Michel Slieman Safadi

R. v. SafadiR. v. Safadi, (1993-07-21) PESCTD GSC-12719 HER MAJESTY THE QUEEN

AGAINST

MICHEL SLEIMAN SAFADI

Prince Edward Island Supreme Court - Trial Division

DesRoches, J. Heard - July 5, 6, 7, 8, 9, 13, 14, 15, and 16, 1993

Judgment - July 21, 1993

STATUTES CONSIDERED:

Criminal Code of Canada,

ss. 85, 87, 239, 244, 264.1, 319.

Mr. Bert Visser

Solicitor for the Crown

Mr. M. Safadi

present and acting on his own behalf

***** CRIMINAL LAW - findings - the accused was charged by indictment with six counts including attempted murder and the promotion of hatred against an identifiable group. The Court found the accused not guilty of attempted murder but guilty of the included offence of discharging a firearm with intent to wound. The Court also convicted the accused of two counts of carrying a weapon for a purpose dangerous to the public peace, and of promoting hatred against Jews.

CASES CONSIDERED: R. v. D.W. (1992), 112 N.R. 277; R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Kienapple, [1975] l S.C.R. 729; R. v. Lavoie (1980), 51 C.C.C. (2d) 356; R. v. Benoit (1985), 56 Nfld. & P.E.I.R. 55 (Nfld. C.A.); R. v. Yurkiv, [1981] 18 C.R. (3d) 287; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.).

DesROCHES, J:

Michel Sleiman Safadi is charged by indictment with having com- mitted six offences. The indictment reads as follows:

Michel Sleiman Safadi of 325 Queen Street, Charlottetown, County of Queens, in the Province of Prince Edward Island, stands charged that he did:

Count #1:

On or about the 16th day of December, A.D. 1992, at or near East Royalty, County of Queens, in the Province of Prince Edward Island, attempt to murder John MacEachern by shooting him and thereby wounding him with a .22 caliber rifle contrary to section 239 of the Criminal Code of Canada and amendments thereto.

Count #2:

On or about the 16th day of December, A.D. 1992, at or near East Royalty, County of Queens, in the Province of Prince Edward Island, use a firearm, to wit: a .22 caliber rifle while attempting to commit the indictable offence of murder contrary to section 85 of the Criminal Code of Canada and amendments thereto.

Count #3:

On or about the 16th day of December, A.D. 1992, at or near East Royalty, County of Queens, in the Province of Prince Edward Island, carry a firearm, to wit: a .22 caliber rifle for a purpose dangerous to the public peace contrary to section 87 of the Criminal Code of Canada and amendments thereto.

Count #4:

On or about the 18th day of December, A.D. 1992, at or near East Royalty, County of Queens, in the Province of Prince Edward Island, carry a firearm, to wit: a .22 caliber rifle for a purpose dangerous to the public peace contrary to section 87 of the Criminal Code of Canada and amendments thereto.

Count #5:

Between the 1st day of September, A.D. 1991 and the 18th day of December, A.D. 1992 at or near the City of Charlottetown, County of Queens, the Town of Summerside, County of Prince and other places throughout the Province of Prince Edward Island, by communicating statements, other than in private conversation, wilfully promote hatred against an identifiable group, to wit: Jews, contrary to section 319, subsection (2) of the Criminal Code of Canada and amendments thereto.

Count #6:

Between the lst day of September, A.D. 1991 and the 7th day of Oc- tober, A.D. 1991, at or near the City of Charlottetown, did by letter, knowingly utter a threat to Sam Wakim, to destroy or damage real property, to wit: his restaurant contrary to section 264.1, subsection (l)(b) and section 264.1, subsection (3)(a) of the Criminal Code of Canada and amendments thereto.

BASIC PRINCIPLES:

Because the accused represents himself in this case, I will begin with brief comments on two basic principles of our law to which reference is al- ways made by defence counsel. I speak of the presumption of innocence and the requirement for proof beyond a reasonable doubt.

The presumption of innocence is perhaps the most fundamental prin- ciple of our criminal law. Every person charged with a criminal offence is presumed to be innocent until the Crown proves his or her guilt beyond a reasonable doubt. Mr. Safadi does not have to prove he is innocent. It is up to the Crown to prove its case on each count of the indictment, and on each element of each count, beyond a reasonable doubt. The burden during this trial rested upon the Crown, and never shifted to Mr. Safadi.

The burden which rests upon the Crown is not to prove Mr. Safadi's guilt with mathematical precision, however. That would be impossible in a process where absolute certainties seldom exist. The words "beyond a reasonable doubt" are here used in their ordinary, natural meaning. A reasonable doubt is a real doubt based on reason; it is not illusory, fanciful or capricious. A reasonable doubt is a doubt that a person acting in good faith can have based upon reason and common sense. It has been judicially held that if, after a fair and impartial consideration of all the evidence, a trier of fact has a decided conviction or a moral certainty as to the guilt of an accused, then there is no reasonable doubt. However, if the evidence has left the trier of fact in such a state of mind that the deep conviction or moral certainty of the guilt of the accused does not exist, then there is a reasonable doubt and the accused must be given the benefit of it, and be found not guilty.

