WARNING

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

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

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    witness shall not be published in any document or broadcast or transmitted in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

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    participant shall not be published in any document or broadcast or transmitted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

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

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

(b) a terrorism offence;

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

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

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

(4)      An applicant for an order shall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the contents of an application;

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shafia, 2016 ONCA 812

DATE: 20161102

DOCKET: C55528, C55918 & C56496

DOCKET: C55528

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamed Mohammad Shafia

Appellant

DOCKET: C55918

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Shafia

Appellant

DOCKET: C56496

BETWEEN

Her Majesty the Queen

Respondent

and

Tooba Mohammad Yahya

Appellant

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

Jonathan Dawe and Michael Dineen, for the appellant
    Mohammad Shafia

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

Jocelyn Speyer and Gillian Roberts, for the respondent

Heard: March 3-4, 2016

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

Watt J.A.:

[1]

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

[2]

But not always.

[3]

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

[4]

In the water was a Nissan Sentra. Drivers window open. Ignition off,
    but not locked. Headlights off. Seatbelts unfastened. Front seats reclined. Rear
    name plate damaged.

[5]

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

[6]

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

[7]

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

[8]

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

THE BACKGROUND FACTS

[9]

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

[10]

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

[11]

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

The Principals

[12]

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

[13]

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

[14]

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

The
    Relationship among Family Members

[15]

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

[16]

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

[17]

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

[18]

Evidence about some specific relationships warrants closer scrutiny.

Zainab and Ammar

[19]

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

[20]

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

[21]

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

[22]

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

[23]

A few days later, police spoke with Geeti and Sahar at school. Geeti wanted
    to be placed immediately in the care of the child protection agency because she
    had no freedom. She wanted to be like her friends and be able to do things
    without having to ask for permission. Sahar complained that her brother (Hamed)
    had slapped her when she responded to him during an argument. Geeti also told
    police about that incident. Sahar said she couldnt go out without another
    family member being with her.

[24]

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

[25]

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

[26]

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

[27]

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

Sahar and Ricardo

[28]

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

[29]

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

[30]

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

[31]

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

[32]

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

Geeti

[33]

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

[34]

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

Rona Amir Mohammad

[35]

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

[36]

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

[37]

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

The Dubai Trip

[38]

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

[39]

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

[40]

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

[41]

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

Computer
    Searches in Canada

[42]

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

[43]

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

[44]

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

[45]

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

The Nissan
    Purchase

[46]

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

The Departure

[47]

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

[48]

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

[49]

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

[50]

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

The Stay in
    Niagara Falls

[51]

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

[52]

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

The Abortive
    Return to Montreal

[53]

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

[54]

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

Homeward Bound

[55]

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

The Kingston
    East Motel

[56]

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

[57]

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

[58]

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

The Lexus Leaves

[59]

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

[60]

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

The Sleeping
    Arrangements

[61]

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

[62]

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

[63]

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

[64]

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

The Finding of
    the Nissan

[65]

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

[66]

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

The Nissan and
    the Deceased

[67]

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

[68]

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

[69]

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

Hamed and the
    Lexus

[70]

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

[71]

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

The Police
    Report

[72]

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

The Scene and
    Accident Reconstruction Evidence

[73]

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

[74]

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

[75]

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

[76]

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

[77]

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

[78]

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

[79]

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

The Injuries
    and Cause of Death

[80]

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

[81]

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

[82]

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

[83]

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

[84]

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

[85]

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

The
    Appellants Explanations

[86]

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

[87]

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

[88]

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

[89]

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

Interceptions and Interviews

[90]

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

[91]

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

[92]

Shafia later commented, That night there was no electricity there,
    everywhere was pitch darkness. You remember, Tooba? and Tooba replied, Yes. Shafia
    then said, There wasnt the slightest glimmer of light or electricity. Even
    that rooms light was off. A while later, Shafia said If they take picture,
    you and I have been once before neh? Once we came before that, you and us, and
    once after. We came to Niagara, then once more, it was three, four times.

[93]

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

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

Shafia:         Damn on their boyfriends.

