R v Soroush et al, 2022 MBCA 84

Citation: R v Soroush et al, 2022 MBCA 84 Date: 20221012 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre Docket: AR19-30-09385 ) BETWEEN : ) ) S. R. Wright her majesty the queen ) for the Appellant ) A. Soroush Respondent ) ) - and - ) S. A. Inness ) for the Appellant ARAM SOROUSH ) A. A. Ismail ) (Accused) Appellant ) ) D. L. Karp - and - ) for the Appellant ) D. G. Kulic Docket: AR19-30-09386 ) BETWEEN : ) ) M. Marjanovic her majesty the queen ) on his own behalf ) Respondent ) ) A. Y. Kotler and - and - ) J. W.

Avey ) for the Respondent ahamed althaaf ismail ) ) (Accused) Appellant ) Appeal heard: ) May 31, 2022 - and - ) ) ) Judgment delivered: ) October 12, 2022 Docket: AR19-30-09393 ) BETWEEN : ) ) her majesty the queen ) ) Respondent ) ) - and - ) ) damir gabriel kulic ) ) (Accused) Appellant ) ) - and - ) ) Docket: AR20-30-09399 )

BETWEEN : ) ) her majesty the queen ) ) Respondent ) ) - and - ) ) matthew marjaNOVIC ) ) (Accused) Appellant ) On appeal from R v Marjanovic , 2019 MBQB 183 PFUETZNER JA [ 1 ] Mustafa Peyawary (the victim) was brutally beaten to death in an Airbnb rental apartment. His four assailants left behind a trail of evidence and two of them were caught, red-handed, at the scene. [ 2 ] After a trial by a judge and jury, Aram Soroush (Soroush), Ahamed Althaaf Ismail (Ismail) and Damir Gabriel Kulic (Kulic) were convicted of first degree murder and Matthew Marjanovic (Marjanovic) was convicted of second degree murder.

All four accused appeal their convictions. Marjanovic also seeks leave to appeal and, if granted, appeals his 18-year period of parole ineligibility. [ 3 ] Soroush, Ismail and Kulic raise numerous issues, including the sufficiency of the jury charge and the correctness of certain rulings made by the trial judge. Marjanovic is not represented by counsel on his appeal and did not file a factum or make submissions at the hearing of the appeal.

However, his notice of appeal alleges that the trial judge made incorrect findings of fact and erred in his application of the law. [ 4 ] Several of the grounds of appeal can be dealt with summarily, while others require more comment. However, in my view, none of the issues raised by the accused warrant appellate intervention. As a result, I would dismiss the conviction appeals and deny Marjanovic leave to appeal his sentence. Background [ 5 ] The victim was killed inside an apartment suite in the City of Winnipeg on August 13, 2017, having arrived there shortly after 9:29 p.m. that evening.

A neighbour called 911 at 9:52 p.m. after hearing screaming and thumping noises from the suite. The neighbour testified that the noises started about 10-15 minutes before she called 911, and continued for a few minutes after the call. The evidence suggests that the beating occurred for about 15 minutes, from approximately 9:40 to 9:55 p.m. [ 6 ] When the police arrived at the apartment at 10:09 p.m., they discovered the bound and beaten body of the victim. His wrists and ankles were tied with plastic zip ties and his head was covered with a sweater and then wrapped in plastic wrap.

The pathologist determined that the victim had been bound prior to his death and that the cause of death was blunt head trauma and strangulation. [ 7 ] The police also found cleaning supplies, zip ties, collapsible batons and stun batons in the suite and a significant amount of blood on the floor and walls. Almost immediately after entering the suite, the police encountered and arrested Kulic. After several hours of police presence within the apartment, the police found Ismail hiding in a closet and arrested him. [ 8 ] The apartment had been rented for one night by Soroush via Airbnb.

Police discovered physical and forensic evidence tying the four accused to the scene or to the victim. They also discovered video surveillance tracking their movements prior to the killing (including purchasing cleaning supplies, garbage bags and a large plastic tote bin), as well as incriminating evidence on their phones. [ 9 ] None of the accused other than Ismail testified at trial. He said that he was a marihuana dealer who had driven to Winnipeg with Soroush and Kulic to meet a potential client. He claimed that he had been at the apartment with Soroush and Kulic, but left prior to the victim’s arrival.

