



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Riley, 2017 ONCA 650

DATE: 20170811

DOCKET: C53304, C53974, C54020

LaForme, Watt and Trotter JJ.A.

C53304

BETWEEN

Her Majesty the Queen

Respondent

and

Phillip Atkins

Appellant

C53974

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jason Wisdom

Appellant

C54020

AND BETWEEN

Her Majesty the Queen

Respondent

and

Tyshan Riley

Appellant

Joseph Wilkinson and Maureen Salama, for the appellant, Phillip
    Atkins

James Lockyer and Alexander Ostroff, for the appellant,
    Jason Wisdom

Jill R. Presser and Nana Yanful, for the appellant,
    Tyshan Riley

Robert W. Hubbard, Karen Papadopoulos, and Hannah
    Freeman, for the respondent

Heard: January 30  February 3, 2017 and June 8, 2017

On appeal from the convictions entered on July 15, 2009
    and the sentence imposed on July 29, 2009 by Justice Michael R. Dambrot of the Superior
    Court of Justice, sitting with a jury.

By the Court:

A.

Overview

[1]

Around 5:00pm on March 3, 2004, Brenton Charlton, 31, and Leonard Bell,
    43, were sitting in a blue Chrysler Neon, stopped on a red light at a busy
    intersection in Toronto. A dark SUV pulled up alongside them. Its occupants
    opened fire on Charlton and Bell, hitting both men multiple times. Charlton
    died at the scene; Bell survived.

[2]

As a result, the appellants, Tyshan Riley, Philip Atkins and Jason
    Wisdom, stood trial for first degree murder, attempted murder, and committing
    those two offences for the benefit of a criminal organization. A jury convicted
    all three men on all counts.

[3]

The Crowns theory at trial was that the Charlton and Bell shooting was
    a case of mistaken identity in a conflict between rival gangs in Scarborough.
    The appellants were members of the Galloway Boyz (G-Way). G-Way had a beef
    with the Malvern Crew. G-Way members wished to avenge the killing of their
    former leader, Norris Allen, for which they believed the Malvern crew was
    responsible. A sub-group of G-Way, called the throw-backs, was established to
    conduct armed rides into Malvern territory to hunt for targets. The Crowns
    theory was that the appellants set out on one such ride on March 3, 2004.
    Charlton and Bell in fact had nothing to do with Malvern or G-Way, but their
    blue Neon looked similar to a vehicle used by Alton Reid, known as Ras-P, a
    known Malvern crew member. Hence the shooting.

[4]

The trial was lengthy, complex and hard fought. The core of the Crowns
    case was evidence from two G-Way members, Roland Ellis and Marlon Wilson, that
    each of the appellants confessed their involvement in the shooting in the hours
    immediately following it. A considerable amount of circumstantial evidence also
    supported the Crowns theory, particularly against Atkins and Riley, including
    ballistics and DNA evidence. For its part, the defence took aim at serious concerns
    with Ellis and Wilsons credibility and at the frailties in the circumstantial
    evidence said to corroborate their testimony. In addition, Wisdom testified in
    his defence and called alibi evidence.

[5]

The appellants raise numerous issues they say undermined the fairness of
    the trial and the soundness of their convictions. They contend the court that
    tried them was improperly constituted because of errors in the jury selection
    process. They take also issue with decisions the trial judge made regarding: the
    severance of counts; the admissibility of bad character evidence; the
    admissibility and treatment of ballistics evidence; the instructions to the
    jury relating to
Vetrovec
witnesses; the instructions on post-offence
    conduct; and the jury charge as whole. Riley and Atkins also raise a ground of
    appeal alleging a breach of their s. 8
Charter
rights against
    unreasonable search and seizure.

[6]

For the reasons that follow, we dismiss the appeals of Riley and Atkins.
    We do, however, allow Wisdoms appeal on the basis that the trial judge erred
    in admitting bad character evidence of an unrelated theft at a Money Mart
    store in which Wisdom was involved four months after the Charlton and Bell
    shooting. As we will explain, that evidence had extremely low probative value but
    a significant prejudicial effect. It was unreasonable for the trial judge to
    have admitted it. Given the relative weakness of the Crowns case against
    Wisdom, it is not possible to conclude the admission of that evidence did not
    result in a miscarriage of justice. Consequently, a new trial must be ordered
    for Wisdom.

B.

Issues and Analysis

[7]

As we have mentioned, this was a lengthy and factually complex trial. We
    need not set out the full factual background at the outset. We will instead
    describe the necessary background facts in the course of addressing each of the
    grounds of appeal.

[8]

We note first that, for purposes of expedience and with the consent of
    all parties, these appeals were heard over two separate hearing dates. In
    connection with the appeals in respect of the conduct of the trial proper, oral
    arguments were heard over five consecutive days on January 30, 2017 to February
    3, 2017. The issue of the trial courts jurisdiction and any errors arising out
    of jury selection were heard on June 8, 2017. It has always been understood and
    agreed to by all parties that this court would not render its decision on the
    appeals until after the jury selection issues were heard.

[9]

We also note that the appellant Riley has another appeal in respect of a
    different conviction that remains outstanding and is to be heard by this panel
    at a later date. There may be some partially overlapping issues between that
    appeal and the appeals addressed in these reasons. All parties have agreed that
    the decisions of this court and the reasons for them as provided herein can be
    released prior to this court hearing and deciding Rileys outstanding appeal.

[10]

With respect to the organization of these reasons, we have addressed the
    issues in a roughly chronological order  that is to say, in the order in which
    the issues presented themselves at trial, with some exceptions. We begin by
    addressing the appellants complaints regarding the jury selection process. We
    continue by addressing issues of joinder and severance of counts. We then turn
    to a number of issues relating to the admissibility of evidence, and then to
    the appellants complaints regarding the trial judges charge to the jury. At
    the end, we address Rileys and Atkins
Charter
appeal and the fresh
    evidence they propose to adduce in support of it.

(1)

Jury Selection Issues

[11]

This ground of appeal alleges that the trial process was fatally flawed
    because of the manner in which the triers were selected to determine the truth
    of the challenge for cause.

[12]

To settle this claim of error requires no reference to the circumstances
    of the offences of which the appellants have been convicted. However, essential
    to an understanding of this ground of appeal and its resolution is a brief
    summary of how the jury selection process unfolded at trial.

(a)

The Background

[13]

On at least six separate occasions before the formal jury selection
    process began, counsel and the trial judge discussed various facets of the jury
    selection process.

(i)

The Challenge for Cause

[14]

About five weeks before jury selection began, trial counsel for the
    appellants (none of whom are counsel on appeal) applied to challenge
    prospective jurors for cause. Counsel contended that a realistic potential for
    juror partiality existed on three bases:

i.

race;

ii.

pre-trial publicity; and

iii.

gang membership.

[15]

The trial Crown (who is not counsel on appeal) conceded that the
    appellants were entitled to challenge prospective jurors on the grounds of
    racial bias and pre-trial publicity, but resisted a challenge for cause based
    on the last ground.

[16]

The trial judge permitted the challenge for cause to proceed on each
    ground advanced by the appellants. Counsel on all sides and the trial judge
    bent to the task of formulating appropriate questions to be asked of each
    prospective juror by defence counsel.

(ii)

The Division of the Panel

[17]

About two weeks later, the parties discussed the logistics of organizing
    the jury panel.

[18]

The trial judge explained how the jury panel would be divided into
    groups of 25 prospective jurors. Each group would be assigned a date and time
    to return to the courtroom for selection. Each prospective juror would be
    brought into the courtroom alone, and asked the questions about which the
    parties agreed on the challenge for cause.

(iii)

The
    Selection of Triers: The New Procedure

[19]

The same day as the discussion about division of the jury panel, the
    trial judge alerted counsel to the [then] recent amendments to s. 640 of the
Criminal
    Code
. The judge said:

Although none of us have done a jury trial recently, I presume
    were all aware of the amendment to the
Criminal Code
that now
    requires that where the jurors are not all in the courtroom during a selection
    process we are to select two triers who remain triers through the entire
    challenge. I dont know what consultation process the government used in coming
    to this clever idea, but what scares me about it is that we sometimes get a
    rogue trier and eventually after two triers are selected you get rid of them.
    This way if we get a rogue trier were going to have to live with the rogue
    trier through the whole process. I just mean somebody who seems to be making
    choices that dont quite seem to confirm to the instructions.

[20]

The trial judge proposed choosing the triers of the challenge for cause
    from the first group of prospective jurors, which he would increase to 27 from
    25. He invited counsel to comment on what he had said about jury selection. No
    one said anything.

[21]

None of the parties counsel mentioned the long-standing rotating triers
    procedure or objected to the use of static triers.

(iv)

The Next
    Appearance

[22]

Two days later, the parties finally settled on the wording of the
    questions to be asked on the challenge for cause.

[23]

None of the parties mentioned rotating triers or the availability of
    that method of trial of the truth of the challenge for cause, as opposed to
    static triers.

[24]

Trial counsel for Atkins expressed concern that each group of 25 jurors
    would remain in the courtroom during the challenge of individual prospective
    jurors for cause. The trial judge assured counsel that only the individual
    prospective juror who was the subject of the challenge for cause would be in
    the courtroom when the challenge took place. Counsel for Atkins responded that
    he preferred it that way.

(v)

The
    Application under Section 640(2.1)

[25]

About a week later, after brief mention of the challenge for cause
    questions and provision of the jury panel lists to counsel, the trial judge
    returned to the challenge for cause procedure. After pointing out the rotating
    triers procedure and reading part of s. 640(2.1), the trial judge continued:

THE COURT: So theres two things. One is that I can only make
    the Order, it seems, that the jurors be excluded during the Challenge for
    Cause, upon the application of the accused, or at least I guess one of the
    accused.

Now, I have no doubt that you all indicated that you preferred
    it that way, but I dont know if anybody actually formally applied for an Order
    under 640(2.1). Could I invite somebody to make that application?

COUNSEL FOR MR. RILEY: I apply under s. 640(2.1) 

THE COURT: Thats it. Thank you, [counsel for Mr. Riley].

COUNSEL FOR MR. RILEY: -- that the triers be excluded for that
    process.

THE COURT: Then I am satisfied in this case that its necessary
    to preserve the impartiality of the jurors that the Order is made. So that
    Order is made.

But the one thing I really didnt notice, and I think is
    important to note, is that it requires that the jurors sworn and unsworn be
    excluded. In other words, when we pick jurors they dont sit in the box during
    the process. They are then sent away. And, in fact, Im told by a couple of my
    colleagues that that is whats being done in selections now when this provision
    is used.

[26]

No one mentioned, much less suggested the use of rotating triers, or the
    prospect of their use with the exclusion of prospective jurors from the
    courtroom during selection in accordance with the well-established procedure
    followed prior to the amendments to s. 640.

(vi)

Vetting
    the Triers

[27]

A further week later, the trial judge returned to the prospect of a rogue
    trier and its impact on the selection process. He proposed a vetting
    procedure to minimize the risk:

The risk, I suppose, is in this process that if we have an
    idiosyncratic trier that trier is going to be with us through the whole
    process. So, the
Criminal Code
doesnt provide for a [challenge] to the
    trier and I dont think we can invent a challenge for the trier. But I think we
    can vet the trier as we vet anybody in the sense of looking at you know are
    they connected with anybody et cetera, et cetera, which will be accomplished by
    the questionnaire. And I am going to propose something that if counsel think is
    acceptable Id be prepare [
sic
] to do, and that is, I think the most
    important thing that might be asked of a trier is a form of the race question.
    I mean, the pre-trial publicity question doesnt really seem to me to have much
    to do with what the trier has to decide. But I thought I might ask of the
    triers, the first two people, a form of the race question without swearing
    them, just explain to them that because this is the entry that are going to be
    deciding it is important to know that  I will put it in nicer language  but
    if theyre not they dont harbour racial attitudes. You dont have to answer me
    right now because it is something you might want to think about. But I was
    thinking that it might be sort of vet the two triers for racist attitudes
    before we put them on in the role of trier.

The
Code
simply says that I have I am to appoint two
    triers. It doesnt say anything about how I appoint them, certainly doesnt say
    that they have to be the first two people called so Im not worried that I
    somehow break the rule by saying well No. 1 and No. 3 or something. Anyway, I
    just raised this with you, you havent had a chance to think about it so Ill
    leave it with you. I just want to mention it to you now so that when I raise it
    with you later you will have had the chance to give it some thought.

[28]

Further discussion followed. The trial judge recognized that the
Criminal
    Code
provided no formal challenge for cause procedure for potential triers
    and imposed no statutory requirement that the impartiality of the static triers
    be determined by another set of triers.

[29]

In the discussions that followed, defence counsel considered that it
    made sense to vet the prospective triers.

[30]

The trial judge explained what he considered an appropriate procedure
    for vetting the triers of the challenge for cause. Each potential trier would
    be brought into the courtroom alone. They would not be sworn or affirmed, but
    asked to answer the question honestly. Counsel would not be asked to use a
    peremptory challenge if not satisfied with the suitability of the jury panel
    member to serve as a trier.

[31]

The trial judge would ask each a modified version of the racial bias question
    that would be put to prospective jurors on the challenge for cause. Trial
    counsel for Riley asked the trial judge to put the other questions about gang
    membership and pre-trial publicity that were to be asked of each prospective
    juror to the prospective triers. The trial judge agreed to do so.

[32]

The trial Crown was uneasy with the proposed vetting procedure. He
    said that the
Criminal Code
did not permit it or authorize a judge to
    act as a trier, rather than a pair of actual or prospective jurors. The trial
    Crown cautioned the trial judge about the effect of errors in the jury
    selection process. The trial judge acknowledged that he was playing with a
    tiny bit of fire and took a few days to consider what he had proposed.

[33]

A few days later, the trial judge ruled:

With respect to the vetting of the triers, Im satisfied that I
    am entitled to ask some questions of the triers in order to determine whether
    or not they are people that I choose to appoint as triers. I have looked at,
    and I will give you [a] ruling, but Ive looked at the cases.

In the cases where the Court of Appeal has ordered a new trial
    it was always because the judge did something, as I read them, that was
    contrary to the provisions of the
Code
, as opposed to, let me say,
    filling in the blanks in the
Code
.

So Im satisfied that Im entitled to do it, and I think its
    appropriate in this system where the triers are going to be with us through the
    entire challenge to do that, and I will  I have and will  it doesnt make
    sense. I have added to my script the other two questions, [counsel for Mr.
    Riley], as you requested, so I will ask the three questions of the triers.

(vii)

Selecting the
    Triers

[34]

The trial judge selected the triers of the challenge for cause from
    among the prospective jurors. Each was questioned separately. The wording of
    the questions varied. None were asked to take an oath or make a solemn
    affirmation, but the trial judge asked each to answer his questions honestly.
    Once, the trial judge invited submissions from counsel. On another occasion,
    counsel made submissions without an invitation from the trial judge. For the
    remaining candidates, counsel did not ask to make submissions or complain that
    they were not invited to do so by the trial judge.

[35]

The trial judge questioned seven prospective jurors to determine their
    suitability to act as triers of the challenge for cause. He excused five and
    accepted the remaining two who became the triers of the challenge for cause.

[36]

The parties did not complain about the selection process.