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

[94]

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

Whatever she threw in our way, she did.
We lost our honour
.
    For me the issue was no taunt (ie. wasnt humiliating), because even if they
    were to wear clothes made from the [Quran] [pages], the four of them, even if
    they were to scatter the pages of the [Quran] in front of me, I wouldnt tell
    to their face. [emphasis added]

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

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

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

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

Theyve gone now, shit on their grave; you convince me, tell
    me This is where you messed up. [I mean] as far as they are concerned.
    [unintelligible, garbled] from the day that they came into the world, as you
    [often] said, there was the car, the house,
honour
and respect.
    [unintelligible] you and I didnt do anything which would have been detrimental
    to them.

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

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

Even if they hoist me up onto the gallows [unintelligible]
    nothing is more dear to me that my honour. Lets leave our destiny to God and
    may God never make me, you or your mother honourless. I dont accept this
    dishonour

I am telling you, this is my word to you, be I dead or alive,
nothing
    in the world is above [ie. more precious] than your honour
like if your
    sister or my daughter or your mothers daughter to be with a
na mahram
[2]
and
do nasty or dishonour work
, even if god forbid, they hoist us onto
    the gallows [unintelligible]. Isnt that right, my son?  [unintelligible] Dont
    think about it, dont worry about it, whatever the eventuality, it is from God;
    we accept it wholeheartedly

There is nothing more valuable than our honour.
I am
    telling your mother that be like a man as you have always been. I know it
    hurts. I have passed more experience in life than you. Dont worry at all.
    Dont regret or wish that this would have happened or that would have happened.
    [Unintelligible]. I am telling you now and I was telling you before that
whoever
    play with my honour, my words are the same
. [Unintelligible]
there is
    no value of life without honour.

[95]

At one point, Tooba said, I know Sadaf [Zainab] was already done, but
    I wish two others werent. Shafia responded, No Tooba, they messed up. There
    was no other way. Look, Tooba, consider all the options. However you look at it
    in any way.

[96]

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

For each human being, honour and reputation for that person is
    important. And when I saw these pictures, after their deaths, in this part, I
    was angry. My honour is important to me. But the honour and reputation of a
    human being, to kill someone, you cant regain your reputation and honour.  In
    our culture and our religion, if someone kills his wife or daughter, there is
    no honourless person more than the person who did that act.

[97]

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

[98]

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

[99]

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

[100]

She denied
    seeing the Lexus push the Nissan into the canal. She said that when she saw the
    Nissan in the water she thought it was empty and that Shafia had taken Rona and
    girls back to the Lexus. When the Inspector challenged her on being overtaken
    by sleep she said [i]f I was awakeand they were pressing and putting them
    into the water, I might have known it. As a human I would have been shaken or
    would have heard a sound of splashing or something, but that time believe me I
    dont know nothing about the detail of this story how it happened.

[101]

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

THE GROUNDS OF APPEAL

[102]

The appellants
    advance five grounds of appeal.

[103]

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

[104]

Of the remaining
    grounds of appeal, three question the adequacy of the trial judges charge to
    the jury on the jurys use of:

i.

expert opinion evidence;

ii.

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

iii.

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

A fourth ground assets error in the trial judges
    failure to remove from the jurys consideration a murder by omission theory in
    connection with Tooba.

Ground #1: The Trial Jurisdiction Ground

[105]

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

The Background
    Facts

[106]

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

The Marriage of Shafia and Tooba and
    Early Births

[107]

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

[108]

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

[109]

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

[110]

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

The Years in Pakistan

[111]

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

The Move to Dubai

[112]

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

[113]

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

[114]

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

[115]

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

The Move to Australia

[116]

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

The Return to Dubai

[117]

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

[118]

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

Coming to
    Canada

[119]

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

[120]

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

[121]

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

The Trial
    Proceedings

[122]

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

[123]

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

The Proposed Fresh Evidence

[124]

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

i.

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

ii.

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

iii.

a Certificate of Live Birth.

[125]

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

[126]

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

The Origins
    of the Documents

[127]

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

[128]

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

[129]

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

[130]

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

[131]

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

[132]

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

A.

He is . Thats a
    property, and he is younger than me.

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

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

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

Q.      Why wouldnt you have transferred it to Hamed when you
    were in Kabul in 2008/9?

A.       Hamed was not there.

Q.      He wasnt there after he got convicted and sentenced to
    life imprisonment, either. What has that got to do with it?

