



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdulle, 2020 ONCA 106

DATE: 20200212

DOCKET: C64718
, C65154 & C65173

Strathy C.J.O., Harvison Young and Jamal JJ.A.

DOCKET:
    C64718

BETWEEN

Her Majesty the Queen

Respondent

and

Salma Abdulle

Appellant

DOCKET:
    C65154

AND BETWEEN

Her Majesty the Queen

Respondent

and

Libin Jama

Appellant

DOCKET: C65173

AND BETWEEN

Her Majesty the Queen

Respondent

and

Abdulaziz Egal

Appellant

Delmar Doucette and Angela Ruffo, for the appellant
    Salma Abdulle

Daniel Brodsky, for the appellant Libin Jama

Dirk Derstine, for the appellant Abdulaziz Egal

Elise Nakelsky and Megan Petrie, for the respondent

Heard: November 28 and 29, 2019

On appeal from the convictions entered on December 2,
    2016, and the sentences imposed on April 20, 2017, by Justice Gary T. Trotter of
    the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

I.

overview

[1]

On February 12, 2014, 57-year old John Maclean was found lying in a pool
    of his own blood in the parking lot of his apartment building at 101 Kendleton
    Drive, Toronto. His shirt was ripped. He was so covered in blood that
    paramedics had difficulty lifting his lifeless body into the ambulance.
    Subsequent autopsy examination disclosed a minimum of nine knife wounds,
    including: one to the chest, which fractured a rib and went through the
    diaphragm; another to the heart, which severed his pulmonary artery; and another
    to the thigh, which severed his femoral artery and caused massive blood loss. He
    also suffered a broken jaw and had bruises and abrasions all over his body,
    including his head.

[2]

A few minutes earlier, John Maclean had been stabbed, beaten, kicked,
    and stomped upon by a group of young people. He had no vital signs when
    paramedics arrived, and he was pronounced dead at the hospital.

[3]

The three appellants, Salma Abdulle, Libin Jama, and Abdulaziz Egal, together
    with Rogar Bryan, were charged with second-degree murder. The Crown alleged
    that they were co-principals in an attack on Maclean, that one or more of them
    inflicted the fatal stab wounds, and that all had the necessary intent for
    murder pursuant to s. 229(a) of the
Criminal Code
, R.S.C. 1985, c.
    C-46.

[4]

The jury convicted the appellants and acquitted Bryan. The appellants
    were subsequently sentenced to life imprisonment, with parole ineligibility
    fixed at 12 years.

[5]

The appellants appeal their convictions on a variety of grounds. Abdulle
    also appeals her sentence with respect to the period of parole ineligibility.
    For the reasons that follow, I would dismiss both the conviction appeals and
    the sentence appeal.

II.

background

[6]

The following summary of the evidence will serve to put the issues in
    context. Additional facts will be added, where required, to address each ground
    of appeal.

The initial confrontation on the evening of February 12, 2014

[7]

The Crown alleged that on February 12, 2014, the four accused were
    involved in an altercation with Maclean in the parking lot at 101 Kendleton Drive,
    where Maclean lived. None of the accused were residents. Security cameras
    recorded them entering the building together at about 7:00 p.m. After someone
    let them in, they split into two groups (Jama and Bryan; Abdulle and Egal). Not
    much is known about their activities for the next two hours. It is believed
    they spent most of the time chilling and consuming alcohol and drugs.

[8]

The evidence did not establish with certainty how the confrontation with
    Maclean arose. However, what is known is that a verbal altercation began in the
    west stairwell of the building, between Maclean and one or more of the accused,
    which soon moved outside into the parking lot where Macleans body was found. There
    are security cameras at the doors of the building, except the west stairwell
    door. None of the accused, or Maclean, were seen on video leaving the building,
    leading to the conclusion that they all left through the west stairwell door.

[9]

Abdulle testified that she left the building just before 9:00 p.m.,
    leaving Egal, who said he wanted to urinate, in the west stairwell. Egal was
    holding a vodka bottle he and Abdulle had been sharing. Abdulle said she was
    waiting outside when she saw Maclean dragging Egal out of the stairwell and
    into the parking lot. Maclean had somehow acquired the vodka bottle. By this
    time, she said, Jama and Bryan had arrived on the scene and were trying to free
    Egal from Macleans grip.

[10]

Abdulle claimed that she approached Maclean and demanded that he give
    her the vodka bottle. When he refused, she moved towards him and he hit her
    over the head with the bottle, cutting her head and causing her to momentarily
    lose consciousness.

[11]

Abdulle claimed that after she got back on her feet, she gave Bryan a
    hug and saw him walk towards Maclean. She looked away for a few moments before
    turning back, at which time she saw Maclean lying on the ground. While she
    denied seeing Bryan stab Maclean, her evidence arguably implicated Bryan, leading
    the trial judge to give an
Oliver
instruction in his charge to the
    jury: a warning that Abdulles testimony should be considered with particular
    care and caution, because she may have been more concerned with protecting
    herself than with telling the truth:
R. v. Oliver
(2005), 194 C.C.C. (3d)
    92 (Ont. C.A.), at paras. 50-60, leave to appeal refused, [2005] S.C.C.A. No.
    458. This instruction, and the trial judges refusal to give a similar
    instruction with respect to Bryans evidence, are the basis for one of
    Abdulles grounds of appeal.

Witnesses to the attack on Maclean

[12]

Two witnesses, Emmalyn Redhead and Abdulcadir Elmi, observed the attack
    on Maclean. Redhead, a tenant at 101 Kendleton, saw parts of the events from a fourth-floor
    apartment that was about 80 feet (24 meters) away. She called 911. Elmi, whose
    relatives live in the building, was in a fifth-floor apartment 172 feet (52
    meters) away. While both witnesses testified that they had seen parts of the
    confrontation, neither was able to definitively identify the actions of any of
    the accused.

[13]

In her testimony at trial, Redhead said that one of the attackers was
    wearing a hoodie or sweater that had a line on the wrist of the garment.
    Redhead was inconsistent on whether it was a tall person (alleged to be Egal)
    or a short person (alleged to be Bryan). Her so-called final answer at trial
    seemed to be the shorter person, but this conflicted with her evidence at the
    preliminary inquiry. The issue of whether Redhead adopted her evidence from the
    preliminary inquiry and whether the trial judge left this question to the jury forms
    the basis of one of Egals grounds of appeal.

Paramedics on the scene and the
post-mortem
examination

[14]

When the paramedics arrived at the scene, there was nothing they could
    do for Maclean. A pathologist testified at trial that Maclean had sustained two
    lethal stab wounds. One, a large wound to his upper left chest, perforated his
    lung and penetrated his pulmonary artery, causing internal bleeding. Death
    would have occurred within a large number of seconds to a small number of
    minutes. The other was a deep, penetrating wound to his right thigh, which
    severed his femoral artery and vein, causing it to bleed profusely. This wound accounted
    for Macleans significant external blood loss and the large pool of blood
    observed at the scene. It would have led to death within the same time period
    as the wound to the heart.

[15]

Maclean sustained seven other stab wounds. A second stab wound to the
    left body and chest fractured his rib and perforated his diaphragm. The
    evidence was that it took a considerable amount of force to fracture the rib.
    He also suffered additional stab wounds to his left upper back, right forearm,
    and left thigh. He suffered a defensive wound to his left wrist. The
    pathologist was unable to say how many knives were used on Maclean that night. His
    jaw was also fractured, and he had other injuries to his face, including
    abrasions on his forehead and bruising on his face. There were also bruises on
    his torso, including his shoulders and chest. However, the beating did not
    cause, nor did it accelerate, his death.

Forensic analysis

[16]

Abdulle was linked to the scene by her blood, which was found in the
    parking lot. There was one area containing a mixture of Maclean and Abdulles
    blood, close to where Maclean was found.

[17]

DNA evidence also linked Jama and Bryan to the scene. Their DNA was
    found in samples taken from under Macleans fingernails. In addition, Jamas
    shoes, which were found in the hall closet of her mothers home, were soaked
    with Macleans blood.

[18]

There was no forensic evidence linking Egal to the scene.

Flight from the scene

[19]

The paramedics who responded to the 911 call testified that, as they
    approached 101 Kendleton, they saw four or five people on the street walking
    away from the scene. One testified that two women and two men were about 50
    feet apart, and a third man walked about 150 feet behind them. Bryan claimed
    that he was not with Abdulle, Jama, and Egal. Abdulle claimed that he was.

[20]

Shortly after the attack, at least three of the accused (Jama, Abdulle,
    and Egal) went to the home of Khadra Abdi, Jama's mother. Jama and Abdulle went
    inside. Egal and another male, remained outside. Abdulle was bleeding and used
    the washroom to clean up. After about 10 minutes, Jama, Abdulle, Egal, and the
    other male departed. A photo of Abdulle and Egal, taken later in the night,
    posing together for the camera, was entered into evidence to establish their
    continued association afterwards.

[21]

Jamas mother, Khadra Abdi, was a witness to Jama and Abdulles visit to
    her home. She also saw Egal, whom she knew from the Somali community, and
    another black man she could not identify. She later gave three statements to
    police and testified at the preliminary inquiry and at trial. Her evidence
    became a matter of controversy at trial when counsel for Bryan was granted
    permission to cross-examine Abdi concerning a statement she allegedly made
    about Egal having a knife. The trial judges ruling, and a statement by Bryans
    counsel in closing, are the subject of one of Egals grounds of appeal.

Subsequent events

[22]

That night, and the following day, the group was at the homes of
    friends, drinking and consuming drugs. Abdulle would later testify that, during
    this time, Bryan (who did not admit to being present) acknowledged by his words
    and gestures that he would take the rap for Macleans death.

[23]

At some point prior to her arrest, Abdulle gave a false name to police
    who were investigating a noise complaint. After she was arrested for
    obstructing police, she was held in a cell alongside an undercover officer.
    Upon their release, they were joined by another undercover officer. After making
    certain incriminating statements to the officers, Abdulle was arrested. The
    alleged source of the information Abdulle gave to the officers was a
    conversation with Jama some time after the incident. The statements were not
    recorded, and the undercover officers did not testify at trial. Seeking to
    bolster her defence and credibility, Abdulle sought to discuss her conversation
    with Jama in her examination-in-chief. However, fearing prejudice to her
    co-accused, the trial judge restricted Abdulle from testifying on the point. Abdulle
    was, however, cross-examined by the Crown and counsel for Bryan regarding the
    nature of her statements to the police. The fairness of the trial judges
    decision to restrict her testimony forms one of Abdulles grounds of appeal.