He said he spent some time taking drugs with a sex trade worker (the alibi witness) he met on the street outside of the building and returned after the victim had been killed and just before the police arrived. He explained that he hid in the closet for hours because he did not know what had happened to the victim and did not want to implicate anyone. The alibi witness testified and claimed that she was with Ismail while he was away from the crime scene. Issues [ 10 ] There are several areas of overlap between the grounds of appeal raised by the accused.

In some instances, success on a particular ground of appeal would affect the conviction of each accused. As a result, I propose to deal with the various grounds of appeal grouped into the following five categories, namely: (1) sufficiency of the jury charge (there are five separate areas of concern), (2) admission of expert evidence on blood spatter, (3) whether Kulic received ineffective assistance of counsel, (4) the reasonableness of Marjanovic’s conviction, and (5) the fitness of Marjanovic’s sentence. Analysis

Sufficiency of the Jury Charge—Standard of Review [ 11 ] Jury instructions are reviewed on a standard of adequacy, not perfection, using a functional approach. The charge is to be reviewed as a whole in the context of the entire trial ( see R v Ross , 2018 MBCA 7 at para 20 ; R v Calnen , 2019 SCC 6 at paras 8-9 ; and R v Goforth , 2022 SCC 25 at paras 20-22 ). Sufficiency of the Jury Charge—Alibi Evidence [ 12 ] Ismail asserts that the trial judge’s instruction to the jury regarding his alibi evidence and that of the alibi witness was insufficient.

He submits that, after having failed to believe his and the alibi witness’s evidence, the jury may have inferred guilt from his failed attempt to provide an alibi. In essence, Ismail’s argument on this point is that the trial judge should have used better wording or repeated his instruction to the jury on the use it could make of disbelieved evidence. [ 13 ] This ground of appeal can be summarily dismissed.

Not only was there no suggestion made to the jury that it could use a disbelieved alibi as evidence of guilt, the trial judge specifically instructed the jury not to do so when he said “if you conclude he was not truthful in his testimony, you cannot use that conclusion itself as proof of guilt against him”. [ 14 ] In my view, using a functional approach, the jury was properly instructed on this point and the suggestion that the jury ignored the instruction is speculative.

Sufficiency of the Jury Charge—Circumstantial Proof of Guilt [ 15 ] Ismail argues that the trial judge “ought to have provided a more complete . . . instruction on proof of guilt in a circumstantial case” and that “there are some key principles emanating from Villaroman [ R v Villaroman , 2016 SCC 33 ] that were required to be included in the jury instructions”.

Ismail also asserts that the trial judge should have instructed the jury that there was a reasonable alternative inference to being guilty of murder—that he was “merely guilty of being an accessory after the fact,” as there was evidence to support the inference that he was not present during the murder but participated in cleaning up (see section 23(1) of the Criminal Code (the Code )). [ 16 ] The Crown’s position is that the jury charge was adequate.

It submits that the trial judge included the precise Villaroman instruction requested by Ismail in the charge and that it would not have been appropriate to instruct the jury on accessory after the fact, a charge that was not before the Court. [ 17 ] I note that trial counsel for Ismail (not counsel on appeal) requested that the trial judge include an instruction on circumstantial evidence and referred him to para 30 of Villaroman . The trial judge agreed and included the following instruction that was virtually lifted right out of Villaroman : A final remark on this topic.

In a circumstantial case such as this one, it must be emphasized that in order for any of the accused to be found guilty of one of the available verdicts that I will explain to you, you must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the whole of the circumstantial evidence is that such accused committed that offence , otherwise, you must find him not guilty. [emphasis added] In my view, this instruction was sufficient to prepare the jury to deal with circumstantial evidence. [ 18 ] I also agree with the Crown that the trial judge was not required to instruct the jury on accessory after the fact, nor did trial counsel for Ismail request that instruction.

At a pre-charge conference, trial counsel and the trial judge noted that the offence of accessory after the fact is not an included offence to murder. After further discussion, trial counsel stated that he was not seeking any specific instruction on this issue provided that he was free to argue before the jury that Ismail’s presence at the apartment when police arrived did not, in itself, make him guilty of murder, even if he had tried to clean up.

