WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shafia, 2016 ONCA 812

DATE: 20161102

DOCKET: C55528, C55918 & C56496

DOCKET: C55528

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamed Mohammad Shafia

Appellant

DOCKET: C55918

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Shafia

Appellant

DOCKET: C56496

BETWEEN

Her Majesty the Queen

Respondent

and

Tooba Mohammad Yahya

Appellant

Scott C. Hutchison and Samuel Walker, for the appellant Hamed Mohammad Shafia

Jonathan Dawe and Michael Dineen, for the appellant Mohammad Shafia

Frank Addario and Andrew Burgess, for the appellant Tooba Mohammad Yahya

Jocelyn Speyer and Gillian Roberts, for the respondent

Heard: March 3-4, 2016

On appeal from the conviction and the sentence imposed on January 29, 2012 by Justice Robert L. Maranger of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1] Boaters who travel the Rideau Canal system between Colonel By Lake and Lake Ontario pass through a series of locks at Kingston Mills. Lock gates open. Boats enter. Lock gates close. Boats leave.

[2] But not always.

[3] One morning – June 30, 2009 – boaters could not enter Kingston Mills Locks. Oil on the water of the upper lock. A closer look revealed its source. Something in the water.

[4] In the water was a Nissan Sentra. Driver’s window open. Ignition off, but not locked. Headlights off. Seatbelts unfastened. Front seats reclined. Rear name plate damaged.

[5] And inside the vehicle, a terrible loss of life. Four dead family members. Three young women. One adult.

[6] About three weeks later, three arrests. Three members of the same family. The father, mother and brother of the young women. Each charged with four counts of first degree murder.

[7] At the end of a joint trial, each person charged was found guilty of four counts of first degree murder. Each seeks a new trial. One, Hamed Shafia (Hamed), the eldest son of Mohammad Shafia (Shafia) and Tooba Mohammad Yahya (Tooba) says he should not have been tried with the others – his parents – because he was too young to be tried as an adult. Hamed asks us to admit fresh evidence about his age that proves, so he says, that he was tried in the wrong court. All three complain that, among other things, the trial judge wrongly admitted some expert opinion and hearsay evidence, then made matters worse by not properly instructing the jury about how they could use that evidence to help them decide the case.

[8] As I will explain, I would not give effect to any of the grounds of appeal and would dismiss the appeals.

THE BACKGROUND FACTS

[9] The case for the Crown was circumstantial. Motive. Things said and done by each of those charged before and after the deceased died. Expert evidence about how the Nissan Sentra ended up in the waters of Kingston Mills Locks.

[10] The Crown alleged that the deaths of the deceased, Zainab Shafia (aged 19), Sahar Shafia (aged 17), Geeti Shafia (aged 13) and Rona Amir Mohammad (aged 58), were planned and deliberate murders that the persons charged tried unsuccessfully to disguise as an accident or misadventure.

[11] The defence case, supported by the evidence of two of the persons charged, was that the deaths of the deceased occurred by accident, a driving misadventure in which none of the persons charged played any culpable role.

The Principals

[12] Mohammad Shafia (Shafia) is from Afghanistan. There, he operated a successful importing business. In 1978, he married Rona Amir. But Rona Amir could not have children. And so it was, a decade later, that with Rona Amir’s consent and following Afghan custom, Shafia took a second wife, Tooba Yahya (Tooba).

[13] Shafia lived with his two wives. Over time, the family unit increased with the births of two sons and five daughters. Tooba gave her second eldest daughter – Sahar – to Rona to raise as her own.

[14] On June 14, 2007, the Shafia family, except for Rona, arrived in Canada from Dubai. They settled in Montreal. Rona joined them later, authorized by a visitor’s visa that was set to expire on August 30, 2009.

The Relationship among Family Members

[15] At trial, a substantial volume of evidence was adduced about the nature of the relationship among the members of the Shafia family. In particular, the relationship between Shafia, on the one hand, and his daughters, Zainab, Sahar and Geeti and first wife, Rona, on the other.

[16] Shafia, Tooba and A.S. (their second son) testified as defence witnesses.[^1] Each described the relationship between Shafia and the deceased as happy. Shafia was not overly restrictive with his dealings with the children although he did require them to return home before sundown.

[17] A different picture of the family dynamics came to light during the case for the Crown. Allegations of various forms of mistreatment emerged from hearsay statements of the deceased. Complaints by the deceased to police, school authorities and social service agencies. None resulted in any interventions or charges, however, largely because the complainants’ accounts were inconsistent or subsequently retracted.

[18] Evidence about some specific relationships warrants closer scrutiny.

Zainab and Ammar

[19] In early 2008, Zainab started to date a schoolmate, Ammar, who was five years her senior. Ammar had a criminal record and was on probation. Zainab told Ammar to conceal their relationship from her older brother, Hamed, who went to the same school.

[20] On a school holiday in March, 2008, when her parents were away in Dubai, Zainab invited Ammar to the family home. When Hamed returned home, he discovered Ammar hiding in the garage and told him to leave the house. Zainab stopped attending school.

[21] About a year later, Zainab resumed her relationship with Ammar. Two to three weeks later, she left home and entered a women’s shelter. Zainab explained in a note that she left at home that she wanted to have her own life. She said she would not be returning home. Zainab told police that the rules at home were too strict, that she did not feel safe there and that she was seeing a man who had not been approved by the family. According to Tooba, Shafia was enraged about Zainab’s conduct. Hamed called 911 twice to report Zainab missing, and he and Shafia attended at the police station to ask the police if they had any information as to Zainab’s whereabouts.

[22] When advised by Tooba that Zainab had left home, Sahar, S.S. (a surviving sibling of the deceased children), A.S. and Geeti contacted police and told them that they feared the reaction of their father to their sister having left home. The police escorted them home. Sahar and Geeti told police that they wanted to leave the home because of the violence that occurred there and their fear of Shafia. When Shafia returned home, the children stopped talking. Their demeanour changed. S.S. told police, in the presence of the other children, that she had lied to the police. A child and family services worker attended, but left without taking any immediate action.

[23] A few days later, police spoke with Geeti and Sahar at school. Geeti wanted to be placed immediately in the care of the child protection agency because she had no freedom. She wanted to be like her friends and be able to do things without having to ask for permission. Sahar complained that her brother (Hamed) had slapped her when she responded to him during an argument. Geeti also told police about that incident. Sahar said she couldn’t go out without another family member being with her.

[24] Zainab returned home on May 2, 2009, the day after Shafia had left for Dubai. Tooba spoke to Zainab on the phone and promised Zainab that she could marry Ammar.

[25] In early May, 2009, Shafia spoke to Tooba’s brother Fazil Jawid who lived in Sweden. Shafia described Zainab as stubborn, a person who would not listen to him. Shafia said he wanted to kill Zainab because her conduct outside the home, her use of the Internet and her wish to marry a “Pakistani guy” were contrary to their customs and cultures. He called Zainab a prostitute, a whore. Shafia wanted Fazil to invite Tooba, M.S. and Zainab to Sweden so that he (Shafia) could drown Zainab after they had gone to a beach. Jawid told Tooba about the plan, a conversation Tooba denied when she testified at trial.

[26] Zainab and Ammar married on May 19, 2009, while Shafia was in Dubai. Hamed took the marriage certificates from Ammar. The marriage was annulled the next day when no one from Ammar’s family showed up at the reception.

[27] After the wedding, Shafia spoke to Tooba’s uncle on the telephone. Shafia said that, had he been at the wedding, he (Shafia) would have killed Zainab. He described Zainab as a whore, a dirty woman who was a curse to him. After Tooba’s uncle told Tooba what Shafia had said about killing Zainab, Shafia telephoned the uncle and criticized him for speaking to Tooba. Shafia explained that if Zainab found out about his plans, she would escape the house.

Sahar and Ricardo

[28] In February, 2009, Zainab introduced Sahar to Ricardo Sanchez, a 23 year old man from Honduras that Zainab knew from night school French class. The couple developed a serious relationship and talked about marriage.

[29] Towards the end of April, 2009, Shafia and Tooba met with the vice-principal of the school that Sahar, Geeti and A.S. attended. The vice-principal expressed concern about the children’s attendance and motivation. Shafia got into “quite a state” and spoke very loudly. Later, Sahar and Geeti spoke privately with the vice-principal. They told her that they were afraid at home when their father was there. They needed to be very cautious at school because their behaviour was reported back at home.

[30] In mid-May, 2009, Sahar and Ricardo were at a restaurant together. As the couple embraced, A.S. entered the restaurant and told them to stop their embrace. They denied their relationship to A.S.. For his part, A.S. denied not only this episode, when he testified at trial, but that he had ever met Ricardo at all.

[31] In early June, 2009, Sahar told her teacher that she was afraid of her father. Her father was due back from a trip and she was concerned A.S. would tell his father that Sahar was a whore. Sahar also met with a social worker whom she asked for help in finding a job so that she (Sahar) could leave home as soon as she became an adult.

[32] A.S. testified that Sahar was their father’s favourite child at home. She was very happy there. She made false claims to discourage school authorities from calling home when she skipped classes.

Geeti

[33] During the second half of the 2008-2009 school year, Geeti’s attendance and marks declined. The vice-principal spoke to Shafia and Tooba about the problem on several occasions. Tooba asked for help motivating Geeti. During one meeting, Shafia spoke very loudly. Afterwards, both Geeti and Sahar told the vice-principal that they were afraid when Shafia was at home and had to be cautious.

[34] In June, 2009, Geeti missed a week of school and then showed up wearing makeup and dressed inappropriately. The vice-principal told Tooba on the phone (through Zainab who translated) that the school had been concerned about the absence and that Geeti was being sent home to return with a sweater that did not reveal so much bustline.

Rona Amir Mohammad

[35] Crown counsel introduced several hearsay statements made by Rona to various witnesses, as well as Rona’s written journal. The defence contested the truth of those hearsay statements, as well as the veracity of the claims made by various recipients who testified at trial. The journal appears to have been written during the period of April to August, 2008.

[36] Rona complained to her sister and Tooba’s brother about her treatment by Shafia. Rona told Tooba’s brother that she wanted to divorce Shafia, obtain a $50,000 settlement and move to France. When Rona raised the subject of divorce and settlement with Shafia, he turned down her requests. Tooba herself told her brother that when Rona asked Shafia for a divorce, Shafia hit Rona. Rona told Tooba’s uncle that both Shafia and Tooba were cruel to her, had beaten her once or twice and had ordered the children not to speak to her.

[37] In their testimony at trial, Shafia, Tooba and A.S. denied that Rona was mistreated.

The Dubai Trip

[38] Shafia left for Dubai on May 1, 2009. Hamed joined him one month later. Hamed took a laptop along with him.

[39] Shafia was in Dubai when he spoke to Tooba’s brother by telephone and proposed a plan to drown Zainab at a beach in Sweden where Fazil lived. Shafia also spoke with Tooba’s uncle about what he would have done had he been at Zainab’s wedding.

[40] While the laptop was in Dubai, someone conducted several searches about various subjects. Whether a prisoner can control his real estate. Mountains in Canada. Drives near water. Bodies of water. The searches were typed in English with few errors.

[41] A.S. testified that the Toshiba laptop was one of two laptops owned by the family and it was kept in his and Hamed’s room. Hamed was a frequent user of the laptop. Both Shafia and Tooba denied knowing how to use a computer.

Computer Searches in Canada

[42] Shafia and Hamed returned to Canada from Dubai on June 13, 2009. Over the next week, more computer searches were conducted. In large measure, the searches related to mountains and bodies of water in Québec, including many photographs of bodies of water. On one occasion, however, the user centered on a map of an area that included the Kingston Mills Locks. The last search that same day was “facts documentaries on murders”. Later searches were concerned with boat rentals and metal or iron boxes for sale.

[43] Among the places repeatedly queried was the Grand-Remous area in Québec. The searches included photos and directions from the Shafia residence to Grand-Remous. On one occasion, Hamed’s cellphone was in Grand-Remous, later in Labelle. On both occasions, Hamed’s cellphone received or made a call to the Shafia residence. Computer searches later the same day, following the return of Hamed’s cell phone to the area of the Shafia residence, included “where to commit a murder”.

[44] At trial, Shafia testified that he had discussed searching for properties on water for investment purposes with Hamed. He was also interested in buying metal containers in which to ship cars to Dubai. None of the searches were conducted on real estate websites.

[45] A.S. testified that during the spring of 2009, he was depressed and suicidal. He thought about suicide and ran various computer searches in that regard but did not know the difference in terminology between suicide and murder. He was not suicidal in June, 2009. A.S. denied conducting any searches about mountains, water or metal containers or having centred a Google map search on Middle Road near Kingston.

The Nissan Purchase

[46] On June 22, 2009, Shafia purchased a used 2004 Nissan Sentra with over 113,000 km on the odometer for $5,000. He explained that he bought the car for Zainab to drive once she got her licence. The car could also serve as a second vehicle for the family’s vacation, a road trip to Vancouver, since their van was not available and the Lexus could not carry ten occupants. They located the Nissan after computer searches for used Nissans in the Montreal area.

The Departure

[47] The Shafia family left Montreal during the afternoon of June 23, 2009. They planned to drive to Vancouver in two vehicles: a Lexus sport utility and the recently-purchased Nissan Sentra. When they arrived at Grand-Remous, a place that had been the subject of several prior computer searches, they had a barbeque and stayed overnight in a motel.

[48] Grand-Remous is on the Trans-Canada Highway, which provides the shortest route to Vancouver from Montreal that does not require travel through the United States, which Rona could not enter without a visa.

[49] The next day, the family headed out towards Niagara instead, once they realized the distance to Vancouver. They stopped at Kingston Mills Locks between 8:36 and 9:16 p.m. because, according to Shafia, the children wanted to use the washrooms. Cellphone records confirm their presence at Kingston Mills Locks, a place they had visited previously the year before.

[50] The washrooms at Kingston Mills Locks are closed at 7:30 p.m. each day.

The Stay in Niagara Falls

[51] The Shafia family arrived in Niagara Falls early in the morning of June 25, 2009. They rented two hotel rooms and stayed for four days.

[52] According to A.S., Zainab spoke about getting her driver’s licence. She and A.S. would take the keys to the Nissan and practise her driving around the hotel parking lot until Shafia caught her on June 29, 2009, the day the family left Niagara Falls.

The Abortive Return to Montreal

[53] Shafia claimed that on June 27, 2009, he took the Lexus and began driving back to Montreal to deal with his business. He thought the rest of the family could return to Montreal either in the Nissan or by train. Hamed’s cellphone had been left in the Lexus.

[54] West of Kingston, not far from Kingston Mills Locks, Shafia answered a call from Sahar on Hamed’s cellphone. The balance of the family, who had remained in Niagara Falls, wanted to return home. Shafia turned around, drove back to Niagara Falls and rejoined his family.

Homeward Bound

[55] Around 8:00 p.m. on June 29, 2009, the Shafia family left Niagara Falls to return home. As they approached Kingston, after a few stops along the way, Shafia, Hamed, S.S., A.S. and M.S. were in the Lexus. The balance of the family – Tooba, Rona, Zainab, Sahar and Geeti – were in the Nissan.

The Kingston East Motel

[56] The Kingston East Motel is located on Highway 15, one mile south of Highway 401 and southwest of Kingston Mills Locks.

[57] Around 2:00 a.m. on June 30, 2009, Shafia and Hamed arrived at the Kingston East Motel in the Lexus. They rented two rooms. When the manager asked how many people were staying in the rooms, Shafia said six. Hamed corrected his father and told the manager that nine people would be staying at the motel. According to A.S., he, S.S., and M.S. got out of the Lexus at the motel.

