R. v. Gure, 2019 ONSC 4951

COURT FILE NO.: 17-RM-2314

DATE: 20190912

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LIBAN GURE

– and –

DANIEL JEAN-CHARLES

Defendants

COUNSEL:

Lia Bramwell/Jon Fuller, for the Crown

Gary Barnes, counsel for Liban Gure

Genevieve McInnes, counsel for Daniel Jean-Charles

HEARD: January 14, 15, 16, 17, 18, 21, 22, 23, 29, 30, 31, February 1, 4, 6, May 6, 7, 8, 9, June 3, July 2, 3, 4, 5, 10, 2019

RESTRICTION ON PUBLICATION

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young offender as having been dealt with under this Act. This decision complies with this restriction so that it can be published.

REASONS FOR decision

Beaudoin J.

Agreed Statement of Facts

[1] Ahmed Afrah (“Afrah”) died at approximately 10:50 p.m. on May 15, 2017, from injuries sustained after a fall from a 16th floor apartment balcony.

[2] Liban Gure (“Gure”) and Daniel Jean-Charles (“Jean-Charles”) are the two adults charged with manslaughter and aggravated assault in the beating and subsequent death of Afrah. J.B. and N.D.A. were the two youths charged. On July 23, 2018, J.B. pled guilty to manslaughter in connection with Afrah’s death and N.D.A. pled guilty to aggravated assault. J.B. was sentenced to 33 months’ jail, 3 months’ community supervision, and 2 years’ probation; and N.D.A. was sentenced to 246 days in jail, 124 days of community supervision, and 2 years’ probation.

The People Involved

[3] On May 15, 2017, Christina Gallinger (“Gallinger”) was living in apartment 1611 at 415 MacLaren St. in Ottawa, a one-bedroom apartment. 415 MacLaren is on the north side of the street, west of Bank Street and east of Kent Street. It is a high-rise apartment building with 23 stories. It is an Ottawa Community Housing property.

[4] Gallinger is one of two eyewitnesses to the offence. She is 39 years old. She is on ODSP and suffers from significant mental health issues, cognitive deficits, and addiction issues.

[5] As of May 15, 2017, Jean-Charles; J.B., a youth male accused; and N.D.A., a youth female accused had been staying at Gallinger’s apartment for a few days. Gallinger characterized them as unwanted guests.

[6] The deceased, Ahmed Afrah, was 18 years old on May 15, 2017. He was a friend of Gallinger’s and would go to her apartment to visit her from time to time. He was a crack cocaine user.

[7] Jason Magoon (“Magoon”) is another eyewitness to the offence. He is 38 years old. He was also a drug user. One of the ways he supported himself was by committing telephone banking fraudulent transactions. He was in Gallinger’s apartment on the date and time in question because he was borrowing Gure’s phone to conduct these transactions.

Everyone gathers at the apartment

[8] Following a review of the May 15, 2017, video surveillance obtained from 415 MacLaren Street, Jean-Charles, J.B., N.D.A., Gure, Gallinger, and Afrah can be seen coming and going from the building at various junctures throughout the day.

[9] Video surveillance is not available for every location within 415 MacLaren Street. There is no video surveillance in the stairwells or at the side doors. There are two elevators at 415 MacLaren. Only one of them, Elevator #1, has a security camera in it. The only information available about Elevator #2 is what can be gleaned from looking at the surveillance footage from the lobby camera. The sign above the elevator door indicates what floor the elevator is on. That sign is visible from the lobby camera. For clarity, when viewing the security camera footage from 415 MacLaren, the elevator that appears in the lobby camera footage with a number “1” over it is not the same elevator that appears in the security camera footage labelled as “Elevator #1.” In this document, Elevator #1 is the elevator that has the security camera in it and Elevator #2 is the one that does not have a security camera but the doors of which are visible in the lobby camera footage.

[10] The movement of the individuals involved in this incident captured by the security camera footage is summarized in the following chart. Crown and defence counsel believe that this chart accurately reflects the movements and appearance of the parties of interest within 415 MacLaren on May 15, 2017. The video itself was filed as an exhibit.

Time	People seen	Location	Description
10:05 a.m.	Jean-Charles	Enters elevator #1 on 14th floor.	Jean-Charles - Black male, dread locks to bottom of neck area, grey hoodie sweatshirt with burgundy sleeves, white low riding jeans, white runners.
10:44 a.m.	Gallinger	Exits elevator #2 at lobby.	Gallinger - White female, heavy set, light grey T-shirt, black pants, shoulder-length brown, wavy hair.
2:40 p.m.	N.D.A., J.B., Jean-Charles	Exits elevator #2 at lobby.	Jean-Charles: black male, hair in short dread locks, pulled back into a short ponytail, light coloured baseball cap, sunglasses, grey hoodie sweatshirt with red sleeves, light blue low-ride jeans with multiple tears at the front, black high-top runners. J.B.: black male, light grey hoodie sweatshirt, light grey track pants, black running shoes, sunglasses. N.D.A.: white female, light grey zip-up sweatshirt, light grey track pants, light coloured running shoes, sunglasses, long straight dark hair.
3:55 p.m. – 4:18 p.m.	Magoon	Enters and leaves building twice, goes to the 16th floor both times. The first time, he is in the building for 4 minutes and is in the company of a white male wearing a red shirt and a baseball hat. The second time, he is in the building for 17 minutes and comes and goes alone.	Magoon: White male, dark short hair, white long-sleeved collared shirt – button down style, black jeans, white runners.
4:21 p.m.	Gallinger	Exits elevator #2 in lobby and waits by the front window. Leaves the building at 4:27 p.m.
4:51 p.m.	Gallinger Magoon	Enter the lobby together. Take elevator #1 to the 16th floor.
5:09 p.m.	Magoon	Takes elevator #1 from 16th floor to the lobby. Borrows a female’s phone, appears to make a phone call and exits the building at 5:12 p.m.
5:14 p.m.	Gallinger	Takes elevator #2 to the lobby and sits on a bench. Gets up and checks her mailbox.
5:19 p.m.	Magoon Gallinger	Magoon enters lobby at 5:19 p.m. Gallinger is there and the two of them stay in the lobby, talking to each other until 5:31 p.m. when Magoon is handed something by an unknown male and then the two of them go outside. They remain either inside the lobby or outside the building on the sidewalk until 6:06 p.m.
6:06 p.m.	Jean-Charles J.B. N. D.A. Gallinger Magoon	All enter the building and take elevator #1 and all go to the 16th floor except for Jean-Charles, who gets off on the 17th floor.
6:25 p.m.	Gure	Enters the lobby and takes elevator #2 which goes to the 18th floor.	Gure - Black male, large frame, bald, glasses, wearing burgundy and charcoal grey long-sleeved shirt, a black down type vest, tan pants, and tan-coloured construction-type boots with brownish yellow laces and a black lug tread sole.
6:30 p.m. – 6:32 p.m.	Jean-Charles	Gets onto elevator #1 at 15th floor and gets off at 21st floor. After two minutes, takes elevator #1 from 21st floor to 17th floor.
7:16 p.m.	Gure	Elevator #2 descends from 15th floor to lobby and Gure gets off and leaves the building.
7:23 p.m.	Jean-Charles	Gets onto elevator #1 at 4th floor and takes it down to the 1st floor but does not get off. Takes elevator up to 17th floor.
7:24 p.m.	Gure	Enters lobby and gets onto elevator #1 and exits on the 16th floor.
7:34 p.m.	Jean-Charles	Gets onto elevator #1 on the 21st floor and gets off on the 4th floor.
7:53 p.m.	Jean-Charles	Gets onto elevator #1 at the 4th floor and gets off at the 17th floor.	Jean-Charles - Same as before but wearing headphones.
7:59 p.m.	Jean-Charles J.B. N.D.A.	Enters elevator #1 on 15th floor. Jean-Charles gets off on the 4th floor. J.B. and N.D.A. get off at the lobby and exit the building.	N.D.A. is wearing sunglasses, a black short sleeved, crop top -type shirt, white jeans and light-coloured shoes.
8:07 p.m.	J.B. N.D.A.	Enter lobby and get onto elevator #2. Get off on either the 15th, 16th or 17th floor.
8:11 – 8:14 p.m.	Jean- Charles	Enters elevator #1 on the 21st floor. Exits at 4th floor. Gets back onto elevator #1 3 minutes later and goes to the 17th floor.	Jean-Charles - Same as before but no headphones and wearing a dark navy jacket over the hoodie.
8:25 p.m.	Jean-Charles	Gets on elevator #1 at the 14th floor and gets off on the 4th floor.	Jean-Charles - Same as before but now has a light-coloured article of clothing slung over his right shoulder.
8:41 p.m.	Jean-Charles	Gets on elevator #1 at the 6th floor and exits at the 4th floor.	Jean-Charles – wearing same shirt as before but now has black track pants on and the light-coloured baseball hat on with his hair down, not pulled back.
9:23 p.m.	Afrah	Arrives in the lobby of the building and gets onto elevator #2. Elevator #2 stops at the 15th floor.	Afrah - Black male, short afro-style hair, long black T shirt with large letters around the bottom hem, dark baggy jeans and black and white runners.
9:23 p.m.	Jean-Charles	Gets on elevator #1 on the 4th floor and gets off on the 17th floor.	Jean-Charles - Hair in dread locks is down and not pulled back. Now wearing light coloured shirt underneath dark navy jacket and has black backpack on.
9:29 p.m.	Gure Magoon	Enter elevator #1 at the 16th floor and take it to the lobby where both exit the building.
9:50 p.m.	Magoon	Enters the building and takes elevator #1 to the 16th floor.
9:57 p.m.	Gure	Enters the building at 9:57 p.m. and takes elevator #1 to the 16th floor.
10:11 p.m.	Afrah & J.B.	Enter the lobby of the building and get onto elevator #2 which stops at floors 4 and 17.
10:54:48 p.m.	Gure Magoon	Enter elevator #1 on the 14th floor and go to the lobby where they exit the building at 10:55:33.
10:55:33	Gallinger	Exits elevator #2 in lobby of building.
10:59:18 p.m.	Ambulance arrives
11:01-11:28 p.m.	Gallinger	Speaks to various officers in and around the lobby of the building.

[11] At some point between 10:11 p.m. when Afrah and J.B. arrived at the building and 10:51 p.m. when the first call came in to 911, Afrah made his way to Gallinger’s apartment. In this time period, Gure, Jean-Charles, J.B., N.D.A., Magoon, and Gallinger were all present in the apartment.

[12] The phone records for the phone that Jean-Charles was in possession of on May 15, 2017, which was registered in his mother’s name with a phone number of (613) 261-6204, show that there were 47 communications between his phone and the deceased’s phone from May 1, 2017, and May 15, 2017. On the day of the offence, Jean-Charles’ phone called the deceased’s phone at 9:35 p.m. The call lasted 49 seconds. The deceased’s phone called Jean-Charles’ phone at 9:44 p.m. and the call lasted 14 seconds.

[13] Following this contact at 9:44 p.m., Jean-Charles’ phone records indicate the following additional calls:

− 21:46 a 375 second call to an unrelated number

− 22:11 a 258 second call made to an unrelated number

− 2:29:55 a 102 second call made to an unrelated number

− 3 more calls were made to an unrelated number before 11:00pm: 22:34:11 (51 sec), 22:39:19 (99 sec), and 22:43:13 (92 sec).

[14] On May 15, 2017, the phone owned by Gallinger was taken by J.B. from a table in her apartment after the incident that resulted in Afrah’s death. It was also used by J.B. before the incident. The records from that phone show seven communications between that phone and the deceased’s phone on May 15, 2017, all between 8:49 p.m. and 9:24 p.m. The last communication was a call from the phone registered to Gallinger but used by J.B. to the deceased’s phone at 9:24 p.m. and it lasted 42 seconds.

[15] Gure’s phone records do not show any calls or text messages placed to or received from Afrah.

Following a canvass of the residents of 415 MacLaren Street by police, the following information was accumulated.

[16] John McMillan was interviewed on June 1, 2017. He resides on the 16th floor of 415 MacLaren. He advised police that on the night in question, he heard a woman screaming and yelling from apartment 1611. The screaming went on for somewhere between just under a minute and a few minutes and he called security to report it. Shortly after the screaming was over, he saw Gallinger and an unknown person walk by his unit towards the elevator.

[17] Denise Larabie was interviewed on May 16, 2017. She resides in unit 1510. She stated that at approximately 11:00 p.m. she heard a male say “relax man, relax” three times, and then everything went quiet. She believed the male who said “relax” sounded scared and unsure of what was going on. She heard this through her window. She did not know anything had happened until she heard sirens.

[18] Dave King was interviewed on May 16, 2017, by Detective Ouellette. He lives on the 15th floor of the building in apartment 1512. At around 11:00 p.m., he heard a rattling/banging sound, like people were jumping up and down, partying, throwing something, or climbing something. At one point, Mr. King thought somebody was going to climb up or down to his balcony, as he heard a rattling/clanging sound. He also heard male and female voices but could not hear what they were saying. Initially, he thought the voices sounded “mischievous,” but then later sounded more aggressive. These sounds lasted 20 seconds to a minute. The sounds were coming primarily from “up and to the left” of where his unit is situated.

[19] Sarah Meehan is a resident of 415 MacLaren. She resides in apartment 1206 and was in her residence on May 15, 2017. Ms. Meehan placed a call to 911 at 10:54 p.m. She was outside smoking on her balcony when she heard a “little thump.” Ms. Meehan did not hear anything prior to the “thump.” She looked down and saw a body. Ms. Meehan is unsure of which balcony this individual fell from. Two or three minutes after this event, Ms. Meehan called 911. She did not recognize the person who fell. He was of African-American descent, and he was young. As far as she knows, he was not moved, and she did not see anybody around him.

The “Nicknames”

Liban Gure

− Gure is the person referred to as “Benji” and “Chef” by Gallinger.

− Gure is the person referred to as “Benji” by Magoon.

− Gure is the person referred to as “the black guy” by Ron Tremblett.

Daniel Jean-Charles

− Jean-Charles is the person referred to as “Jonny” by Gallinger.

− Jean-Charles is the person referred to as “Mr. Daniel” or “the guy with the dreads” by Magoon.

J.B.

− J.B. is the person referred to as “Jimmy” by Gallinger.

− J.B. is the person referred to as “Little Man” by Magoon.

N.D.A.

− N.D.A. is the person referred to as “Christy” by Gallinger.

− N.D.A. is the person referred to as “the girl” or “the girlfriend” by Magoon.

Jason Magoon

− Magoon is the person referred to as “Pascal” by Gallinger.

− Magoon is the person referred to as “John” by Ron Tremblett.

The Forensic Evidence

Forensic identification and biology

[20] The forensic examination of the apartment and the clothing worn by Gure during the offence yielded the following evidence:

1. Afrah’s blood was found in the sink of the apartment bathroom;

2. Afrah’s blood was found in multiple places in the entrance hallway to the apartment;

3. Afrah’s blood was found in a smear on the dining room table;

4. Afrah’s blood was found on the handle of the door leading from the inside of the apartment to the balcony and on the railing of the balcony almost directly across from the door;

5. J.B.’s fingerprints were found on a piece of duct tape found on the floor in the middle of the dining room area;

6. J.B.’s fingerprints were found on a roll of duct tape found at the base of the partition between the two balconies;

7. A hand print/finger prints were found at the top and side of the partition, but they were not suitable for comparison;

8. Afrah’s blood was found on the netting wrapped around the balcony (to prevent birds from coming onto the balcony) on the opposite side of the partition;

9. Smudged finger/hand prints were found on the balcony railing at the location where Afrah fell from the balcony;

10. Afrah’s blood was found on the pants worn by Gure during the offence; and

11. Afrah’s blood was found on the boots worn by Gure during the offence and seized during the execution of a search warrant at his home on May 28, 2017.

Post Incident

[21] Gure left the building with Magoon at approximately 10:56 p.m. Jean-Charles, J.B. and N.D.A. left shortly thereafter at approximately 10:57 p.m.