III.

grounds of appeal

[24]

The appellants raise, either individually or collectively, the following
    grounds of appeal:

A.

the trial judge erred in his instruction on the
mens rea
for
    murder in a case involving co-principal liability;

B.

the trial judge erred by improperly restricting Abdulles evidence,
    interfering with her ability to make full answer and defence;

C.

the trial judge erred by failing to give the jury an
Oliver
instruction regarding Bryans evidence, warning that they should consider his
    testimony with particular care and caution;

D.

the trial judge erred in permitting counsel for Bryan to cross-examine
    Abdi on her police statement that Egal had a knife, and in failing to grant a
    mistrial;

E.

the trial judge erred by improperly instructing the jury concerning
    Redheads prior inconsistent statement; and

F.

the verdict, as it pertained to Jama, was unreasonable and not supported
    by the evidence.

[25]

In addition, Abdulle appeals the 12-year period of parole ineligibility
    attached to her life sentence.

IV.

analysis

A.

Did the
    trial judge err in his instruction on the state of mind for murder?

[26]

The appellants submit that, in instructing the jury on the liability of
    co-principals, which was the only basis of liability advanced, the trial judge
    erred by telling them that a non-stabber participant could have had the
    intent for murder even if he or she was unaware that another participant had a
    knife or had stabbed the victim. Specifically, the appellants submit that the
    following instruction was in error:

At this stage of your analysis, you may wish to consider which
    accused person or persons used a knife or knew that another was using a knife
    in the attack on Mr. Maclean. As I have already explained to you, in terms of
    proving participation in causing another persons death, it is not necessary
    for you to be satisfied beyond a reasonable doubt which accused person or
    persons delivered the fatal injuries. However, using a knife or knowledge that
    another person involved in the attack used, was using or was about to use a
    knife, may be helpful to you in determining whether an accused person had one
    of the required states of mind for second degree murder.

It is not necessary to find use of or
    knowledge of the use by another of a knife to find an accused person guilty of
    murder, as long as you are satisfied, on all of the other evidence, that
    however that person participated in the concerted attack on Mr. Maclean, that
    person had one of the two intentions required for second degree murder
.
    [Emphasis added.]

[27]

As I will explain, I would not accept this submission. The trial judge
    properly instructed the jury on the liability of co-principals and on the
mens
    rea
for murder. In the circumstances of this case, the intent for murder 
    subjective intent to cause bodily harm, and subjective knowledge that the
    bodily harm was of such a nature that it was likely to result in death  could
    be inferred if the jury found that the appellants participated in the beating,
    kicking, and stomping of an incapacitated and grievously injured victim. It was
    not necessary for them to find that an accused knew that one of the other
    assailants was using a knife.

Applicable principles

[28]

In circumstances involving co-principals, as is the case here, the
    liability of parties to an offence is addressed by s. 21 of the
Code
.
    In
R. v. Spackman,
2012 ONCA 905, 295 C.C.C. (3d) 177, Watt J.A.
    explained that co-principals are liable where they together form an intention
    to commit an offence, are present at its commission, and contribute to it,
    although each does not personally commit all the essential elements of the
    offence: at para. 181;
See also
R. v. Pickton
,
    2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63
. In order to be
    liable as principals, therefore, the parties must have had the requisite
    intention.

[29]

The
mens rea
required for second-degree murder is outlined in
    s. 229 of the
Criminal Code
, which states that culpable homicide is
    murder where the person who causes the death of a human being either means to
    cause their death, or means to cause them bodily harm that they know is likely
    to cause their death and is reckless whether or not death ensues.

[30]

In
R. v. Cooper,
[1993] 1 S.C.R. 146, at pp. 155-156, the
    Supreme Court of Canada explained the nature of this requirement:

The intent that must be demonstrated in order to convict under
    [now s. 229(a)(ii)] has two aspects. There must be (a) subjective intent to
    cause bodily harm; (b) subjective knowledge that the bodily harm is of such a
    nature that it is likely to result in death. It is only when those two elements
    of intent are established that a conviction can properly follow.

See also
R. v. Williams
, 2019 ONCA 846, at
    para. 19.

[31]

It is this requirement of subjective foresight of death that gives rise
    to the moral blameworthiness required to support a conviction for murder:
R.
    v. Martineau
, [1990] 2 S.C.R. 633, at p. 645.

[32]

In this case, then, the ultimate questions for the jury were: (1) who
    were the participants in the fatal stabbing, beating, kicking, and stomping of
    Maclean?; and (2) can it be inferred from their conduct that they had the
    requisite intent for murder, namely, that (i) they intended to cause his death;
    or (ii) they intended to cause him bodily harm that they knew was likely to
    cause him death and were reckless as to whether or not death ensued?

Submissions
on appeal

[33]

In advancing this ground, the appellants note that the lethal injuries
    were caused by stabbing and the identity of the stabber or stabbers had not
    been established. They submit that a non-stabber could only be liable if he or
    she had knowledge of the lethal force that caused death and participated in the
    attack with that knowledge. There could be no basis for liability if the Crown
    failed to prove that an accused knew that at least one of the participants, or
    possibly more, had knives. As Mr. Derstine put it, each accused had to know
    that lethal force was on the menu. Mere participation in the blunt-force
    assault could not support an inference of the intent for murder.

[34]

The appellants state that the correct
mens rea
was described in
    the trial judges reasons on sentencing, in which he found that each of the
    three appellants either used a knife or knew that a knife was being used. He
    said:

By its verdicts the jury found that each accused person had a
    murderous intent. I am unable to make precise findings as to which offender
    inflicted what blow, or who, or how many had a knife, and how it or they were
    used.

However, from the jurys verdict, I am able to say that all
    three offenders were involved in a joint attack on Mr. Maclean,
either using a knife, or knives, or being aware that at least
    one of the others was using a knife, or knives
, all the while having one
    of the intents for murder in s. 229(a) of the
Criminal Code
. [Emphasis
    added.]

[35]

The appellants argue that this language illustrates that the trial
    judges original instruction was erroneous, as it highlights that guilt could
    only arise where each offender was found to have either used a knife or been
    aware of the use of a knife.

[36]

In support of this argument, counsel for Abdulle cites to
R. v.
    Kennedy
, 2016 ONCA 879, 345 C.C.C. (3d) 530, in which this court held that
    the trial judge had erred by failing to include any instruction that, to find
    Mr. Kennedy or Mr. Wolfe guilty of the jointly charged offences, the jury had
    to be satisfied either that he was the gun-wielding intruder or that he knew
    the other intruder had a weapon that would be used in the course of the
    robbery: at para. 18. Abdulle argues that the same logic should be applied
    here.

[37]

The Crown responds that the trial judge accurately identified and
    articulated that the requisite
mens rea
could be readily inferred from
    the vicious and concerted attack on the helpless victim.

[38]

With regards to
Kennedy
, the Crown argues that the circumstances
    are not analogous, as the accused in that case were charged with offences that specifically
    included the use of an imitation handgun. It was necessary for the jury to be
    instructed on knowledge of the firearm in order to make out the requisite
    elements of the offence. Here, such knowledge was not required to make out the
    necessary elements for murder.

Analysis

[39]

The trial judge did not err. He instructed the jury carefully and
    correctly on co-principal liability and on the necessary ingredients for the
    offence of second-degree murder. He referred them to the evidence necessary to
    determine the issues. He repeatedly reminded them that they were required to
    consider the evidence as it related to each accused individually. He explained
    that, in the context of party liability, the Crown need not prove which
    attacker inflicted the fatal blow, but rather only that each accused
    participated in the joint attack, with the requisite state of mind for
    second-degree murder. He instructed the jury as to how they could determine an
    accused persons state of mind, including by considering the persons words and
    conduct, as well as the number, nature, and severity of the injuries suffered
    by Maclean. Finally, he instructed them that, if they were satisfied beyond a
    reasonable doubt that an accused person had both caused the death of Maclean
    and had either intended his death or intended to cause him bodily harm that
    they knew would likely result in death and were reckless whether death ensued,
    they were to find that accused guilty of second-degree murder.

[40]

The jury could have found the appellants guilty on the basis of
    knowledge of the knife, or without such knowledge. The jury was entitled to
    infer knowledge of the knife from the nature of the victims injuries as demonstrated
    by the amount of blood on the victim, on the ground, and on Jamas
    blood-stained shoes. While use or knowledge of the knife would have guaranteed
    the requisite intent, participation in the brutal attack, even without such
    knowledge, would also have sufficed.

[41]

The trial judges reasons on sentence do not demonstrate that the jury
    instruction on intent was erroneous. Under s. 724(2)(a) of the
Code
,
    in the case of a jury trial, the sentencing judge is required to accept as
    proven all facts, express or implied, that are essential to the jurys guilty
    verdict. However, under s. 724(2)(b), the judge may find any other relevant
    fact that was disclosed by evidence at the trial to be proven.

[42]

It was under this authority that the trial judge found, in sentencing
    the appellants, that all three were involved in a joint attack on Maclean,
    either using a knife, or knives, or being aware that at least one of the
    others was using a knife, or knives, all the while having one of the intents
    for murder in s. 229(a) of the
Criminal Code
. In the two paragraphs
    immediately before he came to this conclusion, the trial judge described Macleans
    injuries and the brutal and violent nature of the assault, noting that,
    [g]iven the viciousness and brutality of this attack, and the appalling loss
    of blood involved, it should have been obvious that Mr. Maclean would not
    survive his injuries. It was based on this evidence that he made his finding.

[43]

Finally, as the Crown points out, the decision in
Kennedy
is
    unhelpful to the appellants. The appellants in that case were jointly charged
    with three offences: stealing while armed with an imitation handgun; assault
    with an imitation handgun; and using an imitation handgun while committing an
    indictable offence. It was in that context that this court held that the
    instruction on party liability was incorrect and that, in order to find the
    non-gun-wielding intruder guilty of the offences charged, it had to be proven
    that he knew the other intruder had an imitation firearm.

B.

Did the trial
    judge err by improperly
restricting Abdulles evidence?

[44]

As mentioned above, Abdulle made a series of incriminating statements to
    two undercover police officers. According to Abdulle, the source of her
    knowledge of the circumstances surrounding Macleans death was not her own
    memory of the incident, but a conversation she had with Jama while they were
    staying at a friends house after the homicide.

[45]

At trial, Abdulle testified in her own defence. During her examination-in-chief,
    her counsel sought to introduce evidence of the conversation. Her counsel
    summarized the evidence to be elicited as follows:

I remember asking [Jama] what happened because it still wasnt
    clear to me how the altercation with [Maclean] started or how he ended up dead.



Thats when I finally asked who stabbed him and [Jama] told me
    it was [Bryan]. She told me [Bryan] is an idiot, he left his hat, his phone and
    the knife at the scene and he has cuts on his wrist and the police have his DNA
    but I dont know if she was serious because shes an exaggerator and this is
    during a period of time when they were doing some heavy drinking.