(viii)

The Written Reasons

[37]

On the final day of jury selection, the trial judge released his reasons
    for concluding that s. 640(2.2) of the
Criminal Code
must be followed
    whenever prospective jurors are excluded from the courtroom. He also explained
    why he had decided that he had the authority to vet potential triers of the
    challenge for cause.

[38]

The trial judge acknowledged that, prior to the enactment of ss.
    640(2.1) and (2.2), trial judges exercised an inherent authority to exclude
    prospective jurors from the courtroom while individual jurors were challenged
    for cause before rotating triers. He also recognized that some trial judges
    considered the former practice of discretionary exclusion of the panel with
    rotating triers remained available despite the enactment of s. 640(2.1).

[39]

The essence of the trial judges reasons for concluding that prospective
    jurors may only be excluded during the challenge for cause under the static
    triers procedure of ss. 640(2.1) and (2.2) appears in three paragraphs of his
    reasons:

[16]           With great respect to Heeney J. [
R. v.
    Sandham
(2009), 248 C.C.C. (3d) 46], and to others who hold a different
    view, I am of the view that the option of employing the rotating trier process
    is not available when the prospective jurors are excluded. While I acknowledge
    that it has been commonplace for trial judges to exercise an inherent power to
    exclude prospective jurors from the courtroom during the selection process in
    recent years, I do not believe that that option remains available. While judges
    have some leeway in the procedure they employ in the jury selection process
    where Parliament is silent on a point, they have no such leeway where a
    procedure is laid down by the
Criminal Code
.



[
18
]

I
    am of the view that jurors may now only be excluded pursuant to s. 640(2.1).
    Moreover, respectfully, I view the two considerations relied on by Heeney J. to
    escape the effect of s. 640(2.2) as being of no consequence. The fact that
    counsel in
Sandham
limited his request to the exclusion of unsworn
    jurors, and not sworn jurors, is irrelevant. He obviously did that because he
    wanted an order for exclusion, but also wanted rotating triers. The simple
    answer to this point is that the only order now available, as a result of the
    amendment to the
Code
, is the exclusion of both sworn and unsworn
    jurors.



[25]           As I have stated, I consider it to
    be mandatory when the jurors are excluding during the challenge for cause
    process to follow the new, static trier regime in s. 640(2.2) of the
Criminal
    Code
, and I have proceeded in that manner in this case.

[40]

Several times during discussions with counsel about the challenge for
    cause procedure, the trial judge voiced his concern about the problem of the
    idiosyncratic trier or the rogue trier when static triers were selected to
    try the truth of the challenge for cause. To guard against this prospect, the
    trial judge decided to vet those selected for consideration for static
    triers. He explained his reasons for doing so:

[23]           It has been suggested that the vetting of jurors
    in this matter should not be done, since it is not provided for in the
Code
.
    I do not agree. It seems to me that this is a matter that is not specifically
    addressed by the
Code
, in relation to which, in the words of Sharpe
    J.A., trial judges must be afforded some latitude or discretion.

[24]           It should be remembered that the practice in
    Ontario of appointing the first two prospective jurors whose names are drawn
    from the drum is in fact simply a practice. The
Code
requires the judge
    to appoint two persons present as triers, and says nothing more about who
    they must be, and how they are to be selected. There is no requirement that
    they be prospective jurors, or that they be chosen randomly. We have developed
    a practice to fill the gap. I see no obstacle to adding a brief vetting process
    to that practice to ensure that the challenge process accomplishes what it is
    intended to accomplish  the selection of an impartial jury. [internal
    citations omitted in the original]

(b)

An Overview of the Issues

[41]

The appellants raise two issues in connection with the procedure
    followed to determine the truth of the challenge for cause.

[42]

The first is that the trial judge erred in holding that he no longer had
    a discretion to exclude prospective jurors but have the truth of the challenge
    for cause determined by rotating triers. Said somewhat differently, he erred in
    holding that the prospective jurors could only be excluded where the truth of
    the challenge for cause was tried by static triers.

[43]

The second, is that the trial judge erred in deciding that he had the
    authority to vet potential static triers prior to their selection. In the
    alternative, the appellants say, that even if the trial judge was right about
    the authority to vet potential static triers, he erred in failing to apply
    the vetting procedure uniformly.

[44]

First, we consider the manner by which the challenges for cause were to
    be determined.

(c)

The Static Triers Issue

(i)

The Arguments on Appeal

[45]

The appellants begin by pointing out that trial counsel were concerned
    about the potential compromise of juror impartiality if prospective jurors were
    exposed to the challenge for cause process by remaining in the courtroom
    throughout jury selection. Counsel wanted the panel of prospective jurors
    excluded as the challenge for cause played out to ensure each individual
    prospective jurors impartiality.

[46]

The appellants say that no defence counsel expressed any concern about
    or sought exclusion of sworn jurors; asserted a preference for static triers;
    or even adverted to the amendments that authorized static triers. It is a
    reasonable inference, the argument continues, that defence counsel were
    operating on the basis of the pre-amendment practice of excluding prospective
    jurors while rotating triers determined the acceptability of individual
    prospective jurors.

[47]

The ruling of the trial judge that exclusion of prospective jurors
    required that static triers determine the truth of individual challenges for
    cause was wrong. Had the trial judge realized that the amendments did not
    eliminate the discretion to exclude prospective jurors, but have the truth of
    the challenges determined by rotating triers, the appellants argue, he would
    have acceded to a defence request that he do so. After all, the trial judge did
    say that he usually acceded to defence requests about jury selection.

[48]

In the end, the appellants say, the trial judges flawed interpretation
    of the effect of the amendments to ss. 640(2.1) and (2.2) caused the jury to be
    improperly constituted. This legal error falls beyond the reach of the provisos
    in s. 686(1)(b).

[49]

The appellants advance an alternative argument. They say that the order
    that static triers determine the truth of the challenge for cause was not based
    on a proper application under s. 640(2.1). Counsel did not seek the exclusion
    of sworn jurors. An application to exclude only prospective (unsworn) jurors
    does
not
trigger s. 640(2.1). Counsel did not adduce evidence to support
    a finding that exclusion of all jurors, sworn and unsworn, was necessary to
    preserve the impartiality of the jury. And the trial judge failed to make any
    finding of necessity as required by s. 640(2.1), before an order for static
    triers can be made under s. 640(2.2).

[50]

In the further alternative, the appellants contend that the trial judge
    prejudged the interpretation of the effect of the amendments by presenting his
    analysis as reflecting the state of the law, without inviting or receiving
    submissions on the issue. By doing so, the trial judge impaired the actual and
    apparent fairness of the trial resulting in a miscarriage of justice and
    requiring a new trial.

[51]

The overriding submission of the respondent is that the jury, and thus
    the court, was properly constituted to try the appellants.

[52]

Even if later authorities characterize as error the trial judges
    conclusion that excluding prospective jurors from the courtroom during jury
    selection mandated static triers, the appellants suffered no prejudice in the
    end. Trial counsel raised no objection to the procedure followed. In their
    original factum, filed years later, counsel advanced no claim of actual or
    apparent unfairness. What occurred had no impact on the jurys verdict and did
    not compromise the actual or apparent fairness of the trial.

[53]

The respondent reminds us at the outset that the claim of error now
    asserted was never advanced at trial. Defence counsel never suggested to the
    trial judge that he should exercise his inherent jurisdiction to exclude
    prospective jurors from the courtroom during the challenge for cause, but have
    the truth of the challenge tried by rotating triers. The only motion  advanced
    by trial counsel for Riley  invoked s. 640(2.1). The inevitable result of
    success on that application was exclusion of all jurors  sworn and unsworn 
    as each individual challenge proceeded to adjudication by static triers. And
    that is what happened.

[54]

The respondent accepts that the trial judge did not suggest that the
    truth of the challenge for cause could be determined by rotating triers with
    the prospective jurors excluded from the courtroom. But trial counsel for the
    appellants never once mentioned rotating triers or invoked the inherent
    jurisdiction of the trial judge to exclude prospective jurors but use rotating
    triers. No objection was made to the use of static triers. Nor does the record
    support a claim that counsel distinguished between sworn and unsworn jurors and
    only sought exclusion of unsworn jurors. The exclusion sought was based on a
    concern about juror impartiality being compromised by being repeatedly an ear
    and eye witness to the answers of prospective jurors on the challenge for
    cause.

[55]

The respondent emphasizes that exclusion of prospective jurors is not
    for the asking where the challenge for cause is tried by rotating triers. The
    relief is discretionary. The onus was on the appellants to provide an
    evidentiary basis for the exclusion sought. They did nothing. The trial judge
    can scarcely be faulted for failing to make an order the appellants never
    sought, on the basis of evidence the appellants never adduced.

[56]

The respondent says that this is not a case in which the trial judge
    precluded or foreclosed submissions about the method of adjudication of the
    trial of the challenge for cause. Quite the contrary. The trial judge
    repeatedly invited counsel to raise issues about the challenge for cause
    procedure. He did not override any objections.

[57]

According to the respondent, the only evidence that reflects the
    challenge for cause procedure the appellants sought at trial is the application
    by counsel for Riley under s. 640(2.1). Any claim that this was not a
    meaningful choice with full knowledge of its consequences for exclusion of
    prospective and actual jurors is fanciful. To conclude otherwise requires a
    finding that three experienced defence counsel were unaware of the governing
    legal principles; had not read two subsections of the
Criminal Code
; did
    not consider the available options; and were so cowed by the trial judges
    preliminary view that they abandoned their desired approach to jury selection.
    The record is barren of support for any such conclusion.

(ii)

The Governing Principles

[58]

The principles that control our decision on this ground of appeal are
    those that govern how triers are selected to determine the truth of a challenge
    for cause, as well as those that define the authority of appellate courts to
    sustain jury verdicts despite procedural irregularities during the course of
    the trial, especially in the selection of the jury.

The Selection of Triers of Challenges for Cause

[59]

The procedure followed to select triers of the truth of challenges for
    cause has been the subject of several recent decisions of this court.
    Unfortunately, none of those decisions were available to the trial judge in
    this case.

[60]

It is unnecessary to further cultivate soil already well-tilled by
    decisions of this court. Rather it is enough for our purposes simply to set
    down some of the boundaries marked out by those authorities.

[61]

Since the enactment of our first
Criminal Code
in 1892, the truth
    of challenges for cause on the ground of lack of indifference has been
    determined by rotating triers under provisions identical or akin to the current
    s. 640(2). Until May 29, 2008, when subsections (2.1) and (2.2) were added to
    s. 640, rotating triers were the exclusive method of determining the truth of
    such challenges:
R. v. Noureddine
, 2015 ONCA 770, 332 C.C.C. (3d) 114,
    at para. 35;
R. v. Husbands
, 2017 ONCA 607, at para. 33.

[62]

Although not included in s. 640(2) of the
Criminal Code
, or for
    that matter, anywhere else in the same statute, it is beyond controversy that a
    judge presiding over a jury trial in which rotating triers are determining the
    truth of challenges for cause has a discretion or inherent jurisdiction to
    exclude prospective (unsworn) jurors from the courtroom during jury selection
    such that only a single prospective juror would be in the courtroom when his or
    her partiality is being tried:
R. v. Grant
, 2016 ONCA 639, 342 C.C.C.
    (3d) 514, at para. 41;
R. v. Murray
, 2017 ONCA 393, at para. 53;
Husbands
,
    at para. 36.

[63]

The purpose that underlies the exclusion of prospective (unsworn) jurors
    during the trial of the truth of challenges for cause by rotating triers
    functions as a requirement or condition precedent to an order that gives effect
    to it. The order must be necessary to preserve the impartiality of the jury:
Grant
,
    at para. 41;
Murray
, at para. 53.

[64]

Since May 29, 2008, when ss. 640(2.1) and (2.2) entered service, another
    method of selecting jurors to determine the truth of challenges for cause for lack
    of indifference has become available. Static triers. Sworn and unsworn jurors
    excluded from the courtroom. The subsections and the jurisprudence interpreting
    these sections have established several basic principles.

[65]

Unlike the rotating triers procedure under s. 640(2), the procedure put
    in place by ss. 640(2.1) and (2.2) requires two pre-conditions:

i.

an application by an accused for an order excluding all jurors  sworn
    and unsworn  from the courtroom until the truth of the ground of challenge for
    cause is determined; and

ii.

a finding by the presiding judge that exclusion is necessary to preserve
    the impartiality of the jurors.

See,
Husbands
, at
    para. 34.

[66]

Sections 640(2.1) and (2.2) do not require that the application be in
    writing or any particular statutory form. No precise words need be uttered in
    oral applications. Substance triumphs, not form:
Husbands
, at paras.
    38-39.

[67]

Satisfaction of the pre-conditions to an order under s. 640(2.1) engages
    the statutory discretion to make the order under that subsection. The order
    does not issue as of right:
Husbands
, at para. 34;
Murray
, at
    para. 43;
Grant
, at para. 12.

[68]

The consequences of an order under s. 640(2.1) are fourfold:

i.

the triers of the truth of the challenge for cause will be selected in
    accordance with s. 640(2.2);

ii.

the same triers will determine the truth of all challenges for cause;

iii.

the rotating triers procedure will not be available as a method of
    trying the challenge for cause; and

iv.

all jurors, both sworn and unsworn, will be excluded from the courtroom
    until the challenge for cause process has been completed and a full jury,
    including any alternates and additional jurors, has been empanelled.

[69]

The mere fact of the amendments that added subsections (2.1) and (2.2)
    to s. 640 and created a new method of determining the truth of the challenges
    for cause did not eliminate or whittle down the authority of a trial judge presiding
    over a challenge for cause to be determined by rotating triers to exclude
    prospective (unsworn) jurors from the courtroom until the selection process has
    been completed:
Grant
, at paras. 18, 37, 41;
Murray
, at para. 53;
Husbands
, at para. 35.

Procedural Errors and the Proviso

[70]

Procedural errors occur during jury selection and empanellment. Some
    amount to formal defects, such as those to which ss. 670-672 apply. Others fall
    beyond the grasp of those provisions and require consideration of the proviso
    of s. 686(1)(b)(iv).

[71]

Section 686(1)(b)(iv) holds harmless some, but not all procedural errors
    that occur at trial. The section permits an appellate court to dismiss an
    appeal where:

i.

a procedural irregularity occurred at trial;

ii.

the trial court had jurisdiction over the class of offence of which the
    appellant was convicted; and

iii.

the appellate court concludes that the procedural irregularity caused
    the appellant no prejudice.

[72]

Section 686(1)(b)(iv) requires an inquiry into prejudice. This inquiry
    looks not only to actual prejudice to the accused, but also to prejudice to the
    due administration of justice. We may infer prejudice from the procedural
    irregularity without requiring the accused to demonstrate prejudice, leaving it
    to the Crown to rebut the inference of prejudice:
Noureddine
, at para.
    62.

[73]

The extent to which s. 686(1)(b)(iv) will hold harmless procedural
    irregularities in the selection and empanellment of jurors remains a work in
    progress. However, this court has held that where a jury has been selected by
    following a challenge for cause procedure disavowed by an accused, thus
    depriving the accused of the option to invoke their preferred method of
    selecting the triers, s. 686(1)(b)(iv) cannot preserve the verdict rendered at
    trial:
Noureddine
, at paras. 57, 68;
Husbands
, at para. 41;
R.
    v. V. (W.)
, 2007 ONCA 546, at para. 26. See also
R. v. Swite
, 2011
    BCCA 54, 268 C.C.C. (3d) 184, at para. 54.