[22] Jean-Charles went to 1971 St. Laurent Blvd. in the company of J.B. and N.D.A. and arrived there at 11:57 p.m. At that location is an apartment building. J.B.’s sister is a tenant in the building. J.B. is not allowed inside his sister’s apartment, so he met with her in the basement laundry room and took Jean-Charles and N.D.A. with him. J.B.’s sister had never met Jean-Charles or N.D.A. before. J.B. asked his sister for money and food. She gave him both.

[23] Both J.B. and Jean-Charles changed their clothing and put on other clothes that came from a bag carried by N.D.A. J.B. changed his pants and a sweatshirt in the basement laundry room. Jean-Charles changed his pants in an adjacent room, which was the building’s garbage room. The clothing that each male was wearing when they arrived at 1971 St. Laurent Blvd. was put into N.D.A.’s bag and carried out of the laundry room area by N.D.A. N.D.A is seen leaving 1971 St. Laurent Blvd. the following morning with this same red bag. That bag and the clothing were never recovered by police. (A review of video footage at trial shows Jean-Charles removing a light-colored item from the bag. When he returns to the room, he is wearing black pants and he is empty-handed.)

[24] In the hours after the offence, the phones associated with Jean-Charles and J.B. were each in contact with Gure via phone call or text message.

[25] A summary of the contact with respect to the time of record, the direction of call/text, and type of record between Gure and Jean-Charles after the incident is as follows:

May 15, 2017

11:32:12 pm; Gure to DJC; call: .05 seconds

11:32:33 pm; Gure to DJC; call: .05 seconds

11:44:14 pm; Gure to DJC; call: .03 seconds

May 16, 2017

12:41:21 am; Gure to DJC; call .04 seconds

1:17:22 am; Gure to DJC; call .07 seconds

2:42:36 am; DJC to Gure; text message: “ya”

2:43:02 am; DJC to Gure; text message: “u iight” meaning: “are you all right”

2:51:28 am; DJC to Gure; text message: Missed call notification, call/text me back

3:14:40 am; Gure to DJC; call .02 seconds

3:14:50 am; Gure to DJC; call .03 seconds

3:24:48 am; Gure to DJC; call .26 seconds

3:51:04 am; Gure to DJC; call .02 seconds

3:51:13 am; Gure to DJC; call .03 seconds

4:56:27 pm; DJC to Gure; call 0 seconds

5:02:12 pm; DJC to Gure; call 0 seconds

5:03:34 pm; DJC to Gure; call 21 seconds

6:31 pm; DJC to Gure; call 0 seconds

2:27:46 pm; DJC to Gure; call 0 seconds

May 17, 2017

4:56:27 pm; Gure to DJC; call 1 minute 15 seconds

[26] There were 27 calls between J.B. and Gure in the period between 11:37 p.m. on May 15, 2017 (roughly 35 minutes after Afrah died) and 3:26 p.m. on May 16 (roughly 17 hours after the incident). There were also 11 text messages, in two segments, exchanged between 3:23 a.m. and 6:22 a.m. on May 16. The first segment, at 3:23 a.m., shows Gure arranging for a driver to pick J.B. up at 1971 St. Laurent Blvd. The second, at 6:15 a.m., is as follows:

• 6:15 a.m. – Gure: U good fam

• 6:19 a.m. – J.B.: i can’t stay at the trap im at the nigga is leaving

• 6:20 a.m. – J.B.: can u put me in a spot til 12

• 6:21 a.m. – Gure: Naw fam everyone I know is sleeping

• 6:21 a.m. – Gure: Just go to the French guys crib

• 6:21 a.m. – Gure: In MacLaren I’m going there in the am anyways

• 6:22 a.m. – J.B.: snm (say no more)

Arrests

[27] Gure was arrested on May 17, 2017, at 5:05 p.m. The Ottawa Police Service issued a media release on May 18, 2017, at 10:25 a.m. advising that Gure had been charged with manslaughter and aggravated assault. News articles from May 17 and May 18, 2017, (for example from the Ottawa Sun and the Ottawa Citizen) reported Gure’s arrest in relation to the “high-rise homicide.”

[28] Jean-Charles’ phone records show that his phone had moved from Ottawa to Montreal by approximately 9:00 a.m. on May 17, 2017, and back to Ottawa by 7:15 p.m. that evening. The phone then began moving west down the 401 on May 18, 2017, and was in Odessa, just west of Kingston, by 2:45 p.m. that day. It was in Scarborough by 10:30 p.m. that night and connected with a cell tower in Scarborough the following day on May 19, 2017, before connecting, for the last time, with a cell tower in Scarborough at approximately 4:00 p.m. that day.

[29] The records from Gallinger’s phone, which J.B. took when he left after the offence, show that the phone moved from Ottawa to Kingston where it connected with a cell tower for the last time at 2:25 p.m. on May 18, 2017, 20 minutes before Jean-Charles’ phone was in Odessa.

[30] The Ottawa Police Service issued a media release on May 19, 2017, at 2:12 p.m. advising that Daniel Jean-Charles, N.D.A. and J.B. were wanted on Canada-wide warrants for manslaughter and aggravated assault. Photos of all three of them were included in the media release.

[31] On May 23, 2017, at 4:10 p.m., Ottawa Police issued a media release advising that Jean-Charles and the two young persons were still wanted and that the Major Crime Unit was still seeking public tips on their whereabouts.

[32] N.D.A.’s parents assisted police in locating her in Toronto on May 25, 2017. Her father drove down to Toronto and brought her back to Ottawa where she turned herself in to police on May 26, 2017.

[33] J.B. was in contact with his sister by telephone on at least one occasion after the May 19, 2017, media release came out. She advised him to turn himself in and he hung up on her. She sent him at least one Facebook message, around May 31, 2017, advising him again to turn himself in. J.B. then “blocked” her on Facebook.

[34] Jean-Charles and J.B. were arrested by Toronto police in each other’s company on August 3, 2017. Jean-Charles was arrested on two first instance warrants and a bench warrant. Jean-Charles was brought back to Ottawa by Ottawa Police officers on August 8, 2017.

The Evidence at trial

[35] For greater clarity, all persons are identified by their proper names (or initials) rather than the various nicknames used by any of the witnesses.

Cst. Vilette Dimova

[36] Cst. Vilette Dimova photographed the scene and took the photos reproduced in the exhibits; she also took a video of the area. Apartment 1611 is one of two end units. An exterior balcony runs the entire width of the apartment. A metal partition separates apartment 1611 from the adjoining apartment, 1612. The metal partition extends to the full width of the balcony but does not extend the full height. There is an approximately 24-inch gap or “hole” at the top of the partition. No measurements were taken.

[37] There are two “hallway areas” in the apartment: one is located immediately at the entrance of the apartment, and the other is located between the bathroom and the bedroom. They are connected by a short narrower hallway. There are photos of blood drops and smears at various locations in the apartment. The blood drops are quite small and are mostly found on the lower part of the walls and on the floor in the hallway.

Sgt. Todd Campbell

[38] Sgt. Todd Campbell is a forensic identification officer who was tasked as the lead exhibit officer in charge of collection of all the exhibits. Much of his evidence is set out in the Agreed Statement of Facts (“ASF”).

[39] In cross-examination, he agreed:

− there was no way of determining how the blood got on Gure’s pants or boots or how old the stains were;

− no foot prints on the floor were matched to Gure’s boots;

− the mark on the right side of Afrah’s face could not be matched to Gure’s boots;

− other shoes were found in the apartment, but their soles did not match any footprints;

− there were minimal signs of blood;

− the apartment was filthy;

− there was no sign of attempted entry into apartment 1612;

− there were no signs of struggle inside the apartment;

− he did not observe blood in bathroom at first.

Ali Jama

[40] Mr. Jama was alone watching basketball in apartment 1711, which is directly above 1611. At around 10:51 p.m., he heard loud banging noises. He concluded it was some type of group fight. He heard a woman’s voice scream: “Stop. Stop.” He thought it could be a domestic fight and he called 911. He stepped out onto the balcony to realize that the commotion was coming from the floor below. He heard someone being pushed against a wall. He did not see anyone. He could not hear any other words. He said the event lasted 4 – 5 minutes and stopped 2 – 3 minutes after he made his 911 call. He said the noise sounded like people fighting in a bar.

Meera Al-Nahyan

[41] Ms. Al-Nahyan lived in apartment 1610, across the hall from 1611. Around 10:30 p.m. that night, she heard a lot of noise and a male voice yelling for help. She heard someone being beaten up and calling for help and that that someone was trying to muffle the noise. Initially, she said the fight lasted 25 – 40 minutes.

[42] There was a peephole in her door. After the beating started and while the fight was going on, Ms. Al-Nahyan saw a male with dark skin knock on the neighbour’s door who said: “It’s me”. Two minutes later, she heard the dragging noises.

[43] Ms. Al-Nahyan went out onto her balcony after she heard the dragging sound. She heard at least three distinct voices on the balcony: a female’s voice which she knew to be her neighbour’s voice, a male voice calling for help, and another male voice. The voices were very loud. Whenever she heard the male voice call for help, he got shut up.

[44] Ms. Al-Nahyan called security around 10:51 p.m. and then called 911. She later said that the beating lasted about 10 minutes.

Dr. Charles Milroy

[45] Dr. Milroy is a forensic pathologist. He examined Afrah’s body to determine the cause of death. There were multiple injuries. Afrah’s heart was lacerated in two as a result of the fall; this injury would have been immediately fatal. The head injuries and the abdominal injuries would also have been fatal. The injuries corroborated a fall from a great height. Nothing could have saved Afrah; death would have been immediate. He concluded that Afrah landed on his left side.

[46] Dr. Milroy concluded that some injuries likely happened before the fall. These injuries include the patterned bruising to the right side of the cheek and a patterned bruise to the forehead. He said that the injury to the cheek and forehead had the appearance of being caused by a stomp with a shoe. He did not match it to any footwear as this was up to forensics. He said that a kick to the cheek was less likely. Typically, with a kick, the toe impacts the skin and there is less of a pattern. With a sharp blow from a foot, bruising is typically observed.

[47] Dr. Milroy identified other injuries that could have been caused before the fall. These injuries include bruising on the back and behind the right ear. He described this latter injury as typical of the ear being pressed into the skull. He said that this would be caused from a separate blow that caused the patterned bruise, likely a punch.

[48] Dr. Milroy observed a small laceration at the outside of the left eyelid and bruising of the eyelid and said this is the sort of injury that could bleed. There was bruising of the right nostril but an absence of actual abrasion on the nose itself. This was supportive of this injury having occurred before the fall.

[49] Dr. Milroy noted sub-cutaneous bruising on Afrah’s upper and lower back. He did not think that these were sustained in the fall because Afrah appeared to have fallen face first. He noted a grip mark on the right arm that could have been caused before the fall. From his examination, he did not believe that Afrah’s body had come into contact with anything during the fall.

[50] Blood samples were drawn. Comprehensive testing was done. Cocaine was identified as being in Afrah’s bloodstream. The results indicated use in the hours before death. The amounts detected were consistent with recreational use.

[51] Dr. Milroy acknowledged that the bruising on the back could have been a day old. He viewed the photos of the blood stains at the scene. He said these were not indicative of a massive amount of blood. These were consistent with a bloody nose or a relatively minor injury.

[52] Dr. Milroy testified that the bruising behind the ear and the patterned bruising on the face would not necessarily have required medical attention but could have caused a loss on consciousness or a concussion. He could not determine that from the autopsy.

Ron Tremblett

[53] Mr. Tremblett is a 57-year-old man. He lives alone on Eccles St. and receives ODSP. On May 15, 2017, he had a friend who had been staying with him for a couple of weeks. He knew him as “John.” He is the person now known to be Magoon.

[54] That night, Tremblett was in his apartment and Magoon arrived after 12:00 a.m. or 1:00 a.m. He was accompanied by a tall black man. Tremblett described this man as stocky and tall, like a bouncer or a football player. He had never met the man before. Magoon and the man were panicking. Magoon wanted to shut the door quickly.

[55] From their conversation, Tremblett concluded that some sort of a beating had happened. The tall black man seemed remorseful. He said, “Why did I let it get to this point?” or “Why did I let it get out of hand or go to this extreme?”

[56] Tremblett overheard their conversation and said they both mentioned that someone was assaulted. He did not think Magoon was involved in the beating. Magoon told him that he had witnessed a death and that he never wanted to see that again. Nothing was said about how many people were involved. The black man was there for about a half hour and left. He did not know who had been beaten or why the beating took place.

[57] At that time, Tremblett was using drugs and was drinking all the time. He admitted that he is an addict. He has since stopped drinking. That day he had smoked weed, used crack cocaine, and had drank four, five or six beers. He felt he was “pretty straight” that night because he usually drank even more.

[58] The Crown sought to refresh Tremblett’s memory by referring him to his police statement and his evidence from the preliminary inquiry. He adopted those statements as true. He previously reported that the black guy said, “We put a beating on him.” In that statement, he said that the black guy and three or four others had been involved.

N.D.A.

[59] At the time of trial, N.D.A. was 18 years of age and was completing her sentence in a youth custodial facility as a result of her plea of guilt to a charge of aggravated assault. She is the mother of a one-year-old daughter. J.B. is the father. At trial, she was attending school and hoped to complete her education, obtain a university degree, and become the primary caregiver to her daughter.

[60] N.D.A. has a minor youth record. At the time of these offences, she was living in different apartments in the 415 MacLaren building. She had not lived with either of her parents since 2014. N.D.A. and J.B. became a couple about three months before the events of May 2017.

[61] N.D.A. said she supported herself by stealing food and clothes. She was not attending school on a regular basis. She sold crack cocaine and so did J.B. She sold crack to people on the street and to the residents of the MacLaren building. She does not use drugs.

[62] N.D.A. came to know Jean-Charles through a mutual friend in February 2017. She did not know where Jean-Charles was living in May 2017; most of the time, he was with her and J.B.

[63] N.D.A. was not sure what Jean-Charles did to support himself. She guessed he sold crack because he would talk to people who she considered customers. She did not remember seeing him sell crack to anyone.

[64] N.D.A. claimed to have known Gure for a few days before May 15, 2017. She had met him in Gallinger’s apartment once and that meeting was very brief. J.B., Gallinger, and Jean-Charles were there.

[65] N.D.A. initially said she did not know anything about J.B.’s relationship with Gure and she had no idea about Gure’s relationship with Jean-Charles. At first, she was not completely sure of Gure’s source of income. The Crown then sought to refresh her memory by looking at her Agreed Statement of Facts (“ASF”) that she admitted as true on her guilty plea.

[66] N.D.A. said Gure probably sold crack. She had never directly received crack cocaine from Gure; the crack could have been given to J.B. and then to her. When asked if they had worked together selling crack, she answered, “we never made money together.” She then answered, “I’m not sure,” and later she said, “Maybe.” N.D.A. said J.B. may have worked for Gure. In her opinion, J.B. looked up to Gure and liked him.

[67] N.D.A. said Gallinger was her and J.B.’s customer and Gallinger could have been Gure’s customer as well. N.D.A. met Afrah a week before May 15, 2017. N.D.A. had been in an apartment on the 4th floor and Afrah had walked in and offered a sweater in exchange for crack; Afrah said he needed the crack so that he could sell it.

[68] N.D.A.’s memory was refreshed by her statement to the police dated May 26, 2017. At first, she did not tell them that she was involved in what happened to Afrah because she was not there. She admitted she lied to the police in the hope of getting her charges dropped. She believed that the only evidence the police had was from Gallinger, someone with a mental illness.

[69] At trial, N.D.A. claimed she was motivated to tell the truth because she now has a daughter who was apprehended when N.D.A breached the terms of her release. After that experience, N.D.A decided to tell the truth to make sure that something like that never happened again.

[70] N.D.A. claimed she could not remember the events of May 2017 “because it was two years ago.” Earlier that day, she was out with J.B. and Jean-Charles and they bought some alcohol. Once in Gallinger’s apartment, they drank a small amount but they were not intoxicated. Eventually, Gallinger, herself, J.B., Jean-Charles, and Gure were in the apartment along with another person who she thought was called Magoon. There were lots of ins and outs. She could not remember if she was already in the apartment when Afrah got there.