[46]

Counsel for Abdulle took the position that the
    statement was relevant to establish the source of her knowledge of the
    information she provided to the undercover officers. If she acquired that
    information as a result of her own observations, it would be inculpatory. On
    the other hand, if she only acquired the information because Jama told her, it
    would support her evidence that she was uninvolved in the attack. Moreover,
    from Abdulles point of view, it was preferable to explain the source of her knowledge
    up front in her evidence-in-chief, rather than in cross-examination. Her
    credibility would be undermined if the evidence only came from her in
    cross-examination. There was also no guarantee that certain evidence, important
    to her substantive defence, would be adduced on cross-examination such that her
    lawyer would be able to respond in re-examination.

[47]

Bryans counsel objected to the evidence. Jama
    had not testified and the attempt to introduce her evidence by way of hearsay
    was highly prejudicial to Bryan. He argued that there was no certainty that
    Abdulle would be cross-examined on her source of knowledge and, in view of the
    serious prejudice to Bryan, the evidence should not be adduced unless it became
    necessary.

[48]

The Crown agreed that the issue might not arise,
    because it might not cross-examine Abdulle on what she had told the undercover
    officers. If it became relevant, the issue could be addressed at that time.

[49]

The trial judge accepted the submissions made on
    behalf of Bryan and the Crown. His ruling was as follows:

Okay, I am going to rule on this now. It is not art to say the
    least and time does not permit me to do a narrative and frame the evidence as
    it has come up. But on the basis of the discussions that we have had and how
    the evidence has come out so far this is my ruling. The potential for prejudice
    to Mr. Bryan is extremely high. The probative value of the evidence at this
    point is speculative. It will depend on if and how the crowns
    cross-examination takes place about Ms. Abdulles source of knowledge regarding
    who stabbed Mr. [Maclean]. If Ms. Abdulle is probed on this issue and it is
    suggested that her knowledge is from first hand observation, the utterances of
    Ms. Jama on this point may become probative, however this has not arisen. If it
    does arise, I will entertain [counsel for Abdulles] application if so advised
    to adduce this evidence. If he is successful, it may be appropriate to instruct
    the jury about the timing of the introduction of this evidence, or this line of
    questioning, so that Ms. Abdulle is not put at a disadvantage or prejudiced in
    any way.

[50]

As events transpired, Abdulle testified in-chief
    that a few days after the incident, she asked Jama what had happened, and Jama
    said, the guy [Maclean] bottled you. She elaborated:

A. I kind of just wanted to get some clarification on exactly
    what happened.

Q. All right. Now you remember what it was that she told you?

A. Yes.

Q. First of all, about had [sic] happened to you?

A. Yes.

Q. Go ahead.

A. She told me that the guy struck me in the head with a
    bottle.

[51]

Later, in cross-examination by counsel for
    Bryan, Abdulle was asked whether she had told the undercover officers that the
    Jamaican (i.e., Bryan) had left his hat, phone, and knife at the scene. She
    admitted that she had said that. In answer to subsequent cross-examination by
    counsel for Bryan, she said that Jama had given her this information. She told
    the Crown in cross-examination that Jama had told her that her friends had
    lost it on Maclean for bottling [her] and that, while she was knocked out,
    they had beaten him, and an unknown person had stabbed him.

[52]

In his final instructions, the trial judge
    cautioned the jury that Abdulles statements to the undercover officers could
    be used against her, but could not be used against any other accused unless she
    adopted her statements as true. He also instructed them that if they found that
    Jama said certain things to Abdulle, which Abdulle then reported to the
    undercover officers, those statements could only be used against Jama, and not
    against anyone else. The judge added that the jury should be careful about
    information that Abdulle may have obtained from Jama in considering whether
    what she told the officers was a truth or a lie: Whose mistake was it? Whose
    lie was it, Ms. Abdulle or Ms. Jamas?

[53]

On appeal, Abdulle claims that, in restricting
    her evidence, the trial judge undermined both her ability to make full answer
    and defence and her credibility. She says that the lack of fairness mandates a
    new trial.

[54]

For the reasons that follow, I disagree. The
    trial judge appropriately balanced the fair trial interests of Abdulle on the
    one hand, and of Bryan on the other. He did not exclude Abdulles evidence
    outright, but simply held that it could not be adduced until such time as it
    became relevant. Her evidence, as it related to her substantive defence, was
    given in-chief. Her evidence concerning what Jama told her was elicited in
    cross-examination by counsel for Bryan and by Crown counsel. The relative
    insignificance of the latter is evidenced by the fact that her counsel did not
    see fit to re-examine her on the issue and did not request a special
    instruction to the jury to explain why the evidence only came out in
    cross-examination.

Applicable principles

[55]

At issue here is the constitutionally-protected
    right of an accused person to make full answer and defence. As forcefully put
    by counsel for Abdulle, an accused is entitled to use the evidentiary bricks
    necessary to build their defence. This principle was expressed in
R.
    v. Seaboyer
, [1991] 2 S.C.R. 577, at p. 608:

The right of the innocent not to be convicted is dependent on
    the right to present full answer and defence. This, in turn, depends on being
    able to call the evidence necessary to establish a defence and to challenge the
    evidence called by the prosecution. As one writer has put it:

If the evidentiary bricks needed to build a defence are
    denied the accused, then for that accused the defence has been abrogated as
    surely as it would be if the defence itself was held to be unavailable to him.

In short, the denial of the right to call and challenge
    evidence is tantamount to the denial of the right to rely on a defence to which
    the law says one is entitled. The defence which the law gives with one hand,
    may be taken away with the other. Procedural limitations make possible the
    conviction of persons who the criminal law says are innocent. [Internal
    citations omitted.]

[56]

In
R. v. Crawford
,
    [1995] 1 S.C.R. 858, the Supreme Court confirmed that this right applies in the
    case of joint trials of co-accused, and extends to prevent incursions on its
    exercise not only by the Crown but by the co-accused: at para. 28. However,
    the right to full answer and defence, as is the case with other
Charter
rights, is not absolute, and it must be applied in accordance with
    the rules of evidence and other rules that govern the conduct of criminal
    trials:

The right to full answer and defence does not imply that an
    accused can have, under the rubric of the
Charter
, an overhaul of the
    whole law of evidence such that a statement inadmissible under, for instance,
    the hearsay exclusion, would be admissible if it tended to prove his or her
    innocence: at para. 28, quoting
Dersch v. Canada (Attorney General)
,
    [1990] 2 S.C.R. 1505, at p. 1515.

[57]

Where the rights of co-accused are in conflict, the
    strong policy reasons for conducting joint trials (e.g
.
,
    consistent verdicts, emergence of the full truth) mandate that the trial judge
    engage in an attempt to balance and reconcile the competing rights:
Crawford
, at paras. 30-32.

[58]

In undertaking this balancing, the trial judge has
    the right to exclude defence evidence. However, as the Supreme Court observed in
Seaboyer
, the prejudice must substantially
    outweigh the value of the evidence before a judge can exclude evidence relevant
    to a defence allowed by law: at p. 611. See also
R. v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19. The trial judge may
    also sever the trials, but this extreme remedy is only justified where any
    attempt to reconcile the rights will result in an injustice to an accused:
Crawford
, at para. 32.

[59]

To summarize, where an accused seeks to adduce
    evidence in an effort to mount a full answer and defence, the trial judge must ensure
    a balance against the rights of any joint accused. They must determine whether the
    evidence sought to be adduced is technically admissible, and then whether, even
    if technically admissible, it should be excluded on the basis that its
    prejudice substantially outweighs its probative value.

Submissions on appeal

[60]

Abdulles submission is that, as the trial
    boiled down to a credibility contest between her and Bryan, both of whom
    testified, she should have been allowed to give the evidence in-chief. The
    conversation with Jama had two important components. First, it went to
    Abdulles substantive defence: she did not participate in the beating and knew
    nothing about it because she had been bottled and was dazed; hence her
    question to Jama asking what had happened. Second, it went to her credibility,
    because the information she told the undercover officers was based not on her
    own knowledge, but on what she had been told by Jama.

[61]

Abdulle argues the trial judge could have
    mitigated the prejudice to Bryan by telling the jury that her evidence could
    only be used to support her substantive defence and her credibility, and not as
    evidence against Bryan. As events transpired, the trial judges ruling
    undermined both her substantive defence and her credibility. Moreover, the
    trial judges ruling was based on the false premise that permitting the
    evidence to come out in-chief would be prejudicial to Bryan. However, it was
    Bryans counsel who raised the issue on cross-examination, thereby undermining
    Abdulles credibility and causing her prejudice.

[62]

The Crown replies that Abdulle was not prevented
    from leading evidence to support her defence. The only restriction on her
    evidence was that she was not permitted to testify that Jama told her Bryan was
    the stabber. Any other restriction on her testimony was inconsequential and the
    trial judge properly balanced the competing interests in a way that respected
    Abdulles fair trial rights.

Analysis

[63]

No party requested severance. While counsel for
    Bryan raised the possibility during submissions on this issue, he never pursued
    it.

[64]

On the most important issue, Abdulles
    substantive defence, Abdulle was able to give her own evidence, in-chief. Her
    evidence was, in essence, I had to ask Jama what happened, because I had been
    bottled and was in a daze. This evidence was simply confirmatory of her
    earlier evidence that, owing to her injury, she did not participate in beating
    Maclean. In my view, this aspect of her conversation with Jama was self-serving
    and of minimal probative value: see
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 36.

[65]

With respect to the credibility issue, and the
    source of Abdulles knowledge of what she told the undercover officers, it is
    important to note that the trial judge did not exclude this evidence outright, but
    simply exercised his discretion to control when it could be admitted. Further,
    as counsel for the Crown points out, the exchanges on cross-examination were
    brief and not unduly prejudicial:

Cross-examination by Bryans counsel
:

Q. Did you also tell both undercover officers that the
    Jamaican [Bryan] left his hat, phone and knife at the scene.

A. I believe I said something along those lines.

Cross-examination by the Crown
:

Q. Okay. So, Im going to suggest to you that at some point in
    this night you must have talked directly to Mr. Bryan about what happened.

A. I did not.

Q. You never in this entire night you [spent] with Mr. Bryan
    after this incident at 101 Kendleton, ever ask him what happened?

A. I dont believe I asked him, no.

Q. What about Libin Jama, ever ask her what happened?

A. I asked her what happened in Brampton, I believe.

Q. Now, just going back to Mr. Bryan, didnt Mr. Bryan tell you
    that he had left his hat, his cellphone and the knife at the scene and he was
    worried about being caught?

