



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gager, 2020 ONCA 274

DATE: 20200430

DOCKET: C56616 & C57445

Pardu, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jermaine Gager

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Corey Leonard Smelie

Appellant

Jill R. Presser and Eric Neubauer, for
    the appellant Jermaine Gager

Catriona Verner, for the appellant
    Corey Leonard Smelie

Christine Bartlett-Hughes and Amy
    Alyea, for the respondent

Heard: December 2, 3 and 4, 2019

On appeal from the convictions
    entered by Justice Robert A. Clark of the Superior Court of Justice, sitting
    with a jury, on March 23, 2012 (C56616 & C57445), and from the sentence
    imposed on May 17, 2012 (C57445).

Roberts J.A.:

A.

Overview

[1]

After a lengthy jury trial, the appellants were
    convicted of murdering Darnell Grant. The appellants do not dispute their
    presence in the van from which emerged the shooters who killed Mr. Grant. The main
    issue at trial was whether they were the shooters. The appellants appeal their
    convictions. Mr. Smelie also seeks leave to appeal his sentence.

[2]

The appellants raise several grounds of appeal.
    They submit that the trial judge erred in qualifying Detective Douglas Backus
    as an expert witness and admitting his opinion that the appellants had
    characteristics of gang members for the purpose of establishing a motive for
    the shooting. Further, they argue the jury instructions were inadequate and incorrect,
    their applications for further disclosure were erroneously dismissed, the verdicts
    were inconsistent, and they allege a reasonable apprehension of bias on the
    part of the trial judge. They maintain that these errors resulted in an unfair
    trial and a miscarriage of justice. They ask that the convictions be set aside,
    and a new trial ordered.

[3]

Respecting sentence, Mr. Smelie submits that the
    trial judge erred in fixing the length of his parole ineligibility by failing
    to acknowledge his youth and failing to make findings of fact that were
    consistent with the evidence and the verdict.

[4]

I would not give effect to these submissions. As
    I will explain, the trial judge made no reversible error. This was a lengthy,
    difficult trial, complicated by numerous pre-trial and mid-trial applications. The
    trial judge showed patience and skill in keeping the trial on course. His rulings
    were clearly and fairly written. That he had to keep a firm hand on the rudder during
    this trial is exactly what was required of him.

[5]

I would therefore dismiss the appeals.

B.

Background

[6]

To properly frame the grounds of appeal, I set
    out a brief factual background. Later in these reasons, I detail additional
    facts relevant to my analysis of each ground of appeal.

(1)

Circumstances of the Murder and After-the-Fact Conduct

[7]

On September 22, 2008, at around 9:15 p.m., a stolen
    white van carrying the appellants drove into the Driftwood Court community
    housing area, an area of Toronto regarded as being within the territory of a
    gang known as the Driftwood Crips. Twice the van slowly circled the area and
    then stopped. Several men exited the van and immediately opened fire on a
    number of persons in the area including Mr. Grant and his friend Sonia Butler, discharging
    approximately 22 gunshots in as many seconds. They shot Mr. Grant in the back,
    killing him.

[8]

Mr. Gager testified that he just happened to be
    along for the ride. He said he bumped into an acquaintance at a pizza
    restaurant who invited him to a party. That is where Mr. Gager said he thought
    he was going when he entered the van. In the van, he saw Mr. Smelie in the
    passenger seat and Tevane,
[1]
a man he knew from his neighbourhood.

[9]

Mr. Gager testified that while he did not see
    Mr. Smelie leave the van, he saw him and others re-enter after the shooting. After
    the shooters re-entered the van, it sped off. They were almost immediately spotted
    and pursued by police. The van was abandoned, and its occupants fled on foot
    and scattered. Mr. Gager and Mr. Smelie were followed and ultimately apprehended.

[10]

Mr. Gager was arrested 45 minutes after the
    shooting while hiding behind a bush and attempting to dispose of a .45 class of
    firearm. He testified Tevane gave him the firearm for that purpose and told him
    to run. This firearm matched seven spent casings found near the shooting. One particle
    of gunshot residue was found on his t-shirt, which, as the Crowns ballistics expert
    acknowledged, was inconclusive because it could have come from Mr. Gagers
    proximity to the other shooters in the van.