In arriving at my decision in this case I have instructed myself on the presumption of innocence, and on the requirement for proof beyond a reasonable doubt. I have also instructed myself as to the credibility of the witnesses who have testified during the trial, including the accused, Michel Safadi.

Mr. Visser in his closing argument invited my attention to the three step formula enunciated by the Supreme Court of Canada in its recent deci- sion, R. v. D.W. (1992), 112 N.R. 277. At p. 287 Cory, J. held that in a case where credibility is important, a trial judge might well instruct the jury along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

I have applied this three part formula in reaching my decision in this case.

Given that a number of witnesses gave evidence as expert witnesses, I have also determined the weight to be given to the expert opinions expressed. I have considered carefully the testimony and opinion of each expert witness, and their qualifications, training and experience, in arriving at my decision as to how much weight should be attached to each expert's opinion.

FINDINGS:

For the reasons that follow I find the accused, Michel Sleiman Safadi :

• a) in respect of Count 1, attempted murder, not guilty of attempted murder, but guilty of the included offence of discharging a firearm with intent to wound contrary to s. 244(a) of the Criminal Code.

• b) in respect of Count 2, using a firearm while attempting to commit the indictable offence of murder, not guilty;

• c) in respect of Count 3, carrying a firearm for a purpose dangerous to the public peace on December 16, 1992, guilty;

• d) in respect of Count 4, carrying a firearm for a purpose dangerous to the public peace on December 18, 1992, guilty;

• e) in respect of Count 5, wilfully promoting hatred against the Jews, guilty; and

• f) in respect of Count 6, uttering a threat to Sam Wakim to destroy or damage real property not guilty.

Count 1:

Section 239 reads in part as follows:

Everyone who attempts by any means to commit murder is guilty of an indictable offence ...

It has been clearly laid down that the mental element required in a charge of attempted murder is the specific intent to kill someone. The actus reus is anything done for the purpose of carrying out that murder.

By Count 1, Mr. Safadi is charged with attempting to murder John MacEachern. Therefore, apart from the date and place, which are not in dis- pute, the Crown must prove beyond a reasonable doubt that the accused in- tended to kill the victim, and that he did an act for the purpose of carrying out that intention.

Mr. MacEachern testified that at about 8:30 on the evening of December 16, 1992, he was returning to his residence at 4 Woodleigh Drive in East Royalty, which he shares with Sandra Israel-Ellis, the daughter of Lorne Israel who lives at 2 Woodleigh Drive, the other half of the duplex structure. Mr. Israel testified that he is not Jewish, but has been taken to be on many occasions. According to Mr. MacEachern, as he proceeded to turn towards the door to his residence he heard three sharp cracks, and felt a tug high on his jacket. He turned, and ran towards his driveway, ultimately collapsing in the street. It was subsequently learned that he had been shot. The bullet had entered his body through the left flank and travelled from left to right ending up embedded in muscle tissue on the right side. Dr. Ashby, who performed surgery on Mr. MacEachern, observed that three pieces of intestine had been injured. He explained that the injury could have been much more severe, and could have led to death, had the bullet damaged the bowel causing infection, or had it penetrated a major blood vessel or damaged the spinal cord. The bullet was not removed from Mr. MacEachern's body, Dr. Ashby having concluded that the risk from leaving it in place was less severe than the risk of attempting to remove it.

The evidence indicates that another bullet passed through the collar of Mr. MacEachern's jacket, narrowly missing his neck or head. On December 16, 1992, while investigating the shooting of Mr. MacEachern, members of the RCMP identified a location in a field directly across St. Peter's Road from Woodleigh Drive as being the site from which the shots were fired. This site is shown in photographs 1, 2, 3 and 4 in Ex- hibit C-1. Found and seized at that location were a small piece of grey rubberized material, which appeared to have been torn from a larger piece, and three expended .22 caliber cartridges. The site, identified as the location from which the shorts were fired at Mr. MacEachern, is located about 80 meters from the driveway of 4 Woodleigh Drive.

During the morning of December 17, 1992, Cpl. Walker of the RCMP recovered a .22 caliber bullet which, apparently, had struck the front of the residence at 13 Miller Street. This residence is located a short distance northwest of 4 Woodleigh Drive. What appears to be a bullet hole found near the front door of 13 Miller Street (shown in photograph 12 of C-1) is on a direct line with the location where Mr. MacEachern was standing when shot, and the shooter's location, shown in photograph 1.

Two days after the shooting, on December 18, 1992, at about 8:00 p.m., members of the RCMP responding to reports of a suspicious person in the area, came upon the accused. He was located approximately 35 feet from the site from which the shots had been fired on December 16, in the field directly across St. Peter's Road from Woodleigh Drive. Cpl. Smith and Cst. Lutwick testified that when they first spotted the accused he was standing still, facing towards Woodleigh Drive. Over his head and shoulders was draped a kind of blanket or tablecloth made of rubberized material, grey on one side, white on the other. It was being worn with the white side out. On later examination, a piece was found to be missing from this tablecloth.