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

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

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

[133]

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

[134]

Shafia admitted
    that the only reason he believes Hameds true birthdate is December 31, 1991,
    is because of the documents that have come to light after his conviction.

The Contents and Authenticity of the
    Documents

[135]

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

(1)

Tazkira

[136]

The principal
    document on which the appellants rely to establish Hameds birthdate as
    December 31, 1991, is the tazkira.

[137]

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

[138]

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

[139]

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

[140]

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

[141]

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

[142]

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

[143]

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

[144]

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

(2)

The Ministry of Interior Affairs Census General Presidency

[145]

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

(3)

Certificate of Live Birth, Ministry of Public Health

[146]

Shafia explained
    that his former employee obtained the Certificate of Live Birth, Ministry of
    Public Health, Afghanistan from the authorities after the employee noticed
    the discrepancy in Hameds birthdate between the added entry in the tazkira and
    Hameds passport.

[147]

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

[148]

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

The Arguments on Appeal

[149]

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

The Admissibility Issue

[150]

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

[151]

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

[152]

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

[153]

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

[154]

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

[155]

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

[156]

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

[157]

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

[158]

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

[159]

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

[160]

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

The Issue of
    Remedy

[161]

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

[162]

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

[163]

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

[164]

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

[165]

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

[166]

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

The Governing
    Principles

[167]

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

Introduction

[168]

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

[169]

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

[170]

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

[171]

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

The Statutory
    Authority

[172]

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

The Standard

[173]

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

[174]

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

[175]

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

[176]

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

[177]

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

[178]

A variety of
    circumstances may compromise trial fairness. Sometimes those circumstances are
    intrinsic to the trial process, as for example, where trial counsel provides
    ineffective assistance, or is cumbered by a conflict of interest that
    compromises an accuseds right to make a full answer and defence:
R. v.
    Joanisse
(1995) 102 C.C.C. (3d) 35 (Ont. C.A.), at pp. 43-44 and 57-58;
W.
    (W.)
, at pp. 232-234 and 237-241. Or where the Crown defaults on its
    disclosure obligations:
Taillefer
, at paras. 81-82;
R. v. Dixon
,
    [1998] 1 S.C.R. 244, at para. 36; and
R. v. Illes
, 2008 SCC 57,

[2008] 3 S.C.R. 134, at paras. 64-65. Or where
    an accuseds right to be present throughout the whole of his trial has been
    compromised:
R. v. Poulos,
2015 ONCA 182, 124 O.R. (3d) 675, at para.
    14;
R. v. F.E.E.
, 2011 ONCA 783, 282 C.C.C. (3d) 552, at para. 51.

[179]

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

[180]

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

[181]

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

[182]

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

[183]

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

[184]

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

[185]

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

[186]

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

The Principles
    Applied

[187]

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

[188]

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

[189]

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

[190]

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

[191]

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

[192]

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

[193]

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

[194]

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

[195]

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

[196]

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

[197]

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

[198]

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

[199]

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

Ground #2: The Admissibility
    and Use of Expert Evidence

[200]

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

[201]

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

The Additional Background

[202]

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

[203]

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

The Appellants
    Discussions

[204]

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

The Tender of Expert
    Evidence

[205]

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

The Defence Position

[206]

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

[207]

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

i.

the quality of the data underlying Dr. Mojabs opinions rendered her
    opinion unreliable;

ii.

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

iii.

the probative value of Dr. Mojabs evidence was outweighed by its
    prejudicial effect.

The Rulings of the
    Trial Judge

[208]

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

[209]

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

[210]

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

The Evidence Adduced at Trial

[211]

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

[212]

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

The Use of the
    Evidence at Trial

[213]

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

The Jury Instructions

[214]

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

[215]

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

The Arguments
    on Appeal

[216]

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

[217]

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

[218]

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

[219]

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

[220]

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

[221]

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

[222]

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

[223]

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

[224]

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

The Governing
    Principles

[225]

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

The Expert Evidence
    Two-Step

[226]

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

The First Step  Threshold Reliability

[227]

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

·

relevance

·

necessity

·

absence of an exclusionary rule

·

a duly qualified expert.

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

[2000] 2 SCR 600, at para. 47.

