WARNING

THIS APPEAL IS SUBJECT TO

IDENTIFICATION PROHIBITIONS PURSUANT TO THE

YOUTH CRIMINAL JUSTICE ACT

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Shammari, 2016 ONCA 614

DATE: 20160808

DOCKET: C48742

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Al-Shammari

Appellant

Richard Posner and Lance Beechener, for the appellant

Alison Wheeler and Alexander Alvaro, for the respondent

Heard: May 4-5, 2016

On appeal from the conviction entered on December 5, 2007 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting with a jury.

Juriansz J.A.:

A. Overview

[1] During the early morning of November 19, 2004, Thualfikar Alattiya, a 41 year-old Windsor taxicab driver, was murdered in the back seat of his own cab. It was the Crown’s theory that the 19 year-old appellant, together with Hassan Al Ghazzi (“Hassan”), a 17 year-old high school friend of the appellant, and Mohamed Al Ghazzi (“Mohamed”), Hassan’s 19 year-old brother, committed a planned and deliberate murder. The victim and Daham Al Ghazzi (“Daham”), father of the Al Ghazzi brothers, were in a dispute over funds collected to build a mosque.

[2] The appellant acknowledged being present in the cab in the passenger seat during the murder but claimed he was unaware of any plan to beat up or kill the victim. He testified that he was completely taken by surprise by the attack. The appellant went to the police three days after the murder, after the Al Ghazzi brothers had been arrested.

[3] Prior to the appellant’s trial, Hassan pled guilty to first degree murder and Mohamed pled guilty to second degree murder. The main Crown witnesses at the appellant’s trial were Mohamed and his girlfriend, D.D. Ms. D., who was 16 years old at the time of the murder, was convicted of being an accessory after the fact. Mohamed testified that when the victim recognized the three young men during the attack in the cab, the appellant gave Hassan a knife and repeatedly shouted for Hassan to kill the victim.

[4] The appellant was tried before judge and jury. The central issues in the two-and-a-half-month trial were whether the appellant had (i) participated in planning the attack on the victim and (ii) encouraged and assisted Hassan in confining and killing the victim. The appellant was convicted of first degree murder and sentenced to life imprisonment with no parole eligibility for 25 years.

B. Grounds of Appeal

[5] The appellant appeals his conviction on three substantive grounds and a strenuously advanced allegation of ineffective assistance of trial counsel. Appellate counsel devoted his entire oral argument to the ineffective representation ground. He relied on the appellant’s factum to advance the following substantive issues:

1. Whether the trial judge erred by instructing the jury that the appellant’s statements to police were admissible for impeachment purposes but not for substantive use for the truth of their contents;

2. The propriety of Crown counsel’s cross-examination of the appellant; and

3. Whether the trial judge’s instruction on post-offence conduct improperly left it open for the jury to conclude that the post-offence conduct evidence was probative of the appellant’s culpability for first or second degree murder when it was equally consistent with culpability for manslaughter.

[6] The appellant raises the following issues in advancing his allegation of ineffective representation:

1. Whether trial counsel should have led evidence of an alleged conspiracy by the Al Ghazzi family and cross-examined Mohamed and D.D. about it;

2. Whether trial counsel should have called Bader Al-Zaferi, a police agent, as a witness in relation to the alleged conspiracy and utterances by Hassan; and

3. Whether trial counsel should have led in evidence Hassan’s utterances that the appellant and Mohamed were frozen with fear in the taxicab.

[7] The appellant also complained that trial counsel’s allegation of recent fabrication during the cross-examination of D.D. allowed the Crown to adduce prior consistent statements that bolstered her credibility and that of Mohamed. However, counsel for the appellant recognized that this alleged misstep was insufficient to support an allegation of ineffective representation on its own. As, in my opinion, the other grounds advanced have no merit, it is not necessary to discuss this allegation.

[8] I would dismiss the appeal.

C. Brief Summary of the Evidence at Trial

[9] Some brief background on the key individuals, their relationships and a summary of the evidence at trial follows.

(1) Thualfikar Alattiya and the Al Ghazzi Family

[10] The victim, Thualfikar Alattiya, was a 41 year-old married father of three young children who was working as a cab driver in Windsor. He had collected donations for the construction of a mosque and delivered them to Daham, Hassan and Mohamed’s father, who seems to have been the main fundraiser. According to the victim’s wife, he expected the mosque to be registered in the name of the Islamic community. When he learned that Daham had registered the mosque in his own name, the victim became disenchanted, and demanded a return of the funds collected from the community.

[11] The Crown alleged Daham encouraged his two sons Hassan and Mohamed to beat up the victim. D.D. testified that Mohamed told her that the victim had given his mother a “dirty look” and that his father wanted him to beat him up. After the murder, Daham disposed of evidence. He was charged with first degree murder but pled guilty to manslaughter. He received a sentence of eight years. Daham did not testify at the appellant’s trial.

[12] Hassan confessed to being the one who killed the victim by nearly decapitating him in the back seat of the cab. He pled guilty to first degree murder and, in light of his age, received parole ineligibility of ten years. Hassan testified at the preliminary inquiry but the Crown did not call him at trial. While in detention awaiting trial, Hassan said to Bader Al-Zaferi, a man who had befriended the Al Ghazzi family and had become a police agent, that the appellant had been silent during the attack. Bader Al-Zaferi recorded this conversation and others he had with Hassan while Hassan was in custody. The appellant’s allegation of ineffective assistance of counsel centers on trial counsel’s decision not to have Hassan and Al-Zaferi testify at trial.

[13] Mohamed was the central prosecution witness at the appellant’s trial. He was originally charged with first degree murder in relation to the killing but pled guilty to second degree murder and received parole ineligibility of ten years prior to the appellant’s trial. He testified that he, Hassan and the appellant planned and carried out the attack on the victim together. He described in detail the appellant’s participation in the murder and testified that during the attack, the appellant had shouted at Hassan to kill the victim.

[14] The appellant, Ali Al-Shammari, was a 19 year-old student at a local Catholic high school at the time of the homicide. He testified at trial. He admitted he was with Hassan and Mohamed during the attack, but denied awareness of any plan to attack or kill the victim. He claimed that he thought he was only providing back up to Hassan while Hassan confronted a school-aged boy who had been bothering him. The appellant admitted, however, using a knife to cut the upper portion of the victim’s seatbelt as Hassan was trying to drag the victim into the back seat. The appellant claimed he cut the victim’s seatbelt in an attempt to help him while Hassan was choking him from the back seat. The appellant went to the police three days after the murder, after the Al Ghazzi brothers had been arrested. He provided three statements to police over several hours and was arrested and charged with first degree murder.