(iii)

The
    Principles Applied

[74]

As we will explain, we decline to give effect to this claim of error in
    connection with the selection of triers to determine the truth of the challenge
    for cause.

[75]

We begin with an acknowledgment that the trial judge was wrong to
    conclude that the enactment of subsections (2.1) and (2.2) meant that the only
    basis upon which he could accede to the appellants request to exclude jurors
    from the courtroom as the challenge for cause process spooled out was by an
    application and order under s. 640(2.1). This triggered an order under s.
    640(2.2), excluded the use of rotating triers under s. 640(2), and required
    that static triers determine the truth of the challenge for cause.

[76]

The trial judge was aware of the practice of excluding prospective
    jurors from the courtroom with rotating triers determining the truth of the
    challenge for cause. His error, as determined by decisions of this court
    rendered long after this trial, consisted of assigning to the amendments adding
    subsections (2.1) and (2.2) a preclusive effect on the availability of the
    discretion to exclude prospective (unsworn) jurors when rotating triers
    determine the truth of the challenge for cause.

[77]

Despite this error in assessing the impact of the amendments in ss.
    640(2.1) and (2.2) on the availability of the discretion to exclude prospective
    (unsworn) jurors with rotating triers, several reasons persuade us that this
    ground of appeal fails.

[78]

First, what happened here was a clear and unqualified invocation by
    trial counsel for Riley of the provisions of s. 640(2.1) to achieve exclusion
    of jurors during the challenge for cause process. The application attracted no
    demur from trial counsel for Atkins or Wisdom. Counsel for Riley invoked s.
    640(2.1) immediately after the trial judge:

i.

mentioned the traditional mode of determining the truth of challenges
    for cause  rotating triers; and

ii.

expressly stated the effect of an order under subsection (2.1), that is
    to say, that both sworn and unsworn jurors would be excluded while the same two
    triers decided the truth of all the challenges.

[79]

Second, counsel were clearly aware the result of an order under s.
    640(2.1) was that the same two triers would decide the truth of every challenge
    for cause. None expressed the slightest concern about this method of
    adjudication.

[80]

Third, as in some other cases, what trial counsel sought, first and
    foremost, was the exclusion of prospective (unsworn) jurors during the
    challenge for cause process. Their concern was that the presence of prospective
    (unsworn) jurors in the courtroom during the challenge for cause process,
    whether in groups of 25 or otherwise, risked compromise of their impartiality.
    Each would hear repeated many times the questions of counsel and the answers of
    the other panel members. The risk of taint was palpable. Despite familiarity
    with the previous practice of discretionary exclusion and rotating triers, none
    of the experienced counsel mentioned, much less suggested or sought, trial of
    the challenge by rotating triers with the panel excluded. No one objected to
    static triers. The only reasonable inference in the circumstances is that what
    mattered most to counsel was that the prospective (unsworn) jurors be excluded,
    not the manner in which the triers of the challenge were selected.

[81]

Finally, we detect a certain irony in the argument advanced by appellate
    counsel when measured against that pursued at trial.

[82]

Trial counsel were concerned that the impartiality of jurors would be
    compromised if they were to remain in the courtroom throughout the challenge
    for cause and jury selection process. While present, each would repeatedly hear
    the questions asked about racial and gang membership bias and pre-trial
    publicity and the answers given by their prospective juror colleagues.

[83]

To guard against this potential compromise of impartiality, trial
    counsel expressly invoked s. 640(2.1). They succeeded. As a result, as the
    subsections expressly provide, all jurors  sworn and unsworn  were excluded
    from the courtroom as the challenge for cause and jury selection process
    unfolded. In the end, no juror, sworn or unsworn, participated in, heard or saw
    any challenge for cause other than his or her own. The prospect of compromise of
    juror impartiality on this basis never materialized.

[84]

Trial counsel could have been under no illusions about the manner in
    which the triers of the challenge for cause would be selected or how they would
    carry out their task. Sections 640(2.1) and (2.2) say so in unequivocal terms.
    Section 640(2) puts paid to any role for rotating triers. The inference is
    irresistible that trial counsel were well aware of the manner in which triers
    of the challenge for cause would be selected and carry out their tasks. Same
    triers for every prospective juror. And that no one else, in particular, other
    jurors, actual or prospective, would be in the courtroom.

[85]

We are asked to allow this appeal and direct a new trial so that the
    trial of the challenge for cause may be decided by rotating triers with
    prospective jurors excluded from the courtroom as the challenge proceeds. The
    only difference between what occurred at trial and what is sought now is the
    composition of the triers of the challenge for cause. Trial counsel sought exclusion
    of prospective jurors during the challenge for cause. They achieved the result
    they sought by expressly invoking s. 640(2.1). They made no submissions about
    the selection procedure for the triers of the challenge, saying nothing to
    indicate a preference for rotating over static triers. They cast their lots
    under s. 640(2.1). It is too late now to reverse field.

[86]

We do not give effect to this ground of appeal.

(d)

The Vetting Issue

[87]

The second aspect of this ground of appeal has to do with the propriety
    of questions put by the trial judge to prospective jurors on the challenge for
    cause. Each prospective trier was a member of the jury panel, not simply a
    person present in the courtroom when the challenge for cause process was to
    begin.

[88]

No further reference to the procedural background is needed to frame the
    discussion that follows.

(i)

The Arguments on Appeal

[89]

The appellants advance two main arguments. They say that the trial judge
    had no jurisdiction to create a vetting procedure for prospective triers of the
    challenge for cause. And, in the alternative, they contend that the trial judge
    was inconsistent in his application of the procedure. On either basis, they
    argue that the jury was improperly constituted resulting in a miscarriage of
    justice and requiring a new trial.

[90]

In support of their argument that the trial judge lacked jurisdiction to
    vet prospective jurors, the appellants begin with the proposition that the
    statutory silence in s. 640(2.2) about how static triers are to be selected
    does not entitle the trial judge to create a procedure that is the functional
    equivalent of a challenge for cause. The questions asked of each prospective
    trier were those relevant to the suitability of prospective jurors, questions
    this court in
R. v. Brown
(2002), 166 C.C.C. (3d) 570 (Ont. C.A.),
    said do not apply to and should not be asked of triers.

[91]

What happened here, the appellants contend, was that the trial judge
    assumed the role of a trier of the functional equivalent of a challenge for
    cause for prospective triers, a role assigned to others by the
Criminal Code
.
    Further, as this was not pre-vetting for obvious partiality, it exceeded the
    scope of what would be permitted of prospective jurors at large. In the result,
    the argument concludes, a jurisdictional defect occurred resulting in the
    selection of an improperly constituted jury. A miscarriage of justice resulted,
    an outcome that can only be righted by ordering a new trial.

[92]

Even if the procedure followed by the trial judge had a sound
    jurisdictional foundation, the appellants argue in the alternative that its
    uneven or inconsistent application by the trial judge caused a miscarriage of
    justice remediable only by an order for a new trial. A
mélange
of
    variable language, changes in the wording of the questions, the failure to have
    prospective jurors take an oath or make an solemn affirmation and defaults in
    affording counsel the opportunity to make submissions yields an unsupportable
    result.

[93]

The respondent counters with four arguments.

[94]

First, the respondent says, the pre-vetting procedure followed here
    falls within the scope of s. 632(c) of the
Criminal Code
. Section 632,
    in particular, s. 632(c) codifies the common law summary procedure which
    allowed trial judges to pre-vet jury panel members for obvious partiality.
    Section 632(c) applies to any juror and allows pre-vetting for, among other
    things, any reasonable cause. Prospective triers who are members of the jury
    panel fit within the term any juror in s. 632. The questions asked related to
    obvious partiality, a permissible subject of inquiry and excusal.

[95]

Second, and in the alternative to the submission about the availability
    of s. 632(c), the respondent invokes the inherent discretion of a trial judge
    to control the jury selection process. The specific authority engaged here is
    not ousted by or at odds with any statutory provision, makes effective use of
    available resources to ensure fairness to all parties and gives effect to the
    paramount concern of all, the selection of an impartial jury. The trial judge
    did not usurp the role of triers any more than a judge who pre-vets a jury
    panel does so. The trial judge did not contravene a provision of the
Criminal
    Code
. The decision in
Brown
does not proscribe what occurred here.

[96]

Third, the respondent continues, the trial judges exercise of his
    inherent authority to control the jury selection process was reasonable and is
    entitled to deference.  Counsel for all the appellants agreed with the
    procedure. The trial judge did nothing that exceeded the agreement of counsel.

[97]

Finally, the respondent argues, even if what occurred amounted to an
    error, any procedural irregularity that occurred is saved harmless by the
    provisions of any or all of ss. 670, 671 and 686(1)(b)(iv). What was done did
    not contravene or fail to adhere to any statutory requirement. If any
    procedural irregularity occurred, it caused no prejudice to any appellant.

(ii)

The Governing Principles

[98]

Neither party suggests that s. 640, which enacts the procedure for the
    trial of challenges for cause, more specifically, the manner in which triers of
    the challenge are selected, authorizes, in express terms or by necessary
    implication, a trial judge to pre-vet prospective jurors. Neither does it
    prohibit or limit pre-vetting. It follows that what was done here was neither authorized
    nor prohibited by the section that determines the composition of the triers and
    defines the procedure to be followed in the trial of the challenge for cause.

[99]

Sections 640(2) and (2.2) define
who
may serve as the triers of
    the challenge for cause. Section 640(2) governs rotating triers, s. 640(2.2),
    static triers.

[100]

Where no jurors
    have been sworn and no order made under s. 640(2.1), rotating triers are
    appointed by the presiding judge from persons present in the courtroom. The
    persons present may include prospective jurors and others who are not members
    of the jury panel and may not even be qualified for jury service under
    provincial law.

[101]

Where an order
    is made under s. 640(2.1), static triers are appointed by the presiding judge
    from prospective (unsworn) jurors or persons present in the courtroom. The
    persons present include those in the courtroom who are not prospective
    (unsworn) jurors and, as under s. 640(2), may not be qualified for jury service.

[102]

Section 640 also
    defines the role of the triers of the challenge for cause, whether rotating or
    static. Their task is to determine whether the ground of challenge is true.
    In other words, the triers decide, based on the answers prospective jurors give
    to the questions asked on the challenge for cause, whether the prospective
    juror is acceptable as a person who is indifferent between the Queen and the
    accused. The task triers are assigned, reflected in the instructions they are
    given, is to decide the acceptability of the prospective juror for service if
    subsequently chosen by the parties. When acting as triers, these individuals
    play no part in the assessment of the evidence adduced at trial or in the
    adjudication of guilt.

[103]

In the absence
    of pre-vetting authority in s. 640, it becomes necessary to canvass two other
    sources  other
Criminal Code
provisions and the inherent authority of a
    trial judge to control the jury selection process  to determine whether what
    was done here falls within their compass.

Other Statutory Provisions

[104]

The enactment of
    s. 632 of the
Criminal Code
in 1992 codified the common law authority of
    a trial judge to pre-screen prospective jurors for obvious partiality. The
    common law authority was limited to non-controversial situations of partiality
    and did not extend to controversial or disputed questions:
R. v. Sherratt
,
    [1991] 1 S.C.R. 509, at pp. 526-28, 533-34;
R. v. Find
, 2001 SCC 32,
    [2001] 1 S.C.R. 863, at para. 23.

[105]

Section 632
    provides:

The judge may, at any time before the commencement of a trial,
    order that any juror be excused from jury service, whether or not the juror has
    been called pursuant to subsection 631(3) or (3.1) or any challenge has been
    made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;

(b) relationship with the judge presiding over the jury
    selection process, the judge before whom the accused is to be tried, the
    prosecutor, the accused, the counsel for the accused or a prospective witness;
    or

(c) personal hardship or any other reasonable cause that, in
    the opinion of the judge, warrants that the juror be excused.

[106]

Neither the term
    juror nor jury service is defined in or for the purposes of the section. It
    would seem to follow from the context of the section that the term juror
    refers to members of the jury panel, in other words, to prospective jurors
    rather than selected jurors.

[107]

Section 632(c)
    can be invoked as a basis to pre-screen the entire panel of prospective jurors.
    This is accomplished by the presiding judge asking general questions of the
    panel to uncover manifest bias or personal hardship and to exclude prospective
    jurors on either of those grounds:
Find
, at paras. 22-23;
R. v.
    Betker
(1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 449, leave to appeal
    refused, [1998] 1 S.C.R. vi (note).

[108]

These
    authorities refer to pre-screening the entire panel of prospective jurors to
    determine their acceptability as jurors to try the issues framed by the
    indictment, not their suitability to serve as triers of the challenge for
    cause. That said, where a challenge for cause is to be tried by rotating
    triers, pre-screening would have implications for their availability as triers
    and thus include the duties of triers within the terms jury service in s.
    632.

The Role of Judicial Discretion

[109]

None can gainsay
    that a judge presiding over a jury selection has a discretion to control the
    challenge for cause process to prevent its abuse and ensure that all
    participants are treated fairly:
R. v. Moore
-
McFarlane
(2001),
    160 C.C.C. (3d) 493 (Ont. C.A.), at para. 85;
R. v. Hubbert
(1975), 29
    C.C.C. (2d) 279 (Ont. C.A.), at p. 291, affirmed [1977] 2 S.C.R. 267;
Noureddine
,
    at para. 38;
Murray
, at para. 47. The exercise of this discretion is
    entitled to deference on appeal absent an error in principle or a miscarriage
    of justice caused by its exercise:
Moore-McFarlane
, at para. 85.

[110]

On the other
    hand, this discretion does not permit a trial judge to make orders or do things
    that contradict the requirements of the
Criminal Code
:
Noureddine
,
    at para. 38;
V. (W.)
, at para. 22;
Murray
, at para. 47;
Swite
,
    at para. 28. Among other things, this discretion does not license a trial judge
    to avoid a process mandated by the
Criminal Code
, as for example
    determining the truth of a challenge for cause:
R. v. Gayle
(2001), 154
    C.C.C. (3d) 221 (Ont. C.A.), at para. 40, leave to appeal refused (2002), 159
    C.C.C. (3d) vi (note). Within these limits, we must also recognize that the
    jury selection process, in particular challenges for cause, is bound to produce
    unforeseen and unforeseeable contingencies that require practical resolution:
Gayle
,
    at para. 52.

The Decision in Brown

[111]

In
Brown
, the appellant raised several grounds
    of appeal. Among them was a complaint that the trial judge erred in providing
    inadequate instructions to the triers of the challenge for cause. The court
    concluded that the trial judge erred in law in failing to adequately instruct
    the (rotating) triers about the nature of their task and how they were to go
    about it.

[112]

The
Brown
court considered it useful to address
    two other arguments advanced by the appellant about the jury selection process
    followed at trial. The first is relevant to our discussion. The appellant
    argued that before the triers of the challenge were sworn, they should have
    been required to respond successfully to the two questions to be put to
    prospective jurors on the challenge for cause. For the court, Goudge J.A.
    rejected this argument:

I disagree. The triers function is not to decide impartially
    on the guilt or innocence of the accused black person in this case, but rather
    it was to decide whether a potential juror of whatever race was acceptable to
    do so. The challenge for cause questions simply did not apply to the selection
    of triers.

