



WARNING

THIS APPEAL IS SUBJECT TO

IDENTIFICATION PROHIBITIONS PURSUANT TO THE

YOUTH CRIMINAL JUSTICE ACT

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

(2) Subsection (1) does not apply

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

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

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

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

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

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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless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    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure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

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

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




COURT OF APPEAL FOR ONTARIO

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

DATE: 20160808

DOCKET: C48742

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Al-Shammari

Appellant

Richard Posner and Lance Beechener, for the appellant

Alison Wheeler and Alexander Alvaro, for the respondent

Heard: May 4-5, 2016

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

Juriansz J.A.:

A.

Overview

[1]

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

[2]

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

[3]

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

[4]

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

B.

Grounds of
    Appeal

[5]

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

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

2. The propriety of Crown counsels cross-examination of the
    appellant; and

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

[6]

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

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

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

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

[7]

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

[8]

I would dismiss the appeal.

C.

Brief
    Summary of the Evidence at Trial

[9]

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

(1)

Thualfikar Alattiya and the Al Ghazzi Family

[10]

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

[11]

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

[12]

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

[13]

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

[14]

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

(2)

The Alleged Plan

[15]

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

[16]

Mohamed, D.D., Hassan and the appellant tried to carry out the plan
    early in the morning on November

14th. The appellant gave D.D. a
    knife. Hassan brought a bat and gave the appellant gloves and ski masks. When
    they learned the victims cab was off duty, Hassan and the appellant smashed
    the windows on a green mini-van they wrongly believed was the victims. There
    was independent evidence of the vehicle damage and D.D.s group home records showed
    that she was out the night before until 8:30 a.m. that morning.

[17]

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

[18]

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

(3)

The Murder

[19]

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

[20]

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

[21]

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

[22]

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

[23]

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

[24]

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

[25]

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

[26]

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

D.

Analysis
    of Substantive Issues on Appeal

[27]

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

(1)

The Jury
    Instruction on the Permissible Use of the Appellants Statements to Police

[28]

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

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

[29]

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

[30]

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

[31]

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

[32]

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

[33]

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

[34]

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

[35]

There was more. The appellants police statements contradicted his
    testimony in regard to his knowledge and description of the knife, where on his
    clothing he had come into contact with blood, and his awareness of the victims
    fanny pack and his contact with it.

[36]

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

[37]

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

[38]

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

[39]

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

[40]

I am not persuaded the trial judges exercise of discretion was in
    error.

(2)

The Propriety
    of Crown Counsels Cross-examination of the Appellant

[41]

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

[42]

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

[43]

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

[44]

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

[45]

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

[46]

I am satisfied the Crowns cross-examination did not occasion a
    miscarriage of justice in this case. I would not give effect to this ground of
    appeal.

(3)

The Jury
    Instruction on Post-Offence Conduct

[47]

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

(a)

The Post-Offence Conduct Evidence

[48]

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

[49]

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

[50]

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

[51]

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

(b)

The Jury Instruction at Issue

[52]

The appellant takes issue with the following passages from the trial
    judges instruction on the use to be made of the appellants post-offence
    conduct:

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



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

[53]

It should be noted this is only a part of the trial judges fairly
    lengthy review of the principles surrounding post-offence conduct and of the
    relevant evidence.

[54]

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

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

[55]

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

[56]

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

However, the relevance of evidence of post-offence conduct will
    depend upon the nature of the conduct, the facts sought to be inferred from it,
    the positions advanced by the Crown and the accused, and the totality of the
    evidence. Further, it follows that no prefabricated rule stamps certain kinds
    of after-the-fact conduct as always or never relevant to a particular fact in
    issue: see
R. v. Cudjoe

(2009),
    251 O.A.C. 163, at paras.

78-79;

R. v. Figueroa

(2008), 233 O.A.C. 176 (C.A.), at
    paras.

34-35.

[57]

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

[58]

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

[59]

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

[60]

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

[61]

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

[62]

I would reject this ground of appeal.

E.

Analysis
    of Allegation of Ineffective Assistance of Counsel

(1)

The Fresh
    Evidence

[63]

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

[64]

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

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

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

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

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

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

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

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

[65]

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

[66]

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

(2)

The Appellants
    Two Main Complaints

(a)

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

[67]

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

[68]

The evidence at the appellants preliminary inquiry disclosed the
    following:


I.

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


II.

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


III.

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

[69]

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

[70]

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

(b)

The Decision Not to Prove Hassans Utterances that the Appellant was Silent
    in the Taxicab

[71]

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

[72]

The appellant submits that had evidence of this conversation been
    introduced at trial, it would have undermined Mohameds damaging testimony that
    the appellant yelled Kill him to Hassan. It would also have corroborated the
    appellants testimony that he sat frozen in shock as Hassan killed the victim.
    This might have raised a reasonable doubt in the jurys mind.

[73]

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

(3)

The Threshold
    for Ineffective Assistance Claims

[74]

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

[75]

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

[76]

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

(4)

The Foundation
    of the Ineffective Assistance Claim

[77]

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

[78]

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

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

[79]

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

[80]

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

[81]

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

(5)

Trial Counsels
    Alleged Inability to Explain Trial Tactics

[82]

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

[83]

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

[84]

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

[85]

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

[86]

Trial counsels impression seems to accord with the trial judges own
    impression, given her comments in the context of a ruling on the permissible
    scope of the cross-examination of D.D.:

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

[87]

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

[88]

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

(6)

The Appellant Overstates
    the Value of the Evidence

[89]

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

[90]

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

[91]

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

(7)

The Downside of
    Calling the Evidence

(a)

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

[92]

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

[93]

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

(b)

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

[94]

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

[95]

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

[96]

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

(c)

The Decision Not to Call Hassan

[97]

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

[98]

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


I.

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


II.

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


III.

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


IV.

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

[99]

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

[100]

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

[101]

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

(d)

The Decision Not to Call Al-Zaferi

[102]

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

[103]

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

[104]

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

[105]

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

(8)

Conclusion on
    Ineffective Assistance of Counsel

[106]

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

[107]

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

[108]

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

[109]

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

F.

Overall
    Conclusion

[110]

For the reasons
    given, I would dismiss the appeal.

Released: August 8, 2016 (DW)


R.G. Juriansz J.A.

I agree E.A Cronk J.A.

I agree David Watt J.A.