(2) The Alleged Plan

[15] Mohamed discussed his intention to beat up the victim with D.D. Approximately three evenings later, she discussed a plan to beat up a cab driver with the brothers at a friend’s house. This was about a week before the murder. She and Mohamed developed a plan for her to assist by having the cab driver take her to an isolated area where she would drop money as she paid the fare, and then grab the car keys when the victim reached down for the money. This would allow the others to beat him up when he chased her. According to Mohamed, the appellant scouted the possible area with him and D.D. D.D. testified that the appellant was not with them during the scouting but that he was told of the plan soon after.

[16] Mohamed, D.D., Hassan and the appellant tried to carry out the plan early in the morning on November14th. The appellant gave D.D. a knife. Hassan brought a bat and gave the appellant gloves and ski masks. When they learned the victim’s cab was off duty, Hassan and the appellant smashed the windows on a green mini-van they wrongly believed was the victim’s. There was independent evidence of the vehicle damage and D.D.’s group home records showed that she was out the night before until 8:30 a.m. that morning.

[17] In his testimony, the appellant said that he had been at the friend’s house with the others but that there was no discussion of a cab driver or a plan to beat anyone up. He testified that he did not participate in the attempted plan to beat up the victim or in smashing the windows of the mini-van. He said he first heard about the plan and the broken windows of the mini-van in court. He testified that on November 18, the day before the murder, Hassan had asked him to come with him the next morning when Hassan was to confront a high school student who was harassing him. The appellant agreed to go with Hassan.

[18] D.D. testified Mohamed called her on the night of November 18 to say they would carry out the plan the next day. The group home staff confirmed that D.D. told them to wake her the next morning if Mohamed called. D.D. testified that Mohamed phoned her shortly after 5 a.m. on the day of the murder, but that she decided not to participate. D.D. told two workers at the group home that Mohamed wanted her to go with him and some unnamed others to beat up a cab driver. The two workers overheard the phone call between D.D. and Mohamed about Mohamed wanting her to go with them.

(3) The Murder

[19] The morning of the murder, the appellant called Hassan and agreed to go with him. He was picked up by the brothers in their vehicle as he walked toward their home. Mohamed testified that because of D.D.’s refusal to participate, the three assailants devised a new plan. They would telephone the taxi dispatcher and ask specifically for the victim’s taxicab to pick them up at a remote location. The appellant would sit in the front passenger seat and Hassan would get into the back seat. Hassan would wrap a speaker wire around the victim’s neck while the appellant punched him. Mohamed would then drag the victim out of the driver’s seat of the cab, and they would take him to another location where they would continue the beating. Hassan got the wire from the house and they had masks and gloves that they had obtained previously. The plan was to beat up the victim to send a message that he should stay away from the Al Ghazzi family.

[20] With Mohamed driving, the three assailants went to D.D.’s group home to attempt to persuade her to participate in the attack. A staff member at the group home said she saw the Al Ghazzi vehicle outside the group home at about 6:15 a.m. with no fewer than three people in the vehicle, and perhaps as many as five. This evidence was important to the Crown’s theory that the appellant was in the vehicle with the brothers, permitting the inference that he knew about the original plan involving D.D, and that he discussed the formulation of a new plan with the brothers. The appellant testified that he did not leave his house to meet the brothers until after 6:30 a.m.

[21] Mohamed testified that after D.D. persisted in her refusal to participate, Hassan telephoned the taxi dispatcher from an outdoor payphone. While the call was being made, Mohamed said that the appellant took some speaker wire and made loops at each end to create grips, and gave the wire to Hassan. The appellant denied this.

[22] Mohamed drove to the pickup location. Hassan and the appellant got out and waited for the victim’s cab, while Mohamed waited in his car. When the cab arrived, Hassan got in the back and the appellant got in the front, as planned. Both were wearing gloves and ski masks. The car began to roll forward and Mohamed heard someone calling his name. He opened the driver’s door and tried to sit in the driver’s seat to take control of the car. Hassan had the victim in a headlock and was trying to pull him into the back seat, but the victim’s seatbelt prevented this. Hassan was telling the others to undo the seatbelt. The appellant took his knife out of his pocket and cut the victim’s seatbelt. After the appellant cut the seatbelt, he helped push the victim into the back seat as Hassan pulled him. Mohamed began driving the cab around. Hassan was punching the victim in the back seat.

[23] As they were doing this, the victim recognized all three of them, referred to them by their first names, asked them why they were doing this and told them their parents would not approve. Mohamed testified that at this point the appellant began to panic. Hassan asked the appellant what they should do. The appellant said to “kill him” and handed the knife to Hassan. Hassan then began stabbing the victim, and the appellant said to “make sure he’s not breathing”. Hassan stabbed the victim in the neck. Mohamed continued driving the taxi until they were certain that Mr. Alattiya was dead. Mohamed testified the knife belonged to the appellant and he had seen it on the appellant several times in the past.

[24] The appellant’s version was that he was surprised when the victim’s taxi drove up. He assumed the Al Ghazzi brothers must have changed the plan and decided to take a taxi to the fight with the student that he expected. Hassan told him to put on gloves to look more intimidating and put the black toque on his head. The appellant testified that he recognized the victim as the cab approached, but did not know his name. Hassan entered the cab. When the appellant got into the passenger seat, he saw Hassan strangling the victim with a string. The appellant tried to open the seatbelt but it was jammed. The string broke. Hassan held the driver in a chokehold. Hassan tossed a knife to the appellant and said to “hit him” in Arabic, which could also mean “stab him”. None of this made sense to the appellant who, instinctively, opened the knife and cut the seatbelt to free the driver. The appellant testified that the knife was Hassan’s and that he had seen it before in Hassan’s room on his desk.

[25] The appellant testified that Mohamed then entered the driver’s door of the cab and sat on top of the driver, who was partially in the front seat, and started driving. The appellant said he was frozen and stunned and did not incite or assist Hassan. He denied helping Hassan get the victim into the back seat. After he cut the seatbelt, Hassan grabbed the knife from his hand. The appellant testified that the victim only identified the Al Ghazzi brothers by name but felt he had been recognized too. He denied providing Hassan with the knife and insisted that it was Hassan who said “we have to kill this guy”.

