead body by other members of the coroner’s office raised suspicions about the cause of death and, in turn, a call to the Homicide Squad. In the presence of homicide detectives Ali Ansari and Brian Borg, Dr.

Michael Pollanen, the Chief Forensic Pathologist for Ontario, conducted a post-mortem examination of the deceased on August 30, 2008. Dr. Pollanen determined that the cause of death was ligature neck compression resulting in asphyxiation. As such deaths necessarily involve the application of tension to the neck, the central forensic question in Tahmina’s case involved the means or mechanism by which such tension was created or produced. Dr. Pollanen suggested three alternative scenarios. One involved a “low-suspension hanging”, a very rare occurrence.

The second explanation consistent with the horizontal ligature marks on Tahmina’s neck was “suicidal ligature strangulation”, again a rare but not excludable possibility. The third alternative, and that most “typical” for the ligature striations, was “homicidal ligature strangulation”.

Absent evidence as to “scene and circumstances”, no pathological feature itself reliably differentiated between these three scenarios. (Put otherwise, and as expressed by one of the attending detectives, the pathologist’s opinion was “inconclusive” as to whether Tahmina’s death was homicide or suicide.) The only other injuries noted during the autopsy were a few small, “non-specific” abrasions on the deceased’s bicep and forearm that were assessed as occurring within hours prior to Tahmina’s death.

Of possible significance in the context of a homicide-by-strangulation prosecution, no injuries were observed on the deceased’s fingernails or hands. Dr. Pollanen could not express an opinion as to the time of death. [ 24 ] Members of the defendant’s immediate family had decamped to Nilufa’s home in Brampton while the police secured and inspected the Vanauley Walk townhouse. They, including the defendant, were all interviewed by homicide detectives at police headquarters in Toronto on August 31, 2008.

At the time, the family, or at least its adult members, expressed the belief that Tahmina had committed suicide. [ 25 ] During the course of a lengthy (three hours) and sometimes aggressive interview, the defendant was repeatedly confronted with allegations that he was at the Vanauley Walk residence on the night of his wife’s death and that he had killed her. The defendant

repeatedly denied these accusations. He also repeatedly denied ever speaking with Tahmina or being at Vanauley Walk while on bail.Ansari asked the defendant about what appeared to be recent abrasions on the backs of his hands. The defendant explained that thesescratches were inflicted by his sister Jony a couple of days earlier while the Vanauley Walk house was secured by the police and thefamily sought refuge at Nilufa’s home in Brampton. Members of the defendant’s family confirmed his account.

Although theirtestimonial recall was somewhat inconsistent as to the nature and number of injuries and efforts, if any, to dress the wound, they eachexplained that the defendant had prevented Jony from running out of the house after dark and that, as was characteristic, she hadexpressed her frustration by scratching at the defendant’s hands as he tried to restrain her. [26] The defendant left Nilufa’s house a few days after the police first interviewed him on August 31st. He did not announce hisdeparture to anyone.

He appears to have travelled to Ottawa, Kingston, back to Toronto, and then Hamilton before settling in London. Sometime in late-September or early-October the defendant suddenly appeared at the Vanauley Walk home. He went up to his room andrepeatedly asked, “Where’s my wife? Where’s my son?”. He left after about 10 to 15 minutes without indicating his destination. Henever returned. [27] The Vanauley Walk townhouse was closely examined by the police in the days following the post-mortem examination. Abasket containing clean sheets was found under the deceased’s bed.

A palm print, later found to be that of the defendant’s, was locatedon the basement washer. The shower curtain rod was more closely inspected: it was a rather flimsy, hollow tube that was fitted, at eachof its ends, into a small bracket screwed into the bathtub wall.

The defendant’s father, Azir, testified that he had much earlier expressedthe belief that it was “impossible” to commit suicide through use of the shower rod; he had tested it after the conversation with Tahminaabout suicide and found that both ends slipped from their moorings as soon as any substantial force was applied to the rod. (Azir, itshould be noted, also described the rod as a screw-free apparatus that fit into “buttons”, or perhaps suction cups, that adhere to the wallsof the bathtub; in fact, as earlier noted and as confirmed by photographs and police evidence, each end of the shower rod was fixed into ametal bracket that was screwed into the wall with two screws.) The homicide detectives also conducted interviews with a number ofmembers of Tahmina’s extended family with whom she had had contact during her ten months in Canada. [28] During their investigation, the police collected various DNA evidence from the deceased, her infant son and the defendant’sfather, all of which was submitted to the Centre of Forensic Sciences (CFS).

On analyzing these materials and comparing them with amale DNA profile found in clippings from the deceased’s left fingernails, Brian Peck, a CFS forensic biologist, concluded that “thebiological child of the defendant’s father” (that is, the defendant on all available evidence) “cannot be excluded” as the source of theprofile.