See,
Brown
, at para. 16.

(iii)

The
    Principles Applied

[113]

As we will explain,
    we reject this ground of appeal. In our view, neither the process of
    pre-screening, the questions asked of prospective triers, nor the procedure
    followed on the inquiry constitutes legal error or caused a miscarriage of
    justice.

[114]

As we see it,
    our task is to determine in the circumstances of this case, including but not
    limited to the consent of trial counsel for all appellants to the procedure
    followed and the questions asked of prospective triers, whether the inquiry
    conducted by the trial judge of prospective triers exceeded permissible limits
    or caused a miscarriage of justice.

[115]

We approach our
    task in a series of steps that involve consideration of the roles of the trial
    judge and the triers, the potential sources of authority for pre-screening and the
    scope of the pre-screening conducted here.

[116]

First, the chore
    of the trial judge. The trial judge has the authority to control the jury
    selection process. To make effective use of court resources. To ensure fairness
    to all parties. As part of that task, the trial judge is required to appoint or
    select two persons to act as triers of the challenge for cause. Of every
    challenge for cause. Of every prospective juror. Until a full jury, including
    any alternates and additional jurors, has been empanelled.

[117]

Section 640(2.2)
    required the trial judge to select or appoint the two triers from the panel of
    prospective jurors or persons present in the courtroom. Apart from their
    presence in the courtroom or their names on a jury list, the trial judge had no
    means of knowing anything about the persons he had selected. Yet he was
    required to assign to them a very important task  to determine whether
    prospective jurors, if selected by the parties, would be impartial in reaching
    their verdict.

[118]

Second, the task
    of the triers. The assignment of the triers is to determine the impartiality of
    prospective jurors if chosen to try the charges in the indictment. To make this
    decision the triers were required to do several things. To listen to and
    understand the questions asked on the challenge for cause. To listen to and
    understand the answer given by the prospective jurors. To listen to and
    understand the instructions of the trial judge about how they were to decide
    the issue framed by the challenge for cause. To follow these instructions. And
    to make a decision.

[119]

The trial judge
    gets no help from s. 640 about the authority to pre-screen prospective triers.
    No permission. No prohibition.

[120]

As it appears to
    us, any injunction against any and all pre-screening of prospective triers is
    at odds with common sense. It cannot be seriously contended that
caveat
    emptor
applies to the selection of triers. To foreclose entirely
    pre-screening scrutiny would require a trial judge and the parties to accept as
    triers those who may be unsuited to the task.

[121]

On this issue,
    we are satisfied that common sense and legal principle coincide. We have in
    mind two sources of authority capable of grounding a pre-screening procedure
    for prospective triers.

[122]

We begin with
    the inherent authority of the presiding judge to control the jury selection
    process. Recall that this authority extends to pre-screening or pre-vetting
    jury panel members for manifest bias or personal hardship. The process is
    designed to ensure impartiality and the suitability of jurors to perform their
    task as triers of fact in the trial.

[123]

We see no reason
    in principle not to recognize an analogous or equivalent pre-screening
    authority for a judge tasked with the responsibility of selecting triers whose
    role it will be to determine whether prospective jurors, if selected by the
    parties, will approach their task impartially.

[124]

This inherent
    authority, a creature of the common law, has now been codified in s. 632 of the
Criminal Code
, in particular, in section 632(c) which authorizes
    pre-screening of prospective jurors for personal hardship or other reasonable
    cause. We need not authoritatively determine whether the source of
    pre-screening authority for prospective triers originates in the common law or
    its statutory codification. Suffice it to say that we regard the common law
    authority as an unimpeachable source and the statutory provision as a potential
    wellspring.

[125]

We turn next to
    consider whether what occurred in the pre-screening procedure in this case
    exceeded what is permissible or was procedurally flawed.

[126]

We consider it
    neither necessary nor desirable to lay down a series of bright-line rules as
    the outer limits of the inquiry. The unforeseen and unforeseeable contingencies
    of jury selection seem incompatible with any such rules. Each case will depend
    on its own idiosyncratic circumstances. Each case is best left to the sound
    discretion of the presiding judge.

[127]

In appropriate
    cases, the presiding judge should invite submissions from counsel about the
    need for and subject-matter of any inquiries that might be made of the
    prospective triers. This is so whether the prospective triers are the first of
    two rotating triers or the static triers who will try every challenge for
    cause. Any questions asked of the prospective triers must be relevant to the
    suitability of the prospective trier to discharge his or her responsibility as
    a trier of the challenge in accordance with the presiding judges instructions
    on that issue. That responsibility is to decide, on the basis of the questions
    asked of and the answers given by the prospective juror whether, if selected by
    the parties, the prospective juror would likely decide the case on the basis of
    the evidence adduced at trial and the instructions of the trial judge and not
    otherwise.

[128]

For this case,
    it is enough to say that we do not regard the
obiter
comments in
Brown
as determinative of this ground of appeal. It does not follow from a holding
    that it is not mandatory that potential triers respond successfully to the
    challenge for cause questions, that asking those questions with the express
    consent of defence counsel constitutes legal error. Indeed, a successful
    response by prospective triers to the challenge for cause questions ensures
    that they are approaching their duties as adjudicators of the challenge
    impartially. And there is nothing wrong with that. Indeed, reasonable people
    may differ about whether a person whose own impartiality may be compromised can
    fairly judge the impartiality of others on the same grounds.

[129]

Finally, we are
    satisfied that neither the failure to require that the prospective jurors be
    sworn or affirmed, nor the variations in the inquiries mandates our
    intervention. Pre-screening of panel members under s. 632, at least where
    questions are put to the panel at large, does not involve administration of an
    oath or its equivalent. Neither is there an obligation on the trial judge to
    use the same language for each prospective juror who is subject to the
    pre-screening procedure. Substance prevails, not form. Similarly, the failure
    to invite submissions on the prospective juror selected as the second static
    trier does not invalidate the process. No invitation was extended on another
    prospective trier yet counsel still made submissions. An invitation is not a
    mandatory step.

[130]

This ground of
    appeal fails.

(2)

The Joinder and Severance Issues

[131]

All three appellants
    faced three charges at trial. Count 1 was first degree murder (of Brenton
    Charlton). Count 2 was attempted murder (of Leonard Bell). Count 3 was
    committing Counts 1 and 2 for the benefit of, in association with, or at the
    direction of a criminal organization (G-Way).

[132]

The appellants
    submit the trial judge erred by refusing to grant two applications to sever
    Count 3 from Counts 1 and 2, and to thus have Count 3 tried separately. The
    first application came before trial, the second in the middle of the trial. The
    appellants argue the presence of Count 3 allowed the Crown to adduce highly
    prejudicial gang-related evidence that otherwise would not have been admissible
    on Counts 1 and 2. Therefore, they say, the failure to sever the counts
    resulted in an unfair trial.

[133]

We disagree. The
    trial judge made no error in exercising his discretion not to sever the counts.

(a)

The Initial Severance Motion

[134]

The appellants
    submit the trial judge erred by refusing to grant severance before the trial
    began and that the he erred in prematurely commenting on the admissibility of
    bad character evidence.

(i)

Background

[135]

Initially, the
    indictment charged six offences. Everyone agreed Counts 1 and 2 had to be tried
    together, but trial counsel for the appellants brought a motion to sever Counts
    3  6 before trial. As we have said, Count 3 was committing the murder and
    attempted murder offences for the benefit of a criminal organization. Count 4
    alleged the appellants participated in the activities of a criminal
    organization from March 3, 2004 to October 1, 2004. Counts 5 and 6 were
    firearms possession charges applying solely to Riley and Atkins.

[136]

The trial judge
    granted severance of Counts 4  6, but not Count 3. He held that permitting
    joinder of Count 4 with the murder counts risked diverting the attention of
    the jury into an inquiry into wholly different crimes, straying too far from
    the rule against joinder of counts in murder cases in s. 589 of the
Criminal
    Code
. However, he refused to sever Count 3, holding that there was a very
    strong factual nexus between Counts 1 and 2, on the one hand, and Count 3, on
    the other. While some gang-related evidence would likely be adduced to prove
    Count 3, the scope of the inquiry would be narrower than under Count 4, which
    covered a broader period of time and potentially totally unrelated offences. By
    contrast, the evidence relevant to Count 3 would also be relevant to Counts 1
    and 2 with respect to narrative, motive and planning and deliberation.

[137]

The trial judge
    severed Counts 5 and 6 pursuant to s. 591(3) of the
Criminal Code
due
    to the possibility of prejudice to the appellants should the Counts be joined
    with Counts 1 and 2. This ruling is not under appeal.

[138]

This court owes
    considerable deference to the trial judges balancing of the factors militating
    for and against severance. Such a decision requires the exercise of a great
    deal of discretion and an appellate court should only interfere where the
    judge acted unjudicially or  the ruling resulted in an injustice:
R. v.
    Litchfield
, [1993] 4 S.C.R. 333, at p. 354; see also
R. v. Last
,
    2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 14, 21.

[139]

We see no error
    in the trial judges disposition of the initial severance motion. His reasons
    display a careful balancing of the potential prejudice to the accused of trying
    the counts together against countervailing considerations.

[140]

The bottom line
    is that the Crowns theory of the case was that the shooting was a case of
    mistaken identity in a war between rival gangs. The appellants were alleged to
    have, on the date in question, engaged in a ride into Malvern territory to
    seek out and shoot at targets to avenge the death of G-Ways slain leader,
    Norris Allen. Proving the existence and purposes of G-Way as a criminal
    organization, the appellants membership in it, and the context of the ongoing
    dispute with the Malvern crew over the death of Norris Allen, was integral to
    the Crowns case on Counts 1 and 2. Consequently, the trial judge made no error
    in finding the balance of factors militated against severance of Count 3.

[141]

Additionally, we
    do not agree with the appellants submission that the trial judge erred by
    commenting, in his initial severance ruling, on the admissibility of bad
    character evidence in respect of Counts 1 and 2. The trial judge did not, as
    the appellants suggest, purport to finally determine the admissibility of that
    evidence in his severance ruling. Rather, he made a
preliminary
assessment of whether the bad character evidence would likely be admitted in
    respect of Counts 1 and 2 irrespective of whether Count 3 was severed. He was
    entitled to make such an assessment in order to determine whether there would
    likely be extensive overlapping evidence between Counts 1 and 2, on the one
    hand, and Count 3, on the other. Extensive overlapping evidence is a relevant
    factor in the severance analysis:
R. v. Rose
(1997)
,
100
    O.A.C. 67, [1997] O.J. No. 1947 (C.A.), at paras. 15  17.

[142]

And contrary to
    the appellants submissions,
R. v. Sipes
, 2009 BCSC 113, [2009] B.C.J.
    No. 2933, reserved by C.A., does not stand for the proposition that it is an
    error to make such a preliminary assessment of admissibility.  Rather, the
    trial judge in
Sipes
determined that, in the circumstances of that
    case, he was not in a position to make such an assessment. In so doing, he
    explicitly referred, at para. 40, to the trial judges severance decision in
    this case and explained that, unlike in
Sipes
, the trial judge here was
    well-positioned to make a preliminary assessment. This was because, amongst
    other things, there had been a preliminary hearing, which had not occurred in
Sipes
.
Sipes
does not stand for the proposition that it is an error to make a
    preliminary assessment of admissibility in aid of finding the anticipated
    overlapping of evidence between counts militates against severance.

[143]

We reject this
    ground of appeal.

(b)

The Mid-Trial Severance Motion

[144]

During the
    trial, defence counsel for Wisdom sought once again to sever Count 3. Counsel was
    motivated to do so by the admission of bad character or discreditable conduct
    evidence about the accused, namely evidence that Wisdom participated in a
    botched theft of a Money Mart some months after the shooting. Counsel argued
    that, just as had been predicted, the presence of Count 3 had resulted in the
    jury hearing highly prejudicial gang-related evidence that would otherwise have
    been inadmissible on Counts 1 and 2.

[145]

The trial judge
    dismissed the renewed severance motion. The core of his reasoning was that the
    gang-related evidence he admitted in connection with Count 3 was also properly
    admissible in connection with Counts 1 and 2. We will return to his ruling
    below in assessing the discreditable conduct grounds of appeal.

[146]

As explained
    below, we agree with the appellant Wisdom that the so-called Money Mart
    evidence should not have been admitted.

[147]

To the extent
    the trial judge erred in his legal analysis on the renewed severance motion,
    his error related to his assessment of the probative value and prejudicial
    effect of the Money Mart evidence, not to the propriety of severance: see
R.
    v. Arp
, [1998] 3 S.C.R. 339, at para. 52;
Last
, at para. 33. Even
    taking that error into account, the rationale articulated for denying severance
    of Count 3 before trial still applied. There was still ample justification to
    permit Counts 1 and 2 to be tried with Count 3.

[148]

For these
    reasons we reject this ground of appeal.

(3)

The Discreditable Conduct Issues

(a)

Overview

[149]

The appellants
    take issue with the trial judges decision to admit certain bad character or
    discreditable conduct evidence.

[150]

Before trial,
    the trial judge heard an application to address defence requests for the
    exclusion of evidence. The defence raised hundreds of objections to the
    admission of anticipated Crown evidence. To manage this high volume of
    objections, the trial judge decided to follow a procedure in which he would
    rule on the admissibility of several broad categories of evidence, following
    which the parties could reconsider and attempt to settle the outstanding
    objections.

[151]

One important
    category of evidence at issue on the application was the evidence of prior
    discreditable conduct or bad character of the accused.

[152]

The trial judge
    properly held such evidence presumptively inadmissible, but ordered certain bad
    character evidence was admissible for various purposes. One was to prove that
    the appellants committed murder and attempted murder for the benefit of the
    Galloway gang. Therefore, the Crown could adduce evidence of (i) the existence,
    purpose and activities of the Galloway gang, and (ii) the appellants involvement
    in drug trafficking, gun trafficking and robbery offences as members of the
    gang.

[153]

The trial judge
    imposed limits on what evidence the Crown could call on these subjects. He held
    evidence of prior offences must in some way be associated with the gang.
    Further, he imposed a temporal restriction on the proof of offences. Offences
    committed before the Charlton and Bell offences would be sufficiently probative
    only where they occurred reasonably proximate to the time of the shooting.
    Offences committed after the shooting would be generally inadmissible unless
    they were of exceptional probative value.

[154]

The trial judge
    admitted some types of bad character, but excluded others.

[155]

The appellants
    take aim at three different types of bad character evidence the trial judge
    admitted, which we will discuss below. First, the Call Down evidence. Second,
    the Drug Toss evidence. And finally, the Money Mart evidence. For the
    reasons that follow, we agree with the appellant Wisdoms submissions regarding
    the admission of one category of bad character evidence (the Money Mart
    evidence), but not with the balance of the appellants complaints.