A. No, he didnt tell me that.

Q. Well, why did you tell the undercover officers that?

A. Because Id been told by [Jama].



Q. But you had no issue implicating your friends to the
    undercover officer, right?

A. I was telling her what I was told.

Q. You stated to them that your friends lost it on the victim
    for bottling you, and while you were knocked out, they beat him, and unknown
    male number one stabbed the deceased. Thats what you told them.

A. I told them what Id been told.

Q. But that is what you told them.

A. Essentially.

[66]

There are two points that are telling in
    relation to this evidence. First, counsel for Abdulle did not seek to re-examine
    in relation to this evidence, even though he would plainly have been entitled
    to do so, given the earlier discussions and the trial judges ruling. Second,
    and more significantly, he did not ask the trial judge to give a special
    instruction to explain that the evidence would have been elicited in-chief, but
    for his earlier ruling, and that the jury could not discount the evidence
    simply because it came out during cross-examination. Counsels decisions on
    these two points speak volumes about the absence of prejudice.

[67]

The trial judge recognized the right of each
    accused to make full answer and defence. He attempted to strike a fair balance
    between their rights without injustice to either. His ruling was designed to
    prevent highly prejudicial hearsay (Jama told me Bryan was the stabber) from
    being admitted to respond to a speculative line of inquiry. The fact that the
    evidence was eventually adduced by Bryans counsel, as had been feared by
    Abdulles counsel, did not make the trial judges premise false.

[68]

Abdulles substantive defence was properly put
    to the jury, as was her explanation for her statement to the undercover
    officer. The trial judge gave appropriate instructions concerning the use of
    that evidence  instructions that are not challenged in this court.

[69]

I would not, therefore, give effect to this
    ground of appeal.

C.

Did the
    trial judge err with regards to the
Oliver
instruction?

[70]

An
Oliver
instruction, as indicated earlier in these reasons,
    is a warning that certain evidence should be considered with particular care
    and caution, because the witness who gave it may have been more concerned with
    protecting themselves than with telling the truth:
Oliver
, at paras.
    50-60. The issue arose as follows.

[71]

At trial, Abdulle testified that after Maclean hit her with the bottle,
    she fell unconscious to the ground. When she came to, she felt throbbing pain
    and blood was trickling down her face. When she was able to stand, she saw
    Bryan beside her and she gave him a hug. He gently pushed her away and she saw
    him walk towards Maclean. She turned away for a few moments, trying to figure
    out where she had been wounded. When she turned around again, Maclean was on
    the ground. She did not hear anything, and she did not recall anyone other than
    Bryan around him. She acknowledged in cross-examination that she did not see
    Bryan stab Maclean.

[72]

Abdulle testified that some time after the killing, the group stayed at
    the house of someone called Abass. There, in the presence of both Egal and
    Bryan, after they heard of Macleans death, Abass said whoever did this, if
    you guys ever get arrested, you know you have to take the [rap] for it. At
    this point, she said, Bryan was nodding his head, like yeah I got it, I got
    it. She added that when Bryan was leaving, he did this little gesture where
    he put his hand over [his] heart and he looked at me, and I dont believe he
    said anything but thats just what he did and he left. The implication of
    Abdulles evidence was that Bryan accepted responsibility for the killing and was
    going to take the rap for it.

[73]

During his testimony, Bryan admitted that he had been at Kendleton with
    the others that evening, but claimed he had become separated from them. He had
    a brief encounter with Maclean in the west stairwell, during which Maclean had
    grabbed his arm or the front of his neck. This would afford an explanation for why
    his DNA was found under Macleans fingernails.

[74]

Bryan claimed that after coming out of the building, he saw a mixture
    of people and saw a bottle thrown by a tall person wearing a black jacket. He
    was unable to identify that person and did not know whether the bottle was
    thrown in Macleans direction. He denied hugging Abdulle and denied
    participating in beating Maclean, claiming he left the scene before it
    occurred. He denied leaving 101 Kendleton with the others or being at either
    Abdi or Abass home. He claimed that he went on his own to a friends house.

[75]

In closing submissions, counsel for Bryan made pointed submissions about
    the evidence of Abdulle:

So Im going to talk to you about the evidence
    of Salma Abdulle. I suggest to you that all of her evidence has to be evaluated
    in the context of the overriding motive she had in this case, to absolve not only
    herself of wrongdoing, but also her friends, Libin Jama and Abdulaziz Egal.

[76]

He went on to suggest that the evidence that Maclean was backing up,
    bottle in hand, as Abdulle advanced on him, demonstrated that she had stabbed
    him and that, [i]f Ms. Abdulle was the stabber, it could not be Mr. Bryan.

[77]

In pre-charge discussions, counsel for Egal asked the trial judge to
    give an instruction that amounted to an
Oliver
instruction. The trial
    judge indicated that he was planning to do so in relation to Abdulles
    testimony, but not in relation to Bryans, because he doesnt implicate
    anybody. Counsel for Egal agreed. The trial judge subsequently provided counsel
    with a draft of portions of his charge, including the
Oliver
instruction. In ongoing pre-charge discussions, Abdulles counsel asked that
    there be no such instruction for Abdulle, but that, if one were to be given, it
    should be given for Bryan as well. He agreed with the trial judge that, on the
    surface, Bryan implicated no one, but argued that the overall effect of his
    evidence was to undermine Abdulles case. Counsel for Bryan objected to an
Oliver
instruction for his client, because Bryan had simply taken the position that he
    did not commit the crime.

[78]

The trial judge did not accept Abdulles counsels submission and gave
    the jury the following instruction:

Ms. Abdulle gave evidence that suggested that Mr. Bryan was
    involved in killing Mr. Maclean. She also put Ms. Jama and Mr. Egal at the
    scene, just before the deadly attack on Mr. Maclean. Mr. Bryans evidence
    implicated no one in the attack, nor did he place any of them in the parking
    lot. You should consider the testimony of Ms. Abdulle to the extent that it
    implicates Mr. Bryan, or any other accused person, with particular care and
    caution, because Ms. Abdulle may have been more concerned with protecting
    herself than telling the truth. Bear that in mind when you decide how much or
    little you believe or rely upon what Ms. Abdulle told you about Mr. Bryans, or
    anyone elses involvement in this case. This instruction, however, does not
    apply when you are considering Ms. Abdulles evidence about her own alleged involvement.

[79]

On appeal, Abdulle argues that the trial judge erred by giving a caution
    in relation to her evidence. Alternatively, if a caution was required, one
    should also have been given with respect to Bryans testimony.

[80]

As I will explain, I would not accept this argument. Abdulles evidence
    clearly implicated Bryan, giving rise to the need for a caution to the jury.
    Bryans evidence, by contrast, did not implicate Abdulle or any other of his
    co-accused. The trial judge was correct not to issue a warning with respect to
    his evidence.

Applicable principles

[81]

In
Oliver
, this court, speaking through Doherty J.A., noted
    that joint trials can raise special problems with jury instructions,
    particularly where co-accused raise conflicting defences. The instructions must
    balance those competing rights to a fair trial: at para. 54, citing
Crawford
.
    The need to balance the fair trial rights of co-accused is a case-specific
    exercise: at para. 56.

[82]

Doherty J.A. went on to suggest, at para. 58, that because the caution
    is exclusively concerned with protecting a co-accuseds fair trial rights, the
    trial judge should canvass the need for any such caution with counsel for the
    co-accused before instructing the jury. If counsel takes the position that no
    caution is required, none should be given. He also observed, at para. 60, that:

Where a trial judge determines that the fair trial rights of a
    co-accused require a caution with respect to the testimony of the other
    accused, the trial judge should expressly tell the jury that the caution
    applies only to the case against the co-accused and has no application when
    considering the case against the accused who has testified.

[83]

In the recent decision of this court in
R. v. Deol
, 2017 ONCA
    221, 352 C.C.C. (3d) 343, Juriansz J.A. emphasized that the threshold question is
    whether the fair trial rights of a co-accused require such an instruction: 
Oliver
does not mandate or even encourage such a caution be routinely given, but
    rather makes clear that a trial judge has the discretion to give such a
    caution where he or she considers the fair trial rights of a co-accused require
    it: at para. 26. He continued, at para. 27:

The case-specific exercise requires the trial judge, who has
    the best appreciation of all the circumstances, to determine whether the giving
    or refusing of such a caution achieves the soundest balance of the competing
    interests of the two co-accused.

Submissions on appeal

[84]

Counsel for Abdulle maintains the objection that the instruction was
    one-sided and unfair to Abdulle. He submits that the trial judge fell into
    error when he told the jury to view Abdulles evidence with caution, but that
    Bryan implicated no one in the attack and did not place any of the co-accused
    in the parking lot. He submits that Bryans evidence clearly contradicted
    Abdulles evidence that he had hugged her and had moved towards Maclean. His
    evidence created the impression that he had left the scene, leaving behind an
    angry mixture, including two girls, who were involved in Macleans death. This
    set up a credibility contest between Abdulle and Bryan. It was therefore unfair
    to tell the jury to consider the evidence of one with caution, while giving the
    other a free pass. The trial judge should have given the instruction with
    respect to both, or neither. Further, the closing submissions of Bryans
    counsel made the
Oliver
instruction imperative.

[85]

In response, the Crown submits that the trial judge did not err in the
    exercise of his discretion with respect to the
Oliver
instruction. It
    was not Bryan who put Abdulle in the mixture. Her own testimony, as well as
    DNA evidence, put her there. Bryans evidence was extremely vague about who was
    at the scene and, unlike Abdulle, he did not attempt to inculpate anyone. He
    went out of his way not to do so.

Analysis

[86]

I would not give effect to this ground of appeal.

[87]

The contrast between Abdulles evidence and Bryans is striking and
    explains why an
Oliver
instruction was appropriate in the case of the
    former, but inappropriate in the case of the latter. Abdulles evidence plainly
    implicated Bryan  it put him close to Maclean before Maclean fell to the
    ground and attributed highly inculpatory statements to him. Bryans fair trial
    right demanded that the jury be told that Abdulles evidence in this regard had
    to be considered in light of her self-interest.

[88]

In contrast, Bryans evidence, while exculpatory, did not expressly
    implicate anyone else. Indeed, Bryans evidence about the conduct of others was
    vague. He was at pains to avoid saying anything about anyone else who may have
    been at the scene, using vague expressions like a mixture of people, without
    pointing to anyone in particular. As noted above, Abdulle put herself in the
    mixture and there was no debate concerning her presence.

[89]

Following Doherty J.A.s suggestion in
Oliver
, the trial judge
    had a thorough discussion with counsel concerning the need for a special
    instruction after it was raised by Egals counsel. The decision not to provide
    a caution with respect to Bryans testimony fell well within his discretion.