[71] N.D.A., J.B., and Jean-Charles were in the living room talking. Gallinger and Magoon were talking and she was not really paying attention to the others. At some point, Afrah and Gure were in the bathroom together for a long period of time. She remembered loud speaking through the bathroom and that Gure’s voice sounded aggressive.

[72] N.D.A. heard some banging around in the bathroom and then the door opened. Afrah came out and he looked panicked. By this time, Gallinger and Magoon had moved into Gallinger’s bedroom. Afrah was in the hallway between the bathroom and the bedroom. Gure had Afrah on the floor. While this was happening, she, J.B., and Jean-Charles moved in on Afrah. N.D.A. said, “we kicked him and punched him.” She tried to close the bedroom door because she did not want Gallinger to witness what was going on.

[73] When they stopped beating on Afrah, he got up and looked “very hurt”. Afrah was yelling and Gure was trying to calm him down. Gure and the rest of them told Afrah to stop yelling because they did not want to draw attention to what was going on. She did not think Afrah really understood them.

[74] N.D.A. thought Afrah was very hurt and that he wanted to get away very badly. Gure told him that if he stopped yelling, he could leave. J.B. tried to grab duct tape to get Afrah to stay on a chair. Afrah ran very quickly to the balcony. N.D.A. did not remember exactly in what order people followed him out the balcony door. She stayed inside the apartment and said J.B. and “I think Jean-Charles and Gure” came back into the apartment. J.B. told her that Afrah had fallen and she went to look for herself.

[75] N.D.A. described a very frantic scene in the apartment. As people started to leave, she grabbed her gym bag and she remembered Gure telling Gallinger that she did not see anything. Gure and Magoon left together. She, J.B., and Jean-Charles went to J.B.’s sister’s apartment building.

[76] The Crown reviewed N.D.A.’s evidence in more detail. N.D.A. thought someone had asked Afrah to be there that night and that J.B. could have been that person because he was the only one with a working phone in the apartment. She was seemingly unaware of Jean-Charles’ cell phone use. She thought J.B. asked Afrah to come over because Gure wanted to meet up with Afrah. She came to learn that Gure wanted Afrah to come to the apartment because of a $400 debt he owed to Gure.

[77] N.D.A. did not observe any physical contact between Afrah and Gure before they went into the bathroom. The bathroom door was closed. She thought that they were speaking Somalian. She described Gure’s tone of voice as “whisper yelling”. She could hear banging sounds like “banging into a wall or like feet hitting the tub or something”. She thought that Gure was shoving Afrah..

[78] She said Afrah he looked panicked when he exited. She did not see any injuries. She thought Gure pushed Afrah onto the floor and said at this point, “the three of us, me, J.B. and Jean-Charles were closing in on Afrah”.

[79] Afrah was curled up on the floor protecting his head and stomach. Gure stomped Afrah on the head with the heel of his boot. She added, “but a few times while that was happening, the three of us, me, J.B., and Jean-Charles started doing that too” (emphasis added).

[80] When asked why she did this, N.D.A. said that she personally found it exciting. She had a hard time remembering exactly where everyone was at that point. She could not remember where Jean-Charles was. She knew Gure was still there.

[81] N.D.A. got a little running start and kicked Afrah once in the face in the cheek area. She denied doing anything else. She could not completely remember what J.B. was doing: “I don’t completely remember. I wasn’t watching exactly, what else was happening. I was kind of …, I don’t know how to explain it. Think I… wasn’t blacked out, but I was just focusing on, where I was looking.”

[82] When asked specifically about Jean-Charles, she said that he was in the area also; he was probably kicking Afrah as well. When asked what she meant by that, she replied, “because I wasn’t paying attention to what Jean-Charles was doing.” She said that Gure may have backed off after she, J.B. and Jean-Charles circled around Afrah.

[83] She got a look at Afrah and described his face: “like he had huge bumps on it; it looked painful.” N.D.A. had never seen anyone look like that; Afrah was very distressed. Gure was trying to stop him from yelling. She said Jean-Charles was trying to hush Afrah too; they were trying to get Afrah to sit down.

[84] By this time, Afrah was looking for somewhere to go. N.D.A. saw Afrah go to the balcony and while she thought that J.B., Jean Charles, and Gure were all on the balcony together, she added that she could be wrong about that. She thought that after Afrah went out, he would realize that there was nowhere else to go and would eventually just come back into the apartment.

[85] She remembered seeing a lot of blood coming from Afrah’s mouth as he sat on the dining chair. N.D.A. did not know what Gure said or did after the three of them circled around Afrah on the floor. She did not remember if anybody told them to stop.

[86] N.D.A.’s memory was refreshed by the ASF and her guilty plea. She agreed that she reviewed the ASF with her lawyer and that she had input into it. She was telling the truth when she was under oath on July 23, 2018 and she adopted that statement. In her prior testimony, she had said that she could not recall if anyone took physical control of Afrah to get him to sit down. She now said that she did not think that Afrah would have sat in the chair without somebody making him.

[87] N.D.A. could not remember when Gallinger came out of her bedroom or if Gallinger said anything. She thought Magoon was in the bedroom while the beating was taking place. When she said that she did not see what happened on the balcony, her memory was refreshed by the transcript of her guilty plea. She repeated that, at some point, J.B., Jean-Charles and Gure were on the balcony; she just could not remember the exact order it had happened.

[88] N.D.A.’s memory was further refreshed by her ASF and guilty plea regarding her evidence about the words Gure used to threaten Gallinger. She said she could not remember the exact words that Gure used. She acknowledged that she had said that Gure had threatened to kill Gallinger, but now she did not remember the exact words.

[89] After N.D.A., J.B., and Jean-Charles made it to J.B.’s sister’s place, she noticed that J.B. had some spots of blood on his pants. She thought it was Afrah’s blood, so she gave J.B. a pair of her own sweatpants to wear. Jean-Charles also changed his pants, but she did not think that Jean-Charles had any blood on them. She later discarded the clothing.

[90] Two days later, they went to Toronto to avoid arrest. While N.D.A. was in Toronto, she became aware that a warrant was out for her arrest. Her mother got in touch with her and convinced her to turn herself in. She realized Gallinger may have given information to the police. She considered herself more reliable and planned to lie to the detectives. She had a falling out with J.B. by this time.

[91] While she was in custody after her arrest, she found out she was pregnant and she reconciled with J.B., who was arrested later. She denied having any conversation with the others as to what to say in court.

[92] In cross-examination, N.D.A. was questioned about her drug dealing. She said she only sold crack cocaine. She and J.B. each had their own customers, but they would help each other out.

[93] She admitted taking over Gallinger’s apartment because Gallinger owed her money. As a result, the apartment became a crack house that she could run her business out of. She denied making any threats to Gallinger as she was leaving the apartment that night, but she admitted threatening Gallinger in the past.

[94] She admitted contacting J.B. in contravention of her release conditions but denied having any further contact with Gallinger.

[95] She agreed she first told the police she was not there. The police told her that they had evidence that indicated otherwise. She agreed she managed to get a lot of information out of the police without giving any information herself. She told the police that Gallinger was a liar.

[96] N.D.A. asked her parents to leave the interview because she thought her story was not being believed: “So by asking my parents to leave, I thought it would kind of, enlist a little bit of trust and make it look like I was confiding in the Detective.” She told the police that she had three alibis, but she admitted they were all false.

[97] She described how she made money selling drugs. She would also go to liquor stores and steal “high-end” booze. She insisted she had stolen a large amount of cocaine from one person and then hung onto that and sold it over time. She claimed she cooked all of the cocaine into crack.

[98] When N.D.A. spoke to the police, she wanted to know about Gure because she thought he could have talked to the police. She described her interaction with the police this way: It was “give a little, get a little with the detectives” (emphasis added).

[99] When she realized she was not getting anywhere with her explanation that she was not in the apartment at the relevant time, she then told the police she had been there, but she left early. Gure and Afrah went into the bathroom. She could hear something going on and she left. She thought that the police would find this version to be believable.

[100] N.D.A. said she had seen Gure once when she was 14 but had never seen him at any other time before the night of May 15. She was reminded that she had previously testified that she had seen Gure at Gallinger’s apartment a few days before that night. She said she was not paying attention when she gave that answer and she made a mistake. When it was suggested to her that she was not being truthful, she complained that Counsel was saying “a lot of numbers.”

[101] Even though N.D.A. had said in her ASF that Gure probably sold crack, she said she never saw him sell crack. She denied working for Gure. She denied selling drugs with him, and as far she knew, J.B. did not either.

[102] On the night of May 15, N.D.A. said Afrah was just hanging out at the apartment. When asked if J.B. had phoned Afrah, she said she did not know, and that J.B. kept her in the dark about many things. When the question was put to her again, she agreed, after looking at the picture of them together, that J.B. had called Afrah and got him to come over to the apartment.

[103] When pressed about her apparent lack of memory, N.D.A. answered that she probably repressed things from her mind because she did not want to remember these events.

[104] N.D.A. was taken to her plea to aggravated assault and agreed that the first offer from the Crown was for a guilty plea to manslaughter. She knew the Crown was seeking an adult sentence. When the arrangement was finally concluded, she received the equivalent of an eighteen-month sentence. She received time off for time spent in custody and she was very close to finishing her period of incarceration at the time of trial. She agreed she would testify on behalf of the Crown as part of the deal.

[105] As for her prior testimony that Gure had knocked Afrah to the ground, she answered, “I was not paying attention at that point, and I never said 100 percent that’s what happened. I was very careful with my wording.” She could not remember how Afrah ended up on the ground. She made an educated guess that somebody had knocked him down. When pressed if she was making assumptions based on her observations, she answered, “Yes, I don’t remember.”

[106] N.D.A. was asked about her description of Gure stomping Afrah. She admitted she did not tell this to the police on May 26, 2017, and she could not remember why. She agreed that the first time she told anyone this was on the first day of trial.

[107] She admitted telling the police about Gure and Afrah having a fight in the bathroom once her parents left the interview and that her purpose was to give something to the police so that she would get out of it herself.

[108] N.D.A. was aware that Magoon had given a statement to the police prior to her guilty plea. She knew that Magoon blamed her and J.B. for kicking and slapping Afrah on two occasions, and that both she and J.B. went out onto the balcony after Afrah. She acknowledged that this was not the best news for her case.

[109] She was taken to her letters to J.B. while he was in custody and to their plans for the future once they got over “this court shit.” She described this as an incredibly hard time because her baby was only six weeks old when she was re-arrested. She was aware that the Crown Attorney was not going to do her any favors. She acknowledged that her main goal leading up to her July 23, 2018, plea was to return to mothering her daughter. She wanted to avoid a conviction for manslaughter and a long jail term.

[110] N.D.A.’s lawyer started negotiations with the Crown to see if a plea deal could be made. With the agreement of all counsel, the various drafts of the ASFs and relevant emails were marked as an exhibit.

[111] N.D.A. knew that the Crown’s initial position was a guilty plea to manslaughter. She also understood that she would have to admit to an ASF under oath. The Crown was looking for a longer sentence for J.B. On July 16, 2018, the Crown indicated that it was prepared to accept a guilty plea to aggravated assault on the part of N.D.A. along with the same sentence set out in earlier emails.

[112] Later that same day, N.D.A.’s counsel, Ms. Starkie, reported that N.D.A. was prepared to accept the Crown’s offer and that counsel for J.B. had prepared the first draft of an ASF. Ms. Starkie added the details for which N.D.A. was prepared to take responsibility. Paragraph three of this first draft provides:

After Afrah entered the apartment, he and Gure began arguing about a drug debt. Gure began fighting with Afrah in the bathroom and later moved out into the hallway adjacent to the front door of the apartment, close to the living room. Ms. N. D. A. closed the door to the bedroom where Ms. Gallinger and Mr. Magoon were located so they could not witness the incident. J.B. and Ms. N.D.A. played a role in the assault on Afrah. Specifically, J.B. slapped Afrah and Ms. N.D.A. kicked him once in the head.

[113] Paragraph five stated:

Afrah became frightened in trying to escape the apartment. Instead of going towards the door, he ran to the balcony. J.B. followed him onto the balcony but did not touch him once on the balcony.

[114] The following day, the Crown responded with a revised ASF that included additional points that the Crown believed it was able to prove. Paragraph 18 provides:

J.B. and N.D.A. played a role in the beating of Afrah. Specifically, J.B. struck and kicked Afrah. N.D.A. kicked him, including once in the face.

[115] N.D.A agreed that this version was more than she was willing to admit. She was adamant that the extent of her assault on Afrah was limited to one kick.

[116] Paragraph 24 of this version also indicated that N.D.A., Jean-Charles, and Gure were on the balcony, and afterwards J.B. chased Afrah onto the balcony. N.D.A. took issue with that description as she maintained that she did not follow J.B. out onto the balcony. She was aware that the Crown sought evidence in respect of the involvement of others.

[117] Defence questioned N.D.A. about her observations of Jean-Charles in apartment 1611. N.D.A. agreed that she did not have a very good sense of what other people were doing in the apartment on that night. She agreed that the events started suddenly and stopped suddenly; the space in the hallway was very small; she did not really have a great sense of where everyone else was; and she was not thinking about where Jean-Charles was or what he was doing. She was pretty sure that Jean-Charles stood up along with J.B. and walked toward that area; she was not exactly sure of who else did what to Afrah. She agreed that she did not have any recollection of seeing Jean-Charles doing anything to Afrah during the attack and that she may have made some assumptions because he was in and around the hallway.

[118] She knew the police believed that Jean-Charles had beaten Afrah in the hallway. On July 18, 2018, her counsel emailed this message to the Crown. She writes: “We have gone through them (the facts) with her in meticulous detail and are sending you the amendments we see as being necessary such that she can swear them.” They requested the removal of the word “including” in paragraph 18. Her counsel adds: “for what it’s worth, N.D.A. indicates that Jean-Charles also played a significant role in the beating with Gure in the hallway” (emphasis added).

[119] N.D.A. agreed that she assumed that Jean-Charles may have been involved in the beating of Afrah. She said, “He may have. Yes.” “I could make an educated guess.” When pressed if she had observed anything specifically, she replied that, at the time of the beating, she had tunnel vision. She was aware that the Crown and the police wanted somebody to take responsibility for Afrah’s beating and that Afrah had suffered more than one kick to the head (emphasis added).

[120] On July 19, 2018, the Crown prepared a revised ASF. Paragraph 18 was amended to state that N.D.A. kicked Afrah once in the face and her name is removed from paragraph 24.

[121] Thereafter, the Crown decided to proceed with separate ASFs for J.B. and N.D.A. The last ASF for N.D.A. was prepared by the Crown. The Crown highlighted the points that were required for N.D.A. to specifically admit under oath as facts that were within N.D.A.’s personal knowledge. This final version contains a reference to Gure and Jean-Charles playing a “significant role” in the beating of Afrah in the hallway.

[122] N.D.A. accepted that she was fine to accept anything in the ASF so long it did not specifically relate to her and so long as she was not in position to dispute it. She agreed that there was no detail as to what Jean-Charles or Gure may have done in the beating of Afrah. She agreed she was not sure when Jean-Charles went on to the balcony and said that he could have gone out there after Afrah fell.

[123] Paragraph six of the final ASF indicates that, in the spring of 2017, Gure was a drug dealer and N.D.A., J.B., and Jean-Charles worked with and for Gure, selling drugs. This was a highlighted paragraph that the Crown expected her to testify to from her own personal knowledge. At trial, N.D.A. said that the statement was not true. She claimed the wording in the ASF was not ideal and she did not have a strong say on how it would be worded. Nevertheless, she wanted the deal to go forward. She added that she had been drinking a lot in May of 2017 and this affected her memory.

[124] In re-examination, N.D.A. was asked about her understanding of her plea agreement and her statement that Gure had pushed Afrah onto the floor. She answered, “I don’t remember exactly what had happened.” She said she did not really know how Afrah ended up on the floor; this was an educated guess. She admitted she had learned more and more about things that happened in the two weeks prior to the trial and after her disclosure.

[125] N.D.A. acknowledged reviewing her ASF prior to her guilty plea. She knew that the highlighted sections in the ASF referenced things that she had personal knowledge of. When asked about this, she replied, “Well, I was physically there.”