[58] The last transmission received on Sahar’s phone was at 1:36 a.m. on June 30, 2009. Her phone accessed the same tower as it had when the family had stopped at Kingston Mills Locks on June 24, 2009 on their trip from Montreal to Niagara Falls.

The Lexus Leaves

[59] The manager of the Kingston East Motel saw the Lexus leave the motel between 2:15 and 2:20 a.m. on June 30, 2009. The vehicle turned north, a direction consistent with Kingston Mills Locks as its destination. The manager stayed up for another half-hour after the Lexus had departed. He did not see the Lexus return. He never saw a Nissan Sentra at any time.

[60] Kingston Mills Locks are 4.5 kilometres, a four and one-half minute drive, from the Kingston East Motel.

The Sleeping Arrangements

[61] Shafia and Tooba explained that Hamed planned to take the Lexus and drive on to Montreal the next day – July 1, 2009 – for business purposes.

[62] Shafia and Tooba claimed that, as they prepared to go to bed in a room with A.S., M.S. and S.S., Zainab came into the room. She wanted the keys to the Nissan Sentra to retrieve her clothes from the vehicle. Zainab took the keys and left the room. Shafia and Tooba fell asleep. They had no idea when, how or why the others (Rona, Sahar, Geeti and Zainab) left the motel.

[63] Shafia and Tooba said that they stayed in room #18 with A.S., S.S. and M.S.. The evidence of the hotel manager and a housekeeper tended to support the view that Shafia and Tooba occupied room #19. There were two bags of things belonging to Rona, Zainab, Sahar and Geeti in room #19. Neither bag appeared disturbed.

[64] Hamed did not sleep at the motel. He drove to Montreal in the Lexus. When the family checked out, they turned in the keys to both rooms.

The Finding of the Nissan

[65] On the morning of June 30, 2009, Parks Canada workers came to open the gates in the upper lock at Kingston Mills Locks. A worker noticed some oil on the water. He looked more closely and saw a car submerged in the water just north of the upstream gate. The opening of the locks was halted.

[66] Beside the canal, on the ground adjacent to where the car was submerged, workers found the letters “S” and “E” which later investigation determined were missing from “Sentra”, the model of Nissan motor vehicle submerged in the canal. There were broken pieces of clear plastic nearby the letters and additional remnants a short distance away.

The Nissan and the Deceased

[67] A boater, who was also a trained Navy diver, entered the water of the canal. He looked into the Nissan and saw a young woman’s body floating in the front half of the vehicle. He advised the investigators. An O.P.P. diver was called in and the bodies of the four women were recovered. None were wearing seat belts. The air bags had not deployed. The driver’s window was fully lowered. The rear window on the driver’s side was down about one inch. The headlights were off. The keys were in the ignition and the gear shift was in first gear.

[68] Sahar and Rona were in the rear seat. Zainab and Geeti were floating above the front seats which were inclined at about a 45 degree angle.

[69] After the car was removed from the water, investigators confirmed that the keys in the ignition were in the “off” but unlocked position and the gear shift was in first gear.

Hamed and the Lexus

[70] Early on the morning of June 30, 2009, Hamed reported to police in Montreal that he had collided with a barrier at a commercial parking lot near his home. The collision had damaged his vehicle, the Lexus.

[71] Later the same morning, Shafia called Hamed in Montreal. Hamed got in the family’s Pontiac minivan and drove back to the Kingston East Motel, leaving the Lexus in Montreal. Hamed arrived around noon, and he and Shafia booked the rooms for another night.

The Police Report

[72] Later on June 30, 2009, Shafia, Tooba and Hamed drove to a Kingston Police station. They initially reported that four of their family members were missing, along with one of their cars. In statements made after the vehicle had been discovered, they explained that while the whole family had been at the motel, Zainab had asked for the keys to the Nissan to recover her belongings from the car. Shafia, Tooba and Hamed never saw Zainab or the Nissan again.

The Scene and Accident Reconstruction Evidence

[73] Police examined the Nissan and Lexus motor vehicles as well as the area of land immediately adjacent to the Kingston Mills Locks.

[74] The Nissan was a Sentra model that had sustained damage to the rear on the driver’s side. The taillight was broken. The letters “S” and “E” were missing from the rear nameplate. The same letters were found on the grass not far from the lock gate and a set of stairs.

[75] The Lexus had damage to the front corner, headlight and bumper on the driver’s side. Several plastic pieces from the broken headlight assembly were found in the rear cargo area of the vehicle. Plastic shards found at the lock site came from the Lexus’ broken headlight.

[76] It was common ground at trial that the Lexus and Nissan had been involved in a collision with the front end of the Lexus striking the rear end of the Nissan.

[77] A police mechanic testified that the Nissan was a front wheel drive vehicle, which, if on a level surface and in gear with its ignition in the “off” position, would not move forward on its own. Once the vehicle’s front wheels passed over the edge of the canal, they could not propel the vehicle forward.

[78] An accident reconstructionist explained that the Nissan entered the canal front end first. Its undercarriage was damaged behind the front axle indicating that the axle fell over the edge at a low speed. Without force being applied to the rear end of the car, the Nissan could not have entered the water on its own. The accident reconstructionist concluded that the Lexus was used to push the Nissan into the water.

[79] The ignition and transmission settings on the vehicle were consistent with an attempt to propel the Nissan into the canal using its own power, but not driving it. A person standing on the ground beside the car could reach through the open driver’s window. It was unusual for a vehicle with automatic transmission to be in first gear. With the ignition on and the transmission in first gear, the vehicle would accelerate without pressure on the accelerator.

The Injuries and Cause of Death

[80] The deceased drowned. The post-mortem examination revealed that three had bruising to their scalp.

[81] Rona had a fairly extensive area of bruising, comprising two distinct bruises on the inside of her scalp on the top of her head. The total area of bruising was 6 cm in diameter.

[82] Zainab had a 4 x 5 cm area of bruising on her right chest wall. She also had two bruises on her head, one to the scalp, and the other to the top of her head. Her cardigan sweater was worn backwards.

[83] Geeti had bruising on her shoulder (4.5 x 5 cm) and scalp (3.5 x 2.5 cm).

[84] The pathologist who conducted the post mortem examination described the areas of bruising as fresh. Each bruise had been sustained either shortly before or at least within 24 hours of death. The bruising to the scalps was unusual in that each of the deceased had suffered similar injuries, but no other injuries to their head or other parts of their bodies. The bruises were not of the kind that would be caused by striking the back of a padded seat, but rather required that a firm surface be struck with a sufficient degree of force.

[85] To drown someone by holding their head under water would likely take two to three minutes. About fifteen minutes would be required to drown four people to unconsciousness, one after the other.

The Appellants’ Explanations

[86] Shafia and Tooba testified at trial. Neither resiled from their original version of events, given the day they reported the four family members and the Nissan missing. They were sleeping at the motel and believed the others were doing the same. Zainab asked for the keys to the Nissan to get her clothes. When they awoke the next morning, Zainab and the others were gone.

[87] Hamed did not testify at trial. A Crown witness, Moosa Hadi, gave evidence about conversations he had with Hamed several months after Hamed and his parents had reported their missing family members to police. Moosa Hadi was a Queen’s University student, born in Afghanistan, who was initially hired by Shafia’s lawyer as a translator. Shafia hired him to review the disclosure and they developed a rapport. Hadi began to visit Hamed in custody and review disclosure with him. He encouraged Hamed to reveal the truth to help his parents.

[88] In a conversation surreptitiously recorded November 7, 2009, Hamed said that he had not told his parents or anyone else the truth about what really happened. Upon their arrival at the motel, Geeti had been asleep in the car and Zainab and Sahar had stayed with her. Zainab or Sahar had come to get the keys to the Nissan so they could listen to the radio. When he left the motel room a bit later, he did not go directly to Montreal. Zainab had wanted to drive around the parking lot but then Rona had wanted to go buy a phone card from a gas station near the highway. Zainab drove the Nissan and he followed them in the Lexus.

[89] The gas station was closed and they headed down Kingston Mills Road to look for a place to turn around. When Zainab unexpectedly slowed, he bumped into the rear of the Nissan with the Lexus. He got out to collect the broken Lexus headlight pieces from the roadway. The Nissan turned off the road and he could hear the Nissan spinning its wheels. He thought he saw Sahar get out and assumed she switched places with Zainab. A minute later, he heard a splash. When he looked into the water, he saw the glow of the headlights underwater. When he saw no one emerge from the Nissan, he called out, he blew the horn to summon help, and he lowered some rope into the water. He thought if he called the police that he would be blamed for the accident for letting Zainab drive without a licence. Hamed left the area and drove to Montreal.

Interceptions and Interviews

[90] Investigators installed, with judicial authorization, a hidden listening device in the appellant’s mini-van. The appellants were asked to come to Kingston on July 18th, 2009 to pick up the property they had left at the motel. The vehicle probe was then installed. The appellants accompanied investigators to view the locks. Fake video cameras had been installed by the investigators outside one of the Parks buildings in order to give the impression that there was video surveillance of the area. An officer told Hamed that it was anticipated that footage would soon be obtained. As the appellants left the locks and drove back to Montreal, their conversation was intercepted and recorded. The recordings and English translations were admitted at trial.

[91] Hamed told his parents that the investigators had said: “ …that big white place, that room there, it has a camera. They said they want to see if the camera has recorded anything or not. They said there’s a camera near the water.” Shafia and Tooba responded that the police were lying, as the police would have obtained the images right away. Tooba also commented: “There was no camera over there. I looked around, there wasn’t any. If, God forbid, there was one in that little house, all three of us have come, no?” Shafia responded, “No, had there been one there they would have checked it and I swear they wouldn’t let you that night. It earlier [unintelligible].”

[92] Shafia later commented, “That night there was no electricity there, everywhere was pitch darkness. You remember, Tooba?” and Tooba replied, “Yes”. Shafia then said, “There wasn’t the slightest glimmer of light or electricity. Even that room’s light was off.” A while later, Shafia said “If they take picture, you and I have been once before neh? …Once we came before that, you and us, and once after. We came to Niagara, then once more, it was three, four times.”

[93] Later that drive, Shafia asked Tooba if she had slept. The following exchange concluded the conversation:

Tooba: I just dozed off… their boyfriends and all are wandering about fit and happy, they’ve gone under the ground.

Shafia: Damn on their boyfriends.

Shafia: To hell with them and their boyfriends. [unintelligible] filthy and rotten children. They exceeded all [unintelligible]. They run away or do this or do that.

[94] Over the days which followed, the vehicle probe captured a number of different comments by Shafia that related to family honour and his daughters:

…Whatever she threw in our way, she did. We lost our honour. For me the issue was no taunt (ie. wasn’t humiliating), because even if they were to wear clothes made from the [Qu’ran] [pages], the four of them, even if they were to scatter the pages of the [Qu’ran] in front of me, I wouldn’t tell to their face. [emphasis added]…

…Even if they come back to life a hundred times, if I have a cleaver in my hand, I will cut him/her in pieces. [He uses the single form of verb which can be used for him/her, not them]. Not once, but a hundred times. As they acted that cruel towards you and me. For the love of God, what had we done [to them]?...

... If we remain alive one night or one year, we have no tension in our hearts, [thinking that] our daughter is in the arms of this or that boy, in the arms of this or that man. God curse their graduation! Curse of God on both of them, on their kind. God’s curse on them for generation! [unintelligible] May the Devil shit on their graves! Is that what a daughter should be? Would [a daughter] be such a whore? [unintelligible exchange] honourless girl (daughter)!...

…Shameless girl, with a bra and underwear. I swear to god that even those who do ads of such clothes are not like that…

… which one did I call filthy and ‘padar l’nat? If I said it was myself insulted. Apart from that one time Geeti and all, when she was out late one night you tell when I have hit anyone of them…

…They’ve gone now, shit on their grave; you convince me, tell me “This is where you messed up.” [I mean] as far as they are concerned. [unintelligible, garbled] from the day that they came into the world, as you [often] said, there was the car, the house, honour and respect. [unintelligible] you and I didn’t do anything which would have been detrimental to them….

…For this reason whenever I see those pictures, I am consoled. I say to myself “you did well. Would they come back to life a hundred times, for you to do the same again” That is how hurt I am. Tooba, they betrayed us immensely. They violated us immensely. There can be no betrayal, no treachery, no violation more than this. By God!

… They committed treason themselves. It was all treason, they committed treason from beginning to end. They betrayed kindness, they betrayed Islam, they betrayed our religion and creed, they betrayed our tradition, they betrayed everything….

…Even if they hoist me up onto the gallows [unintelligible] nothing is more dear to me that my honour. Let’s leave our destiny to God and may God never make me, you or your mother honourless. I don’t accept this dishonour…

…I am telling you, this is my word to you, be I dead or alive, nothing in the world is above [ie. more precious] than your honour like if your sister or my daughter or your mother’s daughter to be with a na mahram[^2] and do nasty or dishonour work, even if god forbid, they hoist us onto the gallows [unintelligible]. Isn’t that right, my son? [unintelligible] Don’t think about it, don’t worry about it, whatever the eventuality, it is from God; we accept it wholeheartedly…

… There is nothing more valuable than our honour. I am telling your mother that be like a man as you have always been. I know it hurts. I have passed more experience in life than you. Don’t worry at all. Don’t regret or wish that this would have happened or that would have happened. [Unintelligible]. I am telling you now and I was telling you before that whoever play with my honour, my words are the same. [Unintelligible] …there is no value of life without honour.

[95] At one point, Tooba said, “I know Sadaf [Zainab] was already done, but I wish two others weren’t.” Shafia responded, “No Tooba, they messed up. There was no other way. Look, Tooba, consider all the options. However you look at it in any way….”

[96] At trial, Shafia explained his recorded statements as a reaction to the shock of discovering some of Sahar’s secrets, such as revealing photos, and Zainab’s behaviour that past spring. He explained that the comments conveyed his belief that they had done their best to raise their daughters properly and that judgment of his daughters’ actions was up to God. Shafia testified that killing does not restore honour in his culture and religion. He stated:

For each human being, honour and reputation for that person is important. And when I saw these pictures, after their deaths, in this part, I was angry. My honour is important to me. But the honour and reputation of a human being, to kill someone, you can’t regain your reputation and honour. … In our culture and our religion, if someone kills his wife or daughter, there is no honourless person more than the person who did that act….

[97] Tooba also testified that the idea that honour could be restored by killing was contrary to her understanding of the Qu’ran. Dr. Nabi Misdaq, who was qualified as an expert in Afghan culture, testified that Afghan men commonly use expletive-laden insults, without intending them to be taken literally.

[98] After Tooba was arrested in Montreal, she was driven to Kingston on July 22, 2009, in the company of a Farsi speaking female officer and questioned on route. She maintained her innocence. In Kingston, she was questioned by a Farsi speaking R.C.M.P. officer named Inspector Mehdizadeh for approximately seven hours.

[99] When the Inspector challenged Tooba’s claims, she began to change her story. She initially agreed with the suggestion that Shafia must have killed the women but denied any knowledge of it. She later said that Shafia and Hamed had returned from the motel, to where she had parked the Nissan with the girls and was sleeping. She said, initially, that she had parked on the road by the motel, but later agreed it was by the locks. She got out and went to sit in the Lexus with Hamed while Shafia left in the Nissan. At some point she and Hamed stood by the road, and Shafia came back and drove away in the Lexus. As she and Hamed stood there talking, she heard a splash. They ran and “saw that a car was in the water” at which point she fell down and passed out. She recalled nothing further apart from Shafia and Hamed putting her in the Lexus and taking her back to the motel.