Upon subsequent analysis, after he had been provided with a sample of the defendant’s DNA (obtained by way of a warrantfollowing his arrest in November 2008), Peck concluded that, “The probability that a randomly selected individual unrelated [to thedefendant] would coincidentally share the observed DNA profile is estimated to be 1 in 5.4 quadrillion”. Further analysis of a smallbloodstain located on the skirt worn by the deceased at the time she was discovered was found to contain a mixture of male and femaleDNA. The female profile was overwhelmingly correlated with Tahmina.

The probability that someone unrelated to the defendant wouldshare the male profile in this stain was estimated to be “1 in 920 thousand”. The defendant’s father and son were “both excluded as thesource of this DNA profile”. The age of the male DNA profiles and the method by which they were deposited on the nail clippings andthe skirt could not be determined.

Although unlikely, the possibility of a transfer of the defendant’s DNA to the deceased throughsharing a bed or her handling his laundry could not be entirely eliminated. [29] On November 18, 2008, the homicide detectives applied for and obtained an arrest warrant for the defendant for the offence ofmurder. After consulting a cell phone service provider, they located a current address for the defendant in London, Ontario. He wasarrested without incident by the London police the next day. He had over $4,200 cash on him at the time of his arrest.

The defendanthad been living and working in London and had registered a phone under his own name. [30] The Toronto homicide officers drove to London where they interviewed the defendant that evening, November 19th, for almosttwo hours. Again, the defendant repeatedly said he “didn’t do anything”.

He denied, among other allegations, having had any contact with his wife while on bail for the domestic assault charges, being in the area of Vanauley Walk on August 27th - 28th, having earliertold the police that his father was having sex with the deceased, having assaulted Tahmina in the past, and having been jealous ofTahmina. Repeatedly, the defendant asserted that he did not believe his wife was dead (“she is not dead”), that he did not know whereshe was, and that he loved her.

According to his sister Nilufa and others, the defendant first expressed the mistaken belief that his wifewas still alive a few days after her death. This delusion, if such it was, was then repeated in phone calls to members of Tahmina’s familyand, as already noted, during his brief visit to Vanauley Walk in September or October. C. ANALYSIS (

a) Introduction [31] Other than an Information or Indictment, a Charter application and some esoteric motions, there are few formal pleadings incriminal trial courts. Nonetheless, the process of a lengthy preliminary inquiry helps frame if only through questions and objections, thecompeting theories of Crown and defence. The Crown’s theory is simple enough: Tahmina Yeasmin was murdered by her husband, thedefendant Mizan Ahmed, who strangled her until she lost consciousness and died.

The defence position, in essence, is, first, thatTahmina Yeasmin may well have been strangled, but at her own hand so that her death amounts to suicide rather than a criminalhomicide. And, second (although less forcefully advanced at this hearing), even if Tahmina Yeasmin was murdered the defendant wasnot the perpetrator of this crime. (

b) The Law Governing Committal [32] The long-settled test for committal following a preliminary inquiry is “whether or not there is any evidence upon which areasonable jury properly instructed could return a verdict of guilty”: U.S.A. v. Shephard (1976), (SCC), 30 C.C.C. (2d)424 (S.C.C.). There is little if any room for judicial discretion. As said by the Supreme Court in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 at pp. 30-31, a judge presiding at a preliminary inquiry is “required to commit an accused person for trial

in any case in which there is admissible evidence which could, if it were believed, result in a conviction” (emphasis added). But for veryrare circumstances that do not here obtain, the assessment of witness credibility forms no part of a presiding judge’s task. [33] The same Shephard standard – generally abbreviated as the “any evidence” or “some evidence” test – applies whether theevidence is direct or circumstantial. However, in the latter case a limited weighing of the evidence is required because of the inferentialgap between the evidence and the matter to be established.

In other words, a presiding justice must determine whether the circumstantialevidence is reasonably or rationally capable of supporting all the necessary incriminatory inferences upon which the Crown depends tosecure a committal. If it does, a committal must follow for the offence charged. On the other hand, the accused must be discharged if“no sufficient case is made out to put the accused on trial”: s. 548(1). (See, generally, R. v. Arcuri, supra, and R. v. Magno (2006), (ON CA), 210 C.C.C. (3d) 500 (Ont. C.A), at para. 15, and R. v. Munoz (2006), (ON SC), 205 C.C.C.(3d) 70, at paras. 18-22 (Ont.

S.C.).) [34] Disputes on the question of committal often turn on the permissible scope of the inferences available on a circumstantialevidentiary record. Again there is little room for judicial discretion: any reasonably and logically available inference consistent withguilt mandates committal. (See Munoz, supra, at paras. 23-31.) Even strongly benign inferences must yield to committal where thenecessary rational inculpatory inferences also lie. As said by the Court of Appeal in R. v.