[11]

On arrest, Mr. Smelie had six spent casings in
    his pocket. These casings matched and had to be ejected manually from a .357
    class of firearm located not far from where Mr. Smelie was arrested.

[12]

Four spent projectiles were recovered from the
    scene that were consistent with being fired from either a .357 class of firearm,
    or a .38 or 9 mm class weapon. A fifth spent projective matched the .45 calibre
    weapon found with Mr. Gager. The fatal projectile, recovered from Mr. Grant at
    autopsy, was consistent with being from a .357, .38 or 9 mm class firearm. Gunshot
    residue was found on Mr. Smelies hands. The Crowns ballistic expert agreed
    that had he known that Mr. Smelie had handled the spent shell casings found in
    his pocket, he would expect to find gunshot residue on his hands.

[13]

While in jail awaiting trial for Mr. Grants
    murder, Mr. Gager wrote two letters to Anthony St. Louis, who was in another
    jail. Mr. St. Louis was connected to the Doomztown Crips, a distinct gang from
    the Driftwood Crips. Mr. Gager covered his letters in symbols and language characteristic
    of the Doomztown Crips and stated in one letter, fuck driftwood. Mr. Gager testified
    that he had only pretended to be part of the Doomztown Crips to obtain
    protection while in custody.

[14]

In one of his letters, Mr. Gager also wrote that
    Mr. Smelie wants me to plead he must be smoking dope and I dont kno[w] if
    [Mr. Smelie] might crack on me we just gone [
sic
] have to wait and see
    but Ill fuck him up if he does. He confirmed at trial that he meant that he would
    beat up or hurt Mr. Smelie if he said anything against him.

[15]

Telephone books supplied to Mr. Gager and Mr.
    Smelie while they were in custody awaiting trial were seized. They contained
    handwritten gang symbols and language.

(2)

Pre-trial and Trial Proceedings

[16]

The trial judge heard lengthy pre-trial motions
    from November 2011 until the end of January 2012. The pre-trial motions
    focussed on issues including the admissibility of expert opinion evidence on
    street gangs and related disclosure issues, as well as addressing the
    appellants request to sit at counsels table, the admissibility of gunshot
    residue evidence, and the admissibility of Mr. Gagers letters.

[17]

A jury was selected, and the trial commenced
    January 31, 2012. Trial counsel for both appellants brought a mistrial
    application on the second day of trial, February 1, 2012, alleging a reasonable
    apprehension of bias on the part of the trial judge based on his demeanour and
    facial expressions. The trial judge immediately dismissed the application for
    brief oral reasons to which I shall return in more detail below.

[18]

The Crowns case depended principally on the
    theory that Mr. Grant was killed in a gang-style shooting, perpetrated by gang
    members and motivated by gang rivalry. Specifically, the Crown submitted that
    the appellants were members of the Doomztown Crips, and that the shooting was
    part of a pattern of violence between rival gangs, the Doomztown Crips and
    Driftwood Crips. To support its theory, the Crown relied heavily on the expert
    evidence of Det. Backus concerning street gangs and gang membership and Mr.
    Gagers letters. Det. Backus opined that the appellants possessed
    characteristics of members of the Doomztown Crips.

[19]

The jury convicted Mr. Gager of first degree
    murder and Mr. Smelie of second degree murder. Mr. Gager received a sentence of
    life imprisonment without parole eligibility for 25 years. The trial judge
    sentenced Mr. Smelie to life imprisonment without parole eligibility for 18
    years.

C.

Issues

[20]

The appellants raise several common issues and additional
    issues particular to their respective appeals. I shall consider these issues
    under the following framework:

1.

Did the trial judge err in qualifying Det.
    Backus as an expert and in admitting his expert opinion?

2.

Did the trial judge err in his jury instructions?

3.

Did the trial judge err by dismissing portions
    of the defence applications for further disclosure of information underlying Det.
    Backus opinion?

4.

Were the verdicts inconsistent?

5.

Did the conduct of the trial judge give rise to
    a reasonable apprehension of bias?

6.

Did the trial judge err in imposing on Mr.
    Smelie an 18-year period of parole ineligibility?

D.

Analysis

(1)

Did the Trial Judge Err in Qualifying Det.
    Backus as an Expert and in Admitting his Expert Opinion?