The accused carried a .22 caliber semi-automatic rifle equipped with a telescope - it is Exhibit C-3 in these proceedings. The barrel and part of the stock were wrapped with strips of white cloth. It is significant to note that the ground was covered with snow on December 18, 1992. Sgt. Meadus, who was qualified, and accepted by the Court, as an expert in the identification of material, and the matching of one piece of material with another, testified that the small piece of rubberized material found at the shooter's location on December 16, matched not only the material of the tablecloth worn by the accused on December 18, but also matched the hole noted in it. According to Sgt. Meadus, that small piece of material, (Exhibit C-8), came from the tablecloth (Exhibit C-6), and could not have come from any other source. This conclusion is clearly apparent from photograph 27 of Exhibit C-1.

The three expended .22 caliber cartridges found on December 16 at the shooter's location, the rifle seized from Mr. Safadi on December 18, and a quantity of unfired Winchester Super-X .22 caliber long rifle ammunition found in the possession of the accused, were all submitted for analysis to the RCMP forensic laboratory in Halifax. Mr. Darrell Harvey, a civilian member of the RCMP, was qualified and accepted by the Court as an expert in the following areas:

• a) the theory, operation and identification of firearms;

• b) the examination and identification of fired and unfired ammunition components;

• c) the examination and identification of toolmarks;

• d) the theory and operation of the comparison microscope; and

• e) the theory and practice of ballistic assessment.

Mr. Harvey used the rifle seized from the accused on December 18 to fire five rounds of the ammunition found in Mr. Safadi's possession. He compared these five fired cartridges with the three fired cartridges found on December 16 at the shooter's location, and found sufficient similarities in the individual tool marks left on all the cartridges during the chambering, firing and extraction cycle to lead him to conclude that the three fired cartridges found on December 16 were fired in the rifle seized from Mr. Safadi on December 18. Mr. Harvey testified he is 100% absolutely convinced of this.

Mr. Harvey also conducted tests and examinations of various bullets, including the bullet recovered by Sgt. Walker at 13 Miller Street. His conclusion was that he could neither identify nor eliminate Mr. Safadi's rifle, Exhibit C-3, as having fired the bullet found at 13 Miller Street. He found similar class characteristics, but the bullet found at 13 Miller Street was of no individual comparison value.

Mr. Safadi argues that the failure to identify his rifle as having fired the bullet is conclusive proof that it did not do so. However, according to Mr. Harvey, on occasion a bullet will not pick up individual characteristics when fired because some rifle barrels will not impart individual characteristics during the passage of the bullet. The lack of individual characteristics on the bullet does not eliminate Mr. Safadi's rifle as having fired it.

Mr. Safadi also argues that the ejection pattern of his rifle is different than that of the rifle used on December 16. Mr. Harvey testified that the rifle, C-3, when fired from a prone position, ejected cartridges up to a distance of eight feet. However, without knowing precisely the location of the rifle when fired on December 16, it is not possible to compare the location of the three found cartridges with any particular ejection pattern. For example, it is not known if the rifle was fired from a prone or standing position. Therefore, the argument made by the accused concerning ejection patterns is of no assistance to him whatsoever.

Mr. Harvey described the rifle seized from the accused as a Lakefield Model 64B, .22 caliber semi-automatic rifle, in good mechanical condition. It will fire one bullet with each depression of the trigger. In effect, it will fire as fast as one can pull the trigger.

In a statement made to Cst. McConnell, and admitted into evidence, the accused stated he had purchased the rifle at Canadian Tire, and the grey tablecloth at K-Mart. When asked if anyone else had access to the tablecloth and the rifle, he responded "no". In relation to the rifle the accused was quite adamant - "No, nobody had my gun" - he is reported to have said. In his evidence before the Court, Mr. Safadi testified that he had not noticed his rifle missing at any time, nor could he say that anyone had removed the grey tablecloth from his apartment at any time prior to December 16, 1992.

There is also the evidence of the tracks found on December 18, and on December 16. Cpl. Smith of the RCMP, a qualified expert in searching and tracking with the police service dog SAM, testified that on the night of December 16, he and SAM located the site from which the shots were fired, shown in photograph 1. Cpl. Smith found the small piece of grey rubberized material, and the three expended .22 caliber cartridges. With the assistance of the tracking dog, Cpl. Smith followed the tracks left by the person who, earlier that night, had been at that site, until SAM lost the scent at Heartz Road. These tracks were marked in blue by Cpl. Smith on Exhibit C-43, the map of East Royalty.