Moreover, while accessory after the fact was not mentioned, the jury charge made it clear that the jury could not use after-the-fact conduct of any of the accused as evidence that he aided the principal(s): “An aider’s assistance must be given before, or while the offence is being committed, not afterward.” [ 19 ] To summarize, I am not persuaded that the trial judge failed to adequately instruct the jury on the standard of proof in a circumstantial case or the use that the jury could make of evidence of Ismail’s presence and possible conduct in the apartment after the victim’s death.

Sufficiency of the Jury Charge—Causation in Constructive First Degree Murder [ 20 ] This ground of appeal is raised by each of Ismail, Kulic and Soroush, with Kulic and Soroush adopting the arguments of Ismail. In discussing this ground of appeal, my references to Ismail’s arguments are to be read as references to the joint arguments of Ismail, Kulic and Soroush. [ 21 ] By way of background, there were two paths that the jury could take to convict the accused of first degree murder. First, the jury could find that the murder was “planned and deliberate” (at section 231(2) of the Code ).

Second, even if the murder was not planned and deliberate, the jury could convict of first degree murder if it found that “the death [was] caused by that person while committing or attempting to commit” another enumerated offence involving domination of the victim—in this case, forcible confinement

(at section 231(5) of the Code). [22] This ground of appeal relates to the second route to first degree murder, commonly referred to as constructive firstdegree murder, and the way in which the trial judge instructed the jury on the legal test for liability of an accused who, along with atleast one other person, commits a murder during the course of an offence of domination such as forcible confinement. [23] The leading case on this issue is R v Harbottle, (SCC), [1993] 3 SCR 306.

Cory J, for the SupremeCourt of Canada, explained that the constructive first degree murder provisions of the Code are effectively sentencing provisions, whenhe wrote, “First degree murder is an aggravated form of murder and not a distinct substantive offence” (at p 323).

As a result, before anaccused can be convicted of first degree murder and the mandatory sentence of life imprisonment with no parole for 25 years is imposed,“a substantial and high degree of blameworthiness, above and beyond that of murder, must be established” (ibid). [24] At issue in Harbottle was the meaning of the words “when the death is caused by that person” in the predecessor tosection 231(5) of the Code (at p 315) in circumstances where more than one person is implicated in the killing.

The Court in that caseapplied a “restrictive test of substantial cause” (at p 323), which will be met “if the Crown establishes that the accused has committed anact or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death” (at pp 323-24).

Finally, Cory J, for the Court, wrote that “[t]he substantial causation test requires that the accused play a very active role—usually aphysical role—in the killing” (at p 324). [25] These principles were further explained by Arbour J in R v Nette, 2001 SCC 78: “[W]hat Harbottle really stresses is notsolely or even primarily a higher causation requirement to raise murder to first degree murder . . . but rather the increased degree ofparticipation required before the accused may be convicted of first degree murder” (at para 61).

Moreover, the Court, in Nette, statedthat, in order to raise culpability to first degree murder, the offender’s “participation in the killing [must] be sufficiently immediate, directand substantial” (at para 62). [26] Ismail argues that the trial judge “failed to adequately instruct the jury on the causation requirement for constructive(confinement) first degree murder.” First, he submits that the trial judge did not properly convey the “enhanced participation standard”for liability to first degree murder.

Second, while this argument was not raised in either the notice of appeal or in his factum, he alsoasserts that the charge could have left the jury with the mistaken impression that the enhanced participation standard only applies to aparty (or aider) and not to a principal when, at law, it applies to both. [27] Ismail takes issue with the following part of the trial judge’s jury instruction: [F]or an aider to be proven guilty of first-degree murder by forcible confinement . . . his help or assistance must amount to an active rolein the events that caused [the victim]’s death.

In this respect, it is not enough that the aider was there when [the victim] was killed, nor isit enough that the aider played some minor role in the events. What is required is that the Crown prove that the aider was an activeparticipant.

He played a physical role in the events that brought about [the victim]’s death. [emphasis added] [28] Rather than using language such as “active” or “physical” role, Ismail argues that the trial judge should have instructedthe jury that the accused’s participation in the murder must be “a substantial and integral cause” of death (referencing R v Podolski, 2018BCCA 96 at para 309, leave to appeal to SCC refused, 38262 (31 January 2019). [29] The Crown submits that the trial judge’s instruction adequately prepared the jury.

While he did not use the words“substantial cause”, the Crown asserts that active participation is functionally equivalent. The Crown maintains that the jury would nothave been confused about whether the enhanced participation standard applied to both aiders and principals. The Crown’s positionthroughout the trial was that all four accused were principals. [30] Although not determinative of this ground of appeal, it is relevant that none of the defence counsel at trial objected tothe language chosen by the trial judge.