[90]

Again following the advice of Doherty J.A., the trial judge informed the
    jury that the instruction did not apply when you are considering Ms. Abdulles
    evidence about her own alleged involvement. The
Oliver
instruction
    was given shortly after the judge had instructed the jury on reasonable doubt
    and the presumption of innocence and gave a full
W.(D.)
instruction
    with respect to each accused. The jury would have understood that, in assessing
    Abdulles evidence in relation to herself, they were required to acquit if her
    evidence alone, or in combination with other evidence, left them with
    reasonable doubt.

[91]

Finally, I do not accept that the closing submissions of Bryans counsel
    required that an
Oliver
instruction be given in relation to Bryans
    evidence. The jury was instructed that the submissions of counsel are not
    evidence.

[92]

In summary, considering Abdulles clear and powerful evidence against
    Bryan, an
Oliver
instruction was necessary to protect his fair trial
    rights and did not prejudice Abdulles rights. A similar instruction was not
    required in Bryans case. In fact, such an instruction would have been highly
    prejudicial in light of the substance of Bryans evidence.

D.

Did the
    trial judge err in his ruling on the cross-examination of Abdi concerning a
    knife, and in his refusal to grant a mistrial?

[93]

After leaving 101 Kendleton, some, and possibly all,
    of the accused went to the home of Jamas mother, Khadra Abdi. Abdi later gave
    three statements to police, the second of which appeared to suggest that Egal
    had been in possession of a knife while at her home. Although English is not
    Abdis first language, only one of the statements  the last  was made with
    the assistance of an interpreter.

[94]

Abdis first statement was given on February 28,
    2014, and described the events that took place at her home on February 12, 2014.
    She made no mention of seeing anyone with a knife.

[95]

Abdi gave a second statement on March 5, 2014,
    during the photo lineup. The statement was recorded. She identified Egal, whom
    she had known ever since he was a child, as one of the men who came to her house.
    She said something that sounded like, hes coming with a knife and I kick
    him. The officer conducting the lineup, who was not one of the investigating
    officers, did not ask any follow-up questions.

[96]

The investigating officers then took a third
    statement on March 10, 2014, this time with an interpreter. Abdi vehemently
    denied that she had used the word knife in her previous statement and said
    that Egal did not have a knife.

[97]

Abdi testified at both the preliminary hearing
    and the trial with the assistance of an interpreter. She made no mention of a
    knife at the preliminary hearing, nor did the Crown seek to adduce evidence
    about a knife in her examination-in-chief at trial.

[98]

However, before the commencement of Abdis
    cross-examination at trial, counsel for Bryan advised the court that he wanted
    to cross-examine on her use of the word knife in her second police statement.
    He indicated that, depending on her answers, he might seek to have her
    statement admitted for the truth of its contents pursuant to
R. v. B.
    (K.G.)
, [1993] 1 S.C.R. 740. Counsel for Egal opposed
    this course of action, taking the position that, not only was it unlikely Abdi
    would adopt her prior statement, the cross-examination would be highly prejudicial
    because it would leave the jury with the firm impression that Egal had a knife,
    an impression that could not be mitigated by a cautionary instruction.

[99]

Having listened to the recording of the
    statement, the trial judge permitted cross-examination, over the objection of
    counsel for Egal. He noted that while Abdi struggled with grammar, her
    statement was not fundamentally unintelligible.

[100]

In his ruling, the trial judge stated:

It would not be unfair to the witness to
    permit questioning about her assertion of a knife. She may admit that she made
    the statement; she may deny it, with or without an explanation; she may suggest
    that she misunderstood or misspoke. We just do not know at this point. I accept
    that some prejudice might result from Ms. Abdis denial of mentioning a knife
    or perhaps changing her position on this issue, however, the use of a knife or
    knives is a critical feature of the case against all four accused persons. It
    is open to [counsel for Bryan] in the defence of his client, to test the proposition
    that Mr. Egal had a knife that night. To prohibit him from doing so would be
    more prejudicial than letting it play out and then providing a cautionary jury
    instruction, if required.

This approach is not without the risk of
    prejudice to Mr. Bryan, in that if Mr. Egal was handling a knife in a manner
    such that Ms. Abdi could see it, presumably in the presence of some or all of
    the other co-accused, it may end up providing some evidence of prior knowledge
    of the knife on the part of the others, including Mr. Bryan. But that is not a
    factor that ought to prevent me from ruling as I have on this matter.

As I have said, depending on what Ms. Abdi
    says, if it becomes necessary, I will provide a cautionary instruction
    concerning what use, if any, can be made of the prior statement that [counsel
    for Bryan] wishes to impute to her.

[101]

During cross-examination of Abdi, Egals counsel
    showed her portions of her second statement. She stated that she had not seen a
    knife and that she did not mean to say that she saw a knife. On
    cross-examination by Bryans counsel, she categorically denied the suggestion
    that she had said knife and that Egal had arrived at her house with a knife.
    She attributed the misunderstanding to her limited fluency in English and the
    absence of an interpreter when she gave the statement.

[102]

At the end of Abdis cross-examination, counsel
    for Bryan sought to have her statement about the knife introduced for the truth
    of its contents pursuant to
B. (K.G.)
. The
    trial judge dismissed the application, noting that the statement had been made
    without the benefit of an interpreter and that this fatally undermined its reliability.
    As well, the prejudicial effect of the statement was extremely high for all the
    accused, but particularly for Egal. There was a real risk that the jury would
    use the statement improperly. He observed that the jury would be instructed twice
    that the statement had not been adopted by the witness, once during the trial
    and again in his charge concerning the use of a prior allegedly inconsistent
    statement.

[103]

The trial judge accordingly gave a mid-trial
    limiting instruction on the use of the statement, telling the jury that it was
    up to them to determine whether Abdi referred to a knife. If they found that
    she did, they could use the evidence to assess her credibility. However, it
    could not be used as evidence that she saw a knife.

[104]

Despite all this, counsel for Bryan referred to
    the knife statement in his jury address. He pointed out that the jury could
    only use the statement to assess her credibility. He went on, however, to say
    this:

And Im going to suggest to you that she clearly does use the
    word knife in her statement on March 5th. Im suggesting that she let the
    truth slip out when she said that. She may have been reluctant to say it. She
    may have wanted to be truthful, but Im suggesting to you that she let the
    truth slip out and she said the word knife.

[105]

This resulted in an application for a mistrial
    by all three appellants, which the trial judge dismissed. He pointed out that,
    in a multi-accused trial, the balancing of the fair trial rights of one accused
    may result in the admission of evidence that is prejudicial to a co-accused.

[106]

In the context of this case, he said, it was in Bryans interest
    to put a knife in Egals hand shortly after Macleans death. Bryans counsel had
    a good faith basis on which to vigorously pursue that issue in cross-examining
    Abdi: There was nothing improper in his suggestion to Ms. Abdi that she let
    the truth slip out when she mentioned a knife, as it was part of Mr.
    Bayliss' theory that Ms. Abdi changed her story out of fear of, or loyalty to,
    Mr. Egal, and perhaps the others.

[107]

The trial judge also found that Bryans lawyers comment to the
    jury did not compromise the fairness of the trial and could be addressed by a
    jury instruction:

Mr. Bayliss use of the expression let the truth slip out
    during his jury address presented certain challenges, especially given the
    important distinction the jury was ultimately asked to draw. However, he was
    entitled to attempt to persuade the jury that Ms. Abdi mentioned a knife and
    that her about-face undermined her overall credibility.

In all of the circumstances, Mr. Bayliss jury address did not
    compromise the fairness of the trial for the others. It did not contain the
    type of highly inflammatory and prejudicial rhetoric from counsel for a
    co-accused that might warrant a mistrial if left unchecked. The impugned aspect
    of the address was restricted to a single piece of evidence. It was capable of
    remediation with a straightforward and commonplace instruction in the final
    charge. I was satisfied that the jury would be able to understand the limited
    use that could be made of Ms. Abdi's evidence on this issue. [Internal
    citations omitted.]

[108]

The trial judge then cautioned the jury about
    the use of the statement, warning them that it could not be used as evidence,
    but only to assess Abdis credibility:

There are a couple of special instructions. One applies to Ms.
    Abdi, Ms. Jama's mother. When she testified, it was suggested to her that in
    one of her police statements she said that she saw a knife the evening of
    February 12, 2014, when Ms. Jama, Ms. Abdulle and Mr. Egal came to her house.
    It will be up to you to determine whether in her statement of March 5, 2014,
    she used the word knife. After considering her evidence, in the context of
    all of the evidence at trial, you may find that she did refer to a knife. You
    may find that she did not. You may be unsure. If you do find that she said this
    on a previous occasion, you may use this apparent inconsistency with her trial
    evidence in assessing the value or worth of her evidence. However, and this is
    extremely important, if you do find that she referred to a knife in her
    previous statement, you must
not
treat it as
    substantive or positive evidence that Mr. Egal did have a knife that night.
    That is, if you find it was said, you must limit the use of that utterance to
    merely assessing Ms. Abdi's credibility. Nothing more.

It was suggested to Ms. Abdi in cross-examination, and it came
    up in one of the closing addresses, that Ms. Abdi let the truth slip out when
    she mentioned the knife. You must not use or approach this evidence in that
    way. It cannot be used for its truth, i.e., that there was a knife. Its only
    potential value is as a prior inconsistent or contradictory statement that may
    be used to assess her credibility.
I give you this
    warning in the strongest possible terms
. [Emphasis added.]

[109]

On appeal, Egal submits that both the cross-examination
    of Abdi and Bryans counsels remark to the jury were highly prejudicial, and
    that the trial judge erred in refusing to grant a mistrial. He asks for a new
    trial.

[110]

For the reasons that follow, I would not give effect to
    this ground. The trial judges ruling correctly recognized Bryans legitimate
    interest in pursuing Abdis statement, and his instruction was sufficient to
    address any potential prejudice. The decision not to grant a mistrial is
    entitled to deference.

Applicable principles

[111]

In
R. v. Suzack
(2000)
, 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused, [2000]
    S.C.C.A. No. 583, this court observed that, while co-accused are entitled to
    constitutional protections inherent in the right to a fair trial, the balancing
    of the respective rights of co-accused in a joint trial does not necessarily
    mean that each accused is entitled to the same trial they would have received
    if tried alone. An accused may introduce evidence or make submissions that are
    prejudicial to a co-accused. Where this occurs, the trial judge must balance
    the respective rights of the co-accused so as to preserve the overall fairness
    of the trial: at para. 111.