[26] Upon witnessing the killing of the victim, the appellant testified he was frozen in shock. He feared for his safety. The appellant rocked in the front seat with his eyes closed. However, at one point he saw blood on the back window and wiped it with his sleeve to avoid detection. He was scared and he was thinking about the police.

D. Analysis of Substantive Issues on Appeal

[27] None of the three substantive grounds of appeal were the subject of an objection by trial counsel. Appellate counsel does not rely on trial counsel’s failure to object to support the ineffective assistance ground. These substantive grounds are advanced independently.

(1) The Jury Instruction on the Permissible Use of the Appellant’s Statements to Police

[28] The Crown did not tender the appellant’s voluntary statements to the police as part of its case but played more than a dozen segments from those statements during the cross-examination of the appellant. The appellant alleges that the trial judge erred by instructing the jury that the appellant’s statements could not be used for the truth of their contents and could only be used to assess his credibility. The trial judge’s instructions on out of court statements included the following remark:

The one thing I would say, though, is that with respect to the police statement given by Mr. Al-Shammari, it is to be treated like the prior statements of [D.D.] and Mohamed Al Ghazzi, that is, with respect to the statement given to the police, the contents of it cannot be considered for its truth or as evidence of what really happened. In the circumstances of this particular case, those portions of the police transcript that the Crown relied upon in cross-examination can only be used by you in assessing Mr. Al-Shammari’s credibility.

[29] Ordinarily, as the Crown recognizes on appeal, statements that are made by an accused to a person in authority and tendered by the Crown constitute evidence both for and against the accused. When the Crown chooses not to tender the accused’s statements during its case-in-chief, the Crown may still cross-examine the accused on those statements. If the portions upon which the Crown cross-examines are exculpatory or neutral, the jury is usually permitted to rely upon those statements for the truth of their contents.

[30] Nevertheless, when the instruction in this case is considered in the context of the extensive pre-charge discussions that took place and the particular circumstances, it is apparent that the instruction did not result in any unfairness to the appellant.

[31] The appellant gave three statements to police over a few hours. Although he claimed to have been taken by surprise when Hassan attacked the victim, much of what he told the police permitted inculpatory inferences. When he testified, however, he minimized his participation and in many respects contradicted his police statements. Permitting the use of his prior statements for the truth of their contents, many of which painted the appellant in a more sinister light than did his testimony, would not have assisted the appellant.

[32] For example, the appellant testified at trial that he left his house and was picked up by Mohamed at 6:30 a.m. or 6:40 a.m. This timing would mean he was not in the Al Ghazzi car when it was seen outside D.D.’s group home at 6:15 a.m. However, the appellant told the police that he was picked up by Mohamed before 6 a.m. on the day of the murder. Thus, his police statement made available the inference he was with the brothers at 6:15 a.m. when they visited D.D.’s group home, and thus knew about the original plan to involve D.D. and was present when the new plan was discussed.

[33] Another example is that the appellant testified he did not know he was wearing a balaclava until inside the cab. He testified that during the struggle, the victim pulled the balaclava down over his eyes. However, the appellant had told police he was given the gloves and a black face mask when the brothers picked him up and that he pulled the balaclava down over his eyes when entering the cab. In the video of his police statement he can be seen demonstrating to the police how he pulled the balaclava down over his face.

[34] Yet another example is the appellant’s trial testimony that he was not aware a cab had been called and was surprised when it drove up. He testified that he had no idea that they were going to beat up a cab driver and that the first thing he saw when he entered the cab was Hassan choking the victim. His testimony made it seem as if he stumbled into an attack in progress. However, in his police statements, the appellant said Hassan had ordered a cab by number on the pay phone. He also told police that Hassan “jumped in” and placed the wire around the victim’s neck.

[35] There was more. The appellant’s police statements contradicted his testimony in regard to his knowledge and description of the knife, where on his clothing he had come into contact with blood, and his awareness of the victim’s fanny pack and his contact with it.

[36] Although the appellant acknowledged what he had said in the police statements just days after the murder, he accounted for the inconsistencies by testifying that he rushed through giving the police statements, had not slept for three days and was cold and hungry. He attributed any vagueness in his testimony to the events having occurred three years earlier, and to being frozen and in shock at the time. He also claimed he had a learning disability that affected his memory.

[37] In the pre-charge discussions, the trial judge expressed her preliminary view that the statements “have independent evidentiary quality beyond their impeachment value.” The Crown took the position that the jury ought not be permitted to consider them for their truth, but only for credibility. Defence counsel said he was persuaded by the logic of the Crown’s position. It seems clear, given the aspects of the police statements reviewed above, that the defence did not want the jury to consider the statements for their truth.

[38] The trial judge came to acknowledge there was possibly an element of unfairness in admitting the appellant’s statements for the truth of their contents. She said it was akin to letting the Crown “split” its case, since the Crown could not pick and choose if leading the statements in chief, but could if she used them for impeachment purposes. Defence counsel agreed with that proposition. The judge continued by noting that the language in the explanatory note to the instruction in the model jury charge seemed only to contemplate the situation where the statement had already been admitted substantively. The trial judge acceded to the positions of counsel that the portions of the statements put in cross-examination should not be considered for the truth of their contents.

[39] Trial fairness is available as a basis upon which to admit or exclude evidence, or to limit its use. I am satisfied that the trial judge did not err by instructing the jury they could not rely on the appellant’s post-arrest statements for the truth of their contents. The trial judge exercised her discretion and limited the jury’s use of those statements to assessing credibility. She did so to prevent unfairness to the appellant. Experienced defence counsel did not object to the instruction given, but rather welcomed it.

[40] I am not persuaded the trial judge’s exercise of discretion was in error.

(2) The Propriety of Crown Counsel’s Cross-examination of the Appellant

[41] The appellant alleges that his cross-examination by Crown counsel undermined the fairness of his trial because it was “fraught with sarcasm and condescension”, and the Crown frequently inserted editorial comments, and scolded him for not being responsive. The appellant says Crown counsel’s catchphrase throughout the three days of cross-examination became, “I’m the one who asks the questions.” The appellant submits the Crown’s improprieties were neither isolated nor few in number, but rather were so persistent and prominent, that they undermined the fairness of the appellant’s trial.