Cpl. Smith returned to the scene on December 18, and, as described earlier, in company with Cst. Lutwick and SAM, located Mr. Safadi near the site previously identified as the location from which the shots had been fired on December 16. On December 18, Cst. Lutwick had followed a set of footprints from the location of a motor vehicle, belonging to the accused which had been parked on Grant Street, to the St. Peter's Road, across St. Peter's Road, through a yard, across Heartz Road, through a field to Green- wood Drive where he was joined by Cpl. Smith and SAM. Cst. Lutwick marked this path in red on C-43. Together they followed the footprints until they located the accused. Cpl. Smith indicated on C-43, in black, the tracks he followed on December 18. He stated that the tracks of December 18 were parallel to the tracks of December 16, and within 25 to 30 feet of each other, except for about l/4 mile where they were directly on top of each other. This is persuasive evidence that on December 18, the accused had returned, by way of the same route, to a location familiar to him from having been there on December 16.

Mr. Safadi denies being the person who fired the shots at Mr. MacEachern. He says he was at home alone on the night of December 16, 1992, and that his purpose for being in the area where he was arrested on December 18 was innocent - to hunt raccoons. He claims he was simply following human tracks and those of an animal, possibly a dog, because he thought another hunter might be in the area.

According to the accused, the small piece of cloth, C-8, was removed from the larger tablecloth, C-6, and placed at the scene of the shooting on December 16 by someone who wanted to set him up. He says Cst. Lutwick and Cpl. Smith are in error when they say he was wearing the tablecloth with the white side out, and that the firearm's expert, Mr. Harvey, is mistaken in his conclusion that the three expended cartridges found on December 16 were fired from his rifle.

I accept Mr. Harvey's evidence. I found him a very knowledgeable and experienced firearm's expert whose evidence can be relied upon. On the other hand, there was much in the testimony of Mr. Safadi which I did not believe. I found him during cross-examination evasive, hesitant and ar- gumentative. I consider his theory that he was set up by agents of the Mossad, or some unknown persons, to lack completely any air of reality when it is viewed in the context of all the evidence in this case. I am asked by him to believe that at least three agents of the Israeli secret police, one apparently identified as such by a lapel pin, were for some considerable time in Charlottetown between September 1991, and December 1992 for the purpose of setting him up, for no apparent reason. I quite simply cannot conclude that this explanation might reasonably be true.

How could these unknown persons have known that the accused would return two nights later to the almost exact scene of the shooting? How could they have known that he would wear the grey tablecloth? These are not merely coincidences, in my view.

Upon a review of all the evidence, I find that the Crown has proved beyond a reasonable doubt that it was the accused who, using his own rifle, Exhibit C-3, fired the shots at Mr. MacEachern on December 16, 1992. As stated earlier in these reasons, one of the ingredients the Crown must prove in Count 1 is that the accused intended to commit the offence of murder, in other words, intended to kill the victim. Obviously murder was not committed in this case; fortunately, Mr. MacEachern did not die. There is no direct evidence of intention.

It is the position of the Crown that I may infer this intent from the activities and conduct of the accused viewed in the light of all the surrounding circumstances. In particular, Mr. Visser argues that the motive for the shooting can be found by linking the writings which were found in the accused's apartment, which reveal a hostility towards Jews, with the name of the owner of the duplex in which Mr. MacEachern resided, Lorne Israel.

I have reviewed the contents of the notebooks found in Mr. Safadi's apartment which are exhibits C-25, C-45 and C-48 in these proceedings. Some of this material is written in English, and some in French. Other por- tions of the notebooks are written in Arabic while still others are written using English letters to express Arabic words. A translation of the latter two kinds of writing was provided by Dr. Awni Raad who speaks and reads Arabic and English.

I note it is largely the materials written in Arabic or in which Arabic words are written with English letters which contain the strongest expres- sions of ill-will towards Jews. According to Dr. Raad's translations, in these writings the author refers to the Jews as "the unholy youth", and as "criminal people who did not have mercy on anyone". One passage reads:

"Do not have mercy on their leader, the leader of the devils, son of the whore, the unholy Jew"; another passage speaks of "Jewish wolves". Reading the contents of these particular exhibits, one is lead to the almost inevitable conclusion that they are the product of a disturbed and paranoid mind. However, my notes of the evidence of the handwriting expert, Mr. Gilles Poulin, indicate that he was not able to comment as to the identity of the writer of those portions of the exhibits in Arabic. His evidence related to the English and French portions only. In the circumstances, I cannot attribute to the accused the sentiments expressed in Arabic, even though the notebooks were found in his apartment.

Our law presumes that a sane and sober person intends the natural consequences of his act. But the death of the victim is not the only natural consequence of the accused's act. Obviously, Mr. MacEachern is still alive. In my opinion, in spite of the potential of death ensuing had the bullet struck the bowels, a major blood vessel, or the spinal cord, it cannot be concluded beyond a reasonable doubt that the accused had the specific intent to kill.

However, considering that Mr. Safadi fired three shots in the direction of Mr. MacEachern using a semi-automatic rifle equipped with a telescope, one shot missing MacEachern completely (probably the bullet recovered at 13 Miller Street), one shot passing through the collar of his jacket, and the third striking him in the left flank, it is reasonable to infer, at the very least, that Mr. Safadi intended to wound the person at whom he was shooting. Indeed, Mr. MacEachern was wounded.