This may indicate that the alleged error did not seriously affect the adequacy of the jury chargeor the overall fairness of the trial (see R v Herntier, 2020 MBCA 95 at para 282). [31] I agree with the Crown that the concept of “active participation” is an adequate substitute to “substantial cause”(Podolski at para 314; see also R v McNeil (2006), (ON CA), 213 CCC (3d) 365 at para 16 (Ont CA); and R vMacDonald, 2008 ONCA 778 at para 18).

Indeed, as previously noted, in Harbottle, Cory J explained that the substantial cause testrequires that the accused “play a very active role” in the killing (at p 324). [32] Finally, reading the charge as a whole, I am not convinced that the jury was left in doubt about whether the same or adifferent standard applied to aiders and to principals. [33] In conclusion, I am not persuaded that the jury instruction on the causation test for constructive first degree murder wasinadequate.

Sufficiency of the Jury Charge—Breach by Crown of the Rule in Browne v Dunn [34] Soroush argues that the trial judge erred in his instructions to the jury in respect of the failure of Crown counsel (notcounsel on appeal) to cross-examine Ismail on a point supportive of Soroush’s defence that the Crown later argued in its closing

argument was not worthy of belief, in breach of the so-called rule in Browne v Dunn (1893), [1894] 6 R 67 at 70-71 (HL (Eng)) (therule). [35] This Court has previously summarized the rule in R v Dowd, 2020 MBCA 23 (at para 5): To ensure credibility assessments are made as a result of a fair and orderly trial process, the rule requires that, where a party intends tolater impeach a witness on a matter of significance to the facts in issue by contradictory evidence or in closing argument, the witnessmust be confronted with the contrary position during cross-examination so that he or she may have the opportunity of responding to it. [36] It is not just fairness to the witness that is behind the rule.

In McWilliams’ Canadian Criminal Evidence (5th ed)[1],the authors, referring to the rule as the “confrontation principle”, wrote that the “confrontation principle is driven by the need to treat thewitness and the parties fairly, to prevent the fact finder from being misled and to promote the orderly presentation of evidence at trial”(at

section 21.113). [37] The application of the rule is fact-driven. As a result, a trial judge has a broad discretion in determining whether therule is engaged. As stated by the Supreme Court in R v Lyttle, 2004 SCC 5, the rule “is not fixed. The extent of its application is withinthe discretion of the trial judge after taking into account all the circumstances of the case” (at para 65).

Therefore, a trial judge’sdecision in this regard is entitled to deference absent an error in principle (see Dowd at paras 5-6; R v Quansah, 2015 ONCA 237 at para90, leave to appeal to SCC refused, 37013 (22 September 2016); R v Knox, 2017 SKCA 8 at para 53; and Shephard v R, 2019 NBCA 76at para 77). [38] Where a breach of the rule is found by a trial judge, the trial judge has a broad discretion in choosing the remedy toaddress the breach, and that decision is also entitled to deference absent an error in principle (see Quansah at para 118; Knox at para 41;and Shephard at para 77). [39] In Quansah, the Ontario Court of Appeal provided guidance on the rule, its purpose and general application.

Watt JAdescribed the factors that can be relevant to the determination of whether the rule is engaged, including the nature of the subjects onwhich the witness was not cross-examined and whether they are matters of substance, and the overall tenor of the cross-examination (seeparas 84-85). Watt JA further explained that the “confrontation principle is not violated where it is clear, in all the circumstances, thatthe cross-examiner intends to impeach the witness’ story: Browne v. Dunn, at p. 71” (at para 86). [40] In

summary, the rule at its core is a principle of trial fairness. If one party intends to impugn an opposing witness’scredibility, whether by leading contradictory evidence or by challenging it in closing arguments, that party is expected to confront thewitness in cross-examination so that the witness is not “ambush[ed]” and has the opportunity to explain (Podolski at para 145). [41] I am not aware of any jurisprudence that considers the application of the rule in circumstances precisely the same as inthe present case.

However, the application of the rule has been considered in somewhat analogous circumstances—where the Crownchallenged the evidence or theory of the defence on a particular point in closing argument without having specifically cross-examinedthe defence witness.