(b)

General Principles

[156]

The law in this
    area is well-established and need not be recounted in great detail. In a criminal
    trial, the Crown may adduce evidence of an accused persons bad character if
    that evidence is relevant to an issue at trial (apart from the accuseds mere
    propensity to commit the offence in question) and the probative value of such
    evidence outweighs its prejudicial effect:
R. v. Roks
(2011), 274
    C.C.C. (3d) 1 (Ont. C.A.), at paras. 86  94;
R. v. White
, 2014 ONCA
    64, 305 C.C.C. (3d) 449, at paras. 138  144.

[157]

Significant
    deference is owed to a trial judges assessment of probative value and
    prejudicial effect. An appellate court should only interfere if the trial
    judges analysis is unreasonable, or is undermined by a legal error or
    misapprehension of material evidence:
R. v. James
(2006), 84 O.R. (3d)
    227, 216 O.A.C. 27 (C.A.), at para. 33.

[158]

That said,
    before turning to the evidence the appellants challenge, we make one
    case-specific comment about the legal test for admission of discreditable
    conduct evidence. One of the appellants complaints regarding the trial judges
    admissibility rulings in this case is that, as the trial progressed, the trial
    judge violated a rule he himself set out in the initial admissibility ruling.
    Specifically, the appellants suggest the trial judge stated in his initial
    admissibility ruling that, as a general rule, evidence of discreditable conduct
    occurring
after
the Charlton and Bell shooting
    would be admitted only where it was of exceptional probative value.

[159]

First, we do not
    agree with the appellants characterization of the trial judges ruling. In our
    view, the trial judge did not hold that, as a general rule, evidence of
    discreditable conduct occurring after the shooting would only be admitted where
    it was of exceptional probative value. Rather, he used the phrase
    exceptional probative value to describe several specific examples of evidence
    that he determined
were
admissible.

[160]

Second, in any
    event, while we can see no reversible error in the trial judges description of
    the admissible discreditable conduct, we wish to make clear that there is no
    legal requirement for the Crown to establish evidence of discreditable conduct
    occurring after the charged offences is of exceptional probative value. The
    test remains whether the evidences probative value exceeds its prejudicial
    effect. Of course, as a practical matter, depending on the context of the case,
    a trial judge may properly take into account the temporal connection between
    the discreditable conduct evidence and the charged offences in assessing its
    probative value.

(c)

The Call Down Evidence

[161]

The first
    category of bad character evidence the appellants challenge is the
    admissibility of the so called Call Down or Call #818 evidence. We do not
    accept their challenge to this evidence. The trial judge made no error in
    admitting the evidence, nor in permitting its use at trial. To better
    understand this issue, and our rationale, some background information is
    necessary.

(i)

Background

[162]

Several weeks
    after the Charlton and Bell shooting, another shooting occurred in the Malvern
    area under similar but not identical circumstances. Two young men, Kofi Patrong
    and Chris Hyatt, were shot but survived. Like Charlton and Bell, Hyatt and
    Patrong were not gang members.

[163]

Hyatt and
    Patrong gave a description to police of the vehicle they saw drive away after
    the shooting. The same day, Riley, Atkins, and Marlon Wilson were apprehended
    following a high risk takedown of a vehicle matching that description. Riley
    was charged with attempted murder and all three men were charged with weapons
    offences.

[164]

While in
    custody, Wilson, who has a lengthy criminal record, gave a videotaped statement
    denying involvement and implicating Riley and Atkins in the Hyatt and Patrong
    shooting. He gave subsequent interviews in which he explained Rileys and
    Atkins involvement in the conflict between G-Way and the Malvern crew.

[165]

Pausing here, we
    note that in this case, the Charlton and Bell shooting trial, the trial judge
    ruled that evidence of the Hyatt and Patrong shooting was not admissible in due
    to the high risk of prejudice it might occasion.

[166]

That said, Riley
    and Atkins eventually became aware of Wilsons statements because of a mistake
    in the Crowns disclosure in the Hyatt and Patrong case. Riley made calls to
    others outside of jail in order to arrange for Wilson to be prevented, through
    threats of violence, from testifying at the trial for the Hyatt and Patrong
    case. Unbeknownst to them, their private communications were being intercepted
    pursuant to a judicial authorization.

[167]

Ultimately, the
    intercepts revealed that Riley and his associates arranged for a Call Down:
    Wilson was called to meet with Riley in the jail. The purpose was to intimidate
    him and persuade him to change his story.

[168]

The police
    played recordings of these intercepts to Wilson while he was still in custody.
    After hearing them, he made a statement implicating Riley and Atkins in the
    Charlton and Bell shooting. At the preliminary inquiry, Wilson testified that
    the Call Down described in the intercepted calls did in fact happen, and that
    upon being confronted by Riley, he agreed to change his story.

The Trial Judges Initial Ruling on the Call Down
    Evidence

[169]

The Crown sought
    to admit the intercepted calls in which Riley and his associates discussed the
    Call Down of Marlon Wilson. They said the calls were admissible as part of
    the explanation of Wilsons cooperation with police and to explain any changes
    in Wilsons information, and as evidence of how G-Way worked.

[170]

Specifically,
    the Crown sought to adduce a recording of Call #818, which involved Riley,
    Atkins and Wilson. Wilson was asked to change his story implicating Riley and
    Atkins in the Hyatt and Patrong shooting. Wilson told Riley he would.

[171]

The trial judge
    agreed this evidence had some relevance, but ultimately held that for the most
    part, the prejudicial effect  outweighs its probative value. The intercepts
    involved considerable discussion about violence towards Wilson, and about a
    number of crimes for which Riley and Atkins had been convicted, though the
    trial judge observed that these sections could be edited out.

[172]

However, the
    trial judge did permit Wilson to testify that as a result of a confrontation
    with Riley in jail, Wilson became aware Riley knew he was informing, and that
    he agreed to change his story in response to his interaction with Riley.

[173]

The trial judge
    held the intercepts could not be played. However, he observed that it was
    possible he could revisit this ruling later as events developed at trial,
    including if counsel suggest[s] that there was no such meeting with Riley.

[174]

The trial
    judges initial ruling on this subject is not challenged on appeal. However,
    subsequent events caused the trial judge to revisit the ruling.

Wilsons Evidence at Trial and the Trial Judges Response

[175]

Wilson appeared
    at trial and initially refused to answer any questions.  He returned days
    later, but testified that his entire testimony at the preliminary hearing was a
    lie. In particular, he repudiated his prior testimony implicating Riley and
    Atkins in the Charlton and Bell shooting. He also denied that the Call Down
    conversation at the jail had ever occurred.

[176]

As a result, pursuant
    to s. 9(1) of the
Canada Evidence Act
, R.S.C., 1985, c. C-5, the trial
    judge declared Wilson a hostile witness and permitted the Crown to
    cross-examine him at large.

[177]

The trial judge
    also reconsidered his initial ruling
 that the
    intercepts could not be played 
and permitted the jury to hear the
    recording of Call #818. Since Wilson now denied that he became aware that Riley
    knew he was informing against him in another matter, that Riley was displeased
    about it, and that he told Riley he would change his story, the trial judge
    held Call #818 could now be used for the very limited purpose of challenging
    Wilson on this issue.

[178]

The call was
    edited extensively to remove prejudicial and irrelevant information such as
    reference to the Hyatt and Patrong shooting.

(ii)

Analysis

[179]

The appellants
    take the position that Call #818 should not have been admitted because its
    prejudicial effect outweighed its probative value. In particular, they submit
    that the admission of the evidence put them in a Catch-22. That call related
    only to the Hyatt and Patrong shooting. On the one hand, by explaining this to
    the jury, the appellants would make the jury aware of the other charges Riley
    and Atkins faced, risking moral and reasoning prejudice. But without any
    explanation of the call, the jury could only have concluded, erroneously, the Call
    Down was about the Charlton and Bell shooting.

[180]

We do not agree.
    We see no basis to interfere with the trial judges decision.

[181]

The trial judge
    fully appreciated the potential prejudice flowing from the call. For that
    reason, he did not admit it until it was clearly necessary to challenge
    Wilsons changed evidence on a critical point. Even then, the call was edited
    to remove instances of Riley directing, pressuring and threatening Wilson in
    respect of his evidence. The trial judge struck a reasonable balance in doing
    so.

[182]

Further, the
    Catch-22 the appellants describe did not really materialize. In closing
    submissions, defence
and
Crown counsel pointed out
    to the jury that Call #818 did not relate to the Charlton and Bell shooting.
    Counsel for Riley pointed out to the jury that Call #818 took place some months
    before Wilsons first statement to the police about the Charlton and Bell
    shooting, and therefore could not have related to that shooting. Counsel never
    had to tell the jury about the Hyatt and Patrong shooting to make this point.

[183]

In our view, the
    most likely interpretation that the jury would make of the redacted recording
    was that it: (i) supported the assertions that Wilson and Riley were members of
    the same gang; (ii) that Riley held a senior position in the gang; and (iii)
    that Wilsons inconsistent evidence likely reflected Wilsons wavering between
    protecting himself by cooperating with the police and protecting himself by
    maintaining good relations with Riley and Atkins. In sum, the jury would not
    infer from this recording that Riley and Atkins were guilty of the Charlton and
    Bell shooting.

[184]

Consequently, we
    reject this ground of appeal.

(d)

The Drug Toss Evidence

[185]

The second
    category of bad character evidence the appellants challenge is the so-called
    Drug Toss evidence. Again, we do not give effect to this challenge.

(i)

Background

[186]

As we have said,
    the Crowns case against the appellants rested heavily on the testimony of two
    G-Way members, Roland Ellis and Marlon Wilson, who testified, amongst other
    things, that the appellants confessed their involvement in the Charlton and
    Bell shooting to them in the hours after it occurred. The Drug Toss evidence
    related to Ellis relationship with Riley.

[187]

While the
    investigation of the Charlton and Bell shooting was underway, Riley was in
    detention in relation to the Hyatt and Patrong shooting. As we have mentioned,
    a justice had authorized interception of Rileys private communications while
    in jail. Through this surveillance, the police discovered that Ellis had, on
    one occasion, delivered drugs to Riley in jail by tossing contraband over the
    jails fence. When Riley asked him to do so a second time, Ellis refused,
    claiming that he had not received the promised compensation for the first
    delivery. According to Ellis, Riley then threatened his life. On another
    occasion, intercepts showed Riley discussing killing Ellis because Ellis had
    refused to assume criminal responsibility for some drug charges against Riley
    (these charges were not related to the convictions on appeal).

[188]

At trial, the
    Crown took the position that the evidence of (i) the two drug tosses, (ii)
    Ellis refusal to do the second drug toss, and (iii) his refusal to take
    responsibility for the drug charges, followed by (iv) the threats Riley made
    against Ellis were essential to an understanding of the breakdown in the
    relationship between Ellis and Riley, and the decision made by Ellis to
    cooperate with the police and ultimately to testify for the Crown.

[189]

The trial judge
    agreed, finding that the very high probative value of this evidence
    outweighed its prejudicial effect. Further, he noted the evidence cuts two
    ways. He stated that in addition to explaining Ellis cooperation, it also
    demonstrates an animus on his part towards Riley, which may undermine his
    credibility. He observed that he found it hard to imagine how the accused
    could cross-examine Ellis without touching on some of the evidence that they
    challenge.

(ii)

Analysis

[190]

On appeal, the
    appellant Riley argues that the trial judge should have excluded this evidence
    because it was not relevant to avenging Allens death, nor was it factually or
    legally connected to the Charlton and Bell shooting.

[191]

We disagree.
    Rileys argument on this point casts relevance too narrowly. The trial judge
    acknowledged that this evidence did not directly relate to the elements of the
    offence, but nonetheless found its probative value to be very high. We can
    see no error in that assessment.

[192]

Ellis was a gang
    witness, testifying against members of his own gang, whose motivations were
    central to the trial. The Drug Toss and related evidence were critical in
    explaining how he came to be a witness, without which the jury would have had
    difficulty understanding his involvement. And the trial judge properly took
    into account, in assessing the prejudicial impact of this evidence, that it
    could also be used to assist the defence.

[193]

We, therefore,
    do not accept this ground of appeal.

(e)

The Money Mart Evidence

[194]

The third
    category of bad character evidence challenged is evidence of an attempted
    theft/robbery at a Money Mart store in which Wisdom participated four months
    after the Charlton and Bell shooting.

[195]

By and large we
    agree with Wisdoms position on this issue. For the reasons that follow, we
    conclude that this evidence should not have been admitted and a new trial must
    be ordered for Wisdom.

[196]

We do not,
    however, agree with the appellant Riley that the admission of the Money Mart
    evidence also occasioned prejudice to him and Atkins; the trial judges error
    in admitting the Money Mart evidence does not justify ordering a new trial
    for either of them.

[197]

Before turning
    to our reasoning for these conclusions, we begin by setting out the treatment
    of this evidence in the court below.

(i)

Background

The Pre-Trial Application

[198]

The trial judge
    held the Crown could adduce evidence of an attempt to steal $100,000 from a
    Money Mart in Pickering on July 9, 2004, some four months after the Charlton
    and Bell shooting, while Riley and Atkins were in jail in connection with the
    Hyatt and Patrong shooting. The girlfriend of a Galloway member had arranged an
    inside job with an employee at the Money Mart. Four Galloway members,
    including the appellant Wisdom, were in on it.  But wiretap intercepts tipped
    the police off. They read most of the text messages and listened in on most of
    the calls in which the scheme was discussed. In the end, the police were there
    to stop it before it happened.

[199]

The trial judge
    held evidence of this incident was of great probative value on the criminal organization
    count because it was a microcosm of how the criminal organization works. It
    demonstrated the organized nature of the gang, and how its members could
    mobilize quickly to take advantage of an opportunity to commit a crime. As for
    the prejudice to Wisdom, the trial judge held it was not terribly
    discreditable, and it was not likely that the jury would infer from his
    participation in a botched robbery that he committed a murder. The trial
    judges biggest concern was that the evidence would be time consuming and a
    distraction  but not excessively so.

[200]

Consequently,
    the trial judge held the Crown could adduce evidence of the Money Mart incident
    and Wisdoms involvement in it.

The Money Mart Evidence at Trial

[201]

The Money Mart
    evidence came in through the testimony of Roland Ellis, as well as through
    police testimony and wiretap recordings. Wisdom also testified and generally
    confirmed the account of the Money Mart incident the other evidence
    established.

[202]

On July 9, 2004,
    Sheldon Nugent, a G-Way member, heard from his girlfriend, Megan Brinton, about
    an opportunity extended to her by a Money Mart employee named Merissa. Merissa offered
    to facilitate the theft of $100,000 in the Money Mart safe after the store
    closed. On intercepted calls between 12:30pm and 4:00pm, Nugent and Brinton
    discussed the offer. In addition to the practical details, they also discussed
    an offer from Merissa (in exchange for a larger share of the proceeds) to take
    a shot in the foot or to have a gun held to her head during the crime in
    order to make it appear more genuine on security footage.

[203]

That evening,
    Nugent met with several G-Way members, including the appellant Wisdom and
    Roland Ellis. Nugent is said to have described the plan. Ellis testified that
    Nugent described it as a grime (street parlance for a robbery). Wisdom
    testified Nugent told them it would be a simple pick up of easy money.
    Ultimately, Wisdom was included in the group participating in the Money Mart
    theft  Ellis was not.