[42] I do not agree. When the Crown’s cross-examination is reviewed in totality, the cumulative effect of the Crown’s tone and the nature of her cross-examination did not cross the line in terms of propriety. Nor did it prejudice the appellant in his defence or bring the administration of justice into disrepute.

[43] The most heated “back and forth” was, as noted by the appellant, the repeated refrain that it was the Crown who asked the questions. However, this arose directly out of the conduct of the appellant. The appellant repeatedly asked questions in response, often as a challenge rather than for clarification. The appellant also utilized the technique of asking rhetorical questions in response as a means of arguing his own position. At one point the trial judge cautioned the appellant for being unresponsive. The appellant apologized for being sarcastic and emotional.

[44] Importantly, my review of the trial transcripts reveals that the appellant was able to hold his own throughout the cross-examination and did not appear to be in any way cowed or bullied. He expressed himself in an articulate manner and did not demonstrate any difficulty in comprehension or ability to respond, despite his mention of a learning disability at one point during cross-examination. Nor did the questioning have the effect of undermining any particular aspect of his defence. The difficulties he experienced flowed from his own inconsistencies.

[45] Defence counsel objected to specific questions but did not object to the tenor of the cross-examination. Moreover, the trial judge had a clear appreciation of the issue of proper tone, having ruled on that issue in some detail when the Crown objected to the tenor of defence counsel’s cross-examination of Mohamed.

[46] I am satisfied the Crown’s cross-examination did not occasion a miscarriage of justice in this case. I would not give effect to this ground of appeal.

(3) The Jury Instruction on Post-Offence Conduct

[47] The appellant submits that the trial judge’s instruction improperly left it open for the jury to conclude that the post-offence conduct evidence was probative of the appellant’s culpability for first degree or second degree murder when it was equally consistent with culpability for manslaughter.

(a) The Post-Offence Conduct Evidence

[48] Hassan lost one of his gloves under the victim, and Mohamed said the appellant unsuccessfully helped Hassan look for it. A glove was found under the victim when his body was discovered. Mohamed also said that the appellant went back into the cab and grabbed the victim’s fanny pack, telling Mohamed he wanted to make it look like a robbery. The appellant denied assisting to look for the glove and claimed he refused to take the fanny pack from Hassan when he tried to pass it to him during the drive back to the Al Ghazzi home.

[49] Hassan was drenched in blood. Mohamed had placed a blanket under him to protect the car. According to the appellant, he followed closely behind Hassan as they went into the Al Ghazzi’s house, as Hassan had asked that he cover him. Mohamed told his father that Hassan and the appellant had killed the victim. The appellant remained silent. The father demanded the bloody clothes, and the appellant placed the gloves, balaclava and his shirt in a black garbage bag. He had his school clothes with him.

[50] The appellant took the bus and went to school. After school, he and Hassan were picked up by Mohamed. While at school, Mohamed told a student in his English class that he had murdered Mr. Alattiya. Mohamed later claimed he said this to protect his brother. After school, the appellant and Hassan got rid of the knife in a drain while Mohamed picked up D.D. Mohamed, D.D., Hassan and the appellant then drove to the mall to make everything appear normal. D.D. testified that the appellant appeared happy and that he and Hassan were “joking around” in the back seat. Mohamed and D.D. said the appellant and Hassan lingered in the parking lot to smoke pot. Video from the mall shows them going into the mall three minutes after Mohamed and D.D. A green pipe was subsequently found in Hassan’s backpack. The appellant denied smoking pot with Hassan.

[51] The appellant claimed that he was frightened for himself and his family the entire time but went along with the others because he was concerned he would be killed if he appeared to be a threat,. The appellant went to the police on Monday after he heard the brothers had been arrested. He took police to retrieve the knife from the drain. A vest and a pair of jeans were seized from the appellant’s residence, and were found to have the blood that could not be excluded as the victim’s, including inside the jean pockets. The appellant testified that while the taxi was still moving, he had turned and seen blood on the rear passenger window and wiped it off with his shirt sleeve to avoid detection.

(b) The Jury Instruction at Issue

[52] The appellant takes issue with the following passages from the trial judge’s instruction on the use to be made of the appellant’s post-offence conduct:

It is for you to decide whether, on the evidence, Mr. Al-Shammari’s conduct after the offence assists you in determining what his actions were and what his mental state was at the time of the killing. It is also for you to determine what, if any, offence he was conscious of when he engaged in the conduct after the crime. Did he do what he did simply because he conscious [sic] of the fact that Mr. Alattiya had been killed? I suggest to you that even if you do find that these actions took place, you may find that they do not assist you in distinguishing between manslaughter, murder and first degree murder. You must assess the evidence very carefully in deciding this issue.

And finally, remember, if you do find that this conduct represents consciousness of having committed an offence, it is unlikely to assist you in distinguishing between the various offences that you see on the verdict sheet. For example, someone who has committed the offence of manslaughter might have just as much motivation to conceal or dispose of evidence as someone who has committed the offence of second degree murder or first degree murder.

[53] It should be noted this is only a part of the trial judge’s fairly lengthy review of the principles surrounding post-offence conduct and of the relevant evidence.

[54] The appellant submits that where an accused person’s post-offence conduct can be explained by more than one offence, a trial judge must instruct the jury that evidence of that conduct is of no probative value in determining the level of culpability. The appellant relies on R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, where this court said, at para 55:

It is well-established that, where an accused person has been charged with a more serious offence, such as first degree murder, evidence of flight or other like conduct may be probative of the individual’s commission of an unlawful homicide but is not ordinarily probative of his level of culpability and, hence, has no probative value as to whether the offence was a first or second degree murder or manslaughter. [Citations omitted.]

[55] The appellant recognizes that the trial judge instructed the jury that the appellant’s post-offence conduct was unlikely to assist in determining the level of his culpability, but objects to her remark that it was for them “to determine what, if any offence he was conscious of when he engaged in the conduct after the crime” and that they “must assess the evidence very carefully in deciding this issue.” The appellant submits this instruction is erroneous because it left it open for the jury to conclude post-offence conduct evidence was probative of his liability for second or first degree murder. The appellant says that given the commanding presence of post-offence conduct at his trial, it was essential that the jury receive the correct instruction.