In the vast majority of such cases, the courts determined that the rule was not engaged, including because (1) theaccused heard the evidence on the issue during the Crown’s case and had an opportunity to address the evidence or any inferences thatcould arise (see e.g., R v Ali, 2009 BCCA 464 at paras 37, 39; and R v II, 2013 ABCA 2 at para 10); (2) the accused could not have beensurprised when the Crown impugned the witness’s credibility in closing, since the defence evidence presented a wholly different versionof events (see e.g., Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 781-82; R v Sylvain, 2014 ABCA 153 at paras 96-97; and Oland v R, 2016 NBCA 58 at para 49, leave to appeal to SCC refused, 36986 (13 July 2017)); or (3) the general tenor of theCrown’s entire cross-examination suggested a lack of belief (see e.g., Quansah at para 82; R v Dieckmann, 2017 ONCA 575 at para 62,leave to appeal to SCC refused, 37788 (15 March 2018); and R v Vassel, 2018 ONCA 721 at paras 128-29). [42] Soroush submits that the Crown clearly breached the rule when it argued to the jury that Ismail’s evidence that Soroushwas trying to reach him by phone when the murder was happening could not be believed despite not having cross-examined Ismail onthe issue.

Soroush asserts that the trial judge erred to the extent that he found that the rule was not breached. Soroush also contends thatthe instruction given to the jury in respect of the lack of cross-examination by the Crown was “woefully inadequate to protect [his] rightto a fair trial” and that the jury should have been told to “pay no attention to the attack on Mr. Ismail’s credibility on that specific point.” [43] The Crown maintains that the trial judge made no reversible error.

It argues that, whether or not the rule wastechnically violated, the trial judge found that the failure to cross-examine on the phone calls at issue raised trial fairness concerns and heprovided a remedy that is owed deference by this Court. [44] I will now review the factual background and the proceedings at trial relating to this ground of appeal. [45] In an agreed statement of facts, Ismail conceded that he owned the cell phone found in the closet where he waseventually located.

The Crown’s evidence established that this cell phone was in contact with only three numbers on the night of themurder: calls to a phone number ending in 7282; texts with Ismail’s girlfriend’s number; and texts with a phone number ending in 0566.

The evidence also established that the pertinent texts to Ismail’s girlfriend’s number, and the texts between Ismail and the 0566 numbertook place while Ismail was hiding in the closet. [46] In another agreed statement of facts, Soroush confirmed that he had a cell phone number ending in 6449. [47] In his direct evidence, Ismail testified that, while he was with the alibi witness, he missed some calls from Soroush onthe 7282 number that occurred between 9:50-9:54 p.m.

He testified that he called Soroush back on the 7282 number from outside thebuilding at 9:55 p.m., and Soroush told him there had been a fight and that he had left the suite. Ismail testified that he returned to the

suite after this phone conversation, saw and knelt by the victim’s body, and then hid in a closet when he heard the police arrive. He further testified that the texts he sent from the closet were with his girlfriend and with Soroush at the 0566 number. [ 48 ] In cross-examination, the Crown confirmed with Ismail that the texts to and from the 0566 number that occurred while he was hiding in the closet were from Soroush. However, the Crown did not specifically suggest to Ismail that the 7282 number was not Soroush’s number.

Instead, the Crown subtly challenged Ismail’s credibility about the phone calls, by calling into question Ismail’s lack of details regarding the conversation he said he had with Soroush. It was clear from the general tenor of the Crown’s cross-examination of Ismail that it did not accept his evidence.

For example, Crown counsel suggested to Ismail, at least twice during cross-examination, that he and the other co-accused were deeply involved in the murder and the attempted clean-up. [ 49 ] During his closing address to the jury, Soroush’s counsel explained that he wanted to focus on parts of Ismail’s evidence “that d[id] not depend on his credibility, areas of the evidence that [we]re uncontested”, and referred to the phone records, which he argued “le[d] to the conclusion that Mr. Soroush was not in the apartment at the time [the victim] died” as he was speaking on the phone with Ismail.

On several occasions during his jury address, Soroush’s counsel relied upon Ismail’s testimony that the phone calls reflected in the phone records of the 7282 number were with Soroush. [ 50 ] During its address to the jury, the Crown suggested that, given the contents of the texts, they could accept Ismail’s testimony that he was texting with Soroush at the 0566 number from the closet. However, the Crown also asserted that Ismail’s testimony that the 7282 phone calls were with Soroush should not be believed, as his testimony on this point did not make sense and was not corroborated.