[204]

The Money Mart
    was set to close around 9:00pm. The G-Way members, including the appellant
    Wisdom, arrived in a car together around 8:50pm and stopped in a laneway behind
    the store. After some observation of the Money Mart and communication between
    Nugent, Brinton and Merissa, the G-Way members exited their car and began to
    move towards the Money Mart.

[205]

The police
    stopped the Money Mart theft before it happened. When they arrested the
    participants and searched their vehicle, they found no firearms or others
    weapons.

Renewed Severance Application

[206]

After the trial
    judge admitted the Money Mart evidence in his pre-trial omnibus admissibility
    ruling, the defence renewed its application for severance of Count 3.

[207]

As we have said
    above, the trial judge properly rejected the renewed severance application. In
    the course of that application, however, he made two comments regarding the
    Money Mart evidence that are relevant to the present analysis.

[208]

First, during
    defence counsels submissions, the trial judge noted you rightly point out
    its a bit of an overstatement to call this a botched robbery. Its more of a
    botched theft. He reiterated that comment in his ruling, and used it as a
    basis for stating that the prejudicial effect of the Money Mart evidence was
    not high.

[209]

Second, during
    his ruling, he stated:

I have found that the Money Mart evidence is admissible on all
    counts, and that the probative value of the Money Mart evidence outweighs its
    prejudicial effect. I would reach that same conclusion in respect of Counts 1
    and 2 if they stood alone. While I would agree with [defence counsel], and said
    so in my ruling, that the probative value of the Money Mart evidence is not as
    great in respect of Counts 1 and 2, I am satisfied, nonetheless, that it does
    have significant probative value on those counts.

(ii)

Analysis

[210]

As we have said
    above, significant deference is owed to a trial judges assessment of probative
    value and prejudicial effect. In our respectful view, however, the trial
    judges assessment of the Money Mart evidence was flawed. While it had some
    relevance to the three counts in the indictment, its probative value was
    significantly outweighed by its prejudicial effect as it relates to Wisdom. The
    trial judge should not have admitted it. We come to this conclusion for two
    interrelated reasons.

[211]

First, the trial
    judges assessment of the probative value.

[212]

Respectfully, we
    disagree with the trial judges conclusion that the Money Mart evidence had
    considerable probative value on Counts 1 and 2. In our view, in respect of
    those counts alone, it had nothing more than marginal value, consisting as it
    did of evidence of unrelated criminality that formed no part of the narrative
    of the Charlton and Bell shooting. It was not capable, even as one of several
    pieces of circumstantial evidence, of establishing motive to commit Counts 1 and
    2, nor of proving any other aspect of the Crowns case on those counts.

[213]

With respect to
    Count 3, however, the trial judge made no error in finding the Money Mart
    evidence met the test of
threshold
relevance. It
    was capable of establishing Wisdom was a member of the G-Way gang, and it could
    help establish G-Ways status as a criminal organization. The Crown needed to
    establish both in order to prove Count 3.

[214]

That said, in
    our respectful view, the evidence could go no further than that. It simply did
    not have the great probative value the trial judge accepted it to have. The
    trial judge appears to have accepted the trial Crowns submission that this
    incident provided a microcosm of how the criminal organization works, showing
    how the members of the gang, including Wisdom, could mount fast-paced,
    sophisticated operations on very short notice. Respectfully, that submission
    was without foundation, and the trial judge was led into error in relying on
    it.

[215]

In reality, all that
    the Money Mart incident showed was this: a small number of young people took
    advantage of a very straightforward opportunity to steal money. The
    organizational effort required nothing more than a series of phone calls and
    text messages. Far from showing a deep level of organization and trust, this
    evidence primarily demonstrated that Wisdom and his compatriots were quick to
    take advantage of a perceived opportunity to make easy money through low-level
    criminal activity. In other words, it primarily proved they were the sort of
    people willing to commit crimes.

[216]

Unlike other
    discreditable conduct evidence adduced at trial, discussed above, it said
    almost nothing about the appellants involvement in the Charlton and Bell
    shooting. As the Crown rightly points out, the Drug Toss evidence went to
    animus and to the narrative explanation of Ellis participation in the case.
    The Call Down evidence served a similar function. The Money Mart evidence
    could do nothing of the sort. Nor could it say anything about the ongoing turf
    war between G-Way and the Malvern crew, nor the appellant Wisdoms alleged
    involvement in that war. It could not be used to ground an inference that
    Wisdom committed Counts 1 and 2 at the direction of or for the benefit of a
    criminal organization.

[217]

As we have said,
    at its highest, this was evidence of the existence of the gang and that Wisdom
    was a member. It could go no further than that. Consequently, in our view, it
    was not reasonable for the trial judge to find the evidence had great
    probative value on Count 3, particularly given those facts were admitted by
    Wisdom in his testimony.

[218]

Second, the
    trial judge significantly underestimated the evidences potential prejudicial
    effect.

[219]

In his pre-trial
    ruling, the trial judge held the evidence was not terribly discreditable, because
    it was not likely that the jury would infer from his participation in a
    botched robbery that he committed a murder. Before this court, Crown counsel
    similarly argued the evidence had either zero or very limited prejudicial
    effect.

[220]

To begin, in our
    view, this reasoning discounts the overall danger of moral prejudice associated
    with discreditable conduct evidence. We accept that this bad character evidence
    is not as serious as the conduct alleged in the indictment, and therefore less
    prejudicial than evidence of, for example, another murder (such as the Hyatt
    and Patrong shooting). But bad character evidence about the accused is
    presumptively inadmissible precisely because there is always the risk the jury
    will engage in impermissible propensity reasoning. This evidence showed Wisdom
    to be a bad person who was willing to commit theft of a large amount of money
    on short notice. There is serious prejudice associated with that evidence that
    must be given appropriate weight in the analysis, especially in light of the
    minimal probative value of the evidence.

[221]

Further, the
    Money Mart evidence included highly discreditable conduct by others that
    besmirched Wisdoms character by virtue of his association with them. Wiretap
    transcripts entered as exhibits at trial reflected conversations between
    Brinton and Nugent, two of the G-Way members involved in the Money Mart
    incident. In those calls, they discussed the possibility of having the female
    inside employee at the Money Mart agree to being shot in the foot, or to
    having a gun held to her head, to make the crime look more genuine. They also
    discussed bust[ing] the fucking back door for the same purpose. Wisdom was
    not involved in these discussions of potential violence or gun violence
    specifically. Nor was there evidence that he was even aware of the contents of
    these conversations. Nonetheless, they went before the jury as discussions of
    his compatriots in the Money Mart incident, with whom he was associated. This
    aspect of the evidence heightened the risk of impermissible propensity
    reasoning by the jury.

[222]

Finally, beyond
    moral prejudice, this evidence created a collateral sideshow to which Wisdom
    was forced to respond. A significant portion of his testimony, including his
    cross-examination, was devoted to exploring his understanding of the term
    robbery, and whether a robbery involved violence or threats of violence.
    The Crown made much of Wisdoms statement that he did not commit robberies or
    see robberies committed, given that he admitted the Money Mart incident was a
    grime, which in street parlance is a robbery. Although Wisdoms evidence
    regarding Money Mart remained generally consistent  that it was simply an
    opportunity to pick up some easy money and that no violence was used  it is
    unsurprising Wisdoms credibility was undermined by Wisdom being forced into a
    semantic debate regarding legal terminology with an experienced Crown
    prosecutor in cross-examination. This was nothing more than a distraction from
    the real issue at trial.

[223]

We note parenthetically
    that the Money Mart evidence, while strongly prejudicial, was not essential to
    the Crowns case. Wisdoms membership in the Galloway Boyz was established
    elsewhere in the evidence. As we have said, at its highest, this evidence only
    showed he was a member of G-Way and willing to commit crimes with members of
    the gang. There were a variety of other sources of evidence the Crown called at
    trial implicating Wisdom and the other appellants in G-Ways activities.  For
    those reasons, in our view, the evidence should not have been admitted.

[224]

In coming to
    this conclusion, we acknowledge that the trial judge made appropriate and
    repeated instructions to the jury regarding the limited purposes for which
    discreditable conduct evidence could be used. We also acknowledge that defence
    counsel had ample opportunity in the closing arguments to emphasize the limited
    value of this evidence, and did so. In our view, however, neither of these were
    sufficient to cure the prejudice flowing from admitting the Money Mart
    evidence.

[225]

We say this in
    large measure because the Crowns case against Wisdom, unlike its case against
    Riley and Atkins, was not strong. The only evidence against him was that of a
    sole
Vetrovec
witness, Ellis. Wilsons evidence did not implicate
    Wisdom, as it did Riley and Atkins. The Crowns case against Wisdom lacked the
    kind of strong circumstantial evidence that it had against Riley and Atkins
    (including DNA, ballistics, and post-offence conduct evidence discussed below).
    Wisdom called alibi evidence and testified in his own defence. In light of
    these factors, the bad character evidence against him may have been enough to
    tip the scales in the minds of the jurors. Even if one presumes, as courts
    ought to, that a jury will be attentive to and abide by the instructions given
    to it, one cannot escape the possibility that  even unconsciously  the Money
    Mart evidence played a role in the jurys assessment of whether Wisdom was
    telling the truth when he got in the witness box and testified he was not involved.

[226]

With respect to
    the curative proviso, Crown counsel admitted she could not say excluding this
    evidence would not have had an impact on the result with respect to Wisdoms
    conviction. We agree. Consequently, we would decline to apply the proviso with
    respect to Wisdoms conviction. A new trial must be ordered for him.

[227]

Counsel for
    Riley submitted that the erroneous admission of the Money Mart evidence
    should also result in a new trial for Riley and Atkins. We do not agree.

[228]

The Money Mart
    incident related solely to Wisdom. Riley and Atkins were not involved (in fact,
    they were in jail at the time). The Crown did not attempt to use this evidence
    against them in any significant way. Unlike Wisdom, it is difficult to imagine
    how the jury could have relied on the Money Mart evidence to the detriment of
    Riley and Atkins, except as evidence that G-Way existed and was a criminal
    organization, which, as we have noted, was amply established elsewhere and was
    not seriously contested.  To the extent that Riley and Atkins suffered any
    remote form of prejudice as a result of bad character evidence being adduced
    about their co-accused, we find it would be appropriate to apply the curative
    proviso.

[229]

Given our
    conclusion that the Money Mart evidence should not have been admitted, it is
    unnecessary to consider whether the instructions on the Money Mart evidence
    were flawed.

(4)

Ballistics Evidence Issues

[230]

The appellants
    next ground of appeal is that the trial judge erred in admitting evidence from
    two ballistics experts. They also say he erred in his charge relating to that
    evidence. We disagree.

(i)

Background

[231]

Marlon Wilson
    gave evidence that he obtained a Glock .357 in a robbery in February or March
    2003 and gave it to Atkins. Intercepts led the police to search the apartment
    of one of Rileys girlfriends, where they found a Glock .357 with live
    ammunition in a shoebox. The gun had both Wilson and Atkins DNA on it and it
    was wrapped in a plastic bag that had the girlfriends fingerprint on it. In
    addition, Ellis said that the gun looked like one Atkins showed him in the
    hours after the shooting.

[232]

At trial, the forensics
    experts testified that (i) it was possible, but not certain, that the Glock
    .357 found in the apartment was one of the guns used in the shooting, and (ii)
    it had traces of Atkins DNA on it.

(ii)

Analysis

[233]

The appellants
    contend this evidence was inadmissible for two reasons: it was irrelevant and,
    alternatively, its prejudicial effect outweighed its probative value. We do not
    agree.

[234]

The central
    issue at trial was the identity of the shooters.  Expert evidence comparing the
    bullets recovered from the scene of the shooting to a gun seized from the
    apartment of one of the accuseds girlfriends, with another accuseds DNA on
    it, was relevant to identity as well as means.

[235]

The evidence
    that the police seized a Glock .357 from the apartment of one of Rileys girlfriends,
    along with the presence of Atkinss DNA on the same gun, would, at the least,
    support an inference that Riley and Atkins had access to guns, and that a
    particular gun to which two of the three accused had a connection was,
    possibly, though not necessarily, used in the shooting. This coincidence
    properly could serve as circumstantial evidence that Riley and Atkins had
    access to a necessary tool to commit the offence, and therefore could support
    findings on means to commit the crime and identity. Consequently, it was
    clearly relevant and probative. Further, the appellants have not satisfied us
    that this evidences prejudicial effect, if any, was sufficient to justify
    interfering with its admissibility on appeal. We are not persuaded that there was
    a significant risk the jury would misuse this evidence.

[236]

The appellants also
    take issue with the portions of the jury charge relating to the ballistics
    evidence. They submit the trial judge went too far in instructing the jury that
    the ballistics evidence was capable of supporting a conclusion that Riley and
    Atkins had the means to commit the offences, and in stating that it was
    possible that the .357 Glock was used in the shooting. Again, we do not
    agree.

[237]

The trial
    judges description of the expert evidence in the charge was cautious and true
    to the experts testimony. Further, all counsel emphasized the limits of the
    ballistics evidence in closing submissions. We do not see any merit in the
    suggestion that the jurors would have relied on the ballistics evidence for
    more than it was capable of establishing.

(5)

The
Vetrovec
Instruction Issues

[238]

The appellants
    take issue with the trial judges
Vetrovec
instruction. Numerous
    errors are alleged. First, the trial judges instructions ran afoul to the
Perciballi
rule
: R. v. Perciballi
(2001), 54 O.R. (3d) 346 (C.A.), affirmed 2002
    SCC 51, [2002] 2 S.C.R. 761. Second, the trial judge erred in leaving certain
    evidence as potential confirmation. Third, the trial judge erred in failing to
    instruct that the
Vetrovec
warning did not apply to the exculpatory
    portions of Wilsons evidence. Finally, it is alleged that the trial judge
    erred in failing to instruct the jury on the lack of demeanour evidence.

[239]

For the reasons
    that follow, we conclude the trial judge made no reversible error in his
    charge.

(a)

General Principles

[240]

The law requires
    a clear and sharp warning to the jury regarding the dangers of convicting based
    on the unconfirmed testimony of an unsavoury witness:
R. v. Vetrovec
,
    [1982] 1 S.C.R. 811. As the Supreme Court held in
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104, at para. 37, the
Vetrovec
caution will
    generally be adequate if it does the following: (1) identify for the jury the
    testimonial evidence requiring special scrutiny; (2) explain why it is subject
    to special scrutiny; (3) caution the jury that it is dangerous to convict on
    unconfirmed evidence of this sort, though the jury is entitled to do so if
    satisfied the evidence is true; and (4) explain that the jury, in determining
    the veracity of the suspect evidence, should look for evidence from another
    source tending to show that the untrustworthy witness is telling the truth as
    to the guilt of the accused.

[241]

As this court
    held: Whether an item of evidence is capable of confirming the evidence of
    another witness, and whether the jury should accept it as doing so, are two
    different questions:
R. v. Kostyk
, 2014 ONCA 447, 321 O.A.C. 256, at
    para. 76. The evidence must confirm material aspects of the evidence of the
Vetrovec
witness: it need not implicate the accused in the commission of the offence,
    but as a whole, should give comfort to the jury that the witness can be
    trusted in his or her assertion that the accused is the person who committed
    the offence:
Khela
, at paras. 42  43.