[100] She denied seeing the Lexus push the Nissan into the canal. She said that when she saw the Nissan in the water she thought it was empty and that Shafia had taken Rona and girls back to the Lexus. When the Inspector challenged her on being overtaken by sleep she said “…[i]f I was awake…and they were pressing and putting them into the water, I might have known it. As a human I would have been shaken or would have heard a sound of splashing or something, but that time believe me I don’t know nothing about the detail of this story how it happened.”

[101] Tooba recanted her statement to Inspector Mehdizadeh the next morning, and in cross-examination at trial maintained that she had made things up to get the Inspector to leave her alone. Hamed and Shafia were both questioned by the investigators after they arrived in Kingston and made exculpatory statements that expanded upon what they had first told the police in June.

THE GROUNDS OF APPEAL

[102] The appellants advance five grounds of appeal.

[103] Hamed challenges the jurisdiction of the trial court. He seeks leave to introduce fresh evidence to establish that he was 17 years old when the deceased were killed, thus should have been tried in the youth justice court, not in the adult court with his parents. Shafia and Tooba contend that the improper joinder of Hamed vitiated their trial as well.

[104] Of the remaining grounds of appeal, three question the adequacy of the trial judge’s charge to the jury on the jury’s use of:

i. expert opinion evidence;

ii. the exculpatory statements of the appellants as evidence of post-offence conduct; and

iii. the hearsay statements of the deceased about the nature of their relationship with Shafia and other members of the family.

A fourth ground assets error in the trial judge’s failure to remove from the jury’s consideration a murder by omission theory in connection with Tooba.

Ground #1: The Trial Jurisdiction Ground

[105] Hamed invokes s. 683(1)(d) of the Criminal Code and asks us to receive fresh evidence about an issue not contested at trial – his age on June 30, 2009. For the first time, he contends that he was 17 years old when the deceased were killed. It follows, he says, that he was a “young person” under s. 2(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended, and could only be tried in the youth justice court under s. 14(1) of the YCJA. His trial in the superior court of criminal jurisdiction with his parents was conducted without lawful authority and cannot be salvaged by the application of either provisio available under the Criminal Code. Further, he is entitled to a remedy pursuant to the Charter, as his trial of a young person before an adult court constituted an infringement of s. 7 of the Charter. The Crown seeks to file fresh evidence in response.

The Background Facts

[106] The nature of the issue raised requires an examination of the history of the Shafia family prior to the deaths of the deceased, as well as some features of the evidence adduced at trial.

The Marriage of Shafia and Tooba and Early Births

[107] Shafia and Tooba were married in Kabul, Afghanistan, on October 25, 1988. Tooba was Shafia’s second wife. As mentioned, his first wife, Rona Amir, could not have children.

[108] The first child of the marriage, Zainab – was born on September 9, 1989 in India. Hamed, the first son, was the second child of the marriage, and was born in Kabul. At the time of trial, Hamed’s Canadian identity documents indicated his date of birth as December 31, 1990.

[109] When Hamed was about eight months old, he and Rona were injured when they fell through a skylight at their house in Kabul. Shafia’s brother, a doctor, treated them. Sahar, the couple’s third child, was also born in Kabul. All of her Canadian identification indicated she was born on October 22, 1991. Another daughter followed in 1992.

[110] The Shafia family remained in Kabul for three years after their marriage. At the end of 1992, they fled to Peshawar, Pakistan, because of the civil war in Afghanistan.

The Years in Pakistan

[111] The Shafia family remained in Pakistan until March, 1996. There, they had three more children – S.S., A.S. and Geeti. According to Tooba, Zainab and Hamed started school in Pakistan and were in KG-2 and KG-1 respectively when the family left.

The Move to Dubai

[112] In about 1995, while in Pakistan, the Shafia family decided that they would move to Dubai, in the United Arab Emirates. They sought passports from the Afghan consulate in Peshawar. In early 1996, the Afghan consulate in Peshawar issued a passport to “Tooba d/o Mohammad Yahya”. This passport included the names of the children. Later, the children received individual passports.

[113] Tooba’s Afghan passport recorded the birthdates of all of the children. For Zainab, Hamed and Geeti the years were recorded according to both the Afghan calendar (1368, 1369 and 1374) and Western calendar (1989, 1990, and 1995).

[114] The Shafia family moved to Dubai in March, 1996. M.S. was born in Dubai in 2000. On October 13, 1996, the Embassy of the Islamic State of Afghanistan in Abu Dhabi issued birth certificates recording the dates of birth for Zainab as September 9, 1989 and for Hamed as December 31, 1990.

[115] The Shafia family lived in Dubai from March, 1996 until 2001, when they moved to Australia, where they lived for about a year before returning to Dubai.

The Move to Australia

[116] To move to Australia, the Shafia family required a visa. Their application required the full dates of birth of each child. The dates of birth provided were the consistent with those on Tooba’s passport and on the birth certificates of Zainab and Hamed. Shafia, Tooba and Rona signed the visa application and confirmed the correctness of the information contained in it.

The Return to Dubai

[117] The Shafia family returned to Dubai after living in Australia for about a year.

[118] On April 11, 2004, Tooba obtained a new passport from the Afghan Embassy in Abu Dhabi. The passport listed by day, month and year, the birthdates of all seven of the Shafia children. The dates provided were the same as appeared in her 1996 passport, which she provided to Australia in 2001, and the birth certificates issued by the Afghan Embassy in Abu Dhabi in 1996 and 2000.

Coming to Canada

[119] In 2006, the Shafia family applied to the Canadian Embassy in Abu Dhabi to immigrate to Canada. Shafia was the principal applicant. With the assistance of a certified interpreter and counsel, a member of the Quebec Bar, Shafia completed the required form and solemnly declared that the information he provided was truthful, complete and correct.

[120] The information provided by Shafia included Hamed’s date of birth – December 31, 1990 – and the number of years he had attended school – eight, along with the corresponding dates of birth and years of formal education of the rest of the children. The date of Hamed’s birth was confirmed by his passport issued on June 27, 2006, and the confirmation of birth issued by the Embassy of Afghanistan in Abu Dhabi in 2004. The passports do not recite the number of years of education in which Hamed had participated. This information was provided by Shafia or by Tooba in Shafia’s presence, to his immigration lawyer.

[121] Except for Rona, the entire family arrived in Canada on June 14, 2007. They settled in Montreal. Any identification documents issued by Canadian authorities record Hamed’s birthdate as December 31, 1990, the birthdate entered on his birth certificate and passport. The same date determined his school placement.

The Trial Proceedings

[122] Very experienced counsel represented Hamed at trial. A member of the criminal Bar for several decades, trial counsel was well aware of the significance of an accused’s age as a jurisdictional determinant. Included in the disclosure provided by the Crown were Hamed’s Afghan passports, his Canadian identity documents, and date-stamped family photos. Trial counsel relied on this information and information from Hamed, and an interpreter retained by the Shafia family and Hamed’s former counsel that Hamed was eighteen at the time the deceased were killed. Hamed’s date of birth – December 31, 1990 – was also noted on the indictment opposite his name.

[123] At trial, Tooba described the order in which her children were born. Both Tooba and A.S. had told police Hamed was eighteen. In his police interview, admitted as evidence at trial, Hamed told investigators that he was eighteen. Shafia’s counsel reviewed the birth years of each of his children with Shafia in chief, and he confirmed that Zainab was born in 1989, Hamed in 1990, and Sahar in 1991, as well as the rest of the children’s years of birth. Although some erroneous birthdates were put to him by counsel and he agreed with those as well.

The Proposed Fresh Evidence

[124] Hamed seeks to introduce as fresh evidence three documents in support of his claim, advanced for the first time on appeal, that he was born on December 31, 1991, and thus was seventeen at the time the deceased were killed. The documents include:

i. a tazkira, an identity document issued by the Afghanistan government;

ii. a Census General Presidency form, translating the identity page of the tazkira; and

iii. a Certificate of Live Birth.

[125] In addition, Hamed tenders several affidavits to explain the origins, provenance and authenticity of these documents and why no issue was taken with Hamed’s age or the jurisdiction of the trial court.

[126] The respondent resists the application and relies on the affidavits and cross-examination of their affiants to demonstrate that the proposed evidence is neither credible nor reliable, thus should not be received to challenge the jurisdiction of the trial court. The respondent also seeks to introduce additional affidavits and cross-examination on those affidavits, in further support of its position.

The Origins of the Documents

[127] Shafia Mohammed has provided an affidavit in support of the fresh evidence application which provides the explanation of the origins of the additional documents. Shafia now explains that Zainab was born in 1989 in India, Hamed “approximately two years later” in Kabul, Afghanistan on what he now knows to be December 31, 1991, and that his third child, Sahar was born in Kabul roughly one year after Hamed’s birth. When the family fled from Afghanistan to Pakistan in 1992, they had no official documents.

[128] According to Shafia, when the family decided to move to Dubai in 1995, he realized he would need to first obtain Afghan passports. He asked a former employee who remained in Kabul to get “government identification documents for us”. Shafia understood that the employee was able to get Hamed’s tazkira document, but because of civil war in Afghanistan, mail service was disrupted and Shafia could not obtain the documents in Pakistan. He told the employee to keep the documents in an office Shafia maintained in Kabul.

[129] Shafia said he obtained passports from the Afghan consulate in Peshawar without having to submit any supporting documentation. The consulate listed the children on Tooba’s passport, including the year but not the month or day of their birth. Since the United Arab Emirates uses the Western calendar, the passports also included the birth years on the Western calendar with which Shafia was unfamiliar. He did not notice the errors in the birth years of Hamed, S.S. and A.S. When Shafia applied for new documents in Abu Dhabi to enter Canada, the Afghan embassy officials kept the years as recorded in their previous passports but asked for the birth months and days of the children, which Shafia provided.

[130] At the time of trial, Shafia did not turn his mind to the issue of Hamed’s birthdate. After the jury had rendered its verdict, Shafia asked A.S. to contact his (Shafia’s) former employee in Afghanistan to prepare the paperwork necessary to transfer his property in Afghanistan to Hamed. A.S. sent a copy of Hamed’s passport to Afghanistan because identity documents were required. The employee also retrieved the tazkira from office storage. The employee noticed a discrepancy between the birthdates for Hamed in the tazkira and in the passport. To resolve the conflict, the employee obtained a Certificate of Live Birth for Hamed.

[131] Shafia mentioned the discrepancy between the two documents, and that Hamed’s birthdate in his Canadian identity documents may have been recorded incorrectly, to Hamed when both he and Hamed were in custody together after they had been sentenced.

[132] In cross-examination on his affidavit, Shafia explained that the Kabul property he wanted to transfer to Hamed was his shop. When asked the purpose of such a transfer, given that both men were serving life sentences, Shafia responded:

A. He is… . That’s a property, and he is younger than me.

The cross-examination of Shafia on his affidavit then continued:

Q. So, [A.S.] – why not transfer it to him?

A. That is older one; [A.S.] is a younger one. For him, here, we will do something. But whatever I have, all my property belongs to my kids.

Q. Why wouldn’t you have transferred it to Hamed when you were in Kabul in 2008/9?

A. Hamed was not there.

Q. He wasn’t there after he got convicted and sentenced to life imprisonment, either. What has that got to do with it?

A. It’s possible, right now, that someone will go to the Embassy, and they will write the paper and he will sign an affidavit, and then they can transfer that under the name…to the name of Hamed. It’s possible.

Q. And it was possible in 2009, then, as well. Right?

A. What was possible, at that time? There was nothing. We were not in prison. Nothing happened. So, we never talked about that. It didn’t cross my mind, at that time.

[133] In further cross-examination, Shafia was asked about how A.S. would have obtained a copy of Hamed’s passport since it was filed as an exhibit at trial. Shafia claimed that they had copies of their passports (Shafia, Hamed and Tooba) at their home in Montreal. Shafia was unable to provide an address for his former employee, or even the name of the street on which the employee lived. Shafia claimed that A.S. sent the material by DHL. Neither the former employee nor A.S. provided an affidavit.

[134] Shafia admitted that the only reason he believes Hamed’s true birthdate is December 31, 1991, is because of the documents that have come to light after his conviction.

The Contents and Authenticity of the Documents

[135] The authenticity and the accuracy of the contents of the three documents at the heart of this application are challenged.

(1) Tazkira

[136] The principal document on which the appellants rely to establish Hamed’s birthdate as December 31, 1991, is the tazkira.

[137] A tazkira is an identity document issued by the Afghan government to some of its citizens. It records biographical and family information. The tazkira is paper-based, with no or minimal security features. The tazkira upon which the appellants rely was issued on May 26, 1995, and records how old the person was in the year and at the time of its issuance.

[138] Raymond Gillis, former manager of Canada’s permanent resident program in Islamabad, has viewed hundreds of tazkiras in processing applications by Afghan nationals. He gave evidence that the appearance of the tazkira is consistent with its issuance on May 26, 1995, by or under the authority of the Islamic State of Afghanistan and displays similar wear and tear to other documents Mr. Gillis has reviewed from the same period.

[139] Mr. Gillis explained that tazkiras record how old the person is in the year and at the time of issuance. In Hamed’s case, the tazkira describes him as “four years old of 1995”. Issued on May 26, 1995, Hamed’s tazkira is consistent with him having been born in 1990. The Afghan Ministry of the Interior has noted that tazkiras have not been regularly issued since 1976. Different governments have issued tazkiras at different times that are still valid, but the paper-based, hand-written documents have provided an opportunity for forgery and misrepresentation. People do not routinely register births or apply for a tazkira unless they need one to go to school or university or to obtain a passport.

[140] Brian Lindblom, a forensic document examiner, examined the tazkira proposed for admission. He explained that when asked to provide an opinion about the genuineness of a document, the preferred practice is to compare the questioned document with known authentic samples. He could not find a known authentic sample that matched the tazkira tendered as fresh evidence, although he did have an example of a tazkira issued between 1992 and 1996.

[141] The critical entry on the tazkira is a hand-written entry, “[a]s per certification by the neighborhood representative his date of birth was added as tenth 10 joddi 1370 thirteen seventy” or “according to the elder of the area, the date of birth has been added, with the 10th day, 10th month, of the year 1370”. The author of the hand-written note is unknown.

[142] The entries on the tazkira have several unusual features. According to Brian Lindblom, the relevant entry is written in gel pen. The other written entries are in black ballpoint and blue fluid ink.

[143] The rubber stamp overlapping the entry is that of the Islamic Republic of Afghanistan, which did not come into existence until 2004, about nine years after the tazkira is dated. This stamp is inconsistent with the other stamps on the document, which date from the Islamic State of Afghanistan which was in existence from 1992 until 1996. The neighbourhood representative is not identified and the source of his knowledge and the reasons for the additional entry, unexplained.

[144] Mr. Lindblom reports that “no evidence was discovered of alteration in the form of eradications, additions or modifications”, he cannot say when the critical entry was added.

(2) The Ministry of Interior Affairs Census General Presidency

[145] The Ministry of Internal Affairs Census General Presidency document is a translation of the “identification” page of the tazkira which contains biographical information. It does not reflect the date of birth but rather states “4 years old of 1995”. It makes no reference to the late-added entry which is not reflected in that part of the census documents labeled in English, “date of birth”.