[56] It is important to note that the court in R. v. Stiers went on to say, at para. 56:

However, the relevance of evidence of post-offence conduct will depend upon the nature of the conduct, the facts sought to be inferred from it, the positions advanced by the Crown and the accused, and the totality of the evidence. Further, it follows that “no prefabricated rule stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue”: see R. v. Cudjoe (2009), 2009 ONCA 543, 251 O.A.C. 163, at paras. 78-79; R. v. Figueroa (2008), 2008 ONCA 106, 233 O.A.C. 176 (C.A.), at paras. 34-35.

[57] I do not accept that where post-offence conduct can be explained by more than one offence, the trial judge must remove the evidence from the purview of the jury. Whether such conduct can constitute circumstantial evidence of guilt is a question of relevance on a case-by-case basis.

[58] While it may have been preferable for the trial judge to have definitively instructed the jury that the post-offence conduct was incapable of supporting the level of culpability, the trial judge did specifically caution the jury the evidence was unlikely to be of assistance in determining level of culpability. Instruction on post-offence conduct is a notoriously difficult issue, as illustrated by a long line of cases, including the Supreme Court of Canada’s recent decision in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, and this court’s decisions in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at paras. 51-55, R. v. Moffit, 2015 ONCA 412, at paras. 41-52, leave to appeal to SCC refused, 2016 CanLII 12152, and R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at paras. 90-92.

[59] The courts have often found that, while a more nuanced instruction would have been preferable, the general instruction given was adequate in the circumstances of the particular case. These authorities also emphasize keeping the instructions on post-offence conduct as simple and straightforward as possible.

[60] I am not persuaded that the appellant was unfairly prejudiced by the instruction that was given. Even though post-offence conduct played a predominant role in the prosecution, the greater trial emphasis was on whether the appellant was aware of a plan, or the nature of the plan, and his actions during the attack.

[61] Trial counsel did not object to the instruction given. Here, the post-offence conduct had probative value on the question whether or not the appellant murdered the victim. It was the Crown’s position that the appellant actively participated in the murder and it was his position that he did not. He disavowed knowledge of any plan to beat up the victim. It was not his position at trial that he was guilty of manslaughter—that is that he only intended to participate in a venture to beat up the cab driver and not to kill him. The jury was entitled to reject the appellant’s evidence and infer from the post-offence conduct, in conjunction with the other evidence, that he participated in the murder of the victim and not any lessor offence.

[62] I would reject this ground of appeal.

E. Analysis of Allegation of Ineffective Assistance of Counsel

(1) The Fresh Evidence

[63] In relation to allegations of ineffective assistance of counsel, fresh evidence may be received by the court, pursuant to s. 683(1) of the Criminal Code, where it is in the interests of justice, to allow a determination of whether the representation was ineffective and whether it resulted in a miscarriage of justice.

[64] The appellant filed an affidavit from appellate counsel, Lance Beechener, that includes the following documentary evidence:

Transcript of intercepted communications between Bader Al-Zaferi, Z.A., Hassan Al Ghazzi and Salwa Al-Hassan on December 28, 2004

Transcript of intercepted communications between Balder Al-Zaferi and Hassan Al Ghazzi on December 30, 2004

Transcripts of preliminary inquiry evidence of Hassan Al Ghazzi, July 13, 2005 (Vol. 4), July 14, 2005 (Vol. 5), and July 19, 2005 (Vol. 6)

Transcript of guilty plea proceedings for Hassan Al Ghazzi, June 22, 2005

Transcripts of preliminary inquiry evidence of Z.A., July 19, 2005 (Vol. 6), July 20, 2005 (Vol. 7), and July 21, 2005 (Vol. 8)

Transcript of guilty plea proceedings of Z.A., May 16, 2005

Transcript of statement of Bader Al-Zaferi to police on November 30, 2004.

[65] In response to the application, the Crown has filed the affidavit of trial counsel, sworn February 22, 2015, with four volumes of exhibits, and the transcript and exhibits of the cross-examination of trial counsel.

[66] I will comment later on the fact that the appellant did not file an affidavit.

(2) The Appellant’s Two Main Complaints

(a) The Decision Not to Lead Evidence of the Alleged Conspiracy and to Cross-examine Mohamed and D.D. about It

[67] As mentioned, Mohamed’s testimony was the only direct evidence of the appellant’s participation in the murder. The appellant’s two main complaints are that trial counsel failed to take advantage of available evidence - first, to undermine Mohamed’s credibility and second, to counter his testimony that the appellant told Hassan to kill the victim. To counter Mohamed’s credibility, the appellant submits trial counsel should have led evidence that the Al Ghazzi family conspired to fabricate an alibi for Mohamed and Hassan and shift sole responsibility for the murder onto the appellant. At the very least, the appellant argues that trial counsel should have cross-examined Mohamed and D.D about their knowledge of this “family conspiracy”.

[68] The evidence at the appellant’s preliminary inquiry disclosed the following:

I. that Z.A., Mohamed and Hassan’s sister, and their mother, Salwa, had initially given false alibis for the Al Ghazzi brothers and their father to the press and to the police;

II. that when Z.A. and Bader Al-Zaferi visited Hassan in jail, they had discussed the idea of framing the appellant as solely responsible for the murder; and

III. that Al-Zaferi had sworn a statement to police in which he asserted that Mohamed considered blaming the murder on Hassan and the appellant and saying that he and his father were at home sleeping.

[69] This is the evidence that is the foundation for the appellant’s “family conspiracy” theory. The appellant submits that had trial counsel called Al-Zaferi to prove Mohamed talked about placing responsibility for the murder on the appellant and Hassan, and placed what he said in the context of the “family conspiracy” theory, Mohamed’s credibility would have been undermined in the eyes of the jury.

[70] To explain why experienced trial counsel did not pursue these lines, appellate counsel submits the court should infer that trial counsel simply had not adequately reviewed the file he inherited when the appellant’s previous counsel withdrew suddenly after being appointed to the bench. The court should make this inference because trial counsel was unable to articulate clear reasons during his cross-examination for failing to raise the “family conspiracy” at trial.