Moreover, the Crown generally questioned the credibility of Ismail’s overall story, including his alibi. [ 51 ] After the Crown finished its closing, Soroush’s counsel objected, arguing that the Crown violated the rule as it failed to challenge Ismail on whether the 7282 phone number was Soroush’s.

Soroush’s counsel noted that the rule is “a rule of fairness” and “is about not allowing the other party to be ambushed”, and submitted, “We relied on it in crafting our submissions only to be ambushed” and, “[W]e’ve been highly prejudiced in [the] way we sought to argue this case in the end.” [ 52 ] The Crown argued that the rule was inapplicable as the Crown merely relied upon internal inconsistencies in Ismail’s evidence.

In particular, it submitted that Ismail would have been aware that his own testimony alleged that he was communicating with Soroush using two different numbers on the same night, neither of which were the phone number that Soroush agreed was his.

Thus, the Crown argued that the rule “does not require any party to cross-examine on internal inconsistencies of [a] witness that lack common sense and do not accord with evidence that was already adduced and before the witness.” [ 53 ] In considering whether this was a breach of the rule that the jury should be instructed on, the trial judge commented that he was not sure that “this [wa]s classically a violation of [the rule] from a number of standpoints.” Ultimately, the trial judge decided that fairness concerns were engaged and he developed wording that he considered was “a proper balance . . . in the greater scheme of things”, and stated, “[W]hat’s important is trial fairness, and that’s really the heart of the [rule] in any event”.

He charged the jury on this point as follows: . . . I pause to comment about two legal issues from Mr. Ismail’s evidence of what he testified Mr. Soroush said to him. First, the Crown did not cross-examine Mr. Ismail on a specific point they raised in argument, that the calls reflected in Exhibit 75 were not with Mr. Soroush. If asked, it is possible that Mr. Ismail could have given an answer that you might accept, thus, you may find that this evidence on this specific point is credible. Consider it along with the rest of his testimony and in the same way.

As always, with any witness, including an accused, you can accept none, part, or all of what he testified to as you look at the whole of the evidence. . . . [ 54 ] Following the charge, the trial judge commented to counsel that he had crafted the charge in this way “not having found that there was necessarily a breach” of the rule but, rather, “more so just hung [his] hat . . . on what [he] consider[ed] to be the duty to cross-examine and just pure fairness under the circumstances to an accused.” [ 55 ] The first question to address in respect of this ground of appeal is whether the rule can be engaged in circumstances such as this—where an accused objects when the Crown impugns the evidence of a co-accused, on a point of substance for the accused, in closing argument rather than making the challenge in cross-examination. [ 56 ] The case law supports Soroush’s position that a remedy for a breach of the rule is not restricted only to the party whose witness is impeached.

In my view, the rule should be applied consistently with its fairness origins, so that unfairness to any opposing or adverse party or co-accused is also captured. I find support for this in the authorities indicating that the rule seeks to prevent unfairness not just to the parties, but to the witness and to the trier of fact. Finally, I note that the rule places a duty on the party who intends to impeach a witness to give fair warning to the witness that their evidence is not accepted.

This suggests that the focus should be on whether the impeaching party has met this duty rather than on which party objects to the breach of that duty. [ 57 ] For these reasons, it is my view that the rule can be engaged where the Crown impugns the evidence of a co-accused on a point of substance for the accused in closing argument rather than making the challenge in cross-examination. Clearly, the question of whether the rule is actually breached will depend upon all the circumstances and the fairness concerns present in any given case.

[58] This brings me to the question of whether the trial judge erred in finding that trial fairness was engaged and in theremedy that he chose. [59] I do not see the unfairness in the Crown asking the jury to disbelieve Ismail due to the inherent improbability of hisevidence and its discordance with other evidence adduced at trial.

As was stated in R v Neilson, 2019 ABCA 403, “Choosing not tocross-examine a witness, but instead asking the trier of fact to disbelieve a witness based on other evidence adduced in the trial, is a validexercise and does not invoke the rule” (at para 37). [60] At the end of the day, it is not my view that matters. The fact that the trial judge viewed this scenario as one which wasnot “classically a violation” of the rule, but which still implicated fairness concerns, is well within his discretion.