[21]

Det. Backus was qualified as an expert in the
    area of street gangs:
R. v. Gager
, 2012 ONSC 388, at para. 214. He was
    permitted to testify to, among other things, the general structure and
    organization of gangs, the use of symbols and graffiti, their territories,
    responses to perceived infringement of territories, and the existence of gangs
    in Toronto.

[22]

Det. Backus was permitted to interpret Mr. Gagers
    letters. He was also allowed to testify about the Project XXX gang
    investigation in which he was involved as the lead investigator, and that Mr.
    Smelie had been identified on Project XXX intercepts speaking to known gang
    members about drugs and guns and attending a known gang meeting place known as
    the Mansion. The trial judge limited Det. Backus opinion to stating whether
    Mr. Gager and Mr. Smelie had characteristics of gang membership without opining
    that they were gang members.

[23]

The appellants do not challenge the trial
    judges finding that Det. Backus expert opinion concerning gangs was necessary
    to assist the jury in understanding the factual matrix of the trial. Nor did
    the appellants seriously challenge that Det. Backus had considerable expertise
    in Toronto street gangs generally and specifically regarding the Doomztown and
    Driftwood Crips gangs in issue in this case, gained from his police work
    dealing with gangs, including speaking with and debriefing confidential informants
    and listening to intercepts.

[24]

The main thrust of the appellants argument on
    appeal is that there was no reliable evidential basis for Det. Backus opinion
    regarding gang membership or gang rivalry and that his opinion was tainted by
    impartiality because of his position as a police officer employed by Toronto
    Police Services.

[25]

Mr. Smelie submits further that the trial judge
    erred in permitting Det. Backus to testify in relation to him. While it was
    conceded that there was evidence from the intercepts to support that Mr. Smelie
    was at one time a gang member, there was no evidence admissible against him concerning
    any animosity between the Doomztown and Driftwood Crips gangs. Without this evidence,
    Mr. Smelie maintains, Det. Backus evidence that Mr. Smelie had connections to
    a street gang served as nothing more than hugely prejudicial propensity
    evidence. Without the evidence of animosity between the two relevant gangs, Mr.
    Smelie submits that the gang opinion evidence had no logical relevance and
    should have been excluded.

[26]

I do not agree with these submissions.

(a)

Applicable Legal Principles

[27]

The admissibility of any expert opinion evidence
    is highly case-specific. Like many experts, Det. Backus was qualified and
    permitted to testify as an expert on the basis of specialized knowledge gained
    through experience and specialized training in the relevant field:
R. v.
    Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 109, leave to appeal
    refused, [2010] S.C.C.A. No. 125.

[28]

The trial judge referred to the well-settled
    criteria governing admissibility of expert opinion as set out in
R. v.
    Mohan
, [1994] 2 S.C.R. 9: (1) relevance; (2) necessity in assisting the
    trier of fact; (3) the absence of any exclusionary rule; and (4) a properly
    qualified expert:
Abbey
, at para. 75. He also applied the two-step
    approach recommended by Doherty J.A. in
Abbey
, at para. 76, a case
    dealing specifically with the admissibility of expert opinion on gang culture. At
    the first stage, the court must ensure that the basic preconditions for the
    admissibility of expert evidence are satisfied; if so, at the second or
    gatekeeper stage, the court must decide whether the evidence is sufficiently
    beneficial to the trial process to warrant its admission despite the potential
    harm to the trial process that may flow from the admission of the expert
    evidence.

[29]

Deference is owed to the decision of the trial
    judge to admit or reject expert evidence absent error in principle, material
    misapprehension or an unreasonable conclusion:
Abbey
, at para. 97;
Imeson
    v. Maryvale (Maryvale Adolescent and Family Services)
, 2018 ONCA 888, 143
    O.R. (3d) 241, at para. 53, leave to appeal refused, [2019] S.C.C.A. No. 35. I
    see no basis to intervene here.

(b)

Reliability

[30]

The appellants repeat their argument from trial
    that essentially Det. Backus is asking the jury to trust him that his opinion
    is correct, rather than support it with a sufficiently reliable evidential
    background. I agree with the trial judges response to this argument that
    reliability of this kind of expert testimony depends heavily on the knowledge
    and experience of the expert, rather than the methodology or theory behind it
    or factors like peer review and publication:
Abbey
, at para. 112,
    citing with approval to
U.S. v. Hankey
, 203 F. 3d 1160 (9th Cir.
    2000), at p. 1169;
R. v. Mills
, 2019 ONCA 940, at paras.
    52-54. I can find no error in the trial judges finding that Det. Backus extensive
    and current experience with gangs gives him the requisite expertise for
    qualification as an expert.