[112]

In balancing the rights of co-accused, a trial judge is required
    to use corrective measures to address any potential prejudice, including final
    or mid-trial jury instructions or a mistrial. However,
a
    mistrial should only be ordered where such less extreme measures are
    inadequate. It is a remedy of last resort and should only be ordered where
    necessary to prevent a miscarriage of justice:
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 79-80;
R.
    v. A.G.
,
2015 ONCA 159, 124 O.R. (3d) 758, at para. 50.

[113]

Where the issue of the appropriateness of a
    mistrial arises, [t]he decision of whether or not to declare a mistrial falls
    within the discretion of the judge, who must assess whether there is a real
    danger that trial fairness has been compromised:
Khan
, at para. 79. In making their determination, the trial judge must
    consider any lesser corrective measures that could remedy the prejudice or
    irregularity:
Khan
, at para. 80;
A.G.
, at para. 50.

[114]

A trial judges decision on a mistrial
    application is entitled to deference, as a trial judge is best positioned to
    assess whether a mistrial is warranted in the circumstances:
A.G.
, at para. 52, citing
R. c. Lessard

(1992), 74 C.C.C. (3d) 552 (Que. C.A.), at p. 563, leave to appeal
    refused, [1992] S.C.C.A. No. 312. Appellate courts must only interfere with a
    decision if it is clearly wrong or based on an erroneous principle:
A.G.
, at para. 51, citing
R. v. Chiasson
, 2009 ONCA 789, 258 O.A.C. 50, at para. 14.

Submissions on appeal

[115]

Egal submits that the trial judge erred in
    permitting cross-examination and refusing a mistrial. As there was no reasonable
    basis to think that Abdi would recant her evidence and admit she used the word
    knife, the proposed cross-examination should have been prevented.
    Discrediting Abdi did not advance Bryans case and substantially undermined
    Egals defence. Counsels argument that Abdi let the truth slip out was
    overwhelmingly prejudicial to Egal.

[116]

In response, the Crown submits that, in a
    complex multi-party trial such as this, the trial judges balancing of the fair
    trial rights of Bryan, on the one hand, and of Egal on the other, is entitled
    to deference, as is the trial judges refusal to grant a mistrial.

Analysis

[117]

In my view, the trial judge correctly found that it was in Bryans
    interest to establish that Egal had a knife and that there was a good faith
    basis on which to cross-examine Abdi on her statement. I do not accept that the
    test is whether there was a reasonable basis to think that Abdi would
change
her evidence. It was enough to establish that
    cross-examination had a reasonable possibility of undermining the credibility
    of her denial. As the trial judge pointed out, it was Bryans counsels theory
    that Abdi changed her story out of fear, or perhaps loyalty to Egal, who was a
    member of her Somali community and whom she had known since he was a child. In
    contrast, Bryan was not Somali and was a stranger to her. Bryan was entitled to
    challenge her credibility by suggesting that she was protecting people she knew
    and to suggest that she said something other than knife was incredible.

[118]

Moreover, as the authorities suggest, an appropriate jury instruction can
    often assist in balancing competing fair trial interests by instructing the
    jury on the limits to be applied in using that evidence:
Suzack
, at
    para. 114;
R. v. Kendall
(1987), 35 C.C.C. (3d) 105 (Ont. C.A.), at p.
    128.

[119]

The instruction given by the trial judge on this evidence was thorough,
    detailed, and expressed in the strongest possible terms. It would have left
    the jury with no doubt as to the appropriate and inappropriate uses of the
    evidence. In the same instruction, the trial judge dealt with the statement in
    counsels closing, telling the jury that the evidence could not be used to
    assess the truth of Abdis statement, but only to assess her credibility. In my
    view, these corrective measures struck an appropriate balance and the trial
    judges decision to refuse a mistrial is entitled to deference. I would not give
    effect to this ground of appeal.

E.

Did
    the trial judge err in his instruction concerning Redheads prior
inconsistent statement?

[120]

There is a marked difference between Egals
    height (61 or 185 cm) and Bryans (56 or 168 cm). There was also a
    difference in the clothing they were wearing on the evening of Macleans death.
    Egal was wearing a black, two-tone jacket, with white striping on the sleeves
    and on the waistband. Bryan wore a jean vest with a white hoodie sweatshirt
    underneath.

[121]

At the preliminary inquiry, Redhead testified
    that one of the participants in the attack on Maclean was tall and wore a top
    with stripes at the wrist. Based on its correlation with Egals height and
    clothing, Redheads evidence implicated Egal in the attack.

[122]

At trial, during Redheads examination-in-chief
    by Crown counsel, she was asked about the clothing the perpetrators were
    wearing. She said it was dark clothing, but one of the four was wearing
    off-white and it had a line on it  on their like the wrist part  Its like a
    sweater and then there was a line that  like the sweater, it seems to be like
    off-white, and then the line was on it but I couldnt tell you what colour it
    was, but it would stand out. She added that it seemed to be a sweater, but she
    could not say whether the whole sweater was off-white, or just the wrist part.

[123]

Redhead was then invited by the Crown to refresh
    her memory using her evidence at the preliminary inquiry. She was asked whether
    she recalled whether the person that you described as having something that
    they had a white or cream coloured wrist area, do you recall anything else they
    were wearing? She replied, Um-m, not really, no. When asked whether she
    recalled the height of that person, she replied, I think they were shorter.
    This evidence regarding height, which was in direct contrast to her testimony
    at the preliminary inquiry, was important to both Egal and Bryan, as it
    implicated Bryan, not Egal, in the attack.

[124]

In cross-examination by counsel for Egal,
    Redhead confirmed her description given in examination-in-chief that one of the
    perpetrators was a shorter person, with a stripe on their wrist or sleeve
    and wearing a sweater. This description implicated Bryan.

[125]

In cross-examination by counsel for Bryan,
    Redhead was directed to her preliminary inquiry testimony, where she had said
    that it was the taller person wearing the off-white garment. The key portion of
    the exchange was as follows:

Q. Right. When you gave your  your evidence,
    you said the shorter one, correct?

A. Yes.

Q. And then you  at the preliminary hearing
    you said the taller one, right?

A. Well, I believe thats whats on the
    transcript.

Q. Right. Well, would you agree that when you
    gave your evidence at the preliminary hearing a year and a half ago, things
    were fresher in your mind? Would you agree with that?

A. I would think so, yes.

Q. Pardon?

A. Yes.

Q. Okay. And obviously you were under oath and
    you were trying to tell the truth?

A. Yes.

Q. And when you testified about this at the
    preliminary hearing, you said that it was the taller person. Is that correct?

A. Yes.

[126]

It is noteworthy that, although Redhead conceded
    that she had been trying to tell the truth and the statement about the taller
    person was on the transcript, she did not expressly acknowledge that her
    evidence at the preliminary hearing was true. Nor was she asked whether her
    memory had been refreshed by her evidence at the preliminary hearing or whether
    she adopted that evidence at trial. No party found it necessary to clarify her
    answer.

[127]

In his instructions on the law, a copy of which
    was provided to the jury, the trial judge explained how to address prior
    inconsistent statements of a non-accused witness. He explained that if the jury
    found that a witness had given an earlier and different version about the same
    thing, they were to consider the differences between the versions in
    determining whether or how much they could believe of or rely on the witness
    testimony in deciding the case. He also explained that the jury must not use
    the earlier statements as evidence of what actually happened, unless they were
    satisfied that the witness accepted the earlier version as true, in testifying
    at trial.

[128]

In his review of the evidence in the charge,
    which was not given to the jury in written form, the trial judge summarized
    Redheads evidence on the issue as follows:

In cross-examination by [counsel for Bryan],
    Ms. Redhead agreed that she only heard two female voices that night, and no
    male voices. The first one sounded Somali. She was unsure of the second. She
    also said that the shorter one had a sweater and she described it in the
    following way, It looks like it was cream and then there was a stripe around
    the wrist part. When asked about the colour of the stripes, she said, I
    couldnt tell what colour it was, but it stood out, so it had to be. It was a
    colour different to the off white. However, after having an opportunity to
    review her preliminary inquiry evidence, she agreed that she testified that it
    was the tall man who wore this. During her examination in chief she said it was
    the shorter man. She agreed that when she gave her evidence at the preliminary
    inquiry about the tall man, things were fresher in her mind and she was telling
    the truth,
but she did not formally adopt that
    evidence from the preliminary inquiry
. [Emphasis
    added.]

[129]

On November 30, 2016, during deliberations, the
    jury asked a question:

In the preliminary hearing Ms. Redhead said
    that the tall person had the striped area around the wrists; however, on the
    witness stand she indicated that the shorter person was the one with the stripe
    at the wrists. Would it be possible to listen to [counsel for Bryans]
    cross-examination to obtain which version of the above she accepted[?]

[130]

The judge heard submissions from counsel
    concerning the appropriate answer to the question. Not surprisingly, counsel
    for Bryan and counsel for Egal took different positions. Bryans counsel argued
    that Redhead had said that her evidence at the preliminary inquiry was true,
    even though she was not expressly asked whether she had adopted the evidence.
    The issue should be left for the jury. Counsel for Egal, on the other hand,
    said that the trial judge had already instructed the jury that Redhead did not
    formally adopt the evidence and the jury should be expressly instructed that
    she had not adopted it. The Crown took the position that the decision on
    whether she had adopted her earlier testimony should be left to the jury.

[131]

The judge decided to replay the portion of
    Redheads evidence requested by the jury, and to repeat his summary of the
    evidence in which he stated that Redhead had not formally adopted the portion
    of her evidence from the preliminary hearing.

[132]

In the meantime, the jury delivered a request to
    hear additional portions of Redheads evidence. It was decided to respond to
    their first question, and then to hear submissions from counsel on the second.

[133]

The trial judge replayed to the jury the
    evidence they had requested concerning Redheads cross-examination by counsel
    for Bryan. He then repeated the earlier instruction concerning prior
    inconsistent statements of non-accused witnesses. He also reminded the jury:

I also gave you a summary of Ms. Redheads
    evidence on that point yesterday, in my overall overview of the facts. Im not
    going to repeat that for you now,
but Ill just
    remind you that at the very end of that summary, of what you just heard now, I
    said that she did not formally adopt that evidence about the tall man from the
    preliminary inquiry
. [Emphasis added.]

[134]

After this instruction, there were further
    discussions between the trial judge and counsel concerning the jurys second
    question. It was agreed to replay for the jury the portions of Redheads
    evidence-in-chief concerning the clothing worn by the assailants, as well as
    her cross-examination on that issue by counsel for Egal and Bryan. This
    included the portion of her cross-examination by counsel for Bryan that had
    been read in answer to the first question.

[135]

On appeal, Egal submits that the trial judge
    erred by failing to instruct the jury that Redhead had not adopted her prior
    inconsistent statement. He asserts that the jury instruction left this
    determination open to the jury, despite the absence of an evidentiary basis to
    support a finding of adoption.