(b) The Decision Not to Prove Hassan’s Utterances that the Appellant was Silent in the Taxicab

[71] In terms of the second complaint, the appellant submits that to counter Mohamed’s damaging testimony that the appellant yelled “Kill him” to Hassan, trial counsel should have called Hassan and Bader Al-Zaferi as witnesses to adduce evidence that Hassan had told Al-Zaferi that the appellant had been silent in the victim’s vehicle. Hassan said to Al-Zaferi in an intercepted conversation that the appellant and Mohamed were scared and “talk would not come out of them”. Hassan also told Al-Zaferi that he asked the appellant and Mohamed what to do when the victim recognized them and neither of them responded. The appellant says that according to the intercepted statement, Hassan said he decided to kill the victim on his own initiative.

[72] The appellant submits that had evidence of this conversation been introduced at trial, it would have undermined Mohamed’s damaging testimony that the appellant yelled “Kill him” to Hassan. It would also have corroborated the appellant’s testimony that he sat frozen in shock as Hassan killed the victim. This might have raised a reasonable doubt in the jury’s mind.

[73] Appellate counsel recognizes that calling Hassan and Al-Zaferi to introduce Hassan’s statement that the appellant was silent in the taxicab would inevitably have also resulted in the admission of other much more powerful evidence incriminating the appellant. He submits however, that even if the initial plan not to call Hassan was reasonable, after the appellant testified and fared badly under cross-examination, his conviction was assured and the plan should have been revisited. Appellate counsel suggests trial counsel failed to reassess the situation, perhaps because his relationship with the appellant was strained after the appellant testified or because trial counsel was not adequately prepared for the trial. Either way, appellate counsel argues the only reasonable conclusion is that the appellant was denied a fair trial by acts and omissions of his counsel.

(3) The Threshold for Ineffective Assistance Claims

[74] The test for ineffective assistance claims is a stringent one that proceeds on the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. In R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35, at pp. 43-44 and 56-58 (Ont. C.A.), leave to appeal to SCC refused, [1996] S.C.C.A. No. 347, Doherty J.A. discussed the factors that justify a cautious approach to ineffective representation claims. It calls for a deferential assessment that does not involve asking whether counsel could have done a better job.

[75] Incompetence must be demonstrated on a balance of probabilities. To overturn a conviction on the basis of ineffective assistance, counsel’s conduct must have undermined the appearance of the fairness of the trial or the reliability of the verdict. There are three aspects: (i) the factual component, (ii) the performance assessment, and (iii) the prejudice analysis. The prejudice analysis is considered before considering the adequacy of the trial counsel’s performance. The appellant must demonstrate that, had the trial counsel conducted the case differently, there is a reasonable probability that the verdict could have been different. A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.

[76] Before addressing trial counsel’s competence, the appellant must demonstrate that had trial counsel conducted the case as he now says trial counsel should have, there would be a reasonable probability that the jury would not have found him guilty of first degree murder.

(4) The Foundation of the Ineffective Assistance Claim

[77] At trial, the appellant accepted the advice of trial counsel. He gave trial counsel instructions to take the tactical steps about which he now complains. The appellant, without filing an affidavit, argues through counsel that his lack of experience with the judicial system, his age and his purported learning disability help explain why he would have gone along with trial counsel’s decisions. This court has refused to accept allegations of ineffective representation arising out of a tactical decision made on the express instructions of the client: R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 22. A submission that trial counsel’s conduct of the case as instructed was ineffective “is undercut by the absence of any evidence from the appellant suggesting that trial counsel misrepresented his instruction, or that there was some reason why the appellant should now be allowed to resile from that instruction.”

[78] As Doherty J.A. explained in R. v. L.O., at para. 25:

The appellant has the burden of showing facts said to support the ineffective representation claim. He does not meet that burden by asserting facts for which there is no evidence, nor by asking the court, in the absence of evidence, to draw inferences against trial counsel’s conduct of the defence. [Citations omitted.]

[79] Doherty J.A. also noted, at para. 23, that “assertions contained in a witness statement attached to the legal assistant’s affidavit are not admissible for the truth of their contents.” Likewise, the materials filed through the affidavit of an associate lawyer in this appeal may be considered in assessing what material was available to trial counsel in order to assess whether he took a reasonable and professional approach, but are not admitted for the truth of their contents.

[80] The appellant has not filed an affidavit to explain why he should be allowed to resile from the instructions he gave at trial. The appellant’s ineffective assistance of counsel claim might have been strengthened by evidence that he suffers from a learning disability, as he claimed at a difficult moment during his cross-examination. The appellant has not explained the instructions he gave at trial or attested that he would have given different instructions if he had been advised differently. For example, he has not attested that he would have instructed trial counsel to call Hassan if he had been advised he should do so in view of how poorly he presented on the stand. To the contrary, the only evidence on the record is that of trial counsel, who recalled that the appellant gave instructions on the strategic choices now impugned and was self-satisfied after his testimony because he believed he had performed well.

[81] The appellant’s young age and his lack of experience with the judicial system do not excuse him from the burden of establishing his ineffective representation claim on a balance of probabilities. I must treat his failure to file an affidavit as a concession that trial counsel acted on his express instructions in making the tactical decisions about which he now complains.

(5) Trial Counsel’s Alleged Inability to Explain Trial Tactics

[82] The appellant’s theory of the case is elaborately constructed on the basis of an all-embracing and exacting cross-examination of trial counsel. Appellate counsel argued strenuously the court should conclude trial counsel was simply not alive to the extent of the “family conspiracy” evidence, for example. It is worth noting that the cross-examination of trial counsel took place almost eight years after the trial. I would be prepared to take the passage of time into consideration in assessing trial counsel’s explanations, but find it unnecessary to do so.

[83] I do not accept the cross-examination of trial counsel supports an inference he was unaware of what appellate counsel characterizes as the “family conspiracy”. During his cross-examination, trial counsel did resist appellate counsel’s use of the word “conspiracy”. He described the discussions among some family members as “musings” to pin the murder on the appellant. Nomenclature aside, trial counsel was alive to the evidence. He had read the transcript of the preliminary inquiry at which the evidence had been elicited.

[84] Trial counsel did provide a good explanation for the trial tactics he employed. He explained that how the defence was mounted at trial was in part a function of how the Crown called its case. While the Crown called Hassan and Z.A. (Hassan’s sister) at the preliminary inquiry, it did not do so at trial. Trial counsel explained that had the Crown called these witnesses, he could have cross-examined them to raise the possibility in the jury’s mind that, as a group, the family and their associates could not be trusted in what they said about the appellant’s involvement. However, he considered it too dangerous to call Hassan or Z.A. as defence witnesses, as they would likely repeat what they had said at the preliminary inquiry.