[126] N.D.A. was asked about the difference in her answers about a debt Afrah owed to Gure. She said it was hard for her to remember how she got that information. After refreshing her memory, she agreed that Gure was confronting Afrah about a drug debt.

[127] N.D.A. agreed that, at the outset, she did not want to implicate anybody. She was asked about her use of the term “educated guess” in answering numerous questions. She replied:

Somehow, I might’ve heard it along the way through my own, being charged and found guilty. But I can’t really map out when I heard it, when I learned it to be true, and it’s a guess because, um, I don’t know if it was directly told to me or in my personal knowledge, but something I’ve heard, maybe.

[128] N.D.A. was asked about making an “educated guess” about Jean-Charles’ involvement in the beating. She answered:

Um, from what I was agreeing to in my statement of facts and, um, I knew he was around but at the time during when I kicked Afrah and before that closed the door, um, and it happens often with me that I do not use my peripheral vision and I’m not focusing on other people, unconscious but it’s almost like I, I black out, um, when I – it is happened before when I’ve got into fights and – gotten very angry without even getting into a fight or any physical, um, being physical that I lose my peripheral vision. That I don’t pay attention to anything around me. [Emphasis added.]

[129] N.D.A. was asked about being under the influence of alcohol most of the time. She answered that she drank a lot in 2017: “I would say every day I drank and that definitely, um, affected me in a way that I wasn’t – I was very disconnected.”

[130] The Crown brought a successful application under section 9 (2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. N.D.A. was taken to her statement that Gure and Jean-Charles played “significant” roles in the beating of Afrah in the hallway; facts that were supposed to be within her personal knowledge. In cross-examination, she had said she was simply assuming Gure and Jean-Charles played significant roles because she had no reason to dispute it. She was asked to clear that up. She said there were two words that she had difficulty accepting. These were “significant” in reference to the roles played by Gure and Jean-Charles. The other was the word “echoed” where the ASF says Jean-Charles echoed Gure’s comments. N.D.A. said because she was physically there, she just said “yes”. With respect to the words “significant roles”, she had no reason to dispute it. “It was just something that was foggy to me.… It seemed unimportant.”

[131] At this point, the Crown indicated that a break was necessary so that N.D.A. could get independent legal advice as she had given evidence under oath that was inconsistent with what was said in court on another occasion and N.D.A. had exposure to criminal charges. The Crown also signaled its intention to have N.D.A.s original statement admitted for its truth.

[132] Upon resumption of the re-examination, N.D.A. acknowledged she had received independent legal advice. She was asked once again to clear up the dispute in the evidence about her knowledge that Gure and Jean-Charles played significant roles in the beating of Afrah. N.D.A. answered that she remembered Jean-Charles being in the area and she remembered lots of movement.

[133] N.D.A. said she had tried to forget what happened the night of May 15.She claimed to be very confused about paragraph 18 of the ASF and to have only had a ten-minute conversation with her lawyer prior to agreeing to it. During the break, her counsel told her “that I did use those words and it was in my personal knowledge and she has no reason to lie to me about that.” She went on to say:

Um, yesterday the words ‘significant’ meant to me major parts and I wasn’t comfortable to say that, but after seeking legal advice I understand words like ‘significant’ could mean just playing a role or any role as a party. And that was cleared up to me yesterday. [Emphasis added.]

[134] When pressed by the Crown once more as to whether Jean-Charles played a significant role, she said that he played “a role”. When asked what he did, she remembered him being in the area and there was lots of movement. When asked what that meant, she replied, “That he was a party that night, that he played any role in the beating.” She remembered he was in the circle as Afrah was on the ground and that parts of Jean-Charles’ body were moving around. But she could not remember what parts.

[135] She was informed that “significant” means any role such that “even if doing anything like, being there, being around that could mean any role as a party”. When asked to clarify this, she replied that this was what was read to her from the dictionary by her lawyer. When pressed as to why she said Jean-Charles played a role in the beating, she answered, “He was in the area”, he was, “like nearby”.

[136] She was asked why she described her part in the beating was just a role, but the actions of Gure and Jean-Charles as significant. She did not think there was a difference between either description other than that there were specifics for J.B. and herself. She explained that her English was not very good. During the years her brain was developing, she was drinking very heavily. She also spent her time with people who did not speak English well.

[137] When asked what Jean-Charles did, she remembered seeing Timberlands and she thought the Timberlands belonged to Gure. She later explained:

[W]ell right now I forgot major, um, key things, so what happened that night because I try to forget them, and that almost convinced myself that lots of it wasn’t true because is very stressful for me to think about it, and at the time of, um, my Agreed Statement of Facts my head was a lot clearer than it is now and I probably remembered it better then. So, I can’t tell you what exactly I think the difference is, but I can tell you that whatever I said that was true.

[138] She then admitted she was trying to convince herself that the whole night of May 15, 2017, did not happen. She remembered seeing Timberlands and other feet, but she could not remember anything more than that.

Jason Magoon

[139] Magoon is a 39-year-old man who freely admits that he supports himself while on welfare by committing telephone bank frauds against “little old ladies” and he has engaged in drug trafficking and telemarketing scams in the past.

[140] Magoon uses a smart phone and acquires banking information from vulnerable people to open online banking accounts. He then sends e-transfers to people on the street to make money. He has a criminal record.

[141] On May 15, 2017, Magoon had been living with Ron Tremblett for a couple of weeks. He was not paying rent, but he was giving Tremblett a piece of crack every now and then. In May 2017, he was using alcohol almost every day and crack and weed every day. He agreed that he could be classified as a drug addict.

[142] Magoon was in the apartment that night. He had met Gallinger once before and he knew her to be a crack user. On that day, Magoon got a small amount of crack from Gure. The other people in the apartment were Gure, J.B., N.D.A. and Jean-Charles. He had seen Jean-Charles once or twice before. They were drinking, but “not that much”.

[143] Magoon was using Gure’s phone. He had lost his own phone the day before. He met Gure that day through other people that buy drugs from Gure. Magoon had never met J.B. or N.D.A. before. He might have met Jean-Charles before, but he did not know his name. He did not think that N.D.A. sold drugs or that Jean-Charles did either. He concluded that J.B. most likely sold drugs because “he is of the same stock” as the people who did. From their conversation, Magoon thought J.B. and Gure had a kind of relationship. It appeared to him that J.B. and N.D.A. seemed to know Gure.

[144] Magoon had never met Afrah before. From what he overheard, he knew somebody was coming to the apartment who owed money to Gure for crack.

[145] Magoon said crack did not impede his ability to conduct his banking transactions. He said the only other person who consumed drugs that night was Gallinger. He said Gure most likely gave Gallinger the crack to shut her up because “she was pretty much being annoying.”

[146] When asked if he wanted to review his statement to the police of July 21, 2017, to refresh his memory. He went on to describe what happened that night. He was on the phone in the bedroom waiting for a temporary password. He heard a commotion outside the door and peeked to see what was going on. He hoped that the person from the Bank would not hear the noise. He explained the following:

[T]hen I opened the door and that’s when the girlfriend (N.D.A.) and J.B. were pretty much kicking the guy, slapping him around and wouldn’t let him leave the apartment. And then, then he – then they told him to go sit down, then J.B. was looking for a rope to tie them up with, didn’t find one and then the other guy kind of deked or something like, you know, like some kind of misdirection there to make it seem like he was leaving one way and then and that up going towards the balcony and then went through the divider hole, J.B. was trying to follow him but then gave up because he was already on the other unit balcony.

[147] Magoon’s memory was then refreshed by the transcript of his meeting with the police. He had told them while going out to get a pack of smokes, Gure mentioned something about somebody owing him money and Gure wanted to have him come to the apartment.

[148] Magoon described the commotion he heard after Afrah’s arrival. He heard sounds like a boom and a thump. He opened the door and saw them (J.B. and N.D.A.) preventing Afrah from leaving the apartment; he saw them kicking and trying to slap him (Afrah) and “that’s pretty much it.”

[149] Magoon said this beating occurred at the entrance of the apartment. Afrah was on the ground leaning with his back towards against the door because the others had prevented him from leaving. He saw some legs “and they were both standing up” (emphasis added).

[150] Magoon said that N.D.A. was trying to kick Afrah half-heartedly; she tried to kick Afrah once and then tried again because she missed. Afrah tried to stop her but got kicked on his arms. J.B. was trying to kick Afrah and slap him. Magoon described Afrah as incoherent and mumbling. He mostly heard yelling from J.B. He could not say where Gure was when this was happening. He just saw “those two” on him (J.B. and N.D.A.).

[151] When asked about Jean-Charles, Magoon said:

[B]ut he was pretty drunk, so he was just not really there. He was there but he wasn’t, you know, he wasn’t – it’s something noticeable. Didn’t say much, didn’t do much. Didn’t – he just stood there and maybe, I think, he wanted to leave for something or, you know, he was waiting to go, waiting to carry on, moving along, it was, you know like, like that. […] He was there with his drink in his hand and just kind of not really on the nod (ph), but I mean just not really giving a fuck, I guess.

[152] Magoon went back into the bedroom so he could complete his fraud. When he came out of the bedroom two minutes later, he saw Afrah on the chair and J.B. was looking for duct tape. J.B. gave up when Afrah started running towards the balcony. He could hear a bit of yelling. He could not make out any words. He really did not care what was going on because he was anxious to leave.

[153] Magoon got a look at Afrah sitting in a chair and said he looked him like “a deer caught in the headlights.” Magoon did not think he was injured. Afrah was not making any noise at all. He remembered other people talking to him, but he did not remember what they said.

[154] Magoon said Afrah “went pretty quickly” out to the balcony. Magoon went out there and saw the body 16 floors below them. Magoon just wanted to get out of there. Gure gave him some more crack. He said that “everybody ran out to the balcony except maybe Gallinger and the other guy (Jean-Charles)”. He said, “I didn’t really see him (Jean-Charles) much. He was more leaning or on here the whole time, just in that general – with his beer, with his drink and…. [L]ike he was like, you know, like beyond tipsy there.”

[155] Magoon said he definitely saw Gure, J.B., and N.D.A. on the balcony. He saw J.B. come down from the hole in the divider after trying to chase Afrah. He saw half of J.B.’s body go through the hole in the partition. He did not see anything in his hand. He heard a bit of bustling on the other side.

[156] Magoon left with Gure; they took the stairs down one flight and then the elevator. Once they got to Tremblett’s place. Magoon had more crack. He overheard Gure and Tremblett talking. Gure left after about 20 minutes.

[157] After a successful application pursuant to section 9(2) of the Canada Evidence Act, the Crown sought to cross-examine Magoon on certain inconsistencies in the statement he gave to the police.

[158] At that time, Magoon had said that Afrah was “freaking out” during the beating and he was screaming. He also told the police that Jean-Charles was yelling at Afrah after he went to sit on the chair. When told that he had said something different in his examination in-chief, he said, “If somebody’s involvement was next to nil, then I’m not going to remember it a year and a half later, right, so” (emphasis added).

[159] It was pointed out that Magoon had told the police that N.D.A. and J.B. had continued to slap Afrah while Afrah was sitting on the chair. He did not remember that but agreed that he was telling the truth to the police at that time. He also told the police that Gure was asking Afrah when he was going to get his money. He said that was true.

[160] Back at Tremblett’s place, Gure told him that he had been alone with Afrah in the bathroom and had slapped Afrah around a few times. Magoon overheard Gure tell Tremblett, “You know, it’s normal if somebody owes you a few bucks, you slap him around a bit and fuck’n, you know, get the ball rolling to get my fuck’n money.” He did not see Gure hit Afrah.

[161] Magoon agreed that Gure did not chase Afrah onto the balcony; everybody was just wondering what was going on. Curiously, he was unaware that Gallinger was ever in the bedroom with him. He agreed that Gure was trying to get everybody to stop what was going on once Afrah was sitting in the chair.

[162] Magoon told counsel that he never mentioned Jean-Charles at all when he spoke to the police because Jean-Charles was in the background and was not really involved. He agreed he did not mention Jean-Charles at all at the preliminary hearing. He agreed that on all the official occasions when he has spoken about this event, he had always been pretty clear about the basics; he was pretty clear that he only saw two people (J.B. and N.D.A.) ever kick or strike Afrah at any point in time. He said that Jean-Charles was the least interesting person in the apartment along with Gallinger.

Christina Gallinger

[163] Gallinger’s video-taped interview with Sgt. Nicole McGetrick of May 16, 2017, was admitted pursuant to the provisions of section 715.2 of the Criminal Code, R.S.C. 1985, c. C-46.

[164] In this description of the events, Gallinger said Gure came over and there were six people there. She said there was an argument between Gure and Afrah; they were fighting in the bathroom over money and drugs. She heard Afrah being slapped by Gure and Afrah had a bleeding mouth.

[165] Gallinger said Afrah was sitting down, he was bleeding, and he had a cut lip. His face was bruised. She said the others then told her to go into her room and she did. She opened the door and saw Gure fighting with Afrah. She heard arguments outside her balcony and she looked through her window and she saw Afrah jump from her balcony. She was upset because Afrah had previously confided to her that he had suicidal thoughts.

[166] Gallinger said three people were staying with her: N.D.A., J.B., and Jean-Charles. She did not want them living there but she owed them money for groceries. She denied buying any drugs from them but admitted that she was a crack addict. She said she used crack at 7:30 a.m. that morning and that she bought the crack from one of her dealers, who she identified as “Bobby”. She said Gure had been there earlier in the day, around 9:00 a.m.

[167] Gallinger said the fight between Gure and Afrah started right after she opened the door to the apartment. She told Gure to stop and she saw him punch Afrah in the face. Gure then sat Afrah down on the chair and told Afrah to stop screaming. Afrah was screaming, “please don’t hurt me. I’m going to pay, I promise, I promise.” She said the payment was for drugs. Afrah had told her that he owed $400 to “Bobby”.

[168] Gallinger said another fight broke out on the balcony. By this time, she was alone in her room. She observed Afrah and Gure fighting on the balcony and she saw Afrah jump. No one else was on the balcony. She said Gure and Afrah were speaking French and that Gure was threatening to kill Afrah if he did not pay the money. She was very clear that she saw Afrah jump off the balcony and Gure was no longer on the balcony at that point.

[169] Gallinger said everybody left after Afrah jumped. She went down to the first floor with a neighbour. When she went to check on Afrah, he was still breathing.

[170] Gallinger said Magoon had been in her apartment for about five minutes to use her phone. She said that he had been there earlier that morning. He had shown up with the others and they all left to buy clothes.

[171] Gallinger remembered that the three young people were drinking. Gure then showed up and told her that he wanted to talk to Afrah. Gure warned her, at that time, not to say anything to the police if a fight broke loose or if anything happened or he would hurt her.

[172] Afrah showed up after Gure and they went into the bathroom where she heard yelling, cursing, and swearing. She heard a slapping sound, and although she could not see into the bathroom, she was pretty sure Afrah got slapped. They were in the bathroom for 20 to 30 minutes. When Afrah came out, he was full of blood. He had a fat lip and his eye was all pushed in. Her evidence on this point is confusing as she may have been referring to her observations of Afrah after he had fallen.

[173] Afrah had black and blue marks all over his face and that he was screaming, “please don’t hurt me, please don’t hurt me.” He and Gure went out to the balcony and they continued arguing. No one else was out on the balcony. She said that Gure made another threat to hurt her just before leaving the apartment.

[174] Gallinger then contradicted herself and said she had not bought drugs earlier that day. She said N.D.A. also threatened to hurt her if she talked to the police.

Second police interview, May 16, at 9:00 p.m. with Sgt McGetrick, Det. Chris O’Brien and Det. Guy Seguin

[175] This interview took place in Gallinger’s apartment. The officers attempted to have Gallinger demonstrate what happened. Gallinger described how Gure arrived, followed by Afrah, and two minutes later they were in the bathroom with the door shut.

[176] Gallinger described how Afrah was sitting on the toilet and getting punched in the chin by Gure. She was asked how she could see anything if the door was shut. She said she heard Afrah getting punched. She went back into her bedroom, looked out the window. Two minutes later, Afrah was already over the edge and then everyone else left the apartment in a hurry.

[177] This time, Gallinger said that Gure, J.B., and Jean-Charles came off the balcony and, for the first time, she said all three of them were fighting with Afrah on the balcony. She did not see what was going on, but she saw blood on the balcony.