Applicable principles

[136]

A witness adopts a prior inconsistent statement
    where they testify that they made the prior statement, and that, based on their
    present memory, the prior statement is true:
R. v. Toten
(1993), 14 O.R. (3d) 225 (C.A.), at p. 243. A witness may adopt
    none, part, or all of a prior statement by words, action, conduct, or demeanour
    while testifying:
Toten
, at p. 243;
R.
    v. J.B.
, 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 31.
    Where a prior statement is adopted, it is incorporated into the witness
    evidence at trial such that the prior statement is to be considered part of
    their trial testimony and can be used as evidence to prove the truth of its
    contents:
Toten
, at p. 243;
R. v.
    McCarroll
, 2008 ONCA 715, 238 C.C.C. (3d) 404, at para.
    39.

[137]

The decision as to whether or not a witness has
    adopted all or part of a prior inconsistent statement must be made by the trier
    of fact. However, before this determination can be put to the trier of fact,
    the trial judge must be satisfied that there is an evidentiary basis upon which
    the trier of fact could conclude that the witness did, in fact, adopt the
    statement:
McCarroll
, at para. 40. In
    determining whether such an evidentiary basis exists, the trial judge must be
    alive to whether the witness had a present recollection of the details
    contained within the prior statement. Where a witness does not have a present
    recollection of the content of their prior statement, an evidentiary basis will
    not exist:
McCarroll
, at paras. 38, 42;
R.
    v. Alvarez-Maggiani
, 2018 ONSC 4834, at paras. 29-30.
    This means that the mere acknowledgement by the witness that the prior
    statement was made or that questions were asked and answered is not sufficient
    to establish an evidentiary basis: David Watt,
Watts Manual of
    Criminal Evidence
(Toronto: Carswell, 2019), at p. 250, §
    19.07, citing
R. v. Atikian
(1990), 1 O.R.
    (3d) 263 (C.A.). Rather, what is necessary is evidence that could establish
    both that the witness made the prior statement, and that they had a present
    recollection of the contents of the statement such that they could accept it as
    true while testifying.

[138]

However, regardless of the circumstances, where
    a prior inconsistent statement is at issue, the trial judge must instruct the
    jury that a prior inconsistent statement is not evidence of the truth of its
    contents, except where they find that it has been adopted as true by the
    witness. If not adopted, a prior inconsistent statement can only be used to assess
    the credibility of the witness:
R. v. G.H.
,
    2020 ONCA 1, at paras. 32, 35-36;
R. v. Bevan
,
    [1993] 2 S.C.R. 599, at p. 618.

Submissions on appeal

[139]

Egal submits that the trial judge left to the
    jury the question of whether Redhead had adopted her evidence at the
    preliminary inquiry. He submits this was an error, because there was an
    insufficient evidentiary basis on which to do so. According to Egal, three
    factors indicate the absence of adoption. First, at no time were the relevant
    portions of her prior statement read out to her  this made it unclear exactly
    how she had expressed herself at the preliminary inquiry. Second, it was not
    clear at trial that she continued to assert the truth of her previous
    statement. And third, the cross-examiner failed to ask the ultimate question,
    namely, whether her prior statement was true. The trial judge should have
    exercised his gatekeeping function by instructing the jury that Redhead had not
    adopted her earlier statement.

[140]

Egal also submits that the trial judges response
    to the jurys question was confusing and conflicted with his original
    instruction, as the first part of the answer (the general instruction on prior
    inconsistent statements) seemed to leave the question of adoption open to the
    jury, while the second part (the specific instruction regarding whether Redhead
    adopted her prior statement) seemed to direct them that Redhead had not adopted
    her prior statement. He submits that this confusion opened the door wider to an
    erroneous conclusion by the jury that Redhead had adopted her prior
    inconsistent statement that the taller man with the stripe on his sleeve had
    been at the scene.

[141]

The Crown responds that the trial judge did not
    leave adoption with the jury. While he gave a general instruction that it is
    the role of the jury to determine whether prior inconsistent statements have
    been adopted, he later stated that Redhead had not adopted her prior
    inconsistent statement. This statement was correct, as there was no evidentiary
    basis to support a finding of adoption. Redhead was never asked to confirm that
    her prior statement was accurate, and her evidence at trial conflicted with the
    statement. The record was clear that Redhead had not adopted her statement and
    there was no plausible risk that the jury would mistakenly find otherwise. The
    trial judge addressed the jurys question appropriately by playing back the
    requested portion of Redheads evidence, repeating the instruction he had given
    concerning the proper approach to that evidence, and repeating his observation
    that Redhead had not formally adopted her statement from the preliminary
    inquiry. There was no error.

Analysis

[142]

I would not give effect to this ground.

[143]

By the end of this trial, the jury had been
    instructed three times  each time accurately and plainly  on the appropriate
    use of prior inconsistent statements of a non-accused witness. The first
    occasion was the mid-trial instruction on the use of the alleged prior
    statement by Abdi concerning Egal having a knife. The second was during the
    charge itself, and the third was when the jury was re-charged following their
    question.

[144]

On the first occasion, the judge instructed the
    jury that if they found the witness had given an earlier different version of
    the event, you should consider the fact, nature and extent of any differences
    between the versions in deciding whether or how much you will believe or rely
    upon the witnesss testimony in deciding this case. He continued with the
    standard instruction:

Most importantly you must not use the earlier
    statements as evidence of what actually happened unless youre satisfied that
    the witness accepted the earlier version as true while testifying here at
    trial. Even if a witness accepts the earlier version as true when testifying
    before you, its for you to say, as it is with the evidence of any witness,
    whether or how much you will believe of and rely upon that statement he or she
    accepted as true, in reaching your decision.

[145]

The trial judge noted that the instruction
    applied generally to any witness confronted with a prior statement and he noted
    that the jury might find that previous witnesses, notably Redhead and Elmi, had
    made prior inconsistent statements. In addition to the statement at issue on
    this appeal, Redhead had also been cross-examined in relation to two other
    inconsistent statements made at her preliminary inquiry. Unlike the statement
    at issue, however, both those statements had a basis on which the jury could
    have concluded that they had been adopted.

[146]

In his charge to the jury, the trial judge gave
    a substantially identical instruction. In his review of the evidence, he
    instructed the jury that Redhead did not formally adopt her evidence from the
    preliminary inquiry that the taller man wore a sweater with stripes on the
    sleeves. Counsel for Egal did not object to the instruction, either before or
    after the charge.

[147]

Rather, even after the jurys question, and in
    the face of counsel for the Crown, Bryan, and Jama asking that adoption be left
    to the jury, counsel for Egal asked the trial judge to reiterate his
    instruction that Redhead had not formally adopted the statement. The trial
    judge did so in his re-charge, reminding them that in her evidence at trial, Redhead
    did not formally adopt that evidence about the tall man from the preliminary
    inquiry.

[148]

I reject the submission made on behalf of Egal
    that the jury would have been confused by the language of the trial judges
    response to their question, or that the response was in conflict with the
    original instruction. While there were very slight differences in phraseology,
    both were clear that Redhead had not adopted her earlier evidence.

[149]


The trial judges discussions with
    counsel concerning the jurys questions also make it clear that he did not
    intend to leave adoption to the jury. After the answer to the jurys first
    question had been provided, Bryans counsel asked the trial judge to instruct
    the jury that his instruction had simply been his view of the evidence, as
    opposed to a direction, and that they could find that Redhead had adopted the
    statement. The trial judge replied that the jury did not have a choice about
    whether Redhead had adopted the statement, that he did not think Redhead had
    adopted it, and that he was not going to change his instruction.

[150]

In my view, in light of the instruction that
    Redhead had not formally adopted her evidence from the preliminary inquiry,
    and having regard to Redheads response when the statement was put to her in
    cross-examination (which the jury heard three times), there was no risk that
    the jury would find that Redhead adopted the statement put to her by counsel
    for Bryan.

[151]

I acknowledge that use of the word formally
    was unnecessary, and it would have been preferable for the trial judge to have
    simply instructed the jury that they could not find the statement had been
    adopted. In my view, however, the instruction could only have been understood
    by the jury to mean that Redhead did not accept her evidence at the
    preliminary inquiry, to use the language of their question, and that they could
    not use the prior statement for its truth, but simply to assess Redheads credibility.

[152]

I would not, therefore, give effect to this
    ground of appeal.

F.

Was
    the verdict unreasonable as it pertained to Jama?

[153]

At the close of the Crowns case, Egal and Jama brought an application
    for a directed verdict. The trial judge dismissed the motion with reasons to
    follow, subsequently reported as
R. v. Jama
, 2017 ONSC 471.

[154]

After reviewing the factual background and applicable principles, the
    trial judge set out the evidence on which a jury could infer that each of Egal
    and Jama were participants in the concerted deadly attack on Maclean. In the
    case of Jama, this included:

·

she
    entered the building with the other three accused just after 7:00 p.m. on
    February 12, 2014;

·

she
    was shown on security footage moments before the attack on Maclean;

·

she
    fit the descriptions of one of the female attackers given by both Redhead and
    Elmi;

·

after
    the incident, Jama left the scene and went to her mothers home, where she left
    a pair of her shoes, soaked with Macleans blood, in the hall closet; and

·

her
    DNA was found under Macleans fingernails, indicative of her participation at
    an earlier stage of the events and consistent with Redheads evidence about
    four people attacking Maclean.

[155]

The trial judge noted that this evidence, together with evidence that
    there was outdoor lighting in the vicinity of the fatal attack, left it open to
    the jury to find that Jama could easily have observed Macleans massive loss of
    blood, and that she either inflicted the injuries or was a knowing participant
    in the concerted attack that caused those injuries. At para. 33, the trial
    judge observed with respect to both Egal and Jama:

Given the condition that Mr. Maclean must have been in at the
    time, with blood everywhere around him, it would not be difficult for the jury
    to conclude that those [who] were attacking this prone man at that time wanted
    him dead.

[156]

On appeal, Jama claimed that the verdict was unreasonable, because the
    evidence did not establish that she was a co-principal. There was no direct
    evidence that she had a prior intention to kill or that she meant to cause
    Maclean such egregious bodily harm that she knew was likely to kill him and was
    reckless whether he died or not.

[157]

I do not agree. As identified by the trial judge, it was clearly open to
    the jury to find, on the evidence, that Jama was a co-principal in the attack
    on Maclean and that she had the requisite murderous intent.

G.

The sentence
    appeal

[158]

Abdulle was 19 years old at the time of the offence. She was a grade 12
    student with no criminal record. She has a loving and supportive family and
    many letters were filed in her support. Her trial counsel argued that she had
    been making progress while in custody and emphasized the role of alcohol on her
    behaviour on the evening in question. He submitted that she should receive the
    minimum 10-year period of parole ineligibility.