[85] Nor did he think it worth the risk to call Al-Zaferi as a defence witness, having formed the impression that Al-Zaferi was “variable, imprecise, and unreliable”, in part based on his review of Al-Zaferi’s video police statements. Trial counsel provided evidence that the appellant agreed with the decision not to call Al-Zaferi and never expressed second thoughts about it.

[86] Trial counsel’s impression seems to accord with the trial judge’s own impression, given her comments in the context of a ruling on the permissible scope of the cross-examination of D.D.:

Second, while Mr. AI Zefari [sic] spoke to the police in English, his native tongue is Arabic. Mr. AI Zefari's statements are often difficult to understand and his lack of facility with the English language may bear on the reliability of his described conversations with Mohamed AI Ghazzi. Finally, it is apparent from the transcript that Bader AI Zefari was the one who initially suggested to Mohamed AI Ghazzi that he blame others for the murder, such as Hassan AI Ghazzi and Ali AI-Shammari. This makes it difficult to determine whether Bader AI Zefari was accurately reporting Mohamed AI Ghazzi's stated intentions or Mr. AI Zefari's own suggestions to Mohamed.

[87] Trial counsel considered that the likely downside risks of calling the evidence far outweighed any potential benefit to the defence. This remained the case after the appellant testified. Trial counsel was disappointed with the appellant’s presentation on the stand, but did not think the case was lost.

[88] This was sound judgment. Putting the “family conspiracy” allegation to Mohamed or D.D. in cross-examination in any stronger terms than trial counsel did would have required calling Al-Zaferi and, Z.A, as witnesses to provide evidential support for the suggestions. Once they took the stand, the Crown would have been able to elicit evidence that was highly incriminating of the appellant. It would not have been possible to get Hassan’s statement that “no talk came out” of the appellant into evidence, without Hassan becoming a witness. If the defence somehow got that statement into evidence without calling Hassan, the Crown could have called him in reply. The summary of the evidence the Crown would have been able to elicit from each potential witness is summarized below. However, before turning to the inevitable downside of calling the evidence, it is worth noting that the appellant overstates the value of the evidence.

(6) The Appellant Overstates the Value of the Evidence

[89] First, the evidence about the “family conspiracy” is nebulous. Trial counsel’s description of the discussions as “musings” is a reasonable characterization. As well, there was no evidence that Mohamed, the witness whose credibility had to be undermined, ever discussed or was privy to a plan to pin the responsibility for the murder on the appellant alone. The only available direct evidence about Mohamed is that he told Al-Zaferi he was considering saying that he and the appellant were responsible for the murder. In response, Al-Zaferi offered that it would be better to say Hassan and the appellant were responsible for the murder because Hassan was a minor and would receive a more lenient sentence. Al-Zaferi also said that Daham talked about having Hassan and the appellant take responsibility for the murder. Thus the discussion was not about “framing” the innocent appellant, but rather about whether one brother could be left out. Finally, Hassan and Mohamed in every statement they made inculpated themselves as much as they inculpated the appellant. There was never any attempt to pin responsibility for the murder solely on the appellant.

[90] As I see it, the appellant exaggerates the value to the defence of proving that Mohamed contemplated blaming the other two for the murder. It is difficult to make a tight logical connection between the alleged “family conspiracy” to pin the murder on the innocent appellant and a submission that Mohamed’s testimony at trial should not be believed when that testimony graphically described his and his brother’s roles in the murder.

[91] The appellant also overstates the upside of introducing evidence of Hassan’s statement that “no talk would come out of [the appellant]”. Mohamed’s evidence that the appellant shouted “Kill him” is not the only evidence of the appellant’s participation in a joint enterprise with the Al Ghazzi brothers. There was also evidence that the appellant was involved in planning the attack. Mohamed also testified that the appellant took the speaker wire and made loops at each end to form grips and gave the wire to Hassan before the victim arrived on the scene. On the appellant’s own testimony, he opened the knife (which Mohamed alleged was the appellant’s), and cut the victim’s seatbelt as Hassan was pulling him into the backseat. The appellant also testified that he wiped the blood off the taxi window because he was concerned about police detection.

(7) The Downside of Calling the Evidence

(a) Little to be gained from Cross-examining Mohamed about the Alleged Conspiracy

[92] At trial, the Crown relied heavily on Mohamed’s testimony. Trial counsel did cross-examine Mohamed on the utterances attributed to him by Al-Zaferi. He denied making them. Proving Mohamed made the statements would have required calling Al-Zaferi to contradict him. That decision has been addressed to some extent above and will be further set out below in the discussion of incriminating evidence Al-Zaferi would offer.

[93] There was no direct evidence that Mohamed was aware of the other discussions and it was reasonable to expect that questions put to Mohamed about the alleged “family conspiracy” would be met with denials. It would have been necessary to call Z.A., Al-Zaferi or Hassan to question them about what they had said earlier without any assurance they would say the same thing at trial. The great risks in calling them are also discussed below.

(b) The Decision Not to Call Z.A. to Testify about her Conversations to Frame the Appellant

[94] A large portion of Z.A.’s evidence at the preliminary inquiry related to her involvement in an attempt to create false alibis for her brothers and her efforts to destroy evidence. When cross-examined on her schemes to blame the matter entirely on the appellant, she maintained that she and Al-Zaferi developed this idea together and that she felt badly about this. She acknowledged it came to light because of the wiretaps. She said she did not know if she actually would have acted on the idea to make up false stories and plant evidence to falsely implicate the appellant as being solely responsible for the murder.

[95] While she acknowledged that when she and Al-Zaferi met with Hassan at the jail, Hassan laughed about how frightened Mohamed and the appellant had been during the attack, she also testified that Hassan told her that the appellant had told him to kill the victim because he had recognized them.

[96] It was trial counsel’s expectation that if Z.A. testified, she would side with her brothers. He also thought that despite the witness exclusion order, she would likely know what Mohamed said at trial and her evidence would mimic his. This was a reasonable professional assessment.