[178] At first, Gallinger said she and Gure did not talk about anything before Afrah got there. She then said that Gure wanted to talk to Afrah about a drug debt owed to Gure’s brother, Bobby.

[179] Gallinger said she was in her bedroom with her door locked yet she saw them fighting in her hallway. This time, she said Gure, J.B., and Jean-Charles were pounding Afrah who was lying on the ground trying to defend himself. N.D.A. was trying to close the door.

[180] Gallinger then described the sequence of events this way: first, Afrah came out of the washroom, sat on the chair, and “they” beat him up again while he was trying to run out of the apartment. She said that Gure was threatening to kill Afrah. She said J.B. and Jean-Charles did not say very much but they continued to hurt him. Gallinger saw Afrah fall from her bedroom window and she saw him go over on the far side of her own balcony.

[181] It was pointed out to Gallinger that she had earlier identified Gure as the only person who attacked Afrah. She then said J.B. and Jean-Charles participated in the attack. She explained she was not out on the balcony the whole time, so she might have missed some of this.

[182] Gallinger then claimed she did not see anybody else on the balcony with Afrah. It was pointed out that she previously said she observed them beating Afrah on the balcony. She said this was correct. She said that Gure was beating Afrah on the balcony and that J.B. and Jean-Charles were there too; N.D.A. was telling them to stop fighting.

[183] Gallinger was asked why she did not mention J.B. and Jean-Charles in her first statement and she answered, “because vaguely I had a glance of just Gure being there. And that’s all I saw. And then … and then out of the corner of my eye, I saw the other two doing it as well” (emphasis added).

[184] Gallinger did not know if J.B. or Jean-Charles were mad at Afrah about anything but claimed Afrah was probably being set up by N.D.A. who had opened the door for him. On this occasion, she said that Afrah came in first and that Gure came in after. She then changed that answer and said that Gure arrived first.

[185] Gallinger was questioned as to how she could see what was happening in the bathroom if her door was closed. She said they opened her door and she saw Gure and Afrah fighting.

At trial

[186] Gallinger described her disability as bipolar and schizophrenia. She has a learning disability and she does not know how to read. Her nerves are pretty bad. She takes medication because of her bipolar disease. She also suffers from anxiety. She was diagnosed with these diseases when she was a teenager.

[187] Gallinger acknowledged that it was hard for her to remember certain things. She had a hard time forming complete sentences. She was unable to give the correct date when she gave her evidence; she thought it was April whereas it was May 6.

[188] In May 2017, Gallinger was using crack every day and her mental health was pretty bad at that time; she was not in the “rightest state of mind”. Her mind was going in different directions.

[189] Gallinger claimed that her mental health was a lot better by the time of trial as she was no longer using drugs, but she still smoked weed to relieve her stress. She was doing her best to tell the truth when she made her videotaped statements to the police.

[190] At trial, Gallinger said that Afrah was her friend that she had known about 10 years. She first met him when he was 17 or 18. She was told Afrah was 18 when he died. When asked again how many years she would have known him, she replied “over five years”. She said Afrah had bipolar disease too.

[191] Gallinger said it was very dark when people were outside on the balcony. She was shown a picture of the door to her balcony and she was convinced that the obvious wear and tear marks on the door were blood.

[192] When asked about her first statement where she indicated she saw Afrah go over the balcony, Gallinger replied she did not see that because she was locked in her bedroom. She said she never saw Afrah on the balcony; she could not explain why she told the police otherwise. She did not see N.D.A. hit Afrah or kick Afrah at any time.

[193] In cross-examination, Gallinger first stated that she was not using any drugs on May 15. When it was pointed out to her that she told the police that she had smoked crack cocaine that day, she denied saying that; she denied ever using cocaine. She could not explain why she told the police that she was using crack.

[194] It was pointed out to Gallinger that she changed her story many times, but she could not explain why. She maintained that she was telling the truth each time. She could not explain why her answer had changed within a few minutes.

[195] Gallinger said she was in the bedroom when Afrah fell from the balcony and she heard him screaming. She said when she came out of her bedroom, everybody was gone except for Gure. She said she went out onto the balcony and could see Afrah lying on the ground directly below her balcony. It was pointed out to her that she could not have seen this because he had fallen at the other corner of the building. Gallinger confirmed her belief that Afrah was still breathing a little when she observed him on the ground.

[196] Gallinger said there was a lock on the outside of her bedroom door and that N.D.A. had locked her in. She had used a butter knife to get out. After being shown video footage, she agreed that no lock was visible on the outside of her bedroom door.

[197] Gallinger agreed she could not actually see what was happening in the bathroom because the bathroom door was closed. She agreed that Afrah did not have any blood on his face when he came out of the bathroom. When it was pointed out that she had described seeing Gure, J.B., and Jean-Charles fighting on the balcony, she admitted that she could not see anything from her bedroom window.

[198] At one time, she said that all four of them were in the living room when she came out of her bedroom; but at another time, she said that Gure was the only one who was there. On other occasions, she said everybody was gone when she came out of her bedroom.

[199] Gallinger agreed she bought crack from Bobby the day Afrah died. She agreed that if she was in the bedroom and that N.D.A. was holding onto the doorknob, she would not be able to see Afrah on the floor and that she would not be able to see anybody beating him.

[200] Gallinger said she observed Afrah walk out onto the balcony and that nobody followed him. When it was suggested to her that J.B. chased Afrah onto the balcony, she agreed. She followed this by denying seeing Afrah run for the balcony with J.B. chasing after him.

[201] When it was suggested to Gallinger that she never saw Gure hit Afrah, she agreed. She did not hear J.B. threaten Afrah and she did not see J.B. hit Afrah. She did not know that J.B. had pled guilty to manslaughter and she did not know that N.D.A. had pled guilty to assaulting Afrah.

[202] Gallinger was taken to her video interview where she demonstrated the precise location where Afrah went over the balcony. She admitted this was not true and she could not explain why she lied to the police. She repeated she did not see anything on the balcony.

[203] Gallinger agreed with the suggestion that Gure was sitting in the apartment when Afrah arrived later with J.B. She agreed that, at other times, she had told the police the very opposite. She had no explanation for it. She agreed that her doctors have noticed that she often gives the contradictory information and that she is in poor contact with reality.

[204] The day before, Gallinger testified she used crack every day. On this day of trial, she said she did not. She testified that on the day Afrah died, she owed Gure $100 for the drugs she had bought from him. She bought these drugs after Afrah had died at around 4:30 in the afternoon. It was pointed out to her that Afrah had died around 11:00 p.m. She then agreed that she got the drugs from Gure later in the afternoon.

[205] Gallinger insisted that Gure had never been to her apartment before. When it was suggested to her that he had been there a few days before, she agreed. When a policeman first arrived at the scene, Gallinger agreed that she told him that Afrah had gotten into a fight with somebody named Bobby, that Bobby sold her some drugs that night, and that Bobby got into a fight with Afrah while she was in her bedroom. When she came out of her bedroom, Bobby and Afrah were gone.

[206] Gallinger denied there was ever anybody else in the apartment that day other than herself, N.D.A., J.B., Jean-Charles, and Gure. At some point in time, she told the police that somebody named “T” was in the apartment when Afrah arrived. She described “T” as a drug dealer.

[207] Gallinger was asked about someone named Pascal (Magoon). She denied that Magoon was ever in the apartment when Afrah was there. She knew he was a guy who uses the telephone to commit frauds.

[208] Gallinger agreed that N.D.A. and J.B. were two of her drug dealers and they were living at her apartment and selling drugs out of it. At first, she denied owing them money for drugs, but then she said she did not owe the money because she had paid that debt.

[209] Gallinger said Magoon was sitting around for a good part of the afternoon waiting for Gure. It was pointed out to her that she said that Magoon left before Gure arrived. It was only when she was referred to the video of him leaving at the same time as Gure that she agreed Magoon had been there.

[210] In cross-examination by defence counsel, Gallinger remembered speaking to police officers right after Afrah fell from the apartment and telling them what had happened. She agreed that she was still able to remember “really well” what had just happened and that she told the police officers the truth. After that, she gets confused.

[211] Right after Afrah fell and the ambulance arrived, Gallinger spoke to Officer Corey Bourguignon. His notes read as follows:

Gallinger advised that Afrah attended her unit, #1611, at approximately 8:30. Afrah was fearful of another man named Bobby, believed Afrah had an outstanding drug debt at $400 but couldn’t confirm for certain. Gallinger advised that she was informed to go into her room and proceeded to do so when she heard fighting occurred inside her unit. Gallinger stated that she did not see anything and when she exited her bedroom, she noted that Bobby had left. Gallinger was unsure how Bobby had entered her apartment and believed that Afrah may have granted him access.

[212] Gallinger said this was nothing but the truth. When asked if this was the same as what she had told to the police on different occasions, she claimed it was the same. She did not remember ever telling the police anything different. She was then read part of that police officer’s investigative action report where he made the following note:

A short time later, Gallinger advised that her original statement was untruthful. Gallinger advised that she had a few friends visiting this evening who were present at the time of the incident. Gallinger identified her friends as Afrah, N.D.A., Jean Charles, J.B. and Gure.

[213] Gallinger agreed what she had first told the police officer was not true even though she had just told the Court that it was nothing but the truth. She said the first statement was true but then she changed her words because she did not know the difference.

[214] Gallinger admitted she was worried about getting into trouble because of what happened to Afrah. She felt she had to keep answering the police officer’s questions so she would not get into trouble. She wanted to try to help the police and tell them what she thought they wanted to hear. She was not too sure what they were asking, and she was having a hard time remembering what had really happened.

[215] Gallinger admitted she had been truthful when she said she did not see what happened on the balcony, that she was telling the truth when she said she did not see what went on in the bathroom, and that she did not see what happened in the hallway; she just heard something that sounded like fighting. She confirmed that she did not know how Afrah ended up on the ground. The police kept asking her what happened, and she did not know. She felt pressured to tell the police what had happened in the apartment.

[216] Gallinger was then referred to her conversation with Cst. David MacKenzie. She told him Afrah, Gure, Jean-Charles, J.B., and N.D.A. were in her apartment and Jean-Charles and J.B. were brothers. She corrected this and said they were cousins. She told Cst. MacKenzie she heard an argument and she was told to get back into her room. There was an argument between Gure and Afrah over money or drugs owed to Gure’s brother Bobby. When asked if what she told Cst. McKenzie was the same or different than what she told to Cst. Bourguignon, she said the statements were the same and they were both the truth.

[217] Gallinger was referred to her conversation with Officer Maseruka, who asked her if she saw anything. She told him, “The male fell from her apartment. He was having an argument with another male” (Gure). She said that Afrah had been in her house for a few hours, and he had bruises on his face as though he had been in a fight. Gure later arrived and he and Afrah got into an altercation that involved mostly yelling and some shoving. Gure pushed Gallinger into her room and shut the door. This was the truth.

[218] Gallinger later told Officer Maseruka that while she was in her room, she heard a lot of yelling and believed that the fight had escalated. When she exited her room, Afrah had gone off the balcony and Gure had just left the apartment. She did not know if Afrah was pushed or if he jumped. This was the truth.

[219] She then spoke to Officer David Brennan and said several people had been in the apartment at the time. She had not seen Afrah jump but said that he had been fighting with another male just before.

[220] Another police officer, Cst. Wallace, drove her to the police station after the incident. Gallinger told Cst. Wallace that she had known Afrah for a couple of years. He had frequently stayed at her apartment and Afrah had a tendency to bring along others. On this date, Jean Charles, J.B., N.D.A., Gure, and Afrah attended the apartment.

[221] Afrah told her he was very stressed because he owed $400 for a drug debt and could not pay it. An argument developed, and it escalated to the point where Gallinger was very concerned. Gallinger saw Afrah get pushed into the bathroom and assaulted by one of the males in the unit. Gallinger could hear a lot of yelling and fighting coming from the main room and then on the balcony. Gallinger then exited her room, noticed everyone quickly leaving the apartment, and Afrah was nowhere in sight. She told Cst. Wallace that Afrah was having a lot of suicidal thoughts as of late and wanted to die.

[222] Gallinger was taken to her first video statement. She remembered saying she did not know what N.D.A. did for a living, but now she understood that N.D.A. was a drug dealer. She denied being dishonest; she just did not want to get into trouble.

[223] Gallinger felt pressure to give the police officers more detail and she started giving them explanations about what may have happened in her apartment. She had conversations with the police that were not recorded. She was shown a picture of Jean-Charles and she felt pressure to tell the police that he was involved in what happened to Afrah.

[224] Gallinger admitted saying repeatedly she did not know how Afrah went off the balcony. She never saw that. That was the honest truth.

[225] At the preliminary inquiry, Gallinger agreed that N.D.A. had sent her a letter and some money and that was the truth. At trial, she denied that N.D.A. sent her a letter. She denied those two versions were different and maintained they were both true. Gallinger said right after the death, she told N.D.A. she did not want anything to do with her. She agreed this was the first time she had ever said anything about this to anyone.

[226] Gallinger maintained she was smoking weed on that day and that was it. She smoked the weed after she heard about Afrah’s death because she was sad. She smoked the weed in her apartment immediately after Afrah had fallen from the balcony and a family member brought the weed for her. She denied she had never told this version of events before. Again, she insisted it was just the truth.

[227] Gallinger was referred to her evidence at the preliminary inquiry where she said she had consumed $120 worth of crack cocaine on the day Afrah died. She said that was the truth. When asked if this was different from what she just told the Court earlier, she remembered saying that she had not smoked crack that day but she refused to say it was not the truth and that she was trying to tell the truth as best she could. She agreed that $120 worth of crack was a lot of crack cocaine for her.

[228] Gallinger was referred to her evidence that N.D.A was “showing a lot”; she had a big belly on May 15, 2017. She had a very clear recollection of N.D.A. telling her she was pregnant on that day.

[229] In re-examination, she was taken to her evidence where Gallinger said that Afrah did not have blood on his face after he came out of the bathroom. Now she said he did have blood on his face. In cross-examination, she said she never saw Gure hit Afrah, but she now said she did see that.

[230] She was clear that Bobby was a different person from Gure and he was there that night but not when Afrah went over the balcony. She said “T” was in the apartment while Afrah was being beaten up, and “T” had tried to stop it. She said N.D.A. and J.B. had been staying in her apartment for a couple of months. When asked how many days are in a month, she said “seven”.

[231] When asked why she told N.D.A that she did not want to see her anymore, she said it was because N.D.A. had hit Afrah; “she (N.D.A.) was telling him off and everything.” She did not see N.D.A. hit Afrah but she knew she had. She heard it from her room and Afrah was in tears. When she came out of her room, N.D.A. was yelling and cursing at Afrah in French because they are both French.

The Law

[232] The Crown seeks a conviction of manslaughter against both accused and relies on section 222(5)(c) of the Code. The relevant provisions are as follows:

Homicide

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

Kinds of homicide

(2) Homicide is culpable or not culpable.

Non-culpable homicide

(3) Homicide that is not culpable is not an offence.

Culpable homicide

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

Murder

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

Manslaughter

234 Culpable homicide that is not murder or infanticide is manslaughter.

[233] Section 222(5)(c) was examined by the Quebec Court of Appeal in R. c. Charbonneau, 2016 QCCA 1354, 343 C.C.C. (3d) 204. In Charbonneau, the victim was summoned by a rival dealer to a park over a dispute about territory. When the accused pepper sprayed the victim, the victim fled and was pursued on the orders of the accused. When the victim was cornered by his pursuers, he jumped into a river in an attempt to escape and died. The accused was convicted of manslaughter.

[234] The Court held that the actus reus of this offence was “a threat conveyed or proffered to the victim, a fear of violence created in the victim by the offender’s conduct or by deception that leads the victim to commit the fatal act”: Charbonneau, at para. 68. Put another way, objectively dangerous conduct, including threats, that reasonably causes the victim to fear for their safety and cause their own death through flight will make out the actus reus of this offence.