(3) Certificate of Live Birth, Ministry of Public Health

[146] Shafia explained that his former employee “obtained” the Certificate of Live Birth, Ministry of Public Health, Afghanistan from the “authorities” after the employee noticed the discrepancy in Hamed’s birthdate between the added entry in the tazkira and Hamed’s passport.

[147] All of the text and pre-printed information on the Certificate of Live Birth is toner-based, in other words, has been laser-printed or is a photocopy. Hand-written or stamped entries are in original ink. According to Mr. Gillis, amongst the unusual aspects of the Certificate of Live Birth are its incomplete nature, lack of an official date, and the presence of two stamps showing the document was issued in 2005 and another stamp bearing a date of either 1991 or 2013. The presence of 2005 stamps is inconsistent with Shafia’s account of how the document was obtained by the employee, after Shafia’s conviction and sentence, to clarify the discrepancy in Hamed’s birthdates and facilitate transfer his Afghan property to Hamed.

[148] In support of the authenticity of all three documents, a letter from the Embassy of Afghanistan in Ottawa has been appended to an affidavit from counsel. Ms. Layla Ayan, the First Secretary of the Consulate Section of the Embassy, was shown the tazkira, Ministry of Interior Affairs Census General Presidency Form and the Ministry of Public Health Certificate of Live Birth on October 7, 2015 by counsel. She declined to provide a sworn affidavit on the basis of diplomatic immunity, but provided a letter on Embassy letterhead, hand -dated October 9, 2015. The letter provided that the tazkira would be accepted as a valid and authentic document for Hamed Shafia, the Census Form was considered to be authentic and validly issued and therefore would be considered reliable for the purpose of establishing identity and date of birth, and that the Certificate of Live Birth, although not issued at the time of birth, would be considered authentic and validly issued for the purpose of establishing identity and date of birth. Together the three documents would be sufficient proof of identity and date of birth of December 31, 1991, for the purposes of the Embassy of Afghanistan in Ottawa.

The Arguments on Appeal

[149] The primary ground of appeal relates to the jurisdiction of the trial court and is contingent upon the admission of the appellant’s proposed fresh evidence, principally the Tazkira, the Census General Presidency form, and the Certificate of Live Birth. In their facta and in oral argument, the parties first made submissions about the admissibility of the proposed fresh evidence, and then the consequences for the verdicts reached at trial in the event the evidence is received. My references to their submissions will follow the same course. I will then turn to the remaining grounds of appeal, which are independent of the fresh evidence application.

The Admissibility Issue

[150] The appellants say that the standard to be applied to determine the admissibility of the proposed fresh evidence is that of Palmer v. The Queen, [1980] 1 S.C.R. 759. The appellants contend they have met the criteria of due diligence, relevance, credibility and cogency.

[151] The appellants argue that due diligence is not a condition precedent to the admission of fresh evidence on appeal. Besides, there is no default of due diligence here. Neither Hamed nor trial counsel was aware of Hamed’s true date of birth, thus had no reason to inquire about it. The disclosure provided consistently recorded Hamed’s date of birth as December 31, 1990, a date that put him outside the jurisdiction of the YCJA. There was no attempt here to “game” the system or any tactical decision to withhold the information from the trial court for later submission in the event of an adverse verdict.

[152] The appellants submit that the evidence is relevant in that it bears upon a decisive or potentially decisive issue at trial – the jurisdiction of the trial court as it was constituted to try the accused. In addition, the proposed evidence is credible in the sense that it is reasonably capable of belief.

[153] According to the appellants, the core evidence proposed for admission consists of three original and certified documents that establish Hamed’s birthdate as December 31, 1991. The documents have been recognized as authentic and valid by the Embassy of Afghanistan in Ottawa. The tazkira is similar in form to valid tazkiras created during the same time period and displays a pattern of wear and tear consistent with its age. Handwritten notations are commonplace in these documents. The Census General Presidency document is authentic, displays no indication of any alterations and is consistent with Hamed’s age as stated in the tazkira.[^3] The Certificate of Live Birth is also authentic and reveals no indicia of alteration.

[154] The appellants say that the fresh evidence also meets the cogency requirement of Palmer. When taken with the other evidence adduced at trial, the proposed evidence could reasonably be expected to have affected the jurisdiction of the court as constituted to try Hamed.

[155] The respondent, however, submits that the fresh evidence at issue in this case does not easily fall within the Palmer analysis.

[156] The respondent characterizes applications to admit fresh evidence on appeal as falling into two broad categories. Each, in its own way, challenges the reliability of the trial verdict. The first targets essential findings of fact made at trial and seeks to demonstrate, by the introduction of fresh evidence, that the findings are flawed or in some way unreliable. The second impugns the fairness of the trial process.

[157] The respondent acknowledges that the Palmer criteria govern where an appellant seeks to introduce fresh evidence to impeach findings of fact critical to the verdict rendered at trial. But where an appellant seeks to demonstrate, by the introduction of fresh evidence, that the trial process that resulted in a finding of guilt was unfair, the Palmer regime does not apply. In these circumstances, fresh evidence is received to establish a trial event and that the event, such as ineffective assistance of counsel, caused a miscarriage of justice: see Reference Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 85; R. v Taillefer, 2003 SCC 70, [2003] 3 SCR 307, at para. 77-78; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) at pp. 43-44, 57-58.

[158] In this case, the respondent continues, the purpose of the proposed fresh evidence does not fit neatly into either category. The appellants do not seek to impeach a factual finding essential to the verdict rendered at trial. Exit Palmer. Nor do they suggest that the trial was unfair as a result of something that occurred there. Rather, they seek to establish that Hamed was 17 when the deceased were killed and that the trial court lacked jurisdiction to try him together with his parents. This falls much closer to a discrete event that is said to have resulted in a miscarriage of justice.

[159] It follows, according to the respondent, that we should assign greater emphasis to protecting the integrity of the criminal justice system, especially where the fresh evidence tendered in an after-the-fact challenge to jurisdiction of the trial court rests within the control of the appellant. We should only admit the evidence where it provides a compelling basis for the conclusion that Hamed was 17 years old.

[160] In this case, the respondent continues, the proposed evidence falls well short of compelling. It is unworthy of belief. It can neither establish nor raise a reasonable doubt that Hamed was 17 at the relevant time. The appellant accepted the jurisdiction of the trial court. What is tendered to dispute that jurisdiction is hearsay, not only as to the origin of the documents, but also as to their contents. By no standard of measure, even the most modest, could what is tendered be characterized as reliable.

The Issue of Remedy

[161] The appellant Hamed says that the reception of the fresh evidence entitles him to a new trial. He was 17, a “young person”, not an adult. He should have been tried in the “youth justice court”, the forum that has exclusive jurisdiction over offences committed by young persons. The joint trial with his parents in the superior court of criminal jurisdiction offended the principles articulated in R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, prohibiting the joint trial of young persons and adults in recognition of the presumption of diminished moral blameworthiness of young persons, and the verdict rendered cannot be preserved by the application of either proviso in s. 686(1)(b) of the Criminal Code. In the alternative, Hamed contends that either (i) he is entitled either to a hearing to determine whether he should be sentenced as an adult or (ii) his sentence should be reduced to an adult sentence for first degree murder imposed on a young offender under s. 745.1(b) of the Criminal Code.

[162] For their part, the appellants Shafia and Tooba argue that the improper joinder of Hamed, a young person, with them, adults, in a joint trial in the superior court of criminal jurisdiction entitles them to a new trial. Although this error did not deprive the trial court of jurisdiction over them, it caused significant prejudice by depriving them of their opportunity to call Hamed as a witness to corroborate their exculpatory trial testimony. In their joint trial, Hamed’s recorded statement to the Crown witness, Moosa Hadi, which was consistent with the defence advanced by Shafia and Tooba in their out-of-court statements and trial testimony, was only evidence in the case for and against Hamed. Had Hamed been tried separately as a young person, Hamed would have been a compellable witness at the joint trial of Shafia and Tooba and, they argue, may well have raised a reasonable doubt about their guilt.

[163] The respondent takes the position that if the proposed fresh evidence is received, and this court concludes that Hamed was 17 at the time of trial, he would be entitled to a new sentence or sentencing hearing, during which the Crown would bear the onus of proving that he should be sentenced as an adult.

[164] However, none of the appellants are entitled to a new trial. A miscarriage of justice has not been established. In this case, unlike in S.J.L., there was no jurisdictional impediment to joinder.

[165] The respondent says that young persons charged with murder who fail to elect mode of trial are deemed to have elected trial by judge and jury. The judge is a judge of the Superior Court of Justice who is deemed to be a “youth justice court” by section 13(2) of the YCJA, but retains the jurisdiction and powers of a superior court of criminal jurisdiction. The proceedings are conducted in accordance with Part XX, with the additional protections of the YCJA. There is no jurisdictional impediment to the trial judge wearing “two hats at once”.

[166] In connection with Shafia and Tooba, the respondent submits that neither the fact of joinder of Hamed nor the manner in which the trial unfolded, amounted to any miscarriage of justice for Shafia or Tooba. The claim, advanced for the first time on appeal, that had Hamed been tried separately, he could have been called as a defence witness to corroborate their testimony that they were not at the scene moves no freight. They made no request for severance at trial. And, read as a whole, the charge to the jury left the statements of each appellant for consideration on the core defence of accident. This instruction was beneficial to Shafia and Tooba, essentially leaving Hamed’s out-of-court statement to the jury on the same footing as if it had been his sworn testimony at trial. Moreover, the parents obtained the benefit of Hamed’s explanation of death by misadventure, which provided an explanation for the forensic evidence, in a form entirely undiminished by cross-examination.

The Governing Principles

[167] The principles that control our decision in connection with this ground of appeal are those that govern the reception of fresh evidence on appeal. Despite their familiarity, a brief review of those principles is warranted.

Introduction

[168] In our criminal justice system, the trial furnishes the parties with the opportunity to present their respective cases to adduce evidence supportive and to challenge the evidence adduced by the party opposite. It is there that an accused’s guilt or innocence will be determined on the basis of all the available evidence that our adjectival law of rules and procedure allows entry. On the other hand, the appeal provides the parties with the occasion to challenge the correctness of what happened, or did not happen at the trial.

[169] Appellate courts sit in review of decisions made in trial courts. Inherent in the appellate function is a requirement that issues be raised and determined at trial before they will be considered on appeal. This makes sense. It enables the parties to put their best foot forward at trial to create the necessary record for a just determination of the issue. And it furnishes the record essential to permit meaningful appellate review of the decision made at trial. Generally, an issue not raised at trial cannot be advanced on appeal: R. v. Reid, 2016 ONCA 524, at paras. 37-44; R. v. R. (R.) (1994), 91 C.C.C. (3d) 193 (Ont. C.A.), at pp. 198-199. When the exceptional discretion to do so is exercised, the test is a stringent one: R. v. Guindon, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 21-22.

[170] The general injunction against appellate consideration of issues not advanced at trial has strong application where the objection first advanced on appeal challenges the jurisdiction of the court constituted to try an appellant. A strong onus settles on an accused to raise jurisdictional challenges at the outset of trial: R. (R.), at p. 199. See also, R. v. Rabba, (1991), 3 O.R. (3d) 238, 64 C.C.C. (3d) 445 (C.A.), at pp. 447-448; and R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 67. Were it otherwise, it must appear that the accused was content to be tried by the court as constituted and questions that jurisdiction only because of an adverse result: R. (R.), at p. 199.

[171] As a general rule, appellate review examines the record created at trial to determine whether an error has occurred and, if so, its effect on the verdict rendered. But the general rule about the fixed nature of the record on appeal is not unyielding.

The Statutory Authority

[172] Section 683(1)(d) of the Criminal Code permits, but does not require, appellate courts to receive the evidence, if tendered, of any witness, including an appellant, if the court considers that it is in the interests of justice to do so. The ubiquitous phrase, “in the interests of justice”, is unconfined in the sense that the provision furnishes no list of factors, whether illustrative or exclusive, to inform its application.

The Standard

[173] A well-developed body of jurisprudence has assisted in furnishing criteria to be applied in determining whether the “interests of justice” warrant reception of fresh evidence on appeal.

[174] The admission of fresh evidence on appeal necessarily undermines legitimate finality expectations. Recall that it is the trial where the parties present their cases, adduce their evidence and advance their positions on guilt or innocence. The daily fare of appellate courts is to review the record created at trial, not to supplement or rewrite it. The admission of fresh evidence on appeal, with its inevitable compromise of legitimate finality expectations, can only be justified if the overall integrity of the criminal justice process is furthered by its introduction: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44; R. v. P.G., 2013 ONCA 520, at para. 41, leave to appeal refused, [2013] S.C.C.A. No. 421. It must take into account not only an appellant’s interests in full vindication of his or her appellate remedies, but also the broader long-term interests of the administration of justice: Snyder, at para. 44.

[175] The “interests of justice” test requires an appellate court to make a context-sensitive inquiry into all the circumstances, including the grounds of appeal advanced, the material tendered for admission and the remedies sought: Reference Re Truscott, at para. 81; R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 233.

[176] The mere fact that the evidence proposed for admission has some probative value on a material issue does not mandate its receipt by an appellate court. The court must engage in a qualitative assessment of the potential value of the evidence proposed for admission. This assessment demands a careful evaluation of the proffered evidence and the credibility of its source. This evaluation does not involve a determination of the ultimate reliability of the evidence and the credibility of its author, for that is the role of the trier of fact in another forum. The evaluation takes place in the context of determining whether the evidence is sufficiently cogent to warrant its admission on appeal having regard to the purpose for which the evidence is tendered: Snyder, at paras. 50-51.

[177] To some extent at least, the test applied to determine whether evidence tendered for admission on appeal will be received is a function of the basis upon which the verdict is impeached. For example, where an appellant proffers fresh evidence to challenge a factual finding at trial, the proposed evidence must itself generally be relevant, material and admissible on the controverted issue. On the other hand, where the challenge is to the fairness of the adjudicative process followed to establish guilt, say that trial counsel provided ineffective assistance, the evidence tendered for admission on appeal would generally need to establish the problem being asserted and whether the problem resulted in a miscarriage of justice.

[178] A variety of circumstances may compromise trial fairness. Sometimes those circumstances are intrinsic to the trial process, as for example, where trial counsel provides ineffective assistance, or is cumbered by a conflict of interest that compromises an accused’s right to make a full answer and defence: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at pp. 43-44 and 57-58; W. (W.), at pp. 232-234 and 237-241. Or where the Crown defaults on its disclosure obligations: Taillefer, at paras. 81-82; R. v. Dixon, [1998] 1 S.C.R. 244, at para. 36; and R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at paras. 64-65. Or where an accused’s right to be present throughout the whole of his trial has been compromised: R. v. Poulos, 2015 ONCA 182, 124 O.R. (3d) 675, at para. 14; R. v. F.E.E., 2011 ONCA 783, 282 C.C.C. (3d) 552, at para. 51.

[179] Where the object of the fresh evidence is to establish that conduct occurred at trial that compromised the adjudicative fairness of the trial and, on that account, the reliability of the verdict, the fresh evidence must establish the impugned conduct, if it does not otherwise appear in the trial record, and a resultant miscarriage of justice. But what of cases, such as this, where the proposed fresh evidence is not directed to impeach a finding of fact essential to the verdict rendered or to impugn the adjudicative fairness of the trial?