Magno, supra: [I]t is jurisdictional error … for a justice presiding over a preliminary inquiry to discharge where there are competing inferences in theevidence and one of those inferences supports the charge before the court. Still, there are limits on incriminatory inference-drawing. While the line is sometimes obscure, the principle is well recognized:inferences that neither rationally or logically flow from the evidence or which arise from speculation cannot ground committal. (In thisregard and in addition to earlier-cited authorities, see R. v. Figueroa (2008), 2008 ONCA 106 , 232 C.C.C. (3d) 51 (Ont.

C.A.),at para. 41.) (

c) Applying the Law [35] As suggested earlier, two core questions govern the determination of this inquiry. First, is there evidence from which a properlyinstructed jury could reasonably conclude that Tahmina Yeasmin was homicidally strangled rather than met death at her own hand? And, if so, could the same jury conclude that the defendant intentionally committed the strangulation that led to Tahmina’sasphyxiation?

In my assessment, there is ample evidence from which a jury could – although not necessarily would – reach bothconclusions. [36] Based on the pathological evidence alone, suicide cannot be eliminated as the dynamic by which Tahmina Yeasmin expired. Thatsaid, a viable competing theory (and one that, in my view, has the greater probative force on the evidence led at this inquiry) is thatTahmina was the victim of homicidal strangulation.

I do not intend to reiterate the evidence that bears on this issue other than to note therelative rarity of low-suspension suicidal hangings or suicidal ligature strangulations, the absence of any apparent depression oremotional distress in the days preceeding Tahmina’s death, the absence of cirumferential marks around the entirety of the deceased’sneck, the relatively flimsy nature of the shower rod that may, on the defence theory, have served as the fulcrum of tension for purposesof strangulation, and the evidence of the defendant’s DNA under the deceased’s fingernails and the recency of the abrasions on her bicepwhich could, not would, reasonably suggest the occurrence of a struggle with an assailant shortly before Tahmina’s death.

Each of theseconsiderations, I note, is subject to alternative and far more innocent readings of the evidence. A jury, in the end, may adopt theconstruction urged by the defence (or at least be left with a doubt as the Crown’s version), but the evidentiary record, I find, leaves it atleast open to them to rationally infer that Tahmina Yeasmin did not kill herself and that, in fact, someone else did. [37] The remaining predicate question is whether there is “some evidence” from which the idealized jury could conclude that thedefendant was the “someone else” who strangled Tahmina Yeasmin until she died.

Althought the evidence is again of a cirumstantialquality, the inference that the defendant was the perpertrator of his wife’s murder, if such it was, can be rationally drawn. There is isample evidence which, if believed, would support the inference that that the defendant was at his parents’ home on the night in questionand thus had the opportunity to dispatch his wife. The means or mechanism by which she was killed – her scarf – was readily availableto him. There was no evidence of forced entry at the Vanauley Walk townhouse, of intruders or of alternative suspects who harboured areason to kill Tahmina Yeasmin.

While motive is not an essential element of any crime, there is at least some credible evidence fromwhich a jury could infer that the defendant feared his wife would leave him or was resentful of her relationship with her best friend inBangladesh. Conclusions as to motive or animus could also be inferred from the evidence of prior acts and threats of violence. [38] There is, as well, a body of evidence of the defendant’s post-offence conduct from which a jury may infer that he was acting out ofa consciousness of guilt from which they could, in turn, infer actual guilt.

This evidence includes the defendant’s mid-night arrival atNilufa’s home in Brampton on the night of his wife’s death, his explanations for failing to alert others to his wife’s death, the launduringof the bedding, the defendant’s several and repeated false statements to the police, and his unnannounced departure from his sister’shome soon after being confronted by the police a few days after Tahmina’s death. Again, there may well be innocent explanations foreach inculpatory inference proposed by the Crown, but such weighing is reserved for a jury rather than a judge presiding at a preliminaryinquiry.

Post-offence conduct remains an evolving area of the law of evidence. If a jury were to conclude that Tahmina’s death was aproduct of homicide rather than suicide, my determination that there is sufficient evidence from a which a jury could conclude that thedefendant was that murderer is not dependent on that jury’s potential reliance on after-the-fact conduct. That said, I am of the view thatmuch if not all of what has been tendered as post-offence conduct would be admitted at trial, subject to careful limiting instructions asvery recently discussed by the Supreme Court in R. v.

White, 2011 SCC 13 , [2011] S.C.J. No. 13. D. CONCLUSION [39] The findings of fact I suggest are available on the evidence led at this preliminary inquiry are not ineluctable. They are, simply,inferences that a reasonable trier acting rationally and in accord with proper judicial instructions could – but not must – draw from theevidence. They are also inferences that, if accepted to the appropriate standard of proof, will establish Tahmina Yeasmin’s death as a

homicide and the defendant as its perpetrator. Accordingly, committal follows with respect to the charge of second degree murder upon which the defendant Mizan Ahmed was arraigned. Released on March 16, 2011 __________________________ Justice Melvyn Green