[235] The mens rea of this offence is similar to that of unlawful act manslaughter, the objective foreseeability of bodily harm that is neither trivial nor transitory: R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573. The Court in Charbonneau added that “objective foreseeability of the consequences includes the victim’s reaction”, at para. 108. The mens rea of this offence is objective foreseeability that the victim would cause non-trivial bodily harm to himself in response to reasonably apprehended violence.

[236] Section 222(5)(c) was in issue in R. v Hall, 2015 ONSC 3276, where the accused sought a directed verdict of acquittal on that offence. It was alleged that Hall, who was an inmate at a detention centre, had caused the death of another inmate who later hung himself. The Court discussed the elements of the offence and noted the distinction between threats and fear of violence in section 222(5)(c). Henderson, J. held at paras. 17 and 18:

Regarding the phrase “fear of violence”, again there must be both an actus reus and a mens rea element. Furthermore, there is an additional aspect to “fear of violence” as that phrase certainly contemplates a reaction by the victim, Sawa in this case, to the conduct of the accused.

Accordingly, I find that in order for the Crown to prove “fear of violence” the Crown must prove:

(1) That Hall did something by words, gesture, or conduct to cause Sawa to fear for his safety, and

(2) That Hall did so with the intention of causing Sawa to fear for his safety, and

(3) What Hall did caused Sawa subjectively to fear for his safety, and that a reasonable person in the position of Sawa would objectively fear for his safety.

[237] Manslaughter pursuant to s.222(5)(C) is an offence of double causation; the conduct of the accused must cause the victim to cause their own death. As the court held in Hall, at paras. 19 and 20:

The next element of the offence is causation. In that regard there are two causal connections described in s.222(5)(c). The first causal connection that the Crown must establish is that Sawa did something that causes his death. As I indicated earlier, there is a strong evidentiary foundation on this point in this case, and therefore I do not intend to deal with it any further in this decision.

The second causal connection that the Crown must prove will arise only after the Crown has established a threat or fear of violence as aforementioned. In this case, in order to prove causation the Crown must prove that the threat or fear of violence caused Sawa to commit suicide.

Causation

[238] The test for causation for all offences, except first-degree murder, is whether the accused’s act or omission of a legal duty was a significant (or more than trivial or insignificant) contributing cause of the requisite harm for the offence charged: R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488.

[239] In Nette, the majority held that, in determining whether an accused can be held responsible for causing a particular result, it must be determined whether the person caused the result in both fact and law: Nette, at para. 44. At paras. 44, 45, 48:

Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished. In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred.

The law of causation is in part judicially developed, but is also expressed, directly or indirectly, in provisions of the Criminal Code. For example, s 225 of the Code provides that where a person causes bodily injury that is in itself dangerous and from which death results, that person causes the death notwithstanding that the immediate cause of death is proper or improper treatment. Similarly, ss. 222(5)(c) and 222(5)(d) provide that a person commits culpable homicide where he causes the death of a person by causing that person, by threats, fear of violence or by deception, to do anything that causes his death or by willfully frightening a child or sick person. These statutory provisions and others like them in the Code pre-empt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences. Where the factual situation does not fall within one of the statutory rules of causation in the Code, the common law general principles of criminal law apply to resolve any causation issues that may arise. [Emphasis added.]

[240] An intervening act can sometimes limit the scope of legal causation between an accused’s acts and a victim’s death. R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30 is the leading case on the test for intervening causes.

[241] Maybin involved an altercation in a bar whereby two brothers, T and M, repeatedly punched the victim in the face and head with one brother striking a blow that rendered the victim unconscious. Seconds later, a bouncer arrived on scene and again struck the victim in the head. The medical evidence was inconclusive as to which blow caused the victim’s death. When dealing with determining whether an intervening cause breaks the chain of causation, the Court held that the test articulated in Smithers, and confirmed in Nette remains the same: “Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?”: Maybin, at para. 28.

[242] According to the Court, neither an unforeseeable intervening act, nor an independent intervening act is necessarily sufficient to break the chain of legal causation: Maybin, at para. 28. A consideration of the reasonable foreseeability of the intervening act or the independence of the actor are merely analytical aids, not new standards of legal causation.

[243] In considering the analytical aid of reasonable foreseeability, at para. 38, the Court clarified that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Specifically, that:

Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so, then the accused’s actions may remain a significant contributing cause of death. [Emphasis added.]

[244] According to Maybin, determining whether an act amounts to an intervening cause, the Court should consider the following:

1. Whether the effects of an accused’s actions are “effectively overtaken by the more immediate causal action of another party acting independently”. This involves an assessment of the relative weight of the causes, looking retrospectively from death (at para. 46).

2. Whether the intervening act is so overwhelming as to make the accused’s act merely part of the history or setting in which the other cause operates (at para. 47)

3. Whether the intervening act is a response to the acts of the accused. Did the accused merely set the scene allowing other circumstances to (coincidentally) intervene or did the act of the accused trigger or provoke the action of the intervening party (at para. 50).

4. When the intervening acts are natural events, are they closely tied to the theory of foreseeability; is the event extraordinary? When intervening acts are those of a person exercising their free will, the focus is on the independence of the actions (at para. 50).

5. Whether the accused’s actions still represented an operating and substantial cause at the time of death (at para. 47).

[245] In Charbonneau, at para. 65, the Court describes threats, deception, or the fear of violence are elements that are objectively dangerous. The Court further states at paras. 73-76:

The fear of violence [set out in the above Code provision] is the emotional reaction of individuals exposed to the conduct of others that makes them sense that their personal safety is imperilled. To keep their emotional balance and physical integrity, they then develop defence mechanisms that generally appear in all stages.

In the initial stages, a survival instinct drives human beings to try and escape the harmful consequences of the apprehended danger. Author Christine Santerre discusses this reaction:

… In other words, this [section 225(5)(c)] covers the situation where an individual, in the grip of strong fear, harms himself or herself fatally in an attempt to escape the dreaded evil. Thus, the criminal law recognizes that a person in the grip of strong fear may react by committing an act that generally results in flight and that, if such a situation does occur, the harmful consequences thereof may be assigned to the person who provoked the fear, even when the result is death.

Because the intensity of the fear will vary from one person to the next and raise differing reactions depending on who is afraid, who is uttering the threat, and the nature of the danger or threat, it is important to apply an objective test to charges … culpable homicide to measure the fear of violence.

It is therefore important that the behaviour that is threatening or deceptive or that creates fear in the victim occurs in a context where any reasonable person would inevitably realize that he or she is forcing others to risk injury that is neither trivial nor transient, as in the case of culpable homicide by means of an unlawful act. [Emphasis added.]

[246] The Court in Charbonneau held, at para. 167, that the accused’s objectively dangerous behaviour caused the fear that the deceased would be the victim of violence, and that the risk of bodily harm that was neither trivial nor transient was reasonably foreseeable. Further, the fear created by the remarks and actions of the accused caused the victim to throw himself off the bridge.

Party Liability

[247] Section 21 of the Criminal Code provides:

Parties to offence

21 (1) Everyone is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[248] While the terms “aiding” and “abetting” under s. 21(1)(b) & (c) have sometimes been used interchangeably in the case law, each is distinct. Cory J. described the difference in R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26:

The terms “aiding" and "abetting” are often used together in the context of determining whether persons are parties to an offence. Although the meanings of these terms are similar, they are separate concepts: To aid under s. 21(1)(b) means to assist or help the actor: To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed: (internal citation removed.)

[249] The mens rea of aiding or abetting has two components, intent and knowledge: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 16:

The word “purpose” in s. 21(1)(b) means intent. The Crown must prove the accused intended to assist the principal in the commission of the offence; an act that assists the principal without an intention to do so will not attract criminal liability. “Knowledge” means that the aider or abettor knows the principal intends to commit the crime: Briscoe, supra, at para. 17. In Dunlop and Sylvester v. The Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, the Supreme Court made it clear that simple presence at the scene of a crime is insufficient to establish criminal liability as a party.

[250] In R. v. Magoon, 2016 ABCA 412, two individuals assaulted a child over several days, and it was unclear which assault caused the victim’s death. There was evidence that the accused were not always both present when the child was assaulted. In finding both accused guilty, the Court held that the extent of participation of each offender need not be precisely determined. What was important was that each directly participated in the assault: Magoon, at para. 85. The Court also held and that a finding of common participation means that neither party’s action constitutes an intervening act: Magoon at para. 92.

[251] In R. v. Miazga, 2014 BCCA 312, 315 C.C.C. (3d) 182, three accused participated in a group attack in which the victim was punched and kicked. An unknown member of the group stabbed the victim, causing his death. They argued they could not be convicted of manslaughter as there was no evidence they knew or could have foreseen a knife would be used. The Court concluded, at para. 15:

When the appellants participated in the attack, they engaged in an unlawful act where non-trivial/non-transitory harm to Mr. Edward was objectively foreseeable. As a result, they bear legal responsibility for Mr. Edward’s death at the hands of one of the other attackers, even though they did not intend for Mr. Edward to die or foresee that one of the attackers would use a knife. [Emphasis added.]

[252] Passively acquiescing to an ongoing criminal act is not aiding or abetting. As Dickson J. explained in R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 891:

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

And at 896:

In the case at bar I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement. There was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of Brenda Ross. There was no evidence of any positive act or omission to facilitate the unlawful purpose.

[253] What is necessary beyond “passive acquiescence” has been the subject of much discussion. Helping someone in the context of confinement is not enough. In R. v. Laurencelle, 1999 BCCA 511, 28 C.R. (5th) 157, the wife of a kidnapper brought the victim water, loosened his restraints, and allowed him to smoke. The Court of Appeal acquitted the accused. In R. v. Downey, 2009 CanLII 60682 (Ont. S.C.J.), the accused watched the victim as she was sexually assaulted over several days. At one point, the accused loosened the rope at her feet. He was acquitted on a motion for a directed verdict.

[254] Co-principals, sometimes called joint principals, actually commit the actus reus of the offence and, necessarily, possess the necessary mens rea when they do. Co-principals need not perform every act that makes up the actus reus of the offence: R. v. Mena (1987), 1987 CanLII 2868 (ON CA), 34 C.C.C. (3d) 304 (Ont. C.A.), per Martin J.A. This common participation need not be a result of pre-planning and could be spontaneous. In R. v. Ball, 2011 BCCA 11, 267 C.C.C. (3d) 532, at paras. 24-25, the Court noted:

So also with an attack by two or more on two (or more) victims - an attacker may strike only one victim while others strike the second, or they may all strike both. The attackers are all actual committers. Again, there is no need to resort to accessorial principles to find a basis for conviction.

Where two persons commit a crime as co-perpetrators it may be the case that they have agreed to do so before embarking on the endeavour. For purposes of liability under section 21(1)(a) of the Code, however, agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not a common purpose.

Vetrovec

[255] The Crown concedes that the Court should give itself a Vetrovec warning with respect to the evidence of Gallinger and Magoon, and to a significantly lesser extent, N.D.A.; the Court should approach their evidence with caution before accepting it and should look for confirmatory evidence to support it.

[256] Defence counsel submit that the Vetrovec warning applies particularly to N.D.A., who they describe as a practiced and manipulative liar who implicates others in order to get the best result for herself. She obtained a favourable outcome on her guilty plea in exchange for being a witness against her co-accused.

[257] In my view, Gallinger’s evidence does not fit well within the Vetrovec framework, and her evidence is better evaluated by relying on the basic concepts of credibility and reliability.

[258] In Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, the Supreme Court of Canada held that there is no fixed, invariable rule that all accomplices are untrustworthy or that the warning must be given in each case in which an accomplice testifies. When the warning is justified, the Court must simply tell the jury to approach the evidence of the witness in question with caution and to look for supporting evidence before accepting it. “Corroboration”, as it existed in the law prior to Vetrovec, is no longer required. The confirmatory or supporting evidence does not have to implicate the accused.

[259] The evidence of one Vetrovec witness can be confirmatory of another. In R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, the Supreme Court said at paras. 37, 38 and 39:

[T]he Ontario Court of Appeal set out a principled framework that will assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case. That proposed framework, which I adopt and amplify here, is composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

While this summary should not be applied in a rigid and formulaic fashion, it accurately captures the elements that should guide trial judges in crafting their instructions on potentially untrustworthy witnesses. The fourth component, of particular interest on this appeal, provides guidance on the kind of evidence that is capable of confirming the suspect testimony of an impugned witness.

Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. Where evidence is “tainted” by connection to the Vetrovec witness it cannot serve to confirm his or her testimony. (Internal citations removed, emphasis added)

[260] I conclude that the independence of confirmatory evidence ultimately rests on its reliability and credibility. In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), Doherty J.A. explained the distinction between credibility and reliability at para. 33:

Testimonial evidence can raise veracity and accuracy concerns. The former relates to the witness’ sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’ testimony. The accuracy of a witness’ testimony involves considerations of the witness’ ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’ credibility. When one is concerned with the accuracy of a witness’ testimony, one speaks of the reliability of that testimony. Obviously, a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

W.(D.)

[261] Counsel for Jean-Charles relies, in part, on Magoon’s evidence that her client took no part in the beating of Afrah. She relies on the underlying principles that drive W.(D.) reasoning. First, if the evidence of the accused is believed, he must be acquitted. Second, even if that evidence is not believed but leaves a reasonable doubt, the accused must be acquitted. Third, even if there is no doubt raised by the evidence of the accused, the accused can only be convicted if the evidence I do accept establishes his guilt beyond a reasonable doubt.

[262] The W.(D.) principles are applicable not only to the testimony of the accused, but to all potential exculpatory evidence raised in the defence or the Crown’s case. As Justice Blair explained in R v. B.(D.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt…. In that event, they must acquit.

Post-Offence Conduct

[263] The Crown relies on post-offence conduct of Gure and Jean-Charles as evidence of their participation in the attack on Afrah. In the seminal case of R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, the Supreme Court cautioned about the inferences that may be drawn from evidence of an accused’s flight. The Court held, “Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence.”

[264] In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, the Supreme Court expanded on this and said, at para. 69:

In both cases, the person may flee for a host of reasons, such as to avoid arrest, to minimize evidence of that person’s connection with the crime, or to buy additional time. Indeed, flight is a response equally consistent with a wide range of much less serious offences, such as theft, vandalism, or common assault (as discussed in Arcangioli).

[265] Post-offence conduct is circumstantial evidence. As the Supreme Court recently said in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30 and 41:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

I find the idea expressed in this passage – that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative – a helpful way of describing the line between plausible theories and speculation. [Emphasis added.]

[266] In R. v. Mujku, 2011 ONCA 64, 278 C.C.C. (3d) 299, the Court of Appeal held that evidence of post-offence conduct aimed at destruction of evidence can be considered as circumstantial evidence of the accused’s culpability and his connection to other parties to the offence.

[267] Inferring a criminal act where the evidence shows the accused was present when a crime was committed and who later fled from police is an error of law: R. v. C.P., 2014 BCSC 2570. In C.P., the accused was located next to a car during an ongoing theft. When the police arrived, he took off. Bruce J. held, at para. 21:

To infer a criminal act from post-offence conduct without any additional evidence to support a case for concluding aiding or abetting is, in my view, an error of law. Running away is not evidence that the accused committed a crime. It is only a circumstance that, combined with other evidence that he committed the crime, can be used to infer that the Crown has met the burden of proof.

The Position of the Crown

[268] The Crown submits that both Gure and Jean-Charles are guilty of manslaughter pursuant to section 222(5)(c) of the Code. The Crown argues that Gure is guilty as a principal and that Jean-Charles is guilty as a principal, or in the alternative, as a party. The Crown relies on post offence-conduct of each of them as evidence of their culpability.

[269] The Crown further submits that both Gure and Jean-Charles are guilty of assault causing bodily harm (ABH) on the same facts, this being the lesser and included charge to aggravated assault, which is charged on the Indictment. The Crown concedes that it is not possible to determine whether the injuries prior to the fall constituted an aggravated assault but submits that they meet the threshold for ABH.