[180] The claim sought to be advanced here by the introduction of fresh evidence does not fit neatly within either fresh evidence paradigm. Not the Palmer criteria of due diligence, relevance, credibility and cogency, nor the adjudicative fairness paradigm requiring establishment of the impugned conduct and a resultant miscarriage of justice. The challenge is not to the reliability of the verdict. The appellant does not seek to impeach a finding of fact essential to the findings of guilt returned at trial. Nor does he suggest that the adjudicative fairness of the trial was compromised. His claim is that the trial court lacked jurisdiction to try him.

[181] An accused who sought to challenge the jurisdiction of the trial court at the outset of trial would be under an obligation to make an offer of proof, if not to adduce evidence, to put the jurisdiction issue in play. The offer would require evidence, admissible under the adjectival law, of sufficient threshold reliability that it could, if believed, put jurisdiction in issue. It would then be incumbent on the Crown to rebut the claim of jurisdictional deficit.

[182] The strong onus imposed upon an accused to advance jurisdictional challenges at the outset of trial, especially those that lie peculiarly within his or her knowledge, coupled with the exceptional authority to receive fresh evidence on appeal and consider issues not raised at trial, supports the imposition of a stringent standard for admitting evidence on appeal that challenges the jurisdiction of the trial court.

[183] In at least two cases, appellate court have applied the Palmer criteria to allegations of lack of jurisdiction in the trial court.

[184] In R. v. A.O.D., 2015 BCCA 514, the appellant pleaded guilty before a provincial court judge to several offences arising out of a home invasion. Throughout his prior youth court history and on various appearances on the charges to which he later pleaded guilty, the appellant repeatedly represented his date of birth as August 7, 1993. On this basis, he was an adult when he committed the offences and when he was sentenced on his pleas of guilty.

[185] On appeal, the appellant tendered evidence in support of a claim that his date of birth was August 7, 1994, a date that would have made him a “young person” at the time of his plea and sentencing. The British Columbia Court of Appeal applied the Palmer criteria to the fresh evidence because it was relevant to a factual and legal issue determined at trial and credibility was in issue: A.O.D., at para. 19.

[186] In R. v. Hailemolokot, 2014 MBCA 90, the court was required to consider whether a trial judge had erred in failing to permit the appellant to re-open the defence case after conviction, but prior to sentence, on the basis that he was a “young person”, not an adult, contrary to the representations of his trial counsel and the evidence the appellant himself had given at trial. The trial judge had applied the Palmer criteria, was not satisfied that the relevant documents were reliable or authentic, and refused to permit the defence to re-open. The Court of Appeal affirmed the applicability of the Palmer criteria: Hailemolokot, at paras. 9 and 11.

The Principles Applied

[187] As I will explain, I would not admit as fresh evidence the three identity documents tendered on appeal and would not give effect to the remedies sought as a consequence of their proposed reception. I am satisfied that when the deceased were killed, Hamed was not a “young person” as defined in s. 2(1) of the YCJA. He was an adult, properly joined with his parents in a joint trial in the superior court of criminal jurisdiction. As a result, it does not become necessary to consider whether his joinder with adults would offend the principles in S.J.L.

[188] To begin, as I acknowledged above, the issue upon which the fresh evidence is tendered – absence of trial jurisdiction – does not settle neatly into either paradigm of fresh evidence on appeal cases. It does not fit the Palmer regime because the proposed evidence does not challenge a finding of fact essential to a determination of guilt. Further, it does not fit within the category of cases in which the fresh evidence is tendered to establish a lack of adjudicative fairness in the trial process that resulted in findings of guilt, a verdict that is said to constitute a miscarriage of justice.

[189] On the other hand, the fresh evidence does relate to a factual determination that would have been required had the issue of Hamed’s age been raised – as it should have been – at the outset of the trial. Such a finding would have been necessary to establish trial jurisdiction, rather than an essential element of the offences charged. In addition, as in A.O.D., concerns about the credibility and cogency of the proposed evidence arise and are more easily accommodated under the Palmer paradigm. These concerns bespeak the need for serious scrutiny before the evidence is admitted, not afterwards as part of a determination of whether a miscarriage of justice within s. 686(1)(a)(iii) has occurred.

[190] Applying a modified Palmer approach, several reasons persuade me that the proposed evidence should not be admitted.

[191] First, jurisdictional challenges advanced for the first time on appeal are exceptional, all the more so when the information necessary to ground the challenge is within the peculiar knowledge of the appellant and his parents who, when asked, said he was 18. To overcome this hurdle, the proposed evidence should provide a compelling basis to conclude that Hamed was a “young person”, in the same way we require when an appellant seeks to set aside a guilty plea on appeal. Compelling this evidence is not.

[192] Second, since the proposed evidence does not target findings of fact essential to a determination of guilt or impugn the adjudicative fairness of the trial proceedings, greater emphasis should be placed on maintaining the integrity of the criminal justice system and protecting it from those who would “game it” by accepting the jurisdiction of the trial court, only challenging it later having received an adverse verdict.

[193] Third, the principal evidence tendered for admission – the tazkira – would not be admissible under the adjectival law if tendered on a jurisdictional challenge at trial. The purpose of the document is to prove Hamed’s age, in other words, to prove the truth of the assertion that he was born on December 31, 1991. In this respect, the document is hearsay. Its author and the time of the relevant entry are unknown. Indeed, it may be double hearsay if the source is an unknown “local representative”. The document does not meet the requirements of s. 658 of the Criminal Code, which provides several methods by which the age of a young person may be proven. Nor can it satisfy the reliability condition of the principled exception to the hearsay rule.

[194] Fourth, the origins of the tazkira are inherently suspect. The only source of information about the circumstances in which the document was created and discovered is the hearsay evidence of Shafia. As noted, we know naught about who created the document or who provided the information incorporated in it. The person who Shafia claims obtained the documents is said to be a long-time employee of Shafia who was contacted by A.S., even though Shafia cannot provide more than a single name, an address or phone number for him. There is no evidence from this individual. The tazkira, an identity document with minimal security features, contains no photograph and, according to Shafia, was created without presentation of any identifying documents or without either Shafia or Hamed being present. A.S., the alleged conduit for the documents, has not provided any evidence about his involvement.

[195] Fifth, the critical entry on the tazkira is itself suspect. It is a handwritten note, in different ink than used elsewhere on the document. It is unclear when or by whom the crucial entry on the tazkira was added. One of the stamps on the tazkira is from a country that did not exist until a decade after the document was allegedly created and is inconsistent with Shafia’s account of the tazkira’s creation and storage. The document examiner’s opinion about the authenticity of the tazkira is not founded on the preferred method of authentication – comparison with a known authentic sample.

[196] Sixth, Shafia asserts Hamed’s date of birth as December 31, 1991, solely on the basis of the “new” document and despite a lengthy history of consistent and repeated representations, some in sworn declarations to gain entry into various countries, among them Canada, that Hamed was born on December 31, 1990. This abrupt mid-course correction is not based on any asserted recollection of the actual date of Hamed’s birth, but rather only on a rote repetition of the date contained in a document of questionable provenance.

[197] Seventh, the birthdate of December 31, 1991, is entirely inconsistent with the sibline of Shafia children and has the effect of rendering four of the birthdates of the seven children inaccurate. Apart from the inherent improbability of the claim that four of the seven birthdates are wrong, the assertion is contradicted by dated photographs[^4] and Tooba’s evidence at trial.

[198] Eighth, tellingly, the only accurate source of information about Hamed’s date of birth – Tooba – has not filed an affidavit on the motion. Her police statement and trial evidence supports the conclusion that Hamed was 18 when the deceased were killed.

[199] The interests of justice do not warrant the reception of the proposed fresh evidence documents.

Ground #2: The Admissibility and Use of Expert Evidence

[200] This ground of appeal includes complaints about the admissibility and use of expert evidence adduced at trial concerning honour killings. To situate the claims of error properly, it is necessary to briefly canvass the nature of the evidence, the case for admissibility advanced and the basis upon which the evidence was admitted at trial and the instructions the trial judge gave to jurors about how they could use the evidence in reaching their verdict.

[201] The trial Crown tendered Dr. Mojab as an expert witness who could provide testimony about the relationship between culture, religion, patriarchy and violence against women in the Middle East and around the world, specifically as these issues relate to the phenomenon known as honour killing.

The Additional Background

[202] The appellants were charged with four counts of first degree murder. The murder, according to the theory of the Crown, was alleged to have been planned and deliberate on the appellants’ part, clumsily disguised as death by misadventure.

[203] To put the expert evidence – the testimony of Dr. Shahzrad Mojab – in its proper surroundings, it is helpful to recall some of the conversations of the appellants surreptitiously recorded under judicial authorization after the deaths of the deceased.

The Appellants’ Discussions

[204] Honour was a recurrent theme of discussions among the appellants after the deaths of the deceased. The most vocal proponent was Shafia, who repeatedly voiced his displeasure about how his deceased daughters had dishonoured the family. The deceased had betrayed their family, their tradition, their religion and the kindness shown to them by their conduct with boys and the way in which they dressed. Shafia was steadfast in his emphasis on the critical importance of honour. He claimed that there was no value in life without honour. He described his deceased daughters as “whores” and “honourless girls”.

The Tender of Expert Evidence

[205] Dr. Mojab is a professor at the University of Toronto. She is appointed at the Department of Adult Education and Counselling Psychology and cross-appointed at the Women and Gender Studies Institute. Her research interests focus on violence against women, especially in the Middle East and among diasporas in the West.

The Defence Position

[206] Trial counsel for the appellants resisted the introduction of Dr. Mojab’s evidence. The principal complaint advanced against admissibility was that the evidence was simply not relevant to establish a motive on the part of the appellants to kill the deceased.

[207] Hamed changed counsel. New counsel asked the trial judge to reopen the voir dire into the admissibility of Dr. Mojab’s evidence. The trial judge did so. On the second voir dire, counsel for Hamed advanced three principal arguments against admissibility:

i. the quality of the data underlying Dr. Mojab’s opinions rendered her opinion unreliable;

ii. Dr. Mojab’s opinions were the product of an agenda-based bias and lacked the objectivity essential for expert evidence; and

iii. the probative value of Dr. Mojab’s evidence was outweighed by its prejudicial effect.

The Rulings of the Trial Judge

[208] At the conclusion of the first voir dire held in advance of jury selection, the trial judge conducted a Mohan analysis of the proposed evidence, with the modifications as set out in R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, leave to appeal refused, [2010] S.C.C.A. No. 125, and found each requirement had been met. He was satisfied the evidence was relevant on the issue of motive. He then turned to a cost-benefit analysis and concluded that the benefits associated with the introduction of the evidence exceeded the costs associated with its receipt. Probative value exceeded prejudicial effect. He limited the Crown to hypothetical questions about honour killings.

[209] At the end of the second voir dire, the trial judge concluded that the proposed evidence was admissible, but he restricted the Crown to generic hypothetical questions on the general phenomenon of honour killing rather than on specific questions that mirrored the facts of the case. The trial judge characterized the evidence as cultural evidence relating to honour and honour killings. The issue was properly the subject-matter of expert evidence and Dr. Mojab was qualified to proffer the opinion. She was not disqualified by bias from doing so. The evidence was relevant to the issue of motive and did not fall foul of any exclusionary rule.

[210] The trial judge then turned to the cost-benefit analysis. He concluded that the evidence would not be lengthy nor would it likely confuse or overwhelm the jury. The concepts of honour, family and gender dynamics within Middle Eastern and East Asian communities involved knowledge “that is outside of the scope of a typical Canadian jury”. Its probative value outweighed any prejudicial effect.

The Evidence Adduced at Trial

[211] The trial Crown used open-ended questions pre-vetted by the trial judge with the assistance of defence counsel, in examination in-chief of Dr. Mojab. These generic questions elicited responses about the circumstances in which honour killings might occur and the types of conduct that might serve as an affront to honour.

[212] In her examination-in-chief, Dr. Mojab read out several excerpts from a United Nations Economic and Social Council document and a definition of honour crimes proposed by Human Rights Watch. She also described who carried out honour killings and the nature of conduct that might be seen as an affront to honour.

The Use of the Evidence at Trial

[213] The trial Crown relied on Dr. Mojab’s evidence to provide cultural information which the jury could use to understand and assess other evidence adduced at trial. The trial Crown did not ask Dr. Mojab whether the killings were honour killings or whether the appellants, subscribed to an honour-based culture. To the extent such evidence emerged at trial, it originated in the intercepted comments of Shafia.

The Jury Instructions

[214] In his final instructions to the jury, the trial judge provided the standard instruction about expert opinion evidence. This instruction advised jurors about how they were to assess the expert opinion evidence admitted at trial, that of Dr. Mojab and seven other experts who testified there, including the evidence of Dr. Nabi Misdaq, the Afghan language and cultural expert called by defence. The trial judge also provided the jury a general instruction on motive, pointing out that it was not an essential element of the offence charged, while referring briefly to the substance of Dr. Mojab’s evidence. During his recapitulation of the evidence, the trial judge provided a more comprehensive review of Dr. Mojab’s evidence during the summary of the evidence on motive, referring to the evidence elicited by both the Crown and the defence.

[215] Trial counsel, who had input into the charge, did not register any objection to the charge on motive or the references to the evidence of Dr. Mojab. Not before the charge was given. And not after it was delivered.

The Arguments on Appeal

[216] The appellants say that the expert opinion evidence of Dr. Mojab was presented in such a way that it was overwhelmingly prejudicial to them. They acknowledge that expert opinion evidence to provide cultural context in a case such as this could properly be admitted. But although it was presented under a thin veneer of cultural context, this evidence invited the jury to find the appellants guilty on the basis of disposition or propensity reasoning. The substance of the evidence included anecdotal accounts, prohibited under R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, and was compounded by the prejudicial denunciations read verbatim from United Nations materials.

[217] Further, the appellants continue, Dr. Mojab was not presented as an expert on culture, which may have been permissible, but rather as an expert in a special category of murder – honour killings. This neatly dovetailed with the Crown’s theory and invited a path of reasoning to guilt by comparison to other honour killings described by the witness. This invoked a chain of reasoning – from disposition to guilt – that our law, for good and valid reason, expressly forbids. It also invited dangerous cultural stereotyping.

[218] In addition, the appellants contend, in his application of the cost-benefit analysis, the trial judge overstated the probative value of the evidence and undervalued its prejudicial effect. The jury was highly unlikely to have been ignorant of the concept of honour killing. After all, there was extensive media coverage in advance of trial, the most predominant feature of which was that the deaths of the deceased were honour killings. Expert evidence was not needed and its introduction was highly prejudicial.

[219] The respondent says that the opinion evidence of Dr. Mojab was properly admitted, invoked by the trial Crown in her jury address in a manner consistent with the basis upon which it had been admitted, and confined to its proper use by the trial judge’s final instructions to the jury.

[220] The respondent points out that appellants take little if any issue with the trial judge’s conclusion that the four threshold requirement for expert evidence (relevance, necessity, absence of an exclusionary rule and a properly qualified witness) under Mohan were established The evidence was relevant. The jury needed to understand the relationship among culture, religion, patriarchy and violence against women, particularly as it related to honour killing, in order to evaluate the evidence adduced at trial. Jurors were not otherwise knowledgeable on these subjects. Hence the need for expert evidence from a qualified witness, like Dr. Mojab. The trial judge did not err in his assessment of probative value, which was high, or in his conclusion that it outweighed the prejudicial effect of the evidence.

[221] On any reasonable view, the respondent continues, the evidence of Dr. Mojab did not offend any exclusionary rule of the law of evidence. It was not evidence of criminal profiling or cultural similar act evidence as the appellants claim. It did not invite a prohibited chain of reasoning, indeed such a prohibited chain of reasoning was foreclosed by the trial judge’s limiting instructions.