[31]

The trial judge properly determined that the
    lack of evidential foundation was a matter that went to weight and could also
    be dealt with by certain limitations that he placed on Det. Backus opinion. Although
    he qualified him as an expert, the trial judge refused to allow him to express
    his opinion that (1) the appellants were members of the Doomztown Crips; and
    that (2) the Doomztown Crips were in a gang war with the Driftwood Crips. He
    did not allow Det. Backus to rely upon confidential informant or occurrence
    reports, since counsel did not have access to those documents.

[32]

The trial judge determined that Mr. Gagers
    jailhouse letters to Mr. St. Louis were inadmissible for or against Mr. Smelie
    to the extent they were not adopted by Mr. Gager in his trial testimony. The
    trial judge permitted Det. Backus to tell the jury the aspects of the letters
    that, with the benefit of his expertise, he considered were characteristic of
    the author being a member of the gang. He was also permitted to impart to the jury,
    as context for the letters, his knowledge of gang hierarchy, as well as the
    typical interrelation between gang members themselves, and between gang members
    and non-gang members, including how, in his experience, such persons are likely
    or not likely to address one another. He was permitted to tell the jury of
    Anthony St. Louiss connection to Doomztown such as it emerged from the intercepts
    to which he personally listened and of the telephone contact between Mr. Gager
    and Nicholas St. Louis, Anthony St. Louiss brother, who was a known member of
    the Kipling Crips. He could mention any telephone intercepts he had personally
    listened to in which Mr. Smelie said anything that indicated he was a gang
    member but was not permitted to give specifics of the calls or opine that he was
    a Doomztown gang member.

[33]

The trial judge was entitled to find that Det.
    Backus evidence was grounded in his experience and was reliable on this basis,
    and that any residual concerns about reliability would go to weight rather than
    barring admissibility. This is especially so given that he carefully
    circumscribed the language of the proposed expert opinion evidence to exclude
    those opinions that were less reliable and made clear that he would entertain
    question by question concerns as they arose.

(c)

Logical Relevance

[34]

I do not accept the appellants submission that
    the trial judge failed to consider the logical relevance of the gang evidence
    in the absence of evidence of a gang war.

[35]

The trial judge assessed the logical relevance
    of the gang evidence. He recognized that without the evidence tending to show
    hostility between the gangs and membership of the accused in Doomztown  the
    jury may be unable to make any sense of the shooting. He was satisfied that
    the expert evidence he permitted Det. Backus to give was logically relevant
    even though he was not permitted to testify to the existence of a gang war, as
    his opinion on this point was lacking in foundation.

[36]

This finding was open to the trial judge. There
    does not have to be a gang war for there to be logical relevance to Det. Backus
    general territorial evidence regarding gangs and to the specific connection to
    other people in one gang that is different from the gang associated with a given
    location. This is relevant to motive and potential planning and deliberation of
    the shooting and the extent to which the appellants participated in the
    shooting.

[37]

It is important to recall that the murder took
    place in core Driftwood territory. Det. Backus testified that perceived
    intrusion into one gangs territory by a member can lead to violent reprisals
    in the territory of a rival gang. Given this evidence, membership in a gang
    other than the Driftwood Crips was logically relevant to motive.

[38]

Accordingly, the gang evidence was logically
    relevant even in the absence of evidence of a gang war.

(d)

Impartiality

[39]

Turning to the allegation of impartiality, the
    trial judge expressly addressed the argument that Det. Backus was too biased to
    be qualified as an expert. He referenced the guiding principles that the
    exclusion of proffered expert testimony on the basis of bias is implicit in the
Mohan
factors and a matter of the trial judges residual discretion as
    gatekeeper after engaging in a costs/benefits analysis: citing
R. v. L.K.
,
    2011 ONSC 2562, 86 C.R. (6th) 98, at para. 9. The Supreme Court of Canada has
    since recognized that being properly qualified as an expert witness includes
    being willing and able to fulfil ones duty to the court, which includes a duty
    of impartiality:
White Burgess Langille Inman v. Abbott and Haliburton Co.
,
    2015 SCC 23, [2015] 2 S.C.R. 182, at para. 53.