[242]

Considerable
    deference is owed to the trial judge as to how the
Vetrovec
caution is
    to be framed:
R. v. Bradey
, 2015 ONCA 73, 127 O.R. (3d) 721, at para.
    134. By the same token, this court must read the charge as a whole in assessing
    the adequacy of the
Vetrovec
caution:
R. v. Zebedee
(2006),
    81 O.R. (3d) 583 (C.A.), at paras. 83  84, leave refused [2006] S.C.C.A. No.
    461.

(b)

The Rule in
Perciballi


(i)

General
    Principles

[243]

The
Perciballi
rule is that in a joint trial, out-of-court statements made by one
    co-accused cannot be used as confirmatory evidence of a
Vetrovec
witness
    testimony against the other co-accused. The rule is animated by fairness
    concerns: the accused cannot cross-examine his or her co-accused on his or her
    out of court statements, which would not usually be admissible were the accused
    tried separately.

[244]

Before turning
    to the specifics of the error alleged in this case, we note the
Perciballi
rule is nuanced and can be difficult to apply. In
R. v. Rojas
, 2008
    SCC 56, [2008] 3 S.C.R. 111, at para. 25, Charron J. noted that notwithstanding
    the
Perciballi
rule, it was permissible for the jurys assessment of
    the overall credibility of the [
Vetrovec
] witness to be influenced in
    some way by the totality of the evidence that they have heard, including
    evidence relating solely to one co-accused. It can sometimes be difficult to
    discern the line between impermissible confirmatory use of a co-accuseds
    hearsay statement, on the one hand, and permissible consideration of the
    totality of the evidence in assessing credibility, on the other.

[245]

Examining the
    facts of
Perciballi
and
Rojas
may help clarify where the line
    is drawn.

[246]

In
Perciballi
,
    Angelo and Antonio were on trial together. DeFrancesca was a Crown
Vetrovec
witness. Coiro was an ordinary Crown witness. Coiro testified about a statement
    Angelo made out of court. In that statement, Angelo said that Antonio made a
    certain phone call. Of course, that statement was admissible against the
    declarant, Angelo. However, Charron J.A. (as she then was) held that it could
    not be used to corroborate the direct evidence of DeFranesca that Antonio made
    the phone call described in Angelos out of court statement. The trial judge
    erred in instructing the jury they could use the out of court statement of
    Angelo to corroborate the
Vetrovec
evidence against Antonio.

[247]

By contrast, in
Rojas
,
    the defence argument was more indirect. Miguel and Hugo were co-accused.
    Miranda was a Crown
Vetrovec
witness. Miranda testified regarding out of
    court statements made by each of Miguel and Hugo. At no point did the trial
    judge tell the jury they could use the statements of Hugo to confirm Mirandas
    evidence on matters involving Miguel, or vice versa: at para. 3. In fact, the
    trial judge instructed the jury to the contrary. But other pieces of
physical
evidence were used to corroborate Mirandas
    hearsay evidence, so the defence argued that his overall credibility was seemingly
    bolstered by evidence inadmissible against each of them separately. Charron J.
    in
Rojas
refused to extend the reasoning of
Perciballi
to
    such a situation, holding, at para. 25:

It is one thing for a jury to be expressly directed, as was
    done in
Perciballi
, to consider an out-of-court statement admissible
    only as against one accused in reaching its decision concerning the other. Such
    a direction would result in an impermissible use of the out-of-court statement.
It is quite another matter, however, for the jurys
    assessment of the overall credibility of the witness to be influenced in some
    way by the totality of the evidence that they have heard, including evidence
    relating solely to one co-accused
. The latter is inevitable, given the
    intangible nature of any credibility assessment. [Emphasis added].

[248]

In other words,
    the underlying logic in
Perciballi
cannot be extended to require the
    jury to artificially compartmentalize its assessment of a
Vetrovec
witnesss credibility. The jury is not required to discount the fact that a
    witnesss overall credibility may have been bolstered by the evidence
    concerning a co-accuseds out of-court hearsay statements. The issue is whether
    the jury understood that the hearsay statements were only admissible against
    the declarant co-accused:
R. v. Salah,
2015 ONCA 23, 328 O.A.C. 333,

at para. 113.

(ii)

Analysis

[249]

The central
    issue at trial was identity. The Crowns case on identity, as we mentioned
    earlier, largely rested on the evidence of two G-Way insiders  Marlon Wilson
    (who gave testimony against the appellants at the preliminary inquiry but
    recanted at trial) and Roland Ellis (who did not recant). The trial judge
    declared Wilson a hostile witness under s. 9(1) of the
Canada Evidence Act
and
    an edited version of his testimony from the preliminary inquiry was admitted at
    trial for the truth of its contents.

[250]

According to the
    evidence of Wilson and Ellis, while they were
each
at a gathering at an apartment of a person known as Smokey
at different times
, all three appellants confessed
    to the shooting of Charlton and Bell within hours of its occurrence. Wilson
    testified that Riley and Atkins confessed to him about shooting two occupants
    in a Neon earlier in the day. Ellis said that Wisdom confessed to him about
    doing the same.

[251]

Each of
Ellis and Wilsons descriptions of what
    happened at Smokeys included that: (1) Riley and Atkins were in attendance;
    (2) the television was on Channel 24; and (3) the news of the shooting evoking
    a reaction, confirmed each other.

[252]

The question is
    not whether this evidence was capable, standing alone, of restoring the jurys
    faith in each witnesss testimony implicating the appellants. Rather, the
    question is: considered within the whole body of confirmatory evidence for both
    witnesses, were their descriptions of what happened at Smokeys capable of
    restoring the jurys faith in each others evidence?

[253]

The trial judge
    properly charged the jury on the need to consider potential confirmatory
    evidence, and that confirmatory evidence must be independent and material. He
    then charged that, by way of example, Ellis testimony could potentially be
    confirmed by two pieces of evidence: (1) the channel 24 evidence and (2) the
    .357 Glock evidence.

[254]

Pausing here,
    one of the appellants other complaints regarding the
Vetrovec
charge
    in this case is that the trial judge overstated or misstated the confirmatory
    nature of the Channel 24 evidence. The appellants take issue with specific
    wording choices the trial judge employed in describing the level of similarity
    and difference in the evidence of Wilson and Ellis  inconsistencies described
    as slightly different; similarities described as too great to be the product
    of coincidence. We decline to engage in a line-by-line review of the trial
    judges diction. Reading the charge as a whole, we see no error in how the
    trial judge described the Channel 24 evidence.

[255]

Returning the
Perciballi
issue, the appellants submit the trial judge committed a
Perciballi
error in pointing to the Channel 24 and .357 Glock evidence as potentially
    confirmatory. We do not agree.

[256]

There are some
    similarities between this case and
Salah
, where this court declined to
    overturn a conviction on the basis of an alleged
Perciballi
error.

[257]

In
Salah,
Salah,
    Parish and McDowell were co-accused in a murder and arson case. McDowell pled
    guilty to manslaughter but not guilty to first degree murder, and called no
    evidence at trial, doubtless because he had admitted acts amounting at least to
    manslaughter in a statement to the police. S.C. was a Crown
Vetrovec
witness. S.C. testified regarding, amongst other things, an out of court
    confession by McDowell. The Crown invited the jury to use McDowells confession
    to the police as corroboration of aspects of S.C.s testimony that incriminated
    Salah and Parish. The trial judge instructed the jury in accordance with the
    Crowns invitation. The defence advanced an appeal based in part on the
Perciballi
rule.

[258]

This court held
    there was no reversible error in the trial judges charge. The trial judge
    explicitly charged the jury that hearsay statements of one accused were
    inadmissible as against a co-accused, and at para. 123, Watt J.A. held:

The portions of McDowells statement referenced in the Crowns
    jury address related primarily to S.C.s credibility as it affected McDowells
    implication in the offences. The portions of McDowells statement were not left
    to the jury as generally confirming S.C.s evidence. Some portions that might
    have been taken as referring to all three appellants were minor and would not
    have affected the verdict in respect of Salah and Parish. In the circumstances,
    it was unnecessary for the trial judge to expressly direct the jury not to use
    these portions of Crowns jury address. [Emphasis removed].

[259]

As in
Salah
,
    in this case the trial judge properly instructed the jury (elsewhere in the
    charge) that hearsay statements of one co-accused were inadmissible against the
    other. And the trial judge did not commit the error found by the court in
Perciballi
 he did not explicitly invite the jury to use the hearsay statements of Riley
    and Atkins to corroborate some specific aspect of Ellis testimony against
    Wisdom.

[260]

The trial judge
    listed the aspects of Ellis and Wilsons accounts that were confirmatory of
    each other. He did not include Rileys and Atkins utterances to Wilson in the
    list of confirmatory aspects of this evidence. The jury would not have treated
    those utterances as confirmatory of Ellis evidence implicating Wisdom and
    would not have understood the trial judge to mean they could use Rileys or
    Atkins utterances to Wilson at Smokeys as confirmatory of Ellis evidence
    about Smokeys.

[261]

Even if the
    trial judges instructions left the jury with uncertainty about how to use
    Riley and Atkins out-of-court statements, it would have been resolved by the
    trial judges unequivocal instructions that they could not use the out-of-court
    statements of one co-accused against another.

[262]

It was perfectly
    proper for the jurys overall assessment of Ellis and Wilsons credibility to
    be impacted by the totality of the evidence it heard, including evidence
    relating solely to Riley and Atkins: see
Salah
, at para. 122.

[263]

Finally, the
    trial judge made no error in pointing to the .357 Glock evidence as
    potentially confirmatory evidence. As in
Rojas
, the fact that a
Vetrovec
witness credibility may be enhanced when physical evidence corroborates
    hearsay statements by a co-accused is insufficient to trigger the
Perciballi
rule.

[264]

In our view, the
    trial judge made no error in pointing to the .357 Glock and the Channel 24
    evidence as potentially confirmatory evidence. The jury would have understood
    that the hearsay statements were only admissible against the declarant
    co-accused. We do not give effect to this ground of appeal.

(c)

Alleged Misstatement of Confirmation of Impala Evidence

(i)

Background

[265]

Counsel for
    Atkins, supported by the other appellants, argues the
Vetrovec
caution
    was deficient because the trial judge improperly pointed out potential
    corroboration on what was referred to as the Impala evidence. We do not
    agree.

[266]

To begin, some
    background. An eyewitness to the Charlton and Bell shooting, Y.B. (whose name
    is subject to a publication ban), said that she saw a dark SUV pull up next to
    a smaller blue car at the intersection of Neilson and Finch. She then heard
    pops, followed by smoke and an alarm coming from the smaller car. She thought
    that the dark SUV was a Pathfinder.

[267]

Wilson gave
    evidence that, while on the balcony at Smokeys, Riley and Atkins explained
    that they had been following a man they thought was Ras-P. They followed him
    until Neilson and Finch, when they got out of the car and shot him. Wilson
    testified that Riley and Atkins followed their target in two cars, a Pathfinder
    and an Impala. The Impala was Wilsons vehicle and the Pathfinder was Rileys.

[268]

Video from an
    external security camera at a nearby business showed the victims blue Neon
    being followed by two cars  a dark coloured Pathfinder and a light coloured
    Impala.

[269]

The trial judge
    instructed the jury that the expert identification of an Impala in the security
    video was capable of confirming Wilsons evidence that he was told an Impala
    was used in the shooting.

(ii)

Analysis

[270]

The appellants
    make two complaints about the trial judges
Vetrovec
confirmation charge
    on this evidence. We agree with neither.

[271]

First, they
    contend that the Impala evidence could not be a point of confirmation for
    Wilsons evidence because it would have been open to the jury to find Wilson
    had heard about the Impala from someone other than Riley or Atkins, since the
    use of this vehicle in the shooting was public knowledge. Respectfully, this
    submission turns confirmation on its head. We agree that it would have been
    open to the jury to find that Wilsons evidence on the Impala could not be
    relied on because of possible tainting. We also agree that Wilsons
own evidence
was not independent confirmation of his own
    testimony. But the trial judge did not charge to that effect. The confirmatory
    evidence in this case was the
video footage
. That
    was clearly independent of his testimony and could potentially confirm it.

[272]

Second, the
    appellants submit that Wilsons evidence about the Impala being used in the
    shooting was based on inadmissible hearsay rumours from others. They point to
    extracts from Wilsons testimony in which he states everyone there knew that
    they were using the cars because after that, that night I didnt even want to
    drive my car no more and submit this suggests that his knowledge came from
    unidentified third parties. We do not accept this submission. We agree with the
    Crown that Wilsons evidence, read in context, suggested Riley and Atkins were
    the ones who told Wilson that the Impala was used in the shooting.

[273]

We see no
    reversible error in the trial judges charge on this subject.

(d)

Application of the
Vetrovec
Caution to All of Wilsons Evidence

[274]

Marlon Wilson
    gave evidence that was both inculpatory (his preliminary hearing testimony) and
    exculpatory (his trial evidence).

[275]

The appellants
    say the trial judge erroneously failed to charge the jury that the
Vetrovec
caution only applied to the inculpatory aspects of Wilsons testimony.

[276]

In our view, it
    would have been desirable for the trial judge to more clearly emphasize that
    the instruction to search for independent confirmation
did
    not
apply to the exculpatory portions of Wilsons evidence:
R. v.
    Rowe
, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 34;
R. v. Murray
,
    2017 ONCA 393, [2017] O.J. No. 2529, at para. 125. That said, the trial judges
    charge, read as a whole, would not have given the impression that independent
    confirmation for Wilsons exculpatory evidence was required. The trial judge
    repeatedly charged the jury that they were to look for independent confirmation
    of
inculpatory
evidence from the
Vetrovec
witnesses. In the light of the entirely proper language in the charge regarding
    the criminal burden and standard of proof, the jury would have known to acquit
    if Wilsons inculpatory evidence, even uncorroborated, left them in a state of
    reasonable doubt.

[277]

Further, this courts
    jurisprudence makes clear that the trial judge has considerable discretion in
    crafting an appropriate instruction for
Vetrovec
witnesses; failure to
    give a specific mixed charge in relation to a mixed
Vetrovec
witness will not always be fatal on appeal:
R. v. Tran
, 2010 ONCA 471,
    103 O.R. (3d) 131, at paras. 27  28;
R. v. Gelle
, 2009 ONCA 262, 244
    C.C.C. (3d) 129, at paras. 12  17. See also
R. v. Figueroa
, 2016 ONCA
    645, [2016] O.J. No. 4491, at paras. 42  47.

[278]

Consequently, we
    do not give effect to this ground of appeal.

(e)

Absence of a Charge on Lack of Demeanour Evidence for Wilsons
    Preliminary Inquiry Testimony

[279]

As we have said,
    Wilson was declared a hostile witness after recanting his earlier inculpatory
    testimony against Riley and Atkins. His preliminary inquiry testimony was read
    in at trial.

[280]

The appellants
    submit the trial judge should have included in his jury charge a precautionary
    note emphasizing the importance of the lack of demeanour evidence on Wilsons
    testimony at the preliminary hearing.  We do not accept this submission.