Based upon all the evidence presented, I am satisfied, beyond a reasonable doubt, that Mr. Safadi intended to wound his target when he fired at Mr. MacEachern on December 16, 1992. I therefore find him guilty of discharging a firearm with intent to wound contrary to s. 244(a) of the Criminal Code. (R. v. Wigman, [1987] 1 S.C.R. 246).

Count 2:

By Count 2 the accused is charged with using a firearm while attempting to commit the indictable offence of murder contrary to s. 85 of the Criminal Code. I have found the accused not guilty of this offence. Having found the accused guilty of discharging a firearm with intent to wound on Count 1, I am of the opinion that convicting him of the offence charged in Count 2 would offend the rule against multiple convictions enunciated by the Supreme Court of Canada in R. v. Kienapple, [1975] l S.C.R. 729. In reaching this conclusion, I rely upon the decision of Chief Justice Hughes of the N.B.C.A. in R. v. Lavoie (1980), 51 C.C.C. (2d) 356. There the accused was charged with three counts, Count 2 being the offence of discharging a firearm with intent to endanger life contrary to then s. 228(b) (now 244(b)), of the Criminal Code, and Count 3 being the offence of using a firearm while committing an indictable offence. Chief Justice Hughes considered Kienapple, and concluded that both counts were based on the same set of facts and a conviction on both would consequently result in two convictions for the same delict, which would contravene the rule in Kienapple. I reach the same conclusion in this case - hence the finding of not guilty on Count 2. (See also R. v. Benoit (1985), 56 Nfld. & P.E.I.R. 55 (Nfld. C.A.)).

Count 3:

Count 3 charges Mr. Safadi with having committed an offence contrary to s. 87 of the Criminal Code, the relevant parts of which read: Everyone who carries ... a weapon ... for a purpose dangerous to the public peace ... is guilty of an indictable offence ...

The definition of the word "weapon" in s. 2 of the Criminal Code includes any firearm. The .22 calibre rifle seized from Mr. Safadi is a firearm, and therefore a weapon for purposes of the Criminal Code. The critical element in the offences described in s. 87 is the purpose that underlies the carriage of the weapon. The external circumstances of the offence are complete where it is established that an accused carried a weapon.

Having reached the conclusion in respect of Count 1 that on the 16th day of December, 1992, at or near East Royalty, the accused discharged a firearm with intent to wound, I conclude, for the reasons previously given, that the Crown has proved beyond a reasonable doubt, that on that date and at that place, Mr. Safadi did carry a firearm. His intentional discharging of the firearm at Mr. MacEachern, is, in my opinion, proof beyond a reasonable doubt that his purpose in carrying the firearm was dangerous to the public peace.

In my opinion, unlike Count 2, the facts relating to Counts 1 and 3 do not disclose a single delict within the Kienapple principle. For Count 1 it was necessary for the Crown to establish a use of the firearm in addition to its carriage for a dangerous purpose. For a conviction under Count 3, of carrying a weapon for a purpose dangerous to the public peace, there need not be established an actual use of the weapon. I find support for this conclusion in the judgment of Jessup, J.A., speaking for the Ontario Supreme Court, (Court of Appeal), in R. v. Yurkiv, [1981] 18 C.R. (3d) 287.

In the result I find Mr. Safadi guilty of the offence charged in Count 3.

Count 4:

I have also found the accused guilty of the offence charged in Count 4, carrying a firearm for a purpose dangerous to the public peace on December 18, 1992.

The date and place are well established by the evidence, as is the fact that on that date, and at the place mentioned, the accused carried a .22 caliber rifle, which is a firearm. The element in dispute in respect of this count is the unlawful purpose. The offence charged in Count 4 requires proof not only of the carriage of the weapon, but also that the carriage was for a purpose dangerous to the public peace. The formation of the unlawful purpose may be inferred from the circumstances, including the actual use of the weapon.

The accused says he was merely hunting raccoons on the night of December 18. I do not accept his explanation. According to the evidence of Randy Dibblee, a biologist and wildlife manager who is familiar with raccoon activity patterns and raccoon hunting in P.E.I., raccoons generally sleep through cold winter periods. Mr. Dibblee would not expect raccoons to be moving about when the temperature is below 4 degrees Celsius. On December 18 the temperature was 0 degrees Celsius. Mr. Dibblee described how raccoons are usually hunted at night using hounds, or, if no dogs are used, using a fairly bright light. The accused had no dog, and carried only a penlight when he was apprehended by the police.

Mr. Safadi testified that he was wearing the tablecloth with the grey side out to protect himself from the cold and snow. Cpl. Smith testified the tablecloth was being worn white side out. I accept the evidence of Cpl. Smith in that regard. The rifle had white cloth wrapped around it with wire attached. The accused says this was to protect it from the snow. That explanation makes no sense. Cpl. Smith testified that when he seized the accused's rifle, there were ten live rounds in the magazine and one live round in the chamber. In a futile attempt to explain the live round in the chamber, the accused suggested the rifle self-loaded when he dropped it to the ground. I cannot accept that explanation as being reasonably true.