As was stated by WattJA in Quansah, “Reasonable people may differ about on which side of the [Browne v Dunn] line a failure to cross-examine on aparticular point falls” (at para 101). [61] The trial judge chose to instruct the jury regarding the lack of cross-examination by the Crown. He made no error inprinciple in determining that a jury instruction was appropriate and in crafting that instruction. Given the standard of review, his decisionis entitled to deference. I would dismiss this ground of appeal.

Sufficiency of the Jury Charge—Elements of Manslaughter [62] Soroush argues that he presented the jury with “a scenario which could lead to a conviction for manslaughter” as he wasnot found in the suite after the murder and Ismail’s evidence about their phone calls supported a finding that he was not present when thevictim died. He asserts that the trial judge’s instruction to the jury on manslaughter was not thorough enough.

He submits that the trialjudge failed to provide any instruction on the intent required for manslaughter and failed to relate the facts to the offence ofmanslaughter. [63] This ground of appeal can be dealt with briefly. I agree with the Crown that the jury charge adequately prepared thejury to consider the included offence of manslaughter in the circumstances. The evidence in the present case made a manslaughterconviction unlikely.

Not only was there evidence of forcible confinement, there was evidence suggesting that the accused wereanticipating in advance that they would need to do a major clean-up of the suite.

This is a very different scenario than the jurisprudencecited by Soroush, most of which involved a knife-fight or an intoxication-fueled altercation leading to death and where the real issue forthe jury was whether the Crown could prove the requisite intention for second degree murder (see R v Cooper, (SCC),[1993] 1 SCR 146; R v Prince, 2007 MBCA 15; and McKenna v R, 2015 NBCA 32, aff’d 2015 SCC 63). [64] Here, the trial judge advised the jury that, if the Crown did not prove the required intention for murder, it shouldconvict of manslaughter.

He also specifically referred to Soroush’s position that “he may have been present when the violence broke outbut left before [the victim’s] death, as he was not involved.” [65] In the circumstances of this case, the trial judge was not obligated to make what was already a lengthy jury charge evenlonger by painstakingly taking the jury through a detailed instruction on manslaughter.

Admission of Expert Evidence on Blood Spatter [66] Kulic argues that the trial judge erred in how he dealt with evidence of a forensics officer, Constable Dee, who wasallowed to distinguish between transferred and projected blood stains. He maintains that this evidence could only be given by a qualifiedexpert and that the trial judge should have held a voir dire to determine both the admissibility of the evidence and the officer’squalification to give it.

He asserts that the evidence should have been disallowed in its entirety, or the trial judge should have given avery strong limiting instruction to the jury regarding this evidence being lay, not expert, opinion evidence. [67] This ground of appeal is without merit and warrants little comment. In the context of this trial, this was uncontroversialevidence, aptly described by the trial judge as “fairly basic blood spatter stuff”. Nor was it objected to by trial counsel (not counsel onappeal).

Kulic’s trial counsel’s only concern about the witness was that he did not want the Crown to elicit evidence from him regardingthe directionality and angles of projection of blood spatter. [68] Moreover, the same blood stain evidence had already been elicited, without objection from any party, from anotherpolice officer (similarly not qualified as an expert) in cross-examination by both Ismail’s counsel and Kulic’s counsel.

Clearly, trialcounsel’s strategy involved having basic blood spatter evidence before the jury—presumably to set the stage for an innocent explanationfor the significant amount of blood found on Kulic. [69] There was no basis in the circumstances for the trial judge to have taken it upon himself to complicate the trial byholding a voir dire into the admissibility of the evidence from this particular witness. [70] I would dismiss this ground of appeal. Ineffective Assistance of Counsel [71] Kulic contends that his trial counsel provided him with ineffective legal assistance.

There are two aspects to hisallegation—first, that trial counsel should have objected to the admission of Cst.

Dee’s blood spatter evidence; and second, that trialcounsel failed to properly advise him that he needed to testify in order to “provide the jury with a version of events that could havesupported a manslaughter conviction”. [72] Briefly stated, in order to succeed with a claim of ineffective assistance of counsel, an accused must (1) establish afactual foundation for the claim, (2) show that the alleged incompetence resulted in a miscarriage of justice, and (3) show that counsel’sperformance was actually incompetent (see R v Owens, 2018 MBCA 94 at para 49).