[281]

First, a
    specific instruction in the charge was not necessary because it would have been
    clear to the jury that the absence of demeanour evidence was a deficiency of
    the read-in testimony. The trial judge commented to the jury during the
    reading-in of Wilsons evidence from the preliminary inquiry that one of the
    negatives of this process was that youre not actually seeing him give the
    answers. Even more pointedly, counsel for Riley in closing submissions pointed
    out to the jury that they did not have access to Wilsons tone of voice and
    facial reactions.

[282]

Second, as has
    been repeatedly recognized by Canadian courts, demeanour evidence is only one
    aspect of credibility assessment, and is often a poor way to assess a
Vetrovec
witness evidence. It was reasonable for the trial judge not to unduly
    emphasize its absence.

(6)

The Jury Charge on Post-Offence Conduct

[283]

The appellants
    take issue with the trial judges charge regarding Rileys post-offence
    conduct. We see no error in the trial judges charge on this subject.

(a)

Background

[284]

The trial judge
    instructed the jury on post-offence conduct in relation to Riley only. The
    subject matter was evidence of Rileys attempts, captured on wiretap
    interceptions, to ensure that what was ultimately determined to be a Glock .357
    firearm was concealed. The trial judge instructed the jury that this was
    potential circumstantial evidence that may assist in determining whether Riley
    participated in the shooting. In a re-charge, the trial judge then emphasized
    that if the jury found that the intercepts showed Riley was concerned about the
    whereabouts of the Glock .357, the jury must nonetheless go on to consider
    whether the concern related to the shooting of Charlton and Bell or whether
    there was an alternative explanation. He canvassed possible alternative
    explanations, and stated that only if the jury rejected the alternative
    explanations could they use the post-offence conduct as evidence Riley had
    participated in the shooting.

(b)

Analysis

[285]

The appellants
    essential complaint regarding the charge on this subject is that
the trial judge erred in failing to instruct the jury that, prior to
    drawing an inference that Riley was acting to conceal his involvement in the
    shooting, they would first have to be satisfied the firearm in question was
    used in the shooting. Having failed to give such an instruction, they argue
    there is a risk the jury impermissibly used the post-offence conduct evidence. 
    We would not give effect to this ground of appeal.

[286]

The charge must be read as a whole. In doing so it becomes clear the
    trial judge emphasized the frailties of the ballistics evidence elsewhere in
    the charge, and made it clear to the jury that the forensic evidence only
    established that the .357 Glock found in Rileys girlfriends apartment was
possibly
used in the shooting, not that
    it certainly was.

[287]

While it might have been preferable for the trial judge to
    specifically spell out the connection between that instruction and his
    instructions on how to consider the post-offence conduct, he did not fall into
    reversible error in failing to do so. As a matter of common sense it would have
    been obvious to the jury that the post-offence conduct was only relevant if
    they were satisfied that the .357 Glock had been used in the shooting.

(7)

The Overall Balance of the Jury Charge

[288]

The appellants
    take issue with the overall balance of the trial judges charge to the jury.

[289]

The appellants
    submit that the trial judges instruction effectively turned the
Vetrovec
caution on its head. The sole issue at trial, they say, was identification of
    the shooters and the only evidence that identified the appellants was that of
    Wilson and Ellis. In their view, the trial judge focused an unreasonable amount
    of the charge on how the jury might confirm the testimony of Wilson and Ellis,
    to the detriment of the actual purpose of a
Vetrovec
warning, which is
    to warn the jury of the dangers of relying on the evidence of unsavoury
    witnesses. Further, they submit the trial judge did not effectively summarize
    the defence position, failing to point out in the charge evidence favourable to
    the defence and inconsistencies in the Crowns evidence.  We do not accept this
    ground of appeal.

[290]

The trial judge
    cannot be expected to review each piece of defence evidence, nor should he have
    done so in this case. The Supreme Court of Canada has repeatedly emphasized the
    functional approach to jury charge review: see e.g.
R. v. Rodgerson
,
    2015 SCC 38, [2015] 2 S.C.R. 760, at para. 50.  The trial judges duty is to
    decant and simplify, and must not over-charge in an effort to safeguard
    verdicts from appeal;
the
standard is adequacy, not
    perfection:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para.
    55;
R. v. Largie
, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 125,
    leave to appeal refused [2010] S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.

[291]

Here, the trial
    judge fairly presented the defence case. In this court, the appellants point to
    various examples of defence-favourable evidence not mentioned during the
    charge, but those points were heavily canvassed in counsels closing
    submissions. These submissions by the appellants would not have been lost on
    the jury.

[292]

The appellants
    are correct that trial judges should be cautious not to overemphasize
    corroboration of a
Vetrovec
witness evidence at the expense of the
    purpose of the
Vetrovec
caution itself. The focus should be on
    assuring the jury understands that the unsavoury witness should not be easily
    trusted, rather than on expounding in detail all of the reasons the unsavoury
    witness should be believed.

[293]

In other words,
    trial judges should not charge in a manner that causes the jury to lose sight
    of the forest of an unsavoury witness unreliability for the trees of confirmation.

[294]

That being said,
    we disagree that that is what happened in this case. The trial judge properly
    pointed the jury to examples of evidence potentially capable of corroborating
    Ellis and Wilsons testimony. He also devoted considerable time, however, to
    outlining the numerous factors that made their evidence untrustworthy. The
    trial judge did not devote an undue portion of the charge to corroboration at
    the expense of the core purpose of the
Vetrovec
warning.

[295]

In our view, the
    charge was balanced, fair and free of legal error. We see no basis for
    appellate intervention.

(8)

Additional Grounds of Appeal

[296]

We have not
    addressed two other portions of the trial judges charge to the jury, which the
    appellants take issue with: (1) Wisdoms alibi evidence, and (2) the dread
    evidence. Given our decision on the Money Mart issue we find it unnecessary
    to do so. In any event, having reviewed the parties submissions, we agree with
    the Crown that (a) those grounds of appeal lack merit and (b) even if they did
    not, in respect of these alleged errors this would be an appropriate case for
    applying the curative proviso.

(9)

The
Charter
Ground and Fresh Evidence

[297]

Before trial,
    Riley and Atkins challenged the admissibility of certain pieces of evidence on
    the basis that they were obtained in a manner that breached their s. 8
Charter
rights against unreasonable search and seizure. They renew that challenge here,
    seeking to adduce fresh evidence on appeal in support of it.

[298]

For the reasons
    that follow, we dismiss the application to admit fresh evidence and reject this
    ground of appeal.

(a)

Background

[299]

Shortly after
    the Charlton and Bell shooting, the police set up an emergency warrantless
    wiretap on Riley. In a pre-trial application, the appellants successfully
    established, amongst other things, that the wiretaps were illegally
    implemented. These intercepted communications were excluded at trial.

[300]

At issue here is
    so-called derivative evidence the police obtained, ostensibly as a
    consequence of the illegal wiretap.

[301]

The emergency
    wiretap was active when the Hyatt and Patrong shooting occurred on April 15,
    2004. Conversations captured on the wiretap led the police to track Rileys and
    Atkins locations, find them in a Silver Audi on April 19, 2004, and arrest
    them in connection with the Hyatt and Patrong shooting.

[302]

Marlon Wilson
    was also in the vehicle at the time of the arrest. He too was charged in the
    shooting of Hyatt and Patrong. On that occasion he implicated Riley and Atkins
    in the Hyatt and Patrong shooting. Later, on October 27, 2004, he gave
    statements to the police implicating Riley and Atkins in the Charlton and Bell
    shooting. As we have explained, his evidence figured heavily in the Crowns
    case against Riley and Atkins at the Charlton and Bell trial.

(b)

Decision Below

[303]

Atkins and Riley
    sought to exclude Wilsons evidence on a pre-trial application arguing that it
    was derivative evidence of a breach of their
Charter
-protected rights.
    Namely, they argued the illegal wiretaps breached their s. 8 rights, and this
    breach led to the arrest. The arrest was what led the police to Wilson. As
    such, Wilsons evidence was obtained in a manner that breached their
Charter
rights and should be excluded.

[304]

As we have said,
    the trial judge in this case found that the implementation of the emergency
    wiretap breached the appellants rights in a serious manner, and excluded them.
    However, he declined to exclude some of the derivative evidence obtained
    following the wiretap. He found that two groupings of evidence were not
    obtained in a manner that violated s. 8 of
Charter
and therefore the
    exclusionary remedy in s. 24(2) of the
Charter
did not apply: (i) the
    evidence obtained as a result of the arrests of Atkins, Riley and Wilson in the
    Silver Audi; and (ii) the evidence of Marlon Wilson (in whatever form) at the
    applicants trial.

[305]

The trial judge
    held these groups of evidence did not meet the proper standard for temporal or
    causal connection to demonstrate that the evidence was obtained in a manner
    that violated the
Charter
. First, he held that the arrest was
    inevitable due to the police presence and the surveillance team devoted
    specifically to finding the Audi involved in the Hyatt and Patrong shootings,
    and that the illegal wiretap was only an inconsequential component of the
    information that resulted in the arrest. Second, he found that there was a
    tenuous temporal and causal connection between the
Charter
breach and
    Wilsons voluntary decision to give evidence against Riley and Atkins, a
    decision he made roughly six months after the arrest, after an important
    intervening event: the Call Down.

[306]

In the
    alternative, if this evidence were obtained in a manner that violated the
Charter
,
    the trial judge would have admitted the evidence under s. 24(2). He held:

if the remoteness of the other evidence from the breach was not
    sufficient to avoid the classification of some or all of it as evidence obtained
    in a manner that infringed the
Charter
, that remoteness would,
    nonetheless tip the balance in favour of inclusion.

(c)

The
    Decision in the Hyatt and Patrong
Voir Dire

[307]

Before
    Nordheimer J. in the Hyatt and Patrong trial, Riley and Atkins brought a very
    similar
Charter
application to the one at issue here. There, they
    sought to exclude a variety of evidence ostensibly derivative of the
    illegally intercepted calls.

[308]

In contrast to
    the trial judges admissibility ruling in this case, Nordheimer J. found both
    (i) the evidence obtained as a result of the arrests of Atkins, Riley and
    Wilson in the silver Audi; and (ii) the evidence of Marlon Wilson in whatever
    form at the trial, were obtained in a manner that violated the applicants
    rights.

[309]

Justice
    Nordheimer recognized that he came to a different conclusion than the trial
    judge at the Charlton and Bell trial and noted that he had the benefit of
    hearing evidence that the trial judge did not. Based on that evidence,
    Nordheimer J. did not agree it was inevitable that the Audi would be located on
    April 19, 2004 and that Riley and Atkins would be arrested. The police were
    only able to find the silver Audi, and arrest the appellants and Wilson,
    through direct resort to the content of the emergency wires. The arrest flowed
    directly from the information obtained from the intercepted communications
    which were a breach of s. 8.

[310]

However,
    Nordheimer J. admitted the derivative evidence after balancing the factors
    set out in
R. v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353

and
    concluding admission would not bring the administration of justice into
    disrepute.

(d)

Analysis of the Proposed Fresh Evidence

[311]

The proposed
    fresh evidence consists primarily of testimony of police officers obtained
    during the
voir dire
on the Hyatt and Patrong s. 8 application. The
    officers evidence, the appellants say, demonstrated that they knew they did
    not have grounds to arrest Riley nor to believe he was the driver of the Audi.
    They say, also, that the officers evidence established a complete failure to
    use the wiretaps for their stated purpose (to monitor Rileys communications
    out of a desire to prevent further shootings) and shows a pattern of using the
    emergency wiretaps solely as an evidence-gathering tool against Riley. They
    submit the officers testimony establishes they would not have been able to
    locate and arrest Riley, or to develop grounds to believe the Audi was used in
    the Hyatt and Patrong shooting, without the illegal wires.

[312]

The test for
    admission of fresh evidence on appeal is as follows:

·

Is the evidence admissible under the operative rules of evidence?

·

Is the evidence sufficiently cogent in that it could reasonably
    be expected to have affected the verdict?

·

What is the explanation offered for the failure to adduce the
    evidence at trial and should that explanation affect the admissibility of the
    evidence?

Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d) 321, at
    para. 92, citing
Palmer v. The Queen
, [1980] 1 S.C.R. 759

[313]

Even assuming
    the appellants proposed fresh evidence is capable of establishing what they
    say it establishes, it would not furnish a basis for overturning the trial
    judges decision to admit the evidence of Marlon Wilson. Consequently, it does
    not meet the cogency requirement of the
Palmer
test for admission of
    fresh evidence on appeal.

[314]

The appellants
    proposed fresh evidence is directed at demonstrating that the
arrest
was sufficiently proximate to the s. 8 breaches
    occasioned by the illegal wiretap. But assuming, without deciding, the
    appellants are correct, and the proposed fresh evidence establishes the arrest
    was sufficiently proximate to the s. 8 breaches to trigger s. 24(2), they
    nevertheless face an insurmountable obstacle.

[315]

The appellants
    real objective in this appeal is to exclude Marlon Wilsons evidence
    implicating them in the Charlton and Bell shooting. He decided to give that
    evidence some six months after the arrest. Perhaps even more importantly, in
    the intervening period, he was threatened by Riley. The trial judge reviewed
    these factors and determined that the connection between the arrest and
    Wilsons evidence was tenuous. None of the appellants proposed fresh evidence
    is directed at undermining the trial judges conclusion on
that
point. The bare fact that Nordheimer J. reached a
    different conclusion regarding the obtained in a manner analysis is
    insufficient.

[316]

In any event,
    the trial judge properly applied
R. v. Goldhart
, [1996] 2 S.C.R. 463

in concluding that Wilsons subsequent testimony was too remote in time
    and circumstance from the initial breach, and indeed the arrest, to have been
    obtained in a manner that breached the appellants s. 8 rights. As he was
    required to do, the trial judge examined the entire relationship between the
Charter
breach and the impugned evidence, including the strength of the causal and
    temporal connection. He also properly considered whether the events were part
    of a single transaction and concluded they were not.

[317]

The strength of
    the connection is a question of fact. Nothing about the proposed fresh evidence
    could undermine the trial judges factual conclusions on this subject.

[318]

Consequently,
    the proposed fresh evidence does not meet the cogency requirement of the
Palmer
test, and we would decline to admit it.

[319]

We note,
    parenthetically, that we also have serious doubts about whether the proposed
    fresh evidence satisfies the due diligence element of the
Palmer
test. Much of the evidence the appellants propose to adduce
as fresh evidence
comes from officers who were
    available but not called to testify on the
voir dire
in this case.
However, the same officers were called on the subsequent Hyatt
    and Patrong
voir

dire
on the same subject matter. Given this,

we see considerable merit in the Crowns submission
    that the decision not to call this evidence at trial was tactical.

[320]

In the light of
    our conclusion with respect to the fresh evidence application, we see no basis
    for the appellants challenge to the trial judges s. 24(2) ruling, and we dismiss
    Rileys and Atkins appeals from it.

C.

Conclusion

[321]

Riley and
    Atkins appeals are dismissed. Wisdoms appeal is allowed, his conviction
    quashed, and a new trial ordered.

Released: DW August 11, 2017

H.S. LaForme J.A.

David Watt J.A.

G.T. Trotter J.A.




CORRECTED DECISION:

Corrections made August 14, 2017: A sentence in paragraph
    222 was amended to read was undermined by being Wisdom was forced now reads
    was undermined by Wisdom being forced