In arriving at my finding in respect to Count 4, I have considered the totality of the evidence, including the evidence relating to the events of December 16, 1992. I am satisfied beyond a reasonable doubt by the evidence presented that on December 18, 1992, the carriage of the .22 rifle by the accused was for a purpose dangerous to the public peace.

Count 5:

Count 5 charges the accused with the willful promotion of hatred against Jews by communicating statements, other than in private conversa- tions, between the dates and at the locations set out in the indictment. The charge is laid contrary to s. 319(2) of the Criminal Code the text of which is, in part, as follows:

Every one who, by communicating statements, other than in private conversations, wilfully promotes hatred against any identifiable group is guilty of

a) an indictable offence ...

Specific defences to a charge under this provision are found in s. 319(3) which reads:

(3) No person shall be convicted of an offence under subsection (2)

• (a) if he establishes that the statements communicated were true;

• (b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject;

• (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

• (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.

Section 319(6) provides that no proceeding for an offence under sub- section (2) shall be instituted without the consent of the Attorney General. That consent was obtained in this case.

The combined effect of s. 319(2) and (3) is that the requirements for conviction of the offence charged in Count 5 are:

• a) The Crown must prove beyond a reasonable doubt that Mr. Safadi made the statements alleged and in doing so his purpose was to promote hatred. A person may accidentally, negligently, or even recklessly promote hatred. This is not a crime. It is only the willful or intentional promotion of hatred which is prohibited;

• b) the willful promotion of hatred must be directed towards an iden- tifiable group which is one distinguishable by colour, race, religion, or ethnic origin. Count 5 specifically identifies the identifiable group in this case as Jews;

• c) the statements which promote hatred must be communicated other than in private conversation;

• d) the Crown must prove beyond a reasonable doubt that the accused was not making a good faith argument on a religious subject;

• e) further, the Crown must disprove, also beyond a reasonable doubt, any reasonable "mistaken belief" defence;

• f) finally, the Crown must prove beyond a reasonable doubt that the accused was not, in good faith, attempting to point out, for the purpose of removal, matters tending to produce feelings of hatred; and

• g) the accused may still avoid conviction if he proves that the state- ments communicated were true. The Supreme Court of Canada had a recent opportunity in R. v. Keegstra, [1990] 3 S.C.R. 697 to comment on the extent and meaning of s. 319(2) and its constitutional validity. Speaking for the majority, Dickson C.J. (as he then was) concluded that s. 319(2) infringes the guarantee of freedom of expression found in s. 2(b) of the Charter, but, given the importance of Parliament's purpose in preventing the dissemination of hate propaganda and the tenuous connection such expression has with s. 2(b) values, it (s. 319(2)) is justifiable under s. 1 of the Charter.

Before considering the evidence presented in respect of Count 5, it is instructive to note specific comments of the Chief Justice concerning the in- terpretation of s. 319(2). At pp. 774-775, Dickson C.J. agrees with the opinion of Martin, J.A. in R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.) that the word "wilfully" in s. 319(2) means the mental element for the offence is satisfied only where an accused subjectively desires the promotion of hatred or foresees it as substantially certain.

I also have found of considerable assistance the following comments of Dickson, C.J. at pp. 776-778:

First, to predicate the limitation of free expression upon proof of actual hatred gives insufficient attention to the severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda. Second, it is clearly difficult to prove a causative link between a specific statement and hatred of an identifiable group. In fact, to require direct proof of hatred in listeners would severely debilitate the effectiveness of s. 319(2) in achieving Parliament's aim. It is well accepted that Parliament can use the criminal law to prevent the risk of serious harms, a leading example being the drinking and driving provisions in the Criminal Code. The conclusions of the Cohen Committee and subsequent study groups show that the risk of hatred caused by hate propaganda is very real, and in view of the grievous harm to be avoided in the context of this appeal, I conclude that proof of actual hatred is not required in order to justify a limit under s. 1.

The next feature of the provision that must be explored is the phrase 'promotes hatred against any identifiable group'. Given the purpose of the provision to criminalize the spreading of hatred in society, I find that the word 'promotes' indicates active support or instigation. Indeed the French version of the offence uses the verb 'formenter', which in English means to foment or stir up,. In 'promotes' we thus have a word that indicates more than simple encouragement or ad- vancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group. As for the term 'identifiable group', s. 318(4) states that an "'identifiable group' means any section of the public distinguished by colour, race, religion or ethnic origin". The act to be targeted is therefore the intentional fostering of hatred against particular members of our society, as opposed to any individual.

The meaning of 'hatred' remains to be elucidated. Just as 'wilfully' must be interpreted in the setting of s. 319(2), so must the word 'hatred' be defined according to the context in which it is found. A dictionary definition may be of limited aid to such an exercise, for by its nature a dictionary seeks to offer a panoply of possible usages, rather than the correct meaning of a word as contemplated by Parliament. Noting the purpose of s. 319(2), in my opinion the term 'hatred' connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179:

'Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity,ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].'

Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

Those who argue that s. 319(2) should be struck down submit that it is impossible to define with care and precision a term like 'hatred'. Yet, as I have stated, the sense in which 'hatred' is used in s. 319(2) does not denote a wide range of diverse emotions, but is circumscribed so as to cover only the most intense form of dislike. It was also argued on appeal, however, that regardless of the definition given 'hatred' by the courts, the trier of fact must make a subjective decision in deciding whether 'hatred' is indeed what the accused intended to promote. To determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made.

Having fleshed out the bare bones of s. 319(2), I now turn to a con- sideration of the evidence in this case.

The evidence discloses that a total of 45 letters were either mailed or delivered to a number of organizations and individuals at various locations in this Province between the dates stipulated in the indictment. The vast majority of recipients were churches or religious groups. The letters sent to these organizations all refer to Christianity in general, and Jesus Christ, Mary and the Holy Spirit in particular in the most obscene and disgusting language. All letters carry a representation of the Star of David, the internationally recognized symbol of Judaism; some are signed "The Free Jews"; some simply endorsed with the words "Long live Israel". Included on some of the letters is a Hebrew term which, translated, stands for "within the people of Israel".

Other letters were addressed to various police and government agencies. These, which are also inscribed with the Star of David tend to be of a general threatening nature. Still other letters were delivered to various Lebanese persons in the this city. They are similar to those sent to police and government agencies.

It is the theory of the Crown that Mr. Safadi wrote these letters; that he made them appear to originate from a Jewish source with the intention that their contents would promote in the letters' recipients hatred against the Jews.

Mr. Safadi denies having written the letters. His position is that this is another set-up by a person or persons unknown.

Mr. Gilles Poulin was presented by the Crown as an expert in the comparison of handwriting. He has been employed as a forensic specialist in the Questioned Document Section of the RCMP forensic laboratory in Montreal and more recently in Halifax since 1981. He has examined during his career more than 20,000 questioned documents and has prepared forensic reports in over 1,200 cases. He has been accepted as an expert witness in his field more than 80 times by courts in Quebec, Ontario, and in this Province. I consider his evidence to be highly reliable.

Mr. Poulin was requested to examine the letters in question, and to compare the handwriting in those letters to known samples of Mr. Safadi's handwriting. A large amount of handwriting samples, which the accused admits having written, was submitted for comparison. These include exhibits C-27 (a 24 page document written in French), C-31 (a 108 page notebook), C-32 (a 100 page notebook), C-58 (a two page letter), and C-59 (an address book). Other writings were submitted, however the accused denies having written them.

Mr. Poulin first determined that all the unknown material was written by the same person. He then compared it with Mr. Safadi's known handwriting looking for any identifiable similar characteristics. His conclusion was that the writer of the questioned documents (the letters) also wrote the submitted known specimens. He presented a master chart, Exhibit C-57, which illustrates some of the similarities between the known and unknown writing. Mr. Poulin testified that everything matched. He stated he found no dissimilarities, and in his 12 years in the field he had never before found such pronounced individual characteristics. He expressed his expert opinion that the questioned handwriting was definitely written by the writer of the specimens; he stated he did not have any doubt. I have compared the handwriting in the letters in question to known samples of Mr. Safadi's handwriting. Even to my untrained layman's eyes the similarity between the two is striking.

Mr. Safadi's position is that some unknown person wrote the letters in an imitation of his handwriting as part of a set-up. According to Mr. Poulin, there is a continuity of writing in all the documents, and, based on his experience, it would be impossible for someone to have forged all the documents.

Standing alone, Mr. Poulin's evidence, in my opinion, would be suffi- cient upon which to conclude that the Crown has proved beyond a reasonable doubt that the accused is the author of all the letters in question. But his evidence does not stand alone. It is supported by fingerprint evidence.

Cpl. Levi Barnes of the RCMP is a forensic identification specialist whose duties include fingerprint identification. He was qualified and ac- cepted by the Court as an expert in that field. Eight of the letters, which had been delivered to the Montague Town Hall in July of last year, were turned over to Cpl. Barnes for the purpose of determining whether any identifiable fingerprints could be found. These letters had not been opened or tampered with in any way. They were delivered to Cpl. Barnes in their original sealed condition.

On the outside of one of these envelopes Cpl. Barnes was able to raise a fingerprint, and on the letter sealed inside another envelope he raised a palm print. These he compared with the finger and palm prints taken from Mr. Safadi subsequent to his arrest on December 18, 1992. Cpl. Barnes testified that he identified the fingerprint as Mr. Safadi's right thumbprint. He stated that he noted at least 15 points of similarity, and there is no doubt in his mind as to the identity of the print.

The palm print was identified by Cpl. Barnes as being Mr. Safadi's left palm print. He stated he noted no points of dissimilarity and had stopped counting points of similarity when he reached 64. According to Cpl. Barnes, there is no doubt the unknown and known palm prints are identical.

Mr. Safadi explains this evidence by saying that someone removed paper and envelopes from his apartment. There is no evidence whatsoever to support this contention, and I conclude that it could not reasonably be true.