[222] The respondent emphasizes the necessity for appellate deference in connection with judicial rulings on the admissibility of evidence that are not cumbered by any errors in principle, misapprehensions of evidence or unreasonable conclusions. Each admissibility inquiry is fact-specific and one which a trial judge most familiar with the issues and other evidence at trial is best suited to undertake.

[223] According to the respondent, expert evidence about culture has often been admitted in criminal proceedings in this province. In some instances, to establish motive. In others, to assist the jury in understanding other evidence adduced at trial. Here, the evidence of honour as a potential motive for murder came not from Dr. Mojab but from Shafia during his post-killing conversations with Tooba and Hamed. Dr. Mojab’s evidence provided some context with which to assess Shafia’s references to honour, and to rebut the defence assertion that conflicts with the deceased as revealed by the evidence could not reasonably inspire a motive to kill them.

[224] The respondent adds that the evidence adduced from Dr. Mojab by the Crown was elicited by pre-vetted questions, generic in nature, that were not grounded on the circumstances of this case. It was balanced and respectful. It did not invite the jury to reason that the appellants were disposed to kill members of their family. And if any aspects of Dr. Mojab’s evidence were found to be inadmissible by this court, it occasioned no substantial wrong or miscarriage of justice in the context of the case.

The Governing Principles

[225] Several principles that govern the admissibility, introduction and permissible use of expert opinion evidence control the decision on this ground of appeal. Some are general, others more specific.

The Expert Evidence Two-Step

[226] A two-step inquiry governs the admissibility of expert opinion evidence as an exception to the general rule that excludes evidence of opinion. The first step involves the threshold requirements of admissibility, the second a balancing of potential risks and benefits of admitting the evidence in order to determine whether the potential benefits justify the risks: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 22-24; Abbey.

The First Step – Threshold Reliability

[227] At the first step, the proponent of the evidence – here, the Crown, - must establish the threshold requirements of admissibility discussed in R. v. Mohan, [1994] 2 S.C.R. 9, at p. 20:

• relevance

• necessity

• absence of an exclusionary rule

• a duly qualified expert.

See, Abbey, at para. 75. Relevance at this stage refers to logical relevance: White Burgess, at para. 23; Abbey, at para. 82. The expert opinion evidence must have a tendency, as a matter of human experience and logic, to make the existence or non-existence of a fact in issue more or less likely than it would be without the evidence: Abbey, at para. 82; R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para. 47.

[228] The qualifications of an expert are an essential component of the Mohan requirements. The independence and partiality of a proposed expert are relevant to the threshold requirement that the expert be qualified to proffer evidence of opinion on a specified subject: White Burgess, at para. 34.

[229] The application of the Mohan requirements in any proceedings is case-specific. In each case, the trial judge determines issues of relevance and necessity within the factual matrix of the trial in which he or she is presiding. The inquiry is very much a function of the other evidence and issues in the case being tried: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 12; R. v. Morin, [1988] 2 S.C.R. 345, at p. 370.

[230] The case-specific nature of the Mohan inquiry has implications for the standard of appellate review. Appellate review is not precluded, as for example, where a finding of admissibility under Mohan is clearly unreasonable, contaminated by an error in principle or reflective of a material misapprehension of evidence. That said, appellate courts should proceed from a stance of deference to decisions of trial judges to admit or reject expert opinion evidence: D. (D.), at para. 13.

The Second Step: The Cost-Benefit Analysis

[231] The second step – the discretionary gatekeeping step – requires the trial judge to balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks: White Burgess, at para. 24; Abbey, at para. 76. This inquiry is equally case-specific. It involves the exercise of judicial discretion, not the application of a bright line rule: Abbey, at para. 79.

[232] The benefit side of this cost-benefit analysis requires a consideration of the probative potential of the evidence, as well as the significance of the issue to which the evidence is directed. Determination of the probative potential of the evidence of necessity requires a consideration of the reliability of the evidence, but not to such an extent as to intrude upon the jury’s task in assessing ultimate reliability: Abbey, at paras. 87-89. The independence of the expert and his or her impartiality are also factors: White Burgess, at para. 54. Opinion evidence essential to a jury’s ability to understand and evaluate material evidence registers high on the “benefit” scale: Abbey, at para. 94.

[233] The “cost” side of the analysis examines the risks inherent in the introduction of expert opinion evidence. Consumption of time. Prejudice. Confusion. Danger that jurors will be unable to make an effective and critical assessment of the evidence. The complexity of the materials. The impenetrable jargon in which the opinion is clothed. Compromise of the trial process by unduly protracting and complicating proceedings: see, Abbey, at paras. 90-92; White Burgess, at para. 54.

[234] The product of the judge’s cost-benefit analysis of expert opinion evidence tendered for admission – the admissibility decision – is entitled to deference on appellate review, at least in the absence of an error in principle or an unreasonable conclusion: D.(D.), at para. 13; Abbey, at para. 97; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

Keeping Expert Opinion Evidence within Proper Bounds

[235] The task of a trial judge asked to admit expert opinion evidence in a criminal trial is not complete with the decision to admit the evidence. The trial judge has an on-going obligation to ensure that the expert witness does not stray beyond his or her identified field of expertise and pollute the trial with opinions beyond the subject-matter of his or her expertise: R. v. M.C. (2014), 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 75; Abbey, at para. 62; Sekhon, at paras. 46-47; and R. v. Marquard, [1993] 4 S.C.R. 223, at pp. 242-244.

[236] Three additional points in relation to expert evidence spilling over the boundaries set by the trial judge warrant mention.

[237] First, as a practical matter, it is for opposing counsel to object when the expert ventures an opinion beyond the area of expertise in which she or he has been qualified: Marquard, at p. 244.

[238] Second, when an expert’s opinion exceeds his or her area of qualified expertise, the evidence in excess should be struck if the witness has no expertise in the area, but left for the trier of fact if the failure to qualify in the area was technical or inadvertent: Marquard, at p. 244.

[239] Third, the general remedy where the evidence of an expert exceeds its bounds is a remedial instruction advising the jury to disabuse their minds of the inadmissible portion of the evidence: Sekhon, at para. 48; Marquard, at p. 244.

Cultural Evidence

[240] Expert opinion evidence about cultural mores within particular communities is a well-recognized field of study within the academic and professional disciplines: Abbey, at para. 121. Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Indeed, the great bulk of expert opinion evidence admitted in our courts is given by experts in disciplines that do not use the scientific method and whose opinions cannot be scientifically validated: Abbey, at para. 109.

[241] Expert opinion evidence about cultural mores may be relevant to and thus admissible on a variety of issues including to provide context for and to facilitate appreciation of other evidence: R. v. Boswell, 2011 ONCA 283, 277 C.C.C. (3d) 156, at para. 26. The evidence may also be admissible to support a defence of provocation and to establish that a murder was planned and deliberate: R. v. Sadiqi, 2013 ONCA 250, at para. 16.

Statistical Evidence of Probabilities

[242] An expert is not entitled to give statistical evidence of probabilities based on prior similar events to support a conclusion about what happened on the occasion that forms the subject-matter of charges: R. v. Klymchuk (2005), 203 C.C.C. (3d) 341 (Ont. C.A.), at para. 46.

Anecdotal Evidence from Experts

[243] Experts may not give anecdotal evidence gathered from prior experiences in proffering their opinion about conduct on a particular occasion. The evidence lacks legal relevance and is apt to engender significant prejudice, especially when adduced to rebut a defence: Sekhon, at paras. 49-50.

The Principles Applied

[244] For several reasons, I would not give effect to this ground of appeal. The evidence of Dr. Mojab was properly admitted as expert opinion evidence. Its introduction was closely monitored to ensure what the jury heard did not exceed what the trial judge permitted after two pre-trial motions to exclude it. Neither the trial Crown nor the trial judge invited or instructed the jury to use this evidence in any impermissible way in deciding whether the Crown had proven its case beyond a reasonable doubt.

[245] In approaching this complaint of legal error, the setting in which the evidence was introduced occupies a place of importance.

[246] The notion of honour and of killing another person motivated by besmirched honour originated with Shafia, not with Dr. Mojab. Recall Shafia’s diatribe about the importance of honour and how he, they (Hamed and Tooba), their culture and their religion had been dishonoured by the conduct of the deceased, especially Zainab.

[247] The defence did not dispute the existence of honour killing in certain cultures. Their position at trial was that the deceased died by misadventure, not through the actions of any of the appellants, much less was their conduct motivated by honour. The defence called evidence about Afghan culture to explain the use of apparently pejorative language by Shafia among other things.

[248] The trial judge’s finding that the threshold requirements for admissibility of expert opinion evidence – the Mohan requirements – had been met is entitled to substantial deference in this court, in the absence of an error in principle, a material misapprehension of the evidence or an unreasonable conclusion.

[249] The proposed evidence was vetted on two separate applications before jury selection. The trial judge was satisfied that the proposed evidence was relevant, necessary, not barred by any exclusionary rule and would be given by a duly qualified expert. The appellants do not seriously dispute these core findings by the trial judge.

[250] The opinion evidence of Dr. Mojab was logically relevant to a material issue at trial and also assisted the jury in deciding what inferences to draw from Shafia’s comments to the other appellants after the death of the deceased. In other words, it was essential to and facilitated the ability of the jury to understand and evaluate material evidence.

[251] The proposed evidence was also necessary to assist the trier of fact. The specialized knowledge of Dr. Mojab extended well beyond the everyday experience of the average juror. The appellants’ tepid submission that the jurors could have gathered as much from the intense pre-trial publicity about the case is unworthy of serious consideration. Juror use of such information would violate the jurors’ oath or affirmation to decide the case on the evidence adduced at trial, not to mention the prohibition against extra-curial research.

[252] The proposed evidence did not offend any exclusionary rule of the law of evidence, in particular, the rule which enjoins the use of evidence of disposition as probative of guilt. The evidence did not invoke the probability-based analysis condemned in Klymchuk and was not, by nature, anecdotal so as to offend Sekhon.

[253] Further, the evidence was adduced from a duly qualified expert. Dr. Mojab was well qualified to testify about the relationship between culture, religion, patriarchy and violence against women in the Middle East and diasporas around the world, especially as it related to honour killing.[^5] That she was an acknowledged advocate for women’s rights did not detract from her acknowledged expertise in the field in which she was qualified or amount to bias that would render her unqualified to give expert opinion.

[254] Moreover, the trial judge exercised his gatekeeping function without any error in principle or misapprehension of material evidence. He reached a conclusion reasonably available on the evidence. This conclusion, like that in connection with the Mohan requirements, is entitled to deference in this court.

[255] Any assessment of where the balance between probative value and prejudicial effect falls is case-specific. It is an analysis that a trial judge is uniquely equipped to undertake. After all, the trial judge is an ear and eye witness to the trial process, the issues raised and the positions advanced. The inquiry must be undertaken and a determination made in the context of the trial, not on some level of abstraction at one remove from the trial process. The inquiry is very much a function of the other evidence and issues raised in the case.

[256] The complaint that the trial judge overestimated the probative value of Dr. Mojab’s evidence is in the end, a thinly-disguised invitation to reweigh the evidence because of a disagreement with the result. This evidence was essential to the jury’s ability to understand and assess material evidence and tended to refute the position advanced by the defence.

[257] Nor did the trial judge underestimate the potential prejudicial effect of the evidence. The evidence was not tendered, nor did the trial Crown invite the jury to assess the similarities and differences between what Dr. Mojab described and the Shafias’ conduct here with a view to concluding that what occurred was an honour killing. The jury was not invited to infer guilt based on probabilities established in previous cases.

[258] The admission of expert opinion evidence of the nature adduced here that is essential to a jury’s ability to understand and evaluate material evidence is supported by previous authority from this court: Abbey, at para. 121. Indeed, such evidence may also be relevant to the statutory partial defence of provocation and whether an unlawful killing was a planned and deliberate murder: Sadiqi, at paras. 11, 14 and 16.

[259] Finally, trial counsel made no objection to the references to Dr. Mojab’s evidence in the closing address of the trial Crown. Similarly, despite the opportunity to do so both prior to and after delivery of the charge to the jury, trial counsel lodged no protest about the trial judge’s reference to or instructions on jury use of this evidence. The jury instructions on this issue reflect no error.

Ground #3: Evidence of Post-Offence Conduct

[260] This ground of appeal relates to statements made by the appellants to the Kingston police on June 30, 2009, when they reported their “discovery” that four family members and the recently-purchased Nissan Sentra were missing. The statements were exculpatory. Each claimed a lack of awareness of what had happened and, at least implicitly, a denial of any involvement in the deaths of the deceased.

[261] At trial, both Shafia and Tooba testified that what they told investigators was substantially true. Hamed did not testify, but took the position that his statement was true to the extent that it overlapped with his parents, but only up until he left the motel room, at which point his statement to investigators was false. His position at trial was that what he had told Moosa Hadi about following the Nissan and the fatal accident was the truth.

[262] The appellants critique the Crown’s use of this evidence, as post offence conduct capable of supporting an inference of planning and deliberation, and what the trial judge told the jury about how it could use the evidence in making its decision.

The Additional Background

[263] It is helpful to begin with a brief reminder of the appellants’ statements and the evidence adduced to establish that they were not only false, but fabricated such that an inference could be drawn from the initial concerted lie of circumstantial evidence of planning and deliberation.

The Statements

[264] On June 30, 2009, the appellants drove to a police station in Kingston. Just after 12:30 p.m. they reported that four family members were missing along with a Nissan Sentra. Each was interviewed separately. What emerged from the interviews was an account that included several common elements:

i. the family was together the previous evening at a Kingston area motel;

ii. as they were about to retire for the evening, Zainab asked for the keys for the Nissan;

iii. Zainab said she needed the keys to retrieve her belongings from the car; and

iv. The appellants never saw Zainab, or any of the other deceased, or the Nissan, again.

The Contradictory Evidence

[265] Other evidence adduced at trial contradicted the exculpatory pre-arrest statements of each appellant. In general terms, statements out of the mouth of each appellant contradicted the initial story and, if believed, established their presence at Kingston Mills Locks when the Nissan went into the water.

[266] In Hamed’s recorded conversation with Crown witness Moosa Hadi, Hamed acknowledged that his initial version of events was a lie. He admitted that he was at the canal when the Nissan entered the water and that he had rear-ended it with the Lexus minutes earlier. He insisted that he heard a splash and saw the Nissan in the water, called out to the occupants but received no response and left the area.

[267] Surreptitiously-recorded conversations among the appellants, particularly Shafia and Tooba in their mini-van, suggested their presence at the locks the evening the deceased were killed. And Tooba told Inspector Mehdizadeh, who interviewed her post-arrest, that the Nissan did not ever go to the motel. She acknowledged that she had been at the canal when the Nissan went into the water but claimed she fainted and did not know what happened after that. In her testimony at trial, Tooba denied having made both statements to the inspector and maintained her original version of events.

The Positions at Trial

[268] During the pre-charge discussions, the trial Crown characterized the exculpatory pre-arrest statements of the appellants as evidence of post-offence conduct, submitting that there was a basis to find that what they said on June 30th was a fabrication to divert suspicion from themselves. The Crown acknowledged that she was required to establish, by independent evidence, that the exculpatory statements were fabricated. She took the position that she had done so, not only by evidence about the circumstances in which the statements were made, but also from the subsequent statements made by the appellants themselves. She argued that these exculpatory statements were fabricated in advance and were relevant to establish the planned and deliberate nature of the killing of the deceased.