[73] The first aspect of Kulic’s allegation of incompetence can be dealt with summarily. There is no merit to his argumentthat trial counsel’s failure to object to the admission of Cst. Dee’s blood spatter evidence resulted in a miscarriage of justice.

As I haveexplained, not only had the same evidence already been elicited from another police witness, it was necessary for counsel’s defencestrategy. [74] In support of his second argument, Kulic seeks to admit as fresh evidence his lawyer’s co-counsel’s affidavit, whichattaches as exhibits Kulic’s affidavit and the written advice and instructions (the instructions) exchanged with trial counsel. Kulic wascross-examined on his affidavit and a transcript was filed with the Court. [75] Kulic asserts that trial counsel’s statements in the instructions deprived him of any meaningful right to testify.

Heargues that, if he had been given an opportunity to give his evidence to the jury, he would have done so and that “[t]here is a reasonableprobability that his evidence would have changed the outcome of the trial.” [76] The instructions contain the following statements: . . . . . . In the days leading up to trial your instructions changed based on your determination that taking the stand an[d] naming names (thatis, identifying co-accuseds) would put your life in jeopardy in the future should you be in custody . . .. . . . . . .

My advice is that your best shot at securing a manslaughter conviction instead of a 1st degree murder conviction is to testify in yourown defence, with the understanding that doing so will involve implicating your co-accused. . . . [77] Ultimately, Kulic instructed his trial counsel in writing as follows, “I do not want to testify. I wish to find commonground with Ismail.

We have discussed options and have agreed on these options.” [78] The first threshold for admissibility of the proposed fresh evidence, (in addition to being admissible under the generalrules of evidence) is that it will not be admitted “if it is apparent from the trial record that the fresh evidence could not reasonably haveaffected the result (assuming the allegations of ineffective representation could be established)” and therefore no miscarriage of justiceoccurred (R v Aulakh, 2012 BCCA 340 at para 68; and R v Leslie, 2021 MBCA 29 at para 35). [79] In my view, the fresh evidence does not meet the initial hurdle for admission.

Even if one assumes (without so finding)that trial counsel’s advice deprived Kulic of his right to testify, the fresh evidence could not reasonably have affected the result of thetrial. Notably missing from Kulic’s affidavit or cross-examination is a statement that he would have actually testified if trial counsel’sadvice had been different. Nor is there any mention of the testimony he would have given that could have provided the jury with a pathto a manslaughter conviction in light of the mountain of evidence implicating him in the murder.

There is simply no evidence to show,on a balance of probabilities, that a miscarriage of justice occurred. [80] I would dismiss the motion to admit fresh evidence and I would dismiss this ground of appeal. Marjanovic—Conviction and Sentence [81] As previously indicated, Marjanovic did not provide written or oral submissions to the Court. His grounds of appeal forconviction are that the trial judge “erred in exercise of his discretion by making incorrect findings of fact” and that he “erred in hisapplication of the law.” [82] I have already addressed the specific grounds of appeal raised by the other accused.

Two of those grounds, being thesufficiency of the jury charge on circumstantial proof of guilt and the elements of manslaughter, if they had been successful, wouldlikely have resulted in an order of a new trial for all of the accused, including Marjanovic. [83] In the absence of specific arguments in respect of his conviction, I will comment briefly on the reasonableness of thejury’s verdict that Marjanovic was guilty of second degree murder. [84] The test to determine whether a verdict is reasonable is whether “the verdict is one that a properly instructed jury actingjudicially, could reasonably have rendered” (Corbett v The Queen, (SCC), [1975] 2 SCR 275 at 282; R v Yebes, (SCC), [1987] 2 SCR 168 at 185; and R v Biniaris, 2000 SCC 15 at para 36). [85] In the present case, it was clearly open to the jury, on the record, to convict Marjanovic of second degree murder.

Therewas ample evidence linking him to the crime, including surveillance, DNA and phone records. As a result, I would dismiss theconviction appeal. [86] As for his sentence appeal, no arguable grounds have been, or could be, raised that an 18-year parole ineligibility periodis demonstrably unfit considering the gravity of the offence and Marjanovic’s involvement. I would deny leave to appeal sentence. Conclusion

[ 87 ] For these reasons, I would dismiss the conviction appeals of Soroush, Ismail, Kulic and Marjanovic and I would deny Marjanovic leave to appeal sentence. JA I agree: JA I agree: JA