[159]

The Crown argued that, due to the brutality of the crime, the parole
    ineligibility period should be increased to something in the range of 15 years.
    Pursuant to s. 745.2 of the
Code
, four jurors recommended that she
    receive the minimum 10-year period of ineligibility; the recommendations of the
    remaining jurors ranged from 12 (2), 13 (3), 15 (2), and 20 years (1). The
    trial judge noted that the jurys recommendation regarding Abdulle were
    probably marginally the harshest of the collective recommendations of the
    jurors.

[160]

In sentencing Abdulle, the trial judge described the attack on Maclean
    as brutal and dreadful and cowardly. He noted that the appellants left the
    area after the attack and partied on into the night, even after learning that
    he had died. As I have noted, the trial judge found as a fact that, given the
    brutality of the attack and the appalling loss of blood, all three appellants
    either used a knife or were aware that at least one of the others was using a
    knife, and that all had the required intent for murder as stipulated in s.
    229(a) of the
Criminal Code
. He observed the devastating impact of
    the offence on Macleans family. He also referred to Abdulles support from
    family and friends, the absence of a criminal record, and a letter from a
    former teacher who reported that Abdulle was remorseful and contrite for
    what she had done.

[161]

In considering the appropriate period of parole ineligibility, the trial
    judge referred to what he accurately described as the leading case,
R. v.
    Shropshire
, [1995] 4 S.C.R. 227, and to the decision of this court in
R.
    v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373. He also noted that the
    majority of the jurors had recommended that Abdulle serve more than the minimum
    period before becoming eligible for parole.

[162]

He concluded that, notwithstanding her youth and family support, which
    demonstrated that her actions were out of character and that she had
    rehabilitative potential, a denunciatory sentence was required, both for her
    own sake and to deter others. He therefore imposed a 12-year parole
    ineligibility period.

[163]

On appeal, Abdulle submits that the trial judge erred in principle by
    failing to impose the minimum 10-year ineligibility period. She seeks to
    introduce fresh evidence to establish that, at the time of the offence, she had
    mental health issues and was self-medicating with alcohol. She argues that,
    in light of this evidence, the minimum eligibility period is warranted.

[164]

As will be outlined below, I would not interfere with the sentence
    imposed. The fresh evidence does not reduce the appellants moral culpability
    and the trial judges assessment is entitled to deference.

Applicable principles

[165]

Section 235(1) of the
Code
calls for a mandatory sentence of
    life imprisonment in the case of first- and second-degree murder. Section
    745(c) provides that, subject to s. 745.1 (which deals with persons under the
    age of 18 at the time of the offence), the sentence to be pronounced against a
    person who is to be sentenced to imprisonment for life shall be, in respect of
    a person convicted of second-degree murder, for life without eligibility for
    parole until the person has served at least 10 years of the sentence or such
    greater number of years, not being more than 25 years, as has been substituted
    pursuant to s. 745.4.

[166]

Under s. 745.2, where a jury finds an accused guilty of second-degree
    murder, the presiding judge is required to ask the jury whether they wish to
    make any recommendation with respect to parole ineligibility. The judge must
    instruct the jury, using the language set out in the
Code
, that, while
    they are not required to make a recommendation, if they do, it will be
    considered by the judge when determining the appropriate period of
    ineligibility pursuant to s. 745.4. The jury is not required to be unanimous in
    its opinion and each member of the jury may make their own recommendation.

[167]

Section 745.4 provides that, at the time of sentencing, the sentencing
    judge may, having regard to the character of the offender, the nature of the
    offence and the circumstances surrounding its commission, and to the recommendations,
    if any of the jury, substitute a period of ineligibility of more than 10 years
    and not more than 25, as the judge deems fit in the circumstances.

[168]

Shropshire
is the leading case. Iacobucci J., writing for a
    unanimous court, emphasized that the determination of parole ineligibility is a
    fact-sensitive process, which must have regard to the factors set out in the
Code
and to the discretion conferred on the judge by that section (now s. 745.4): at
    para. 18. He rejected the standard articulated by the Court of Appeal for
    British Columbia that a period of parole ineligibility of more than 10 years
    would not be justified in the absence of unusual circumstances: at para. 26. Rather,
    he held that, as a general rule, the sentencing judge shall impose a period
    of 10 years, unless a determination is made that, according to the criteria in
    s. 745.4, a longer period is required: at para. 27. In other words, the correct
    approach is to view the 10-year period as a minimum contingent on what the
    judge deems fit in the circumstances, the content of this fitness being
    informed by the criteria in the
Code
: at para. 31. He added that,
    the power to extend the period of parole ineligibility need not be sparingly
    used: at para. 31.

[169]

As to the power of appellate courts to interfere with the period of
    parole ineligibility imposed, Iacobucci J. expressed a highly deferential
    standard of review. He said, at para. 46, that:

An appellate court should not be given free reign to modify a sentencing
    order simply because it feels that a different order ought to have been made.
    The formulation of a sentencing order is a profoundly subjective process; the
    trial judge has the advantage of having seen and heard all of the witnesses
    whereas the appellate court can only base itself upon a written record. A
    variation in the sentence should only be made if the court of appeal is
    convinced it is not fit. That is to say, that it has found the sentence to be
    clearly unreasonable.

Submissions on appeal

[170]

Abdulle advances two primary arguments. First, she submits that, having
    instructed the jury that they did not have to find that any accused used a
    knife or were aware of a knife, the judge erred in making a finding that each
    participant either had a knife or was aware that a knife was being used.
    Second, she submits that the fresh evidence concerning her mental condition,
    which she seeks to introduce on appeal, is sufficient to distinguish her from
    the other appellants and to establish that the minimum period of parole
    ineligibility is warranted. As a result of the fresh evidence, she says, the court
    can recognize that the appellant was mentally ill at the time of the attack and
    was self-medicating with alcohol.

[171]

The fresh evidence is in the form of two psychological reports. The
    first report dated August 3, 2018, more than a year after Abdulles sentencing,
    was prepared by a psychologist, on behalf of Correctional Service of Canada and
    the Joliette Institution for Women, where Abdulle was incarcerated. The second
    is a Psychological Evaluation Report submitted to the Correctional Service of
    Canada. Among other things, it makes recommendations for treatment following a
    deterioration in her mental state.

[172]

The reports indicate that Abdulle began to serve her sentence at the
    Joliette Institution for Women on April 20, 2017. On April 16, 2018, she was
    transferred to the mental health unit for women offenders at the Institut
    national de psychiatrie légale Philippe-Pinel at the Université de Montréal
    (IPPM) for reassessment, stabilization, and treatment following a
    deterioration in her psychological state. The latter report indicates that she had
    a personality disorder, a depressive disorder, and a substance abuse disorder
    in a controlled environment.

[173]

The former report, which was prepared following her transfer to IPPM,
    indicates that she had worked with staff, took part in group work, and been
    compliant with her treatment and medication, as well as with the rules and regulations
    of IPPM. It observed that her mental health needs would not interfere with her
    ability to adapt to a transfer to a medium security facility, which might be
    more supportive of her needs.

[174]

Abdulle argues that the evidence establishes that, akin to the
    circumstances in
R. v. Stiers
, 2010 ONCA 656, 268 O.A.C. 58, leave to
    appeal refused, [2011] S.C.C.A. No. 150, there was a clear link between [her]
    criminal behaviour and [her] abuse of alcohol: at para. 5. She submits that,
    just as a 10-year ineligibility period was imposed in that case, the same
    should be done here.

[175]

In response to the appellants first argument, the Crown submits that
    while the jury was not required to find that Abdulle had knowledge of the use
    of a knife in order to convict her of second-degree murder, the trial judge was
    entitled to conclude from the nine stab wounds, the heavy bleeding from the
    femoral artery, and Abdulles close proximity to the victim as she attacked him,
    that she knew that he had been stabbed. He was statutorily entitled to make
    that finding, it is consistent with the jurys verdict, and it was reasonable.

[176]

The Crown also submits that the trial judge took account of all relevant
    considerations, including the appellants rehabilitative potential, on the one
    hand, and the need for a denunciatory sentence, on the other. It submits that
    the fresh evidence is not altogether helpful to the appellant, as the reports refer
    to her continued use of drugs while incarcerated and raise questions as to the
    veracity of her reporting.

Analysis

[177]

Because Abdulle was convicted of second-degree murder, the trial judge
    was required to impose the mandatory sentence of life imprisonment under s.
    235(1) of the
Code
. He was also required to consider whether to impose
    a period of parole ineligibility of more than 10 years, but less than 25 years.
    In making that determination, he was required to consider the character of the
    offender, the nature of the offence, the circumstances surrounding the
    commission of the offence, and the recommendations of the jury. He did all of
    these things.

[178]

For the reasons set out in paras. 41-42, above, I do not accept that the
    trial judge erred in concluding that Abdulle was aware that a knife had been
    used in the attack. He was entitled to make that finding.

[179]

With regards to Abdulles second argument,
Stiers
is
    distinguishable. In that case, a verdict of second-degree murder was imposed by
    this court on appeal. In determining the sentence, this court held that, in
    light of Stiers progress and rehabilitation over the course of the seven years
    he had already served in custody, a 10-year parole ineligibility period was
    more appropriate than the 12-15-year period requested by the Crown. The court
    noted that he present[ed] as a very different individual than the 23-year-old
    man who committed th[e] crime: at para. 6.

[180]

The reports tendered as fresh evidence in this appeal were not prepared
    for the purpose of assisting the court with respect to sentencing or parole
    eligibility. They were prepared for the purpose of determining the appellants security
    classification and to clarify her psychological diagnosis. More to the point,
    there is nothing in the reports to demonstrate that, like Stiers, the appellant
    has turned her life around such that she is not the person she was when the
    offence was committed.

[181]

Nor is there any reliable evidence in the reports to support the
    conclusion that the appellants emotional and psychological challenges should
    be a factor in determining either her culpability or her parole eligibility. Significantly,
    the IPPM report suggests that she may have exaggerated her symptoms.

[182]

The trial judges assessment of the factors set out in s. 745.4 is
    entitled to deference. Having sat through a lengthy trial, heard the evidence regarding
    the nature and circumstances of the offence, watched Abdulle testifying and
    observed her character, and having heard the submissions on parole
    ineligibility, he was well-equipped to make this determination and I would not
    disturb his conclusion.

V.

disposition

[183]

For these reasons, I would dismiss the appeal.

Released: GRS  FEB 12 2020

George R. Strathy C.J.O.

I agree. A. Harvison Young J.A.

I agree. M. Jamal J.A.