[269] Trial counsel for Hamed, took the lead for the defence on this issue at trial. He made three points. It was unnecessary to burden the jury with instructions about this evidence as evidence of post-offence conduct in light of the other evidence adduced at trial. If any instructions about this evidence as affirmative of guilt (an O’Connor[^6] instruction) were to be given, jury use of this evidence should be limited to the issue of planning and deliberation. Trial counsel expressed a concern about the instruction in relation to Shafia and Tooba, arguing it would invite bootstrap reasoning by requiring the jury to find that they were guilty of murder before they could find that the statement was a lie. Any such the instructions should include reference to alternative explanations advanced by the defence.

The Charge to the Jury

[270] The trial judge dedicated several days to pre-charge discussions and the review of drafts of the instructions that the trial judge proposed to give to the jury, including on evidence of post-offence conduct. In the end, the content of the instructions attracted no objection from defence counsel. The trial judge provided the jury with a modified O’Connor instruction:

You must not use this evidence about what an accused did or said afterward in deciding, or helping to decide, if the accused committed the offence, unless you reject any other possible explanation for it. Whether what an accused said or did, after the offence charged, related to the commission of that offence, or was an attempt to conceal his or her involvement in the commission of that offence, is for you to decide. The statements given to Det. Dempster on June 30, 2009, if found to be fabrications, can only be used as evidence in relation to planning and premeditation.

[271] The instructions that were given were followed immediately thereafter by a recital of the W. (D.) formula.

The Arguments on Appeal

[272] The appellants begin with a reminder about the distinction between disbelief of an exculpatory explanation, on the one hand, and proof that the explanation was fabricated, on the other. Mere disbelief of an exculpatory explanation is of no evidentiary value. What is required is independent evidence that the explanation has been fabricated before evidence of post-offence conduct may assist the Crown in its proof of guilt. While there may have been some proof in connection with Hamed, there was none in relation either Shafia or Tooba.

[273] The appellants accept that an inference of fabrication is available where an accused offers two (or more) exculpatory statements that are mutually contradictory. In these circumstances, a jury could infer concoction because both explanations cannot simultaneously be true. But where the exculpatory account conflicts with inculpatory admissions, the latter cannot constitute independent evidence that can support an inference of fabrication. An inference of fabrication could be drawn from Hamed’s mutually contradictory statements, but no such inference was available in connection with Shafia and Tooba who maintained their initial exculpatory explanation in their testimony at trial.

[274] The appellants acknowledge that trial counsel acquiesced in the substance of the instructions on post-offence conduct, as well as its limitation to the issue of planning and deliberation. But their acquiescence, the appellants say, does not render the instruction harmless. While it may have been open to the jury to infer collusion amongst the appellants from the nature and contents of their statements, it was idle speculation to conclude that their preconcerted behavior occurred prior to rather than after the deaths of the deceased.

[275] According to the appellants, the jury would be unlikely to have kept their consideration of planning and deliberation sealed away from their consideration of whether the deaths of the deceased occurred by misadventure or were caused by human agency. It is all the more so because of several deficiencies in the instructions. The failure to clearly articulate the distinction between disbelief and fabrication and to define and outline independent evidence capable of establishing fabrication. The failure to distinguish the case of Hamed from that of Shafia and Tooba.

[276] The respondent says that the common lies provided to the police by the appellants before arrest were properly characterized as evidence of post-offence conduct and the use the jury could make of that evidence was properly explained to them.

[277] The respondent acknowledges that the law distinguishes between exculpatory statements that are disbelieved by a trier of fact, on the one hand, and those that are found to have been concocted on the other. Disbelieved explanations are of no evidentiary value in proof of the case for the Crown. Concocted explanations are circumstantial evidence that may assist in completing the Crown’s proof. The trial judge appreciated the distinction and made it clear to the jury that it was only a fabricated or concocted explanation that was of evidentiary significance.

[278] The respondent accepts that a finding of fabrication must be founded on evidence that is independent from the evidence that contradicts or discredits an accused’s version of events. But, the respondent adds, the independent evidence may emerge from the circumstances in which the false statement is made. Those circumstances, the respondent argues, may show an intent to mislead the police or others, or an intent to deflect suspicion, and thus be evidence of a conscious mind that the speaker has committed an offence. That is the case here.

[279] The respondent contends that “independent evidence” refers to evidence apart from evidence of guilt, but not necessarily apart from the statement itself. Contradictory statements can also constitute independent evidence on the basis of which a jury could find either or both statements fabricated. No bright line rule requires judges to define “independent evidence” for a jury, at least in cases in which the trial judge has pointed out the independent evidence available for consideration.

[280] In the end, the respondent says, no general rule applies to evidence of post-offence conduct. The issue is one of relevance to be determined on a case-by-case basis. Relevance depends on the other evidence adduced at trial. Here, the evidence was capable of sustaining the inference sought by the Crown. A preconcerted lie told by all when no suspicion had settled upon them. A lie to distance them from any involvement in the deaths of the deceased and portray it as death by misadventure. A lie capable of sustaining an inference of a planned and deliberate murder.

[281] The respondent submits that no fault can be found with the trial judge’s final instructions on evidence of post-offence conduct. The trial judge set out a series of steps for jurors to follow in connection with the evidence beginning with a threshold requirement that the account advanced was a deliberate lie. The judge recited the evidence the jurors were entitled to consider on this threshold issue. The judge pointed out that it was only in the event that they made this threshold finding that the jurors could consider this evidence on the issue of whether the murder of the deceased was planned and deliberate, after rejecting any other explanations for the lie offered by the appellants. The trial judge was also careful to point out that the evidence of post-offence conduct was simply an item of evidence available for the jury to consider, not itself proof of the planned and deliberate character of any murder otherwise proven.

[282] Moreover, in following the instructions, which limited consideration of the exculpatory statements and whether they were fabricated to the issue of planning and deliberation, the jury would have had to have first rejected accident and found intentional murder, before drawing the inference. Thus the jury could not have jumped or bootstrapped from the deliberate lie to a finding of guilt. In any event, the respondent submits that given the overwhelming case any error in this instruction could not have affected the verdict.

The Governing Principles

[283] Among the characteristics an item of evidence must have in order to be admitted in a criminal trial is relevance. But relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence and a proposition of fact the proponent seeks to establish by its introduction. Whether an item of evidence is relevant falls to be decided in a matrix that includes the rest of the evidence adduced, the issues raised and the positions advanced by the parties. Relevance is a matter of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206.

[284] Evidence of an accused’s words and conduct after a crime has been committed may provide circumstantial evidence of an accused’s complicity in that offence. The inference involved looks backwards from the later words or conduct to the alleged conduct said to constitute the crime. No special rule applies to evidence of post-offence words or conduct: R. v. White, 2011 SCC 13, 267 C.C.C. (3d) 453, at paras. 38, 105 and 137, although case-specific instructions may be required where the relevance of the evidence on a particular issue is not readily apparent and the natural inclinations of the jury might lead it astray: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 34.

[285] Among the items of evidence that may be relied upon as evidence of post-offence conduct is evidence of out-of-court lies told by an accused. But the law is careful to distinguish between out-of-court exculpatory statements, such as those that reveal an alibi, which are disbelieved, thus rejected by the trier of fact, and those that the trier of fact finds are concocted or fabricated: R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 17; R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at para. 15, leave to appeal to SCC refused, [1998] S.C.C.A. No. 450. This distinction takes cognizance of the burden of proof and helps ensure that the trier of fact properly applies the burden of proof where the statements of an accused are tendered in evidence: O’Connor, at para. 19.

[286] In many cases, an inference of fabrication will follow logically from mere disbelief of an accused’s exculpatory statements. But the policy that underpins the distinction between disbelief and fabrication militates against using disbelief to infer fabrication. And so it is that we insist that a finding of fabrication must be rooted in evidence that is independent from the evidence that contradicts or discredits the accused’s version of events: O’Connor, at para. 21; Coutts, at para. 15.

[287] The independent evidence relied upon to establish fabrication often originates in sources external to the allegedly fabricated statement. For example, soliciting false testimony from a witness about an accused’s whereabouts at a material time: R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 165, leave to appeal refused, [2010] S.C.C.A. No. 499. But the necessary independent evidence may also emerge from the circumstances in which a false statement is made. Those circumstances, for example the detail provided and the timing of the statement, may reveal an intent to mislead the police or to deflect suspicion and thus may be evidence of a conscious mind that the accused committed the offence charged: O’Connor, at paras. 26 and 31. But evidence that supports the case for the Crown, which if accepted would cause rejection of the accused’s statement as unworthy of belief, is not evidence of concoction: Hall, at para. 164; Coutts, at para. 16.

[288] Contradictory exculpatory statements of an accused both (or all) of which cannot be true may also constitute independent evidence of fabrication: R. v. Andrade (1985), 18 C.C.C. (3d) 41 (Ont. C.A.), at paras. 82-83; Hubin v. The King, [1927] S.C.R. 442, at pp. 445-446; R. v. Samuels (2005), 196 C.C.C. (3d) 403 (Ont. C.A.) at para. 37, leave to appeal refused, [2005] S.C.C.A. No. 313.

The Principles Applied

[289] For several reasons, this ground of appeal fails.

[290] Turning to whether the evidence permitted a finding of fabrication in connection with the exculpatory statements of the appellants.

[291] First, a finding of fabrication was available from two independent sources: the circumstances in which the initial statements were made and the contradictory statements elicited in relation to each appellant.

[292] The initial statements to the police presented a united front. The appellants were at the motel. Zainab obtained the keys for the Nissan. The next morning, neither the deceased nor the car were at the motel. The appellants never saw them again. The purpose of these statements was clearly to distance the appellants from any connection with the death of the deceased. These circumstances tended to support a conclusion that the appellants made false statements because each was conscious of having participated in the unlawful killing of the deceased. When the statements were made, the bodies of the deceased had been found, but there was no indication that the police suspected the appellants of having been involved in their deaths. The statements furnished a complete alibi and, if true, would lead the police to conclude that none of them were involved in the deaths of the deceased.

[293] The giving of contradictory statements by each appellant about their whereabouts at the critical time may also constitute evidence upon which the jury could find that one or both of the statements were fabricated. Hamed’s subsequent admission that he lied in his first statement and was at the locks when the car entered the water, but without fault on his part. Similar admissions to the same effect from Shafia and Tooba in recorded conversations and in Tooba’s statement to the police.

[294] Second, the evidence was not the subject of any meaningful objection at trial. Defence counsel did not suggest that the evidence lacked relevance, only that it was unnecessary in light of the balance of the evidence adduced at trial. No one suggested that the record was devoid of any evidence that could establish fabrication.

[295] Third, the use of the evidence was restricted to proof that the murder of the deceased, if otherwise established, was planned and deliberate. In other words, the Crown was obliged to prove beyond a reasonable doubt, independently of this evidence, that each appellant participated in the unlawful killing of the deceased and committed murder in doing so before jurors could consider the evidence of post-offence conduct in deciding whether the murder was planned and deliberate. This limitation on use was unduly favorable to the appellants. The evidence was equally relevant to establish culpable participation and to reject the claims of death by accident or misadventure.

[296] Fourth, the trial judge’s determination of the relevance of the evidence is a case-specific decision entitled to deference in the absence of an error in principle, a material apprehension of the evidence or an unreasonable finding. The appellants have failed to establish any such error.

[297] Lastly, the trial judge’s instructions on how the jurors could use this evidence are free from error.

[298] The instructions given emphasize the necessity of the finding of fabrication as a condition precedent for jury use of the evidence as relevant only to prove that the murder was planned and deliberate. In the circumstances of this case, where the trial judge described the evidence that could independently establish fabrication, there was no need to burden the jury with a definition of the term “independent”. The instruction was adequate as given.

Ground #4: Hearsay Evidence

[299] The jury heard evidence of ante-mortem statements attributed to the deceased by several witnesses. These statements disclosed the nature of the relationship among various members of the Shafia family and, in particular, between Shafia and the deceased. Both Crown and defence counsel elicited evidence from these witnesses.

[300] The Crown sought admission of all of this evidence under the principled exception to the hearsay rule. The evidence was the subject of extensive discussions by counsel on both sides and formed part of a formal agreement reduced to writing and filed as a lettered exhibit at trial.

[301] The trial Crown tendered this evidence to establish the nature of the relationship between the appellants, especially Shafia, and the deceased. The nature of the relationship was said to establish animus or motive on the part of the appellants. As such, it was relevant in various ways - to assist in proof of the unlawful nature of the deaths of the deceased, to rebut the claim of death by misadventure; to establish the complicity of the appellants; and to help establish the state of mind that accompanied the unlawful killings.

[302] Since they were admitted pursuant to the principled exception, the ante-mortem statements of the deceased were not tendered under the state of mind exception to the hearsay rule. No specific limiting instructions were sought in connection with the hearsay statements now at issue on appeal:

i. Sahar’s statement to Enma Medina, her boyfriend Ricardo’s aunt, that if her parents found out about her relationship with Ricardo, she would be a “dead woman”;

ii. Sahar’s statements in June, 2009 to Nathalie Laremée and Antonella Enea, a vice-principal and teacher at her school, that she was afraid that her father might beat her; and

iii. Rona’s statement to Latif Hyderi that there was a chance that Shafia might destroy Zainab by Hamed.

The Ruling of the Trial Judge

[303] The trial judge provided a brief ruling on the admissibility of the ante-mortem statements of the deceased. Necessity was admitted. Defence counsel advanced no serious objection about reliability and conceded threshold reliability. Counsel included their acknowledgement of admissibility in their “Comprehensive Agreement as to the Admissibility of Certain Evidence at Trial”, which they filed with the trial judge.

The Jury Instructions

[304] The trial judge convened pre-charge conferences to discuss the suitability of draft instructions he proposed to give on various issues in his charge to the jury. After hearing submissions, he determined the final version of the instructions he would provide to the jury.

[305] The trial judge’s final instructions on hearsay occupy slightly more than four pages of transcript. They begin by identifying the witnesses who gave hearsay evidence, then point out that the reception of hearsay evidence is exceptional, before reminding the jury that it was for them to determine the reliability of this evidence and the weight, if any, they would assign to it.

[306] The trial judge then reminded the jury that, in connection with this hearsay evidence, they lacked three important means of assessing the testimony:

• The declarants were not under oath when the statements were made;

• The declarants did not testify at trial so that the jury could evaluate their demeanour;

• The declarants’ credibility and the reliability of their evidence could not be tested by cross-examination in the jury’s presence.

[307] The trial judge invited the jury to consider the circumstances in which the utterances were made in determining their reliability. After suggesting the jurors ask themselves whether the surrounding circumstances were such as would likely produce a truthful or accurate utterance, the trial judge then described 15 factors jurors might consider in determining whether the evidence was reliable. He concluded his instructions with an injunction against double hearsay.

The Arguments on Appeal

[308] The appellants acknowledge that trial counsel conceded that the ante-mortem statements of the deceased were admissible as an exception to the hearsay rule. This concession, they say, did not absolve the trial judge of the obligation to determine the proper legal basis upon which the evidence was admissible. And to instruct the jury accordingly.

[309] The appellants contend that a deceased declarant’s expressed fear of future violence may only be admitted in evidence under the state of mind exception to the hearsay rule. And when admitted under that exception, the statements are subject to limiting instructions to prohibit jurors from inferring that an accused must have done something to cause the declarant’s fear or has acted in accordance with the declarant’s predictions. The failure to give such a limiting instruction and, more generally, to focus the instructions on the specific frailties of the evidence in this case is fatal non-direction amounting to misdirection.