[228]

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

[229]

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

[230]

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

The Second Step: The Cost-Benefit
    Analysis

[231]

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

[232]

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

[233]

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

[234]

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

Keeping
    Expert Opinion Evidence within Proper Bounds

[235]

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

[236]

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

[237]

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

[238]

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

[239]

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

Cultural Evidence

[240]

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

[241]

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

Statistical Evidence of
    Probabilities

[242]

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

Anecdotal
    Evidence from Experts

[243]

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

The Principles
    Applied

[244]

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

[245]

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

[246]

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

[247]

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

[248]

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

[249]

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

[250]

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

[251]

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

[252]

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

[253]

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

[254]

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

[255]

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

[256]

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

[257]

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

[258]

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

[259]

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

Ground #3: Evidence of
    Post-Offence Conduct

[260]

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

[261]

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

[262]

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

The Additional Background

[263]

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

The Statements

[264]

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

i.

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

ii.

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

iii.

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

iv.

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

The Contradictory
    Evidence

[265]

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

[266]

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

[267]

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

The Positions
    at Trial

[268]

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

[269]

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

The Charge to the Jury

[270]

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

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

[271]

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

The Arguments
    on Appeal

[272]

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

[273]

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

[274]

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

[275]

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

[276]

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

[277]

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

[278]

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

[279]

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

[280]

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

[281]

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

[282]

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

The Governing
    Principles

[283]

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

[284]

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

[285]

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

[286]

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

[287]

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

[288]

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

The Principles
    Applied

[289]

For several
    reasons, this ground of appeal fails.

[290]

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

[291]

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

[292]

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

[293]

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

[294]

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

[295]

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

[296]

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

[297]

Lastly, the
    trial judges instructions on how the jurors could use this evidence are free
    from error.

[298]

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

Ground #4: Hearsay Evidence

[299]

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

[300]

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

[301]

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

[302]

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

i.

Sahars statement to Enma Medina, her boyfriend Ricardos aunt, that if
    her parents found out about her relationship with Ricardo, she would be a dead
    woman;

ii.

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

iii.

Ronas statement to Latif Hyderi that there was a chance that Shafia
    might destroy Zainab by Hamed.

The Ruling of the Trial Judge

[303]

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

The Jury
    Instructions

[304]

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

[305]

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

[306]

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

·

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

·

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

·

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

[307]

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

The Arguments
    on Appeal

[308]

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

[309]

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

[310]

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

[311]

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

[312]

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

The Governing
    Principles

[313]

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

[314]

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

[315]

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

[316]

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

[317]

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

[318]

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

The Principles
    Applied

[319]

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

[320]

Turning first to
    the issue of admissibility.

[321]

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

[322]

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

[323]

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

[324]

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

[325]

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

[326]

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

[327]

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

[328]

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

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

[329]

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

Ground #5: Murder by Omission

[330]

The final ground
    of appeal relates only to Tooba and engages consideration of Crown counsels
    address to the jury and the trial judges charge. The focal point of the
    complaint concerns Toobas potential liability for her failure to comply with
    her legal duty to protect her minor children from harm.

[331]

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

The Additional
    Background

[332]

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

The Crowns Theory of Liability

[333]

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

[334]

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

The Pre-Charge
    Conference

[335]

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

[336]

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

[337]

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

The Closing Address
    of the Crown

[338]

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

The Charge to
    the Jury

[339]

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

[340]

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

The Arguments
    on Appeal

[341]

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

[342]

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

[343]

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

[344]

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

[345]

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

[346]

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

The Governing
    Principles

[347]

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

[348]

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

[349]

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

[350]

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

The Principles
    Applied

[351]

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

[352]

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

[353]

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

[354]

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

CONCLUSION

[355]

I would dismiss
    the appeals.

Released: November 2, 2016 (DW)

David Watt J.A.

I agree P. Lauwers
    J.A.

I agree G. Pardu
    J.A.

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

[2]
The translators note provides: According to sharia law, someone of the
    opposite sex one is restricted from associating with outside the delineated
    bounds of propriety; in practice everyone for the female except father,
    brother, son, uncle, grandparents.

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

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

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

[6]

R. v. OConnor
(2002), 170
    C.C.C. (3d) 365 (Ont. C.A.)