(c) The Decision Not to Call Hassan

[97] The appellant suggests that the defence should have applied to have the court call Hassan as a witness or, if necessary, called him as a defence witness in order to lead evidence that the appellant was “frozen in fear” and silent during Hassan’s attack on the victim and that Hassan talked about blaming the murder solely on the appellant.

[98] Trial counsel never seriously contemplated calling Hassan as a witness, though he would have confronted him with his intercepted conversations with Al-Zaferi had the Crown called him. This is understandable when one considers Hassan’s preliminary inquiry evidence that highly incriminated the appellant. At the preliminary inquiry Hassan had testified:

I. He, his brother and the appellant planned to confront the victim and they made an earlier unsuccessful attempt to find the victim;

II. It was the appellant’s idea that they should wear masks. The appellant brought the masks and did some sewing to modify them in the basement of the Al Ghazzi house; it was also the appellant’s idea to bring the wire and use it around the victim’s neck;

III. Hassan denied he planned to kill the victim but described the murder itself in graphic detail.He punched the victim but when the victim said he knew their fathers, the appellant “lost it”. The appellant passed him the knife and shouted to kill him in both English and Arabic. Hassan stabbed the victim in the neck, but the appellant yelled at him to “cut it, cut it, cut it, cut it”. When Hassan stopped, the appellant yelled “do it, just keep going, keep going”. Even after he thought he had cut the victim’s throat so badly he could feel knife on bone, he thought the appellant told him to check if the victim was dead; and

IV. In cross-examination Hassan acknowledged that after his arrest, he and his sister tried to come up with a story to have it appear the appellant was solely responsible. He was angry at the appellant for talking to the police and he blamed him for bringing the knife and inciting him to kill the victim. Hassan claimed he had just been talking tough when he said the appellant had not said a word during the attack and had been useless. He was saying what he thought Al-Zaferi wanted to hear, and that these statements were not true.

[99] Given Hassan’s preliminary inquiry evidence, trial counsel expected he would have a hostile attitude. He saw no tactical advantage and considerable tactical disadvantage to calling Hassan as a defence witness. Trial counsel had rarely seen applications made under s. 9(2) Canada Evidence Act, R.S.C. 1985, c. C-5, (the “CEA”) or “K.G.B.” applications, go well. He did not want to call someone he anticipated would be harmful to his client. Furthermore, if Hassan were called as a defence witness, not only would they be stuck with whatever answers he gave, but in addition, the Crown would be able to put their theory to him in cross-examination.

[100] The appellant’s submissions are premised, in part, on an assumption that the defence could have succeeded on an application to have the Crown or trial judge call Hassan as a witness. Contrary to this assumption, a trial judge’s discretion to call witnesses not called by either party is rarely exercised. There must be a basis to believe that it is essential to do justice in the case: see R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701, at pp. 861-862. The fact that Hassan did not adopt his utterances to Al-Zaferi at the preliminary inquiry would not have been a valid reason for the trial judge to alter the normal adversarial process and call Hassan, since the defence could rely on s. 9 of the CEA and seek leave to cross-examine Hassan on his prior statement.

[101] One might add the observation that if trial counsel had decided to call Hassan or have him called after the appellant’s self-destructive testimony, Hassan would have been the last witness the jury would have heard. The appellant’s testimony would have been sandwiched between that of Mohamed and Hassan. This would hardly have assisted his defence.

(d) The Decision Not to Call Al-Zaferi

[102] The appellant submits that it was ineffective representation not to call Al-Zaferi to lead evidence of his separate conversations with Mohamed and Hassan.

[103] Al-Zaferi had offered his services to the police and had played an active role in the police investigation by wearing a body pack to intercept conversations with family members. Trial counsel was concerned he would not be inclined to cooperate with the defence. Trial counsel did not want to be in the position of having to use Al-Zaferi’s prior statement about his conversation with Mohamed to refresh his memory, or having to cross-examine him. Trial counsel was of the view this would not benefit the defence and that it was not worth calling Al-Zaferi as he believed he had sufficiently impugned Mohamed’s credibility during cross-examination.

[104] Trial counsel was also aware of Al-Zaferi’s intercepted conversation in which Hassan said the appellant had been silent during the attack, and that it was not helpful to the defence in its entirety. For example, in that statement Hassan placed the appellant in the car with the brothers far earlier than what the appellant had testified.

[105] Even in the unlikely event the defence somehow had been able to introduce Hassan’s statement that the appellant stayed silent for the truth of its contents without calling him, the Crown would have been able to call him in reply. Whether Hassan was called as a defence or Crown witness, the last testimony that the jury heard would have been devastatingly incriminating of the appellant. The jury would have begun its deliberations with Hassan’s graphic testimony of the appellant’s role in the murder ringing in their ears.

(8) Conclusion on Ineffective Assistance of Counsel

[106] In my view, trial counsel exercised sound judgment in not seeking to elicit evidence of Hassan’s statement the appellant had been silent during the attack. This evidence could not have been introduced without the potential risk of devastating harm to the defence. The appellant’s position boils down to the proposition that, after the appellant testified, defence counsel should have taken an all-or-nothing gamble on Hassan’s evidence. In my view, it would have been a risky gamble and the professional judgment not to take it was sound.

[107] The appellant has not demonstrated that it is likely Mohamed would have agreed he was involved in concocting the alibis Z.A. put forward or in the talk of blaming the appellant alone. Cross-examining Mohamed about this and then not backing it up would have undermined the defence’s credibility with the jury. And attempting to back it up would have made it necessary to call Z.A., or Al-Zaferi. As discussed above, it was a reasonable judgment that the potential downside of calling these witnesses outweighed the potential upside.

[108] Trial counsel may well have been able to make use of the evidence supporting a “family conspiracy” had the Crown called Hassan, Z.A. and Al-Zaferi. When the Crown closed its case without calling them, the appellant agreed with trial counsel that it would be too dangerous as a trial strategy to call these witnesses as part of the defence case. That was a sensible decision.

[109] In my view, all the decisions made by trial counsel were well within the scope of competent representation. There was no risk that a miscarriage of justice was occasioned by ineffective assistance of counsel and there is no reasonable probability that the verdict could have been different.

F. Overall Conclusion

[110] For the reasons given, I would dismiss the appeal.

Released: August 8, 2016 (DW)

“R.G. Juriansz J.A.”

“I agree E.A Cronk J.A.”

“I agree David Watt J.A.”