Assmar Ryiad Shlah v. Her Majesty the Queen

(Alta.) (Criminal) (As of Right)


Criminal law - Unreasonable verdict - Criminal law - Unreasonable verdict - Second degree murder - Whether the verdict was unreasonable. .


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The appellant was tried by judge and jury and convicted of second degree murder in the death of a young man who was attacked and beaten by a group of people in an alley behind a Calgary nightclub. The man was first beaten by several individuals and then stabbed four times. There was a short break in the beating, during which time some bystanders called for help, but a second wave of assailants arrived shortly thereafter and continued the assault by kicking and punching the man as he lay in a pool of his own blood, pleading for his life. The appellant appealed his conviction, arguing among other things that the verdict was unreasonable. A majority of the Court of Appeal dismissed the appeal. Veldhuis J.A., dissenting, would have allowed the appeal and entered an acquittal. In her view, a reasonable jury, properly instructed, could not have convicted the appellant of second degree murder on any of the pathways to conviction. In particular, she pointed to unreliable eyewitness evidence, DNA evidence which could not be used to infer that the appellant had kicked the man in a particularly violent fashion, a lack of evidence of blood where it would have been expected if the appellant had participated in a violent attack, and a history of the altercation which, while it might have explained the appellant’s presence in the alley or spoken to his motive or intent, did not assist in establishing whether he administered any blows to the deceased. Veldhuis J.A. also concluded that there was no reliable evidence which suggested that the appellant had helped or encouraged the individual who had stabbed the deceased or the group of individuals who had violently beat him.