[270] The Crown maintains that it is clear that:

• Gure beat Afrah in the washroom;

• Afrah was beaten in the hallway;
• Afrah tried to get out the front door;
• Afrah was sitting on a chair in the living room/dining room area when J.B. was looking for and then found duct tape to tie him up and had ripped a piece off very close to where Afrah was sitting;
• Afrah went onto the balcony, moved quickly over the divider and then over the railing in an effort to escape and then fell to his death;
• Afrah was badly beaten, in pain, terrified and felt he had no other choice before he went onto the balcony;
• Both Gure and Jean-Charles were part of a joint attack on Afrah to keep him down on the ground, encircled, and then in the chair, confined;
• Afrah risked his life in order to try to save his life because he felt he had no other choice;
• The actions of Gure and Jean Charles were a significant contributing cause to Afrah’s death;
• Manslaughter is a crime of consequences;
• Their guilt has been proved beyond a reasonable doubt.

Position of the Defendant Gure

[271] Counsel submits that the Court must determine: 1) the acts of the accused, Gure; 2) whether the Crown has proven those acts beyond reasonable doubt; and 3) that these acts are a significant cause of Afrah’s death.

[272] Counsel submits that Gure’s post-offence conduct is of no importance since everyone leaves the scene. He argues that the evidence can only be used to show that Gure was there but not the degree of his participation. The evidence cannot be used to infer a consciousness of guilt as there were other reasons to leave; namely, to avoid arrest. He concedes that Gure’s conversation with Tremblett shows some degree of participation in the events in that apartment but argues that a distinction must be made as to whether Gure is a party or a principal.

[273] Counsel submits that the factual evidence is a mess since the witnesses were making assumptions and guesses and gave conflicting versions of the events. He relies on the evidence that Gure was trying to stop what was going on. He submits that the evidence of a debt owed by Afrah to Gure is unclear.

[274] Counsel acknowledges that manslaughter is a crime of consequences. In this case, he argues that none of the witnesses foresaw what happened and Afrah’s fall was not reasonably foreseeable. He argues that Afrah went over the railing because J.B. chased him and pursued him. He submits that this is an independent cause or intervening act. He says that there are a number of these, including Gure’s attempts to stop what was going on, J.B.’s search for duct tape, the presence of a partition wall, and the chase over it. He submits that J.B.’s guilty plea to manslaughter reflects his independent role.

[275] Counsel submits that there were other options available to Afrah once he went over the divider onto the neighboring balcony; he could have stayed there or screamed for help.

[276] Counsel focused on the frailties in the evidence of N.D.A., Gallinger, and Magoon. At best, he submits that these witnesses corroborate each other on peripheral facts but not the important ones.

[277] Counsel notes the small space where the assault took place. He maintains that Gallinger was making up her evidence as she was testifying. He refers to all the inconsistencies and the improbabilities of her evidence. He argues that Gallinger does not understand the concept of the truth and that there are so many contradictions in her evidence that it’s difficult to cite them all. He gave twenty examples. He submits that her evidence has no confirmatory value.

[278] Counsel relies on Magoon’s admission that he is a terrible witness and that Tremblett is just another crack addict whose evidence is less reliable. He refers to Magoon’s demeanor in the witness stand and his lack of coherence.

[279] Counsel cites N.D.A.’s lies to the police and her motivation to get herself out of any charges. He submits that the frailties of her evidence are demonstrated by the Crown’s resort to section 9(2) of the Canada Evidence Act to cross-examine its own witness. He argues that it took a threat of perjury charges before N.D.A. said that Gure and Jean-Charles played any role in Afrah’s beating. Even then, he says that N.D.A. explained her answers away.

[280] In summary, Counsel submits that the Crown cannot take three terrible witnesses to construct one good one. He argues that the Court cannot find as a fact that Gure did anything.

[281] Counsel argues that N.D.A. got a “deal” when she pled guilty to aggravated assault. The Crown was looking for a guilty plea to manslaughter and an adult sentence, yet nothing has changed in the Crown’s case against her.

[282] Counsel notes the differences between the ASF that N.D.A. swore to be true at the time of her guilty plea and her evidence at trial. He refers to her lies to the police and her attempts to deceive them by telling them enough truth so that she would be believable. He submits that N.D.A. engaged in the same kind of behavior at trial and her evidence must be rejected.

Position of the Defendant Jean-Charles

[283] Counsel submits that there is insufficient reliable evidence to find Jean-Charles guilty as a party or a principal to the charge of manslaughter or assault bodily harm.

[284] Counsel submits that the stark lack of reliability and credibility of the Crown’s principal witnesses are such that it would be exceptionally dangerous to convict Jean-Charles on the evidence of these individuals. The witnesses who implicate (or do not implicate) Jean-Charles in the assault of Afrah are, variously, mentally disabled and high on crack (Gallinger); self-interested and absolutely incredible (N.D.A.); and high on crack (Magoon).

[285] Counsel nevertheless relies on the evidence of Magoon in that he is clear, from the outset, that Jean-Charles was not involved in the assault of Afrah. While his evidence suffers from reliability concerns, he has no motivation to lie, implicate others, or exonerate Jean-Charles.

[286] Counsel argues that the circumstantial evidence that the Crown alleges implicates Jean-Charles in the beating and confinement of Afrah is not compelling and is subject to a multitude of alternate inferences.

[287] Counsel concedes that there is evidence before this Court, due to Jean-Charles’ phone records, that Jean-Charles and the deceased were known to one another. She notes that Jean-Charles continued to use his phone after Afrah entered the apartment; namely, during the time of the beating. She argues that the bare fact that the parties were known to one another is of no value in ascertaining the defendant’s liability for the acts attributed to him by the Crown.

[288] The events took place in a relatively small space. Counsel submits that no inferences may be drawn in this case by virtue of the simple fact that Jean-Charles is present at the pertinent time.

[289] Regarding his post-offence conduct, Counsel submits that there are a host of available inferences relating to his decision to leave the apartment prior to police arrival and to leave Ottawa for Toronto on May 18, 2017, that are not consistent with a “guilty conscience” because he was involved in the assault on Afrah. Specifically:

• As of May 15, 2017, Jean-Charles had two outstanding warrants: A first-instance warrant and a bench warrant. It is submitted that it makes perfect sense that Jean-Charles, being a witness and not a participant to these events, would take steps to avoid police (as he would be arrested on his outstanding warrants), and to avoid giving a narrative that would, inevitably, implicate the other individuals in the apartment.

• As of May 17, 2017, Gure’s arrest for manslaughter was in the news. The newspapers were publishing the ongoing police hunt for witnesses and suspects in relation to the “high-rise homicide.” Ms. McInnes submits that it is perfectly reasonable to believe that Jean-Charles fled because he wanted to avoid apprehension, arrest, prosecution, and/or becoming a witness for his outstanding charges predating May 15, 2017, and for the events relating to Afrah.

[290] Finally, Counsel argues that the evidence relating to Jean-Charles’s removal of his pants in the laundry area of the St. Laurent apartment building does not lead to the inference that he removed his pants because they were covered in the blood of the deceased. The assertion that the “only reasonable inference” relating to Jean-Charles changing his pants is that there was blood on them is not tenable: Jean-Charles changed his appearance many times that day.

Reliability and Credibility Concerns

[291] As conceded by the Crown, a Vetrovec warning is appropriate regarding each of its witnesses. There are reliability and credibility concerns with respect to all the principal witnesses called by the Crown. While a particular focus on that evidence will occur in the analysis of the facts, a general review of the evidentiary issues reveals the challenges in the fact-finding process of this trial. It remains the case, however, that the Court can accept some parts of any witness’ evidence even if it rejects other parts of that witness’s evidence.

Ron Tremblett

[292] While Ron Tremblett was not included in the Crown’s list of Vetrovec witnesses, a lifetime of alcohol and drug abuse has affected his ability to accurately recall the events of that night. The events of that night would have impressed him because of their exceptional nature. I found him credible; he had no motive to lie. Apart from Magoon, everyone else was unknown to him.

N. D. A.

[293] While I will turn to N.D.A.’s evidence later in this decision, there are significant credibility and reliability concerns with N.D.A.’s evidence at this trial. At the outset, she is an admitted liar. At the time of turning herself into the police, she repeatedly lied about the events of that night. At first, she said she was not there. When she realized that was not believed, she then said she had been there but had left early.

[294] During that interview, N.D.A. attempted to deceive the police and to manipulate the situation in order to persuade the police that she was confiding in them. N.D.A. admitted that she wanted to give the police enough of the truth so that they might believe the rest; her purpose was to “give a little, get a little.”

[295] By the time N.D.A. entered a guilty plea, her bail had been revoked, her infant daughter had been removed from her care, and she had received additional disclosure, including damaging evidence from Magoon. The Crown was seeking a guilty plea to manslaughter and an adult sentence. These would have put an end to any hope of reunification with her daughter.

[296] Once again, it is apparent that N.D.A was prepared to “give a little, get a little” at the time of her guilty plea. She was insistent on limiting her involvement in the events to one kick to Afrah’s face. She realized that an explanation was necessary to account for Afrah’s injuries.

[297] At trial, N.D.A. repeatedly answered questions with the following phrases, “I don’t remember”, “I am making an assumption”, “I am making an educated guess”, “I think”, and “Maybe”. She claimed to be repressing her memory of the events, to having tunnel vision, to being in shock, or to being too caught up in the events to take notice of anyone else. She had multiple explanations for her failure to give a straight answer to any question.

[298] N.D.A. made statements that were simply not credible. She claimed she had stolen a large amount of cocaine from one person and that she cooked this down into crack herself, and this is how she obtained all of the crack she sold to others over a period of months.

[299] The Crown repeatedly sought to refresh her memory by taking her back to her ASF. Even though her counsel reported to the Crown that the final version of the ASF had been reviewed in meticulous detail with her, N.D.A. suddenly claimed to have no understanding of the word “significant” in describing the role of others during the beating of Afrah and to have had little opportunity to review her ASF.

[300] Finally, the Crown gave notice that they would be bringing an application pursuant to section 9(2) of the Canada Evidence Act because of N.D.A.’s inconsistent and contradictory answers. The Crown gave further notice that N.D.A. needed to obtain independent legal advice as she was facing the prospect of criminal charges.

[301] Even then, N.D.A. tried to explain away any inconsistencies in her evidence by providing incredible answers, such as being under the influence of alcohol most of the time of the offence and not understanding the English language because she was hanging around with people who did not speak English well.

[302] At trial, N.D.A. testified for the first time that the statement in her ASF that she and J.B. were selling drugs for Gure at that time was incorrect; yet this is one of the highlighted items that she swore as true because it was within her own personal knowledge.

Christina Gallinger

[303] Christina Gallinger is a mentally disabled individual who is diagnosed with bipolar disorder, schizophrenia, depression, anxiety, and an intellectual or “learning disability.” In May of 2017, Gallinger was a self-described “crack head.”

[304] A good example of her intellectual limitations is her statement that there are seven days in a month. She also said she had known Afrah for about 10 years and that she had known him since he was 17 years of age. It is known that he died when he was 18. She saw no problem with her answer.

[305] Gallinger had an exceptionally limited ability to accurately recall and narrate events. Her loose grasp of reality and of the truth is such that she agreed to diametrically opposed accounts of what happened that evening. She asserted that contradictory versions were both the truth and not different. While she was making genuine attempts to tell the truth, she was extremely limited in her ability to do so.

[306] Gallinger testified she saw things that she could not have possibly seen. She saw what was happening in the bathroom even though the bathroom door was closed. She saw Afrah jump from her balcony when he did not jump from that location at all. Gallinger saw things no one else saw: a person named “Bobby” and another person simply identified as “T”. She was not aware that she was in the same room as Magoon during the assault in the hallway.

[307] Gallinger testified she smoked weed in her apartment after Afrah fell from her balcony because she was sad. This was impossible since the scene was secured by the police and Gallinger was taken to the police station and then to a shelter.

[308] Gallinger testified that N.D.A. was pregnant on May 15 and N.D.A. had a very big belly. N.D.A. did not discover she was pregnant until sometime later. This evidence reflects a dangerous tendency, on Gallinger’s part, to incorporate into her memory something that she might have heard at a later date.

[309] Gallinger gave numerous contradictory statements. She admitted she was trying to help the police and tell them what she thought they wanted to hear. She felt pressured to tell them more details and to give them explanations about what she thought may have happened in her apartment.

[310] Her evidence is devoid of almost any corroborative value. She essentially agreed with any proposition being put to her as the truth, even if it were entirely different from what she might have said minutes before.

Jason Magoon

[311] Magoon’s admitted consumption of intoxicating substances and his stated memory difficulties regarding details of the evening and at the time of his initial statement to police on July 21, 2017, give rise to reliability concerns with respect to certain aspects of his narrative. He described himself as a “pretty shitty witness”.

[312] Magoon’s demeanor in the witness box stand was alarming at times. His frantic manner of speech and visible agitation led to concerns that he may have been under the influence of crack, or in need of it in order to regain his composure. Court recessed early one day because of those concerns. As time progressed, it became apparent that this was typical behaviour.

[313] The Crown sought to refresh his memory on more than one occasion, and he too was the subject of a successful s. 9(2) Canada Evidence Act application.

[314] On the night in question, Magoon was busy committing bank frauds against “little old ladies”, and he was so focused on what he was doing that he did not even notice that Gallinger was in the same room as him. After he had secured his online account, he was in a hurry to leave. He admitted that his memory of the actions that took place while everybody was near the dining room table was “cloudy.”

[315] In some respects, Magoon was the more authentic and impartial of the four civilian witnesses heard by this Court. Magoon was effectively a stranger to the other parties. He had no reason or motivation to fabricate anyone’s participation in the events at issue.

[316] With respect to his general narrative of the evening, Magoon is consistent with respect to what took place. On all occasions where he provides an “official” account of events (his police statement, the preliminary hearing, and the trial), Magoon is consistent with respect to who took part in the beating of Afrah.

Analysis

[317] I am satisfied beyond a reasonable doubt that Afrah was summoned to the apartment by Gure to settle a $400 drug debt that Afrah owed to him.

[318] There were many calls back and forth between Afrah and J.B. Some phone calls were from Jean-Charles to Afrah although their nature is unknown. When Afrah arrived at the apartment, he was accompanied by J.B.

[319] N.D.A. said she thought J.B. asked Afrah to be there at the request of Gure. She learned that Gure wanted Afrah to come to the apartment to settle a debt owed to someone and $400 to Gure. After N.D.A. had her memory refreshed in re-examination, she recalled that she did have personal knowledge that Gure was confronting Afrah about a drug debt owed by Afrah to Gure in the washroom on the night in question.

[320] While N.D.A. was being evasive with her answers, I am satisfied that she was being truthful on this issue due to the confirmatory evidence of the other witnesses.

[321] Magoon knew somebody was coming over. He overheard the others and came to believe somebody was supposed to show up because this person “probably owed a couple of bucks there, so he was supposed to go pay some money.” He understood that money was owed to Gure for crack. He got this information when he went out with Gure and J.B. to get cigarettes. Magoon said it appeared that J.B. and Gure had a working relationship based on the way they were fraternizing.

[322] Magoon overheard Gure explain to Tremblett. “you know, it’s normal if somebody owes you a few bucks, you slap him around a bit and fuck’n, you know, get the ball rolling and get my fuck’n money.”

[323] Gallinger testified that Afrah told her he owed money for a drug debt. This evidence is confirmed by other witnesses.

The Relationship between Gure and J.B., N.D.A., and Jean Charles

[324] I am satisfied that Gure, J.B., N.D.A., and Jean Charles knew each other. N.D.A. gave conflicting and evasive answers of her knowledge of Gure. She ultimately conceded that her boyfriend, J.B., looked up to Gure, and I infer from that that there was a relationship between Gure and J.B. and, as J.B.’s girlfriend, N.D.A. was aware of it.

[325] In preparing the ASF for N.D.A.’s guilty plea, the Crown included this statement at paragraph 6:

In the spring of 2017, Liban Gure, then 29 years old, … was also a drug dealer, J.B., N.D.A. and Mr. Jean Charles worked with, and from time to time worked for, Mr. Gure selling drugs.

[326] That statement, which N.D.A. previously swore was true, was never disputed until this trial. Moreover, that statement provides an explanation for her participation in the beating of Afrah. N.D.A.’s relationship with Gure provides a more credible explanation for the source for all of the crack she sold. It explains J.B., N.D.A. and Jean-Charles’ presence there that night.