Has the Crown proved beyond a reasonable doubt that in making the statements contained in the letters Mr. Safadi wilfully promoted hatred against an identifiable group?

There is no question that Jews are an identifiable group as defined for the purpose of s. 319(2). It will be recalled that Dickson, C.J. in Keegstra expressed the view that to determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made. That alone may not be sufficient in this case because the accused did not make statements directed at the Jews as an identifiable group. Rather he misrepresented himself in the letters as a Jew, and directed attacks against Christianity and government institutions using highly provocative and disgusting language. There is no doubt in my mind that in doing so he subjectively desired the promotion of hatred against the Jews.

Mr. Bernie Farber is the National Director, Community Relations, Canadian Jewish Congress. He testified for the Crown as an expert in Jewish issues and in defining the promotion of hatred against the Jews. He stated he had examined all the letters quite carefully and was of the opinion that they undoubtedly could promote a hatred towards Jewish people. He stated it would be very difficult for the average person not to gain an animosity against the writer or writers of the letters who represented them- selves as Jews. He described the letters as an attempt to perpetrate a gigantic fraud; they were wilfully put together with the intent of leading the readers to believe that Jews have a great hatred for Christianity and all that it stands for. According to Mr. Farber, this is a prime example of an attempt to promote hatred against the Jews of Charlottetown who number only thirty.

Mr. Safadi's defence to this charge is a complete denial that he is the author of the letters in question. Therefore, none of the specific defences set out in s. 319(3) are in issue in this case.

There is little doubt that the accused bears an ill-will towards the Jewish people. For example, in a letter written on October 5, 1992, to his uncle and aunt, Mr. Safadi refers to Jews as "... the parasite of mankind ...". The accused contends that this letter was not written by him but was in- serted into his apartment as part of the set-up. I view this contention as an attempt by the accused to disassociate himself from any material which could provide a motive for his actions. Mr. Poulin identified the accused as the writer of this letter.

The accused says he cannot be the author of the letters because he cannot write Hebrew. I note that only three different Hebrew words appear in the letters. In my view, it would not be a difficult task for a person of Mr. Safadi's obvious intelligence to learn to write three Hebrew words. Based upon all of the evidence I am satisfied beyond a reasonable doubt that the accused did communicate the statements contained in the letters.

I am also satisfied beyond a reasonable doubt that his purpose was to instil in the recipients of the letters detestation, enmity, ill-will and malevolence towards Jews. Clearly the letters were designed to fan the fires of anti-semitism. They portray Jews as haters of Christianity and Christian values and beliefs, and as threats to democracy and law enforcement organizations. The vile, obscene and disgusting nature of the language used in the letters could lead to members of the Jewish faith being despised, scorned and denied respect on the basis of group affiliation. I conclude that the Crown has proved the case against the accused on Count 5 beyond a reasonable doubt, and I find him guilty as charged in that Count.

Count 6:

The final Count in the indictment charges the accused with uttering a threat to one Sam Wakim to destroy or damage his restaurant contrary to s. 264.1(l)(b) of the Criminal Code.

Mr. Wakim was the recipient of three of the letters written by the ac- cused. He testified that on or about September 27, 1991, he received a letter which contained the following typewritten message: "We are waiting for you to leave. When you come back, you won't find your restaurant". Mr. Wakim stated that at the time he was preparing to visit Lebanon. He testified he went to Lebanon in october, 1991, and, when he returned he learned that during his absence his restaurant had burned. There is no evidence whatsoever connecting the accused to the destruction of the restaurant.

The question whether certain words constitute a threat is objective within the context of the written words and the situation of the recipient. Disregarding the fact of the subsequent fire in respect of which the accused is not charged, there being no evidence to connect him with it, I find the words of the letter received by Mr. Wakim to be somewhat equivocal. I am not satisfied beyond a reasonable doubt that the words necessarily constitute a threat to destroy or damage real property. Therefore, I find the accused not guilty of this charge.

CHARACTER EVIDENCE:

Twelve witnesses gave evidence on behalf of the accused. The vast majority of these witnesses testified as to his good character. Some are persons with whom Mr. Safadi worked. Others know him from a computer course which they took together. These witnesses described the accused as a hard worker who applied himself to his job related duties and to his studies. None were aware of any problems connected with the accused. According to some of these witnesses, the accused was always willing to help others. None socialized with him or knew anything about his private life.

I have considered this evidence, together with all of the other evidence, in determining whether the Crown has proved the case against the accused beyond a reasonable doubt.

SENTENCING:

I will hear submissions as to sentence on Monday, September 13, 1993, at 9:30 in the morning. I request that in the interim a pre-sentence report be prepared.

_________________________

J.

July 21, 1993

Source: http://www.canlii.org/pe/cas/pesctd/1993/1993pesctd10075.html

keywords:

MICHEL SLEIMAN SAFADI  Prince Edward Island Supreme Court  PESCTD GSC-12719  attempted murder  promotion of hatred

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