[310] The respondent reminds us at the outset that neither complaint advanced here was raised at trial by any of three experienced counsel who are not said to have been ineffective in their representation of the appellants. At trial, the ante-mortem statements were tendered and received under the principled exception to the hearsay rule. No one suggested, much less proposed, their admission under the state of mind exception. Nor did anyone suggest the limiting instructions now said to be essential should have been given.

[311] The respondent says that the ante-mortem statements were properly admitted under the principled exception to the hearsay rule. It was on this basis that counsel on all sides agreed upon their admission, which absolved the trial judge of the obligation to conduct a more protracted or nuanced inquiry into admissibility. These statements provided evidence of motive or animus towards the deceased. As conceded at trial, this circumstantial evidence was relevant.

[312] The respondent contends that no authority confines the basis upon which ante-mortem statements of this nature may be admitted to the state of mind exception. And none limits jury use of the evidence as the appellants suggest.

The Governing Principles

[313] The exceptional admission of hearsay is well-trodden ground. No elaborate canvass of precedent is required here. A few brief points will suffice.

[314] First, it is for the proponent of an item of evidence proffered for admission to determine the manner in which she or he will frame the case for admissibility. Evidence, otherwise relevant and material, will be admissible only if the proponent satisfies the conditions precedent to admissibility on the route chosen and be subject to any limitations imposed on the use of that evidence. The evidence will be subject to any limitations imposed on its use by the trier of fact prescribed by the basis of admissibility asserted.

[315] It is no answer for an opponent to say that the evidence, admissible on the basis advanced, would not be admissible or subject to restrictions on use if tendered and received on some other basis. The proponent of the evidence bears the burden of establishing admissibility, but also takes the benefits or suffers the restrictions associated with its reception.

[316] Second, hearsay evidence, prima facie inadmissible, may be admitted under either a common law or the principled exception: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34.

[317] Third, evidence of a deceased’s ante-mortem statements, admitted by exception to the hearsay rule, may demonstrate the nature of the relationship between an accused and the deceased, and thus an animus or motive on the part of an accused to harm or kill the deceased. Evidence of animus or motive may be relevant to identify the person responsible for a crime and to assist in proof of the state of mind with which the crime has been committed: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 61-63; R. v. Foreman, (2002) 169 C.C.C. (3d) 489 (Ont. C.A.), at paras. 24 and 30, application for leave to appeal dismissed, [2003] S.C.C. No. 199; and R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 104, leave to appeal refused, [2014] S.C.C.A. No. 193. These statements may be admitted under the state of mind or principled exception to the hearsay rule.

[318] Fourth, instructions to the jury on admissible hearsay should reflect the basis on which the evidence has been admitted, more specifically, any limitations imposed on that use under the exception.

The Principles Applied

[319] I would not give effect to this ground of appeal. As I will explain, I am satisfied that the ante-mortem statements were properly admitted under the principled exception to the hearsay rule and that the trial judge’s instructions about the use the jury could make of that evidence were not significantly flawed.

[320] Turning first to the issue of admissibility.

[321] First, evidence of the deceaseds’ ante-mortem statements was tendered and admitted with the consent of defence counsel under the principled exception to the hearsay rule. Admissibility was not advanced, established or said somehow to be circumscribed by the common law state of mind exception. Both the Crown and defence counsel elicited evidence from the recipients on this basis. Such a position should not easily be resiled from on appeal.

[322] As a matter of general principle, when a proponent seeks to elicit relevant and material evidence as an exception to an exclusionary rule, such as the hearsay rule, in which different routes to admissibility may be available, the proponent must satisfy the conditions precedent to admissibility on the route chosen and be subject to any limitations imposed on the use of that evidence. It ill lies in the mouth of an opponent to say that the evidence would not be admitted or subject to use-limitations if it had been tendered and admitted on some other basis. It is all the more so when the opponent advances this argument for the first time on appeal.

[323] Further, to the extent that the appellants complain about an inadequate inquiry into threshold reliability, no such request was made at trial. Advancement of the argument here again represents Monday morning quarterbacking. In some jurisdictions, it may be open to question whether any further inquiry was required. See, for example, R. v. Verma, 2016 BCCA 220, at para. 38, where the British Columbia Court of Appeal held that a trial judge is not required to embark upon an independent inquiry as to the legal soundness of a joint agreement of counsel as to the admissibility of hearsay evidence.

[324] Turning to the complaint about the adequacy of the jury instructions on this evidence, I see no basis upon which to find fault with them.

[325] First, these instructions were vetted with counsel in advance of delivery. Their contents attracted no objection. Nor was any complaint made after delivery. No instruction of the nature now suggested as a fatal omission was ever put to the trial judge for consideration.

[326] Second, the basis for the objection advanced here originates in the state of mind exception to the hearsay rule. But that was not the basis upon which the ante-mortem statements were admitted. Such a cross-pollination finds no support in the jurisprudence and is fundamentally flawed.

[327] Third, the trial judge’s instructions about how jurors were to assess hearsay evidence adequately equipped them to do so. Even if the appellants’ complaints were considered valid, they would not have had any impact on the jury’s conclusion about what and who caused the deaths of the deceased and the state of mind that accompanied that conduct.

[328] One point not raised as a ground of appeal merits brief reminder. In explaining the exceptions to the hearsay rule, the trial judge said:

There are exceptions to that rule, where the out-of-court rule utterance is necessary, and sufficiently reliable, to allow you to hear it. In this case, the necessity requirement is satisfied because the persons who made the utterances are now deceased. It remains for you to determine how reliable purported utterances of the deceased are, and what weight, if any, you determine each utterance deserves.

[329] The admissibility of evidence is an issue for the trial judge to decide. There is no need to explain to a jury the criteria applied to determine admissibility, or the trial judge’s evaluation of those criteria in the trial proceedings. The explanation is at best superfluous. At worst, judicial references to the criteria – such as the mention of reliability here – may taint the jury’s fact-finding where overlap exists between the test for admission and the criteria to be applied by the jury in their assessment of the evidence: Foreman, at paras. 42-43; R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 39. In this case, this brief reference to the admissibility criterion of reliability caused no harm.

Ground #5: Murder by Omission

[330] The final ground of appeal relates only to Tooba and engages consideration of Crown counsel’s address to the jury and the trial judge’s charge. The focal point of the complaint concerns Tooba’s potential liability for her failure to comply with her legal duty to protect her minor children from harm.

The Additional Background

[331] Some additional background will assist in understanding how the issue developed at trial.

The Crown’s Theory of Liability

[332] Tooba gave birth to seven children including the three who died in the water at the Kingston Mills Locks. Of those three, only Zainab had reached the age of majority. Sahar and Geeti were minors. All of the children had lived together with Tooba, Shafia and Rona, the fourth person whose death was the subject of one of the counts in the indictment, Shafia’s first wife, an adult woman.

[333] At trial, the Crown contended that the appellants, including Tooba, were liable as co-principals or aiders or abettors in planned and deliberate murders. In the absence of any eyewitness testimony upon which it could rely, the Crown was unable to point to the precise role each played in causing the deaths of the deceased.

[334] The defence position was that the deceased had drowned by misadventure, the Nissan accidently falling over the edge of the locks into the water where all four occupants of the vehicle drowned. None of those accused, now appellants, participated in the events that led to the deaths of the deceased.

The Pre-Charge Conference

[335] During the pre-charge conferences, counsel discussed with the trial judge the basis of liability in accordance with which the jury would be asked to determine the guilt of the accused. In connection with Shafia and Tooba, the trial Crown proposed that the trial judge charge the jury that the accused could be found guilty on the basis that they were co-principals or aiders or abettors in a planned and deliberate murder. The Crown contended that the jury could find in relation to the latter, that Shafia and Tooba were guilty on the basis of their acts or because of their omissions – the failure to discharge their legal duty to protect the deceased from harm.

[336] The trial judge declined the Crown’s request to leave what might be described compendiously as a “murder by omission” basis of liability. The trial judge considered that such an instruction would unduly complicate the charge rather than simplify it, as he properly considered it was his duty to do. In addition, such an instruction would invite inconsistent verdicts, since it was doubtful Shafia or Tooba owed any such duty to either Zainab or Rona, both of whom were adults capable of protecting themselves.

[337] The trial judge made it clear that he would not leave “murder by omission” as a discrete basis upon which the jury could find Shafia, Tooba or both guilty of murder. Rather than instructing Crown counsel not to advance such a basis in her closing address, the trial judge expressly permitted her to do so.

The Closing Address of the Crown

[338] In her closing address, the Crown relied on Tooba’s failure to intervene to protect her children as evidence that she was aware of the plan to kill them; actively participated in the execution of that plan; and was thus a co-principal or aider or abettor in a planned and deliberate murder. The Crown did not advance a stand-alone theory of liability based on culpable omissions that could relate only to Sahar or Geeti. The Crown advanced the position that Tooba delivered the deceased to their deaths in the Nissan Sentra, a position that was grounded on Tooba’s acts, not her omissions.

The Charge to the Jury

[339] The trial judge left liability for all three accused as co-principals and aiders or abettors in a planned and deliberate murder. He also included an instruction, based on R. v. Thatcher, [1987] 1 S.C.R. 652, that jurors need not be unanimous as to the basis on which they find guilt established, provided they are unanimous on one basis or another that the guilt of each accused has been proven beyond a reasonable doubt.

[340] The trial judge did not leave “murder by omission” as a discrete basis upon which the jurors could find Tooba, or for that matter, Shafia, guilty of first degree murder. To the extent that he referred to an omission – “or failed to do something” – the reference related to aiding or abetting only, not to liability as a co-principal.

The Arguments on Appeal

[341] The appellant Tooba focuses on what she says are two errors, each arising out of failures on the part of the trial judge.

[342] First, Tooba says, the trial judge should have directed the Crown that she was not to advance a “murder by omission” theory in her closing address. This failure on the part of the trial judge was exacerbated by several aspects of the Crown’s closing address to the jury which the trial judge failed to correct. The conflation of legal and “moral” duty as a basis upon which a failure to act may be culpable, wrongly suggested legal liability for murder for failing in a “moral duty” to protect. Failure to separate out Zainab and Rona, to whom neither Tooba nor Shafia arguably owed any legal duty, created additional confusion and left open the legal question of whether there was any legal duty in relation to the adults. Additionally, it was not clear that these omissions were not a sufficient basis upon which to establish liability without a concurrent intention to help or encourage and knowledge of the planned and deliberate nature of the killing.

[343] Second, Tooba adds, the trial judge should have expressly instructed the jury that a “murder by omission” theory was not an available basis upon which they could find Tooba (or Shafia) guilty of any count of first degree murder. The failure of the trial judge to do so left open the possibility that some jurors would do so and thus would engage in prohibited reasoning to reach a conclusion of guilt.

[344] The respondent begins with a reminder about the core issue the jurors were required to determine. Simply put, death by accident or first degree murder.

[345] The position of the Crown at trial, the respondent says, asserted active participation by each as a co-principal, or an aider or an abettor in a planned and deliberate murder. This case was about acts, not about omissions. The closing address of the Crown invoked Tooba’s omissions as items of evidence to establish her awareness of and participation in a planned and deliberate murder and her intention to help her husband and eldest son execute that plan. The Crown never advanced any stand-alone “murder by omission” basis of liability. The Crown’s theory was not that she knowingly stood by while under a duty to act, but that Tooba delivered Rona and the girls to their death.

[346] According to the respondent, the trial judge did not leave “murder by omission” as a discrete basis upon which the jury could find Tooba guilty of first degree murder, or describe it as part of the position of the Crown. Any casual reference to “fails to do something” in the charge on aiding and abetting would not lead the jurors to think that they could find guilt established on the basis of omissions without more.

The Governing Principles

[347] This ground of appeal alleges non-direction, two failures on the part of the trial judge to provide specific instructions to the jury that it could not find Tooba guilty because she failed to protect her minor children from harm.

[348] To determine the validity of this claim of error, it is helpful to recall two matters of general principle.

[349] First, a trial judge’s obligations to instruct a jury on a defence, justification or excuse; a definition of an offence; or a mode of participation in a crime, depends on whether there is an air of reality to the submission. Where there is an air of reality, the trial judge has a duty to give the instruction. Where there is no such air of reality, however, the trial judge is under a positive duty not to give the instruction. See, for example, R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 20.

[350] Second, a trial judge is under a general duty to simplify, not to complicate a charge to a jury. The object should be to inform the jury, to equip them with the necessary tools to reach a decision on the evidence adduced at trial. See, for example, Rodgerson, at paras. 50-54.

The Principles Applied

[351] I would not give effect to this ground of appeal. Several reasons persuade me that it is unavailing.

[352] First, neither Crown counsel in her closing address to the jury, nor the trial judge in his charge invited the jury to consider a “murder by omission” theory as a stand-alone basis upon which to find Tooba guilty of first degree murder. Crown counsel invited the jurors to consider Tooba’s failure to intervene at different stages as items of evidence supportive of a conclusion that she was aware of, and a knowing participant in, the plan to kill the deceased. The trial judge’s jury instructions left the appellants’ liability as co-principals, aiders or abettors on the basis of what they did, not on what they failed to do. The focus in this case was on conduct, not on omissions. Luring the deceased to the killing ground. Confining them in the Nissan. Pushing the Nissan into the water.

[353] Second, trial counsel did not object to Crown counsel’s closing address or the trial judge’s charge on the basis now said to constitute prejudicial error. The fact that experienced trial counsel were not concerned at the time that the Crown’s closing gave rise to an impermissible alternate route of liability, as now alleged on appeal, is indicative of the improbability that the closing, or the charge as given, actually had that effect.

[354] Third, even if it could be said that the trial judge erred in either respect of which complaint is now made, no such non-direction could have caused Tooba any substantial wrong or miscarriage of justice. Charitably put, the evidence of guilt was overwhelming.

CONCLUSION

[355] I would dismiss the appeals.

Released: November 2, 2016 (DW)

“David Watt J.A.”

“I agree P. Lauwers J.A.”

“I agree G. Pardu J.A.”

[^1]: There are publication bans pursuant to s. 486.5(1) of the Criminal Code on anything that could identify the surviving Shafia children or the son of one of the witnesses. Hamed Shafia, the accused older son, did not testify at trial.

[^2]: The translator’s note provides: “According to shari’a law, someone of the opposite sex one is restricted from associating with outside the delineated bounds of propriety; in practice everyone for the female except father, brother, son, uncle, grandparents.”

[^3]: Particularly when interpreted in light of Afghan customs and calendar system in terms of being written as “4 years old in 1370” when Hamed’s fourth birthday would fall in the middle of 1370 as opposed to at the end.

[^4]: For instance, the photos of the children provided in the family’s application for Permanent Residence in Canada; a photo date stamped May 22, 1993, acknowledged by Shafia to have been taken at the family home in Pakistan, shows Mohammad, Tooba, Zainab, Hamed, Sahar and S.S. (then as an infant in her mother’s arms) in which the children’s appearance is consistent with the dates of birth recorded in the Canadian official identity documents; and, a photo date stamped October 1, 1989, acknowledged by Shafia to show Rona holding a baby Zainab at hospital in India.

[^5]: This court has previously upheld the admissibility of Dr. Mojab’s evidence as an acknowledged expert in the phenomenon of honour killings in a prosecution in which she was identically qualified: R. v. Sadiqi, 2013 ONCA 250, at para. 10.

[^6]: R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.)