[327] Gure was the oldest member of the group. He appeared to be in charge. Almost immediately after the incident, there are calls between Gure and Jean-Charles and one message where Gure asks “u iight” (you all right). These are messages of concern. In contrast, there are even more calls and messages between Gure and J.B., including one where Gure arranges for a driver to pick up J.B. and where Gure gives J.B. some direction on what to do next.

What took place in apartment 1611

[328] Afrah entered an elevator at 10:11 p.m. He was dead by the time Gure and Magoon are leaving the scene at 10:54. The events in apartment 1611 took place over a very short period of time and can be broken down in four phases:

1. What happened in the bathroom,

2. The beating in the hallway,

3. What happened at the dining room table,

4. The events on the balcony.

What happened in the bathroom

[329] I am satisfied beyond a reasonable doubt that Gure assaulted Afrah in the bathroom.

[330] N.D.A. said at some point Afrah and Gure went into the bathroom together for a long period of time. N.D.A. said there was loud voices and Gure’s voice sounded aggressive. N.D.A. heard some banging coming from the bathroom that sounded like banging into walls or feet hitting the tub. The door opened and Afrah looked panicked.

[331] While I have remarked on the difficulties with N.D.A.’s evidence, after first failing to convince the police that she had not been there that night, she has always maintained that Gure fought with Afrah in the bathroom.

[332] Magoon said that while he did not see Gure and Afrah in the bathroom, he heard Gure talking about being in the bathroom with Afrah at some point. Magoon’s take on it was that Gure he had been in the bathroom with Afrah “smacking him around or something along those lines”.

[333] On this issue, Gallinger’s evidence that Gure was beating Afrah in the bathroom must be given some weight.

[334] Afrah’s blood is found in the bathroom sink and on the hallway walls and floor. Dr. Milroy testified that there had to be a bleeding source from Afrah: a laceration on the skin or bleeding from the mouth or nose – a broken nose will bleed and there may not be external injuries. He testified that the blood splatters on the walls of the hallway were consistent with a bloody nose.

The beating in the hallway

[335] N.D.A. and J.B. have pleaded guilty with respect to their participation. The more critical question is the identity of others who may have taken part in the beating of Afrah and the extent of their participation.

[336] The beating took place in a relatively confined space. There are in fact two hallway spaces; the first is the small space immediately upon entering the apartment. After this, there is a narrowing of the hallway to the left for a short distance and then the hallway widens between the bathroom and the bedroom.

[337] N.D.A. said that the beating took place outside the bedroom door. Magoon says that the beating took place at the entrance to the apartment. The difference is important because it is hard to understand how three young adults, one large adult, and a victim lying on the floor could be moving around or standing in a circle within the confined area near the front door.

[338] I conclude that while the beating may have initiated outside the bathroom door, it moved quickly to the entrance. Afrah’s attempt to escape from the apartment makes sense. A smear of his blood was found on the entry doorframe. Magoon testified that Afrah made a dash for the door and that he was stopped by J.B. and N.D.A. In the photographs submitted in evidence, the blood droplets appear to be more prevalent on the wall and on the floor in that area.

[339] N.D.A. said she held the bedroom door shut so that Gallinger could not see what was happening and then made a running kick to Afrah’s cheek. This would require N.D.A. to move from the bedroom door to the area near the entrance.

[340] Gallinger was able to exit the bedroom when N.D.A. let go of the bedroom door handle. She saw something. One of the witnesses, Ali Jama, heard a female’s voice yelling “Stop”. Gallinger may have gotten the sequence wrong, but she saw Afrah running towards the entrance door.

[341] N.D.A. said Afrah looked panicked when he came out of the bathroom. N.D.A. said that Gure had Afrah on the floor. While she first said she, J.B., and Jean-Charles had been around Afrah and “we had kicked him and punched him.” and Gure began stomping Afrah with the heel of his boot, in cross-examination, N.D.A. retreated from that statement and said that she was not paying attention at that point and that she never said 100 percent that that was what happened.

[342] N.D.A. denied stomping Afrah and said that Gure stomped Afrah with the heel of his Timberland boots. While Gure’s boots were never matched to the patterned bruises on Afrah’s face, Afrah’s blood is found on Gure’s boots and on his pants. This confirms N.D.A.’s evidence that Gure took part in the initial beating in the hallway.

[343] The patterned bruises on Afrah’s left cheek are described as stomping injuries by Dr. Milroy. Afrah had been stomped on the forehead as well. N.D.A. was insistent that she only gave one kick to Afrah’s cheek, but Dr. Milroy testified that a kick from a toe would result in a bruise or a tear. There is no visible bruise or tear in the autopsy photos. I am not satisfied that N.D.A was being truthful about her own involvement in Afrah’s beating.

[344] After initially implicating Jean-Charles in Afrah’s beating, N.D.A.’s evidence of Jean-Charles’s involvement became increasingly vague, even as she was being examined in-chief. She said she did not completely remember exactly what the others did to Afrah because she was focused on what she was doing. N.D.A. agreed she did not really have a great sense of where everyone else was. She increasingly answered questions with “I don’t know” or “I don’t remember”. She was unaware that Jean-Charles was using his phone; she thought J.B. had the only working phone.

[345] N.D.A. testified in cross-examination that she “assumed that Jean Charles may have been involved in Afrah’s beating”, that she could make an “educated guess” that Jean Charles was involved, but that she did not observe him strike or kick Afrah in any manner.

[346] I have already noted N.D.A.’s motivation to lie when speaking to the police. N.D.A. understood from the outset of her plea negotiations that the Crown required her to admit to an ASF under oath. She agreed she was testifying in this trial in fulfillment of her agreement with the Crown to testify against these defendants. That the agreement with the Crown was to her advantage.

[347] N.D.A.’s sole concern was to limit her own involvement to a solitary kick. The first ASF proposed by N.D.A.’s counsel (in conjunction with J.B.’s counsel) did not implicate Jean-Charles or Gure in the argument, assault, or confinement of Afrah.

[348] The extent of N.D.A.’s own description of Afrah’s injuries required an explanation, and the Crown wanted somebody to take responsibility for them. She knew the police believed that Jean-Charles was involved. Once again, she had a strong motive to lie.

[349] It was only after effectively being threatened with a criminal charge and being told to seek independent legal advice that N.D.A. partially retracted her evidence in cross-examination and indicated that Jean-Charles was in the area during the hallway assault on Afrah and that unknown parts of his body were moving.

[350] In re-examination, N.D.A.’s answers continued to unravel. She apparently could not remember telling her lawyer that Jean-Charles and Gure were “significantly involved” in the beating event though her counsel advised that she and N.D.A. had gone through the ASF in meticulous detail.

[351] N.D.A. said that she was very confused about the wording: “but you know I had a ten-minute conversation with my lawyer Sarah, and during that conversation she told me that I did use those words and it was in my personal knowledge. She has no reason to lie about that”. In other words, something must be true because her lawyer said it was.

[352] N.D.A. testified that “significant” could be a “major” role or just playing “any” role. She concluded by saying a “significant role” could mean that someone was simply there (as read to her from a dictionary by her lawyer). She ended by saying “He (Jean-Charles) was nearby”. She only remembered Gure’s Timberland boots.

[353] N.D.A. tried to explain away any inconsistencies in her evidence by providing incredible answers such as being under the influence of alcohol most of the time and of not understanding the English language because she was hanging around with people who did not speak English well. Overall, her evidence of the involvement of Jean-Charles is manifestly unreliable. It is not saved by Gallinger’s inconsistent and unreliable evidence of viewing a beating from a glance out of the corner of her eye.

[354] Magoon says Jean-Charles was a bystander to the assault on Afrah. Jean Charles was too drunk, leaning up against a wall, and “the least interesting person” in the room apart from Gallinger. There was alcohol consumption that day. Magoon said that J.B. and N.D.A. were the ones kicking and slapping Afrah and no one else. J.B. prevented Afrah from leaving.

[355] While there were frailties in Magoon’s evidence, it was consistent on this point. Unlike N.D.A., he had no reason to lie or to cast blame on someone else. Applying the W.(D.) analysis, his evidence leaves me with a reasonable doubt as to Jean-Charles’ participation in the assault. At best, I conclude that Jean-Charles was simply nearby.

[356] The Crown’s reliance on post-offence conduct regarding Jean-Charles does not assist in meeting their burden of establishing beyond a reasonable doubt that Jean-Charles took part in the beating.

[357] Nothing can be inferred from the fact that Jean-Charles later changed his clothes. N.D.A. did not see any blood on his pants. Jean-Charles had already changed his clothing and his appearance five times that day. The Court is left with pure speculation as to why he changed those pants. His eventual flight to Toronto could have simply been to avoid arrest. The post-offence conduct is not consistent with consciousness of guilt.

[358] During the beating, Afrah was screaming for help. N.D.A. admitted that Afrah was yelling and screaming, saying “stop” and “help.” Magoon said that Afrah was “freaking out” and screaming. While she was in her bedroom, Gallinger heard Afrah screaming for help.

[359] Another witness, Meera Al-Nahyan, heard someone yelling for help. She said that whenever Afrah cried out for help, “you could tell that someone was trying to shut him up”. Because of the noise, security was notified, and 911 calls were made.

[360] At some point, Afrah was forcibly brought or dragged to a dining room chair. A dragging sound was overheard by neighbours. Everyone agreed that Afrah was made to sit facing the room. A smear of his blood was found on the dining room table at that location. This evidence demonstrates the level of Afrah’s fear and panic.

What happened at the dining room table

[361] Magoon told police Jean-Charles was yelling at Afrah as Afrah got up and then went to sit on the chair. He could not recall what was said, and in cross examination, he said Jean-Charles was probably yelling at Afrah because he heard male voices and he knew who was around. He was not sure about this. His memory about those events was not clear.

[362] Magoon said that, at one point, Afrah looked like a “deer caught in the headlights” and was probably looking for a way out. He told the police that J.B. and N.D.A. continued to slap Afrah around as he was sitting on the chair. He told police that Gure was trying to get an arrangement going before letting Afrah leave and was asking Afrah “when are you going to have my money?”

[363] N.D.A. said Gure wanted Afrah to calm down. She remembered Gure, herself, J.B., and Jean-Charles asking Afrah to stop yelling because they did not want to draw attention to what was going on. N.D.A. thought Jean Charles said “calm down” a few times. This evidence is believable; the noise was loud enough to attract the attention of the neighbors. I am unable to determine what Jean-Charles said or his intent was in speaking to Afrah; it could have been out of concern for Afrah. I cannot conclude that Jean-Charles participated in any confinement of Afrah.

[364] N.D.A. said she did not think that Afrah really understood what they were asking of him. She thought he was very hurt and panicked and that he wanted to get away very badly. N.D.A. remembered Gure telling Afrah that if he stopped yelling he could leave. There was no response from Afrah; it was almost like he did not hear anything.

[365] N.D.A.’s evidence, at this point, is more reliable than her evidence on other issues, possibly because she did not appreciate its significance. She said Afrah’s face had huge bumps on it. It looked painful. Afrah was crying and yelling. She had never seen anybody look that hurt before. She noticed Afrah was bleeding a lot from the mouth. He was very distressed. He was yelling loudly. Afrah was looking everywhere, looking for somewhere to go.

[366] Gallinger said Afrah was bleeding badly from the mouth when he was sitting down on the chair and Gure told him to stop talking and to stop screaming. Afrah was screaming at the top of his lungs. Gallinger’s account is confirmed by other evidence

[367] At approximately 11:00 p.m., witness Denise Larabie, from apartment 1510, heard a male voice say, “relax man, relax” three times, then everything went quiet. She believed the male who said “relax” sounded scared and unsure of what was going on.

[368] J.B. then went in search for something to tie Afrah up with. J.B. found duct tape. A piece of duct tape was found on the floor not far from where Afrah would have been sitting. Another piece was found on the balcony, and a roll of duct tape was found at the bottom of the balcony divider.

The events on the balcony

[369] Afrah then attempted another escape from the apartment. N.D.A. said he ran very quickly to the balcony and she did not remember exactly in what order people then went onto the balcony; but she stayed inside.

[370] N.D.A. later said that she thought J.B., Jean Charles, and Gure were all on the balcony together but that she could be wrong. N.D.A. said J.B. was moving fast when he went out onto the balcony after Afrah.

[371] Magoon said that he saw Afrah go out onto the balcony. He was moving “pretty quick”. He said Afrah “kind of faked one way to make it look like he was leaving one way, through the front door, and then he ended up going toward the balcony and then went through the divider hole. J.B. was trying to follow him but then gave up.”

[372] Magoon said that J.B.’s torso was through the divider hole before J.B. climbed back down onto Gallinger’s balcony. He said he “couldn’t catch him.” The roll of duct tape at the bottom of the divider confirms Magoon’s evidence that J.B. was pursuing Afrah.

[373] No one saw what happened on the other side of the divider. The netting at the far end is torn. Fingerprints on the railing suggest that Afrah may have tried to lower himself to the lower balcony when he slipped and fell.

[374] Witness Dave King was in apartment 1512, below the neighboring balcony. At around 11:00 p.m., he heard a rattling/banging sound, like people were jumping up and down, partying, throwing something, or climbing something. At one point, Mr. King thought somebody was going to climb up or down to his balcony.

[375] I conclude that Afrah, having already been beaten twice, was trying to escape further injury and was willing to risk non-trivial bodily harm as he was pursued by J.B.

[376] I further accept that Gure threatened Gallinger on the way out of the apartment. I accept N.D.A. and Gallinger’s evidence on this point. Gallinger was a witness to these events and she was the only person who was not trying to get away. The police were sure to question her. The evidence of a threat is credible. This further reinforces my conclusion that Gure was in charge of the events that night.

Conclusion

[377] I find that Afrah was summoned by Gure to Gallinger’s apartment to settle a drug debt owed to him. Afrah was assaulted by Gure in the bathroom and suffered a bloody injury. Shortly after he exited the bathroom, Afrah ended on the hallway floor after interacting with Gure. Gure was the only person standing by. Gure participated in the assault on Afrah in the hallway.

[378] Afrah tried to escape from the apartment and was prevented from doing so by N.D.A. and J.B., and they continued to assault him. Afrah screamed loudly for help. A visibly injured Afrah was brought back into the apartment by J.B., made to sit down, and prevented from leaving by both Gure and J.B.

[379] J.B. searched for something to tie Afrah up. Afrah panicked, ignored any attempts to calm him down and, fearing further non-trivial bodily harm, sought the only other possible escape from the apartment, which was the balcony. He was pursued by J.B. even after he had managed to get to the relative safety of the neighboring balcony. As J.B. tried to follow him through the hole at the top of the divider, Afrah sought further safety by lowering himself to a lower balcony. He then fell to his death.

[380] Manslaughter is a crime of consequences. The actions of Gure and J.B. were significant contributing causes to Afrah’s death. Gure’s assault on Afrah in the bathroom; Afrah’s attempt to escape that assault; the further beating by N.D.A., J.B., and Gure in the hallway to prevent that escape; and Afrah’s forcible confinement in the dining room all caused Afrah’s fear that he would be the victim of further bodily harm that was neither trivial nor transient. There are no intervening causes or independent acts to interrupt the chain of legal causation. Afrah died within 44 minutes of his arrival.

[381] I conclude that J.B. was not acting independently of Gure when he pursued Afrah onto the balcony. J.B. looked up to Gure. I am satisfied that Gure and J.B. had a working relationship. J.B. delivered Afrah to this fateful meeting with Gure. Gure could have let Afrah leave at any time after Afrah left the bathroom. Gure was not prepared to do so until he had satisfactory arrangement for the repayment of the drug debt.

[382] Gure triggered the chain of events and these were not interrupted by the actions of J.B. or by anything else. As Gure himself ruefully acknowledged, “why did I let it get so far out of hand?”

[383] J.B. has pled guilty to the offence of manslaughter and I find Gure guilty as a co-principal to the offence of manslaughter.

[384] The Crown has not satisfied its burden to prove beyond a reasonable doubt that Jean- Charles was a party to any offence that night. The evidentiary record regarding his involvement is so fraught with credibility and reliability concerns that I am left with a reasonable doubt with respect to the offences with which he is charged. I find him not guilty.

Mr. Justice Robert N. Beaudoin

Released: September 12, 2019