[40]

The trial judge concluded, correctly in my view,
    that while Det. Backus may have shown stubbornness in his testimony and some of
    his proffered opinions were so lacking in foundation that they were inadmissible,
    these shortcomings did not go to the core of his evidence nor establish a lack
    of partiality that required the exclusion of all his evidence. He was
    independent of any investigation into the offences and gave his evidence in a
    fair-minded fashion, including providing additional material sought by the
    defence at the preliminary inquiry, sometimes without being asked to do so. Any
    issues were attenuated by the limits placed on Det. Backus evidence and the
    rigours of cross-examination. These conclusions were open to the trial judge to
    make.

(e)

Potential Prejudice

[41]

In the cost/benefit analysis conducted by the
    trial judge, he carefully considered the potential of moral prejudice arising
    against the appellants because of their immersion in or association with gang
    culture. Following the factors outlined by Charron J.A. in
R. v. B. (L.);
    R. v. G. (M.A.)
(1997), 116 C.C.C. (3d) 481 (Ont. C.A.), leave to appeal
    refused, [1997] S.C.C.A. No. 524, he recognized that the evidence of bad
    character was relevant to motive and that provided the nature and scope of the
    evidence was put to the jury with the proper limiting instructions, any
    prejudice could be overcome and the jury would be unlikely to infer guilt on
    bad character alone. There is no basis for appellate intervention.

[42]

In summary, I see no error in the trial judges
    decision to qualify Det. Backus as an expert witness nor to admit his
    circumscribed evidence at trial.

(2)

Did the Trial Judge Err in His Jury Instructions?

[43]

The appellants raise several issues with the
    jury instructions. As discussed below, the jury instructions were adequate.

(a)

Standard of Review

[44]

Appellate courts must adopt a functional
    approach to reviewing jury charges, asking whether the charge as a whole
    enabled the trier of fact to decide the case according to the law and the evidence:
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8. The purpose
    of such review is to ensure that juries are properly, not perfectly,
    instructed:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 62.

[45]

The overarching question is whether the jury
    charge properly equipped the jury to decide the case, absent the limiting
    instructions that the appellants say were required:
Calnen
, at para.
    9.

(b)

Did the Trial Judge Err in His Instructions Concerning
    Det. Backus Expert Opinion?

[46]

The appellants submit that if Det. Backus opinion
    regarding gang membership and gang rivalry was properly admitted, the trial
    judge nevertheless erred by failing to adequately caution the jury about what
    weight they could place on this evidence. The appellants argue that the jury
    was not instructed that they were required to discount the weight of Det.
    Backus evidence to the extent it relied on inadmissible hearsay. The
    appellants focus on Mr. Gagers letters and say that the trial judge should
    have instructed the jury to attribute less weight to Det. Backus interpretation
    of Mr. Gagers letters and his ultimate opinion on characteristics of membership
    to the extent they depended on inadmissible hearsay. Further, while the trial
    judge properly instructed the jury that, in coming to a verdict for Mr. Smelie,
    they could not rely upon Mr. Gagers letters to the extent they were not
    adopted by Mr. Gager at trial, they were not instructed that they were required,
    in coming to this verdict, to put less weight on Det. Backus opinion to the
    extent it relied upon portions of the letters not in evidence.

[47]

I would not give effect to these submissions.

[48]

There is a practical distinction, as described
    by Sopinka J., concurring, in
R. v. Lavallee
, [1990] 1 S.C.R. 852, at
    p. 899, between evidence that an expert obtains and acts upon within the scope
    of his or her expertise  and evidence that an expert obtains from a party to
    litigation touching a matter directly in issue.

[49]

Where the expert relies on unproven hearsay
    obtained and acted upon within the scope of the experts expertise, if
    otherwise admissible, the weight of the expert evidence need not be discounted:
Lavallee
, per Sopinka J. (concurring), at pp. 899-900;
R. v.
    S.A.B.
, 2003 SCC 60, [2003] 2 S.C.R. 678, at para. 62. To exclude the
    evidence arising from the professional judgment within the scope of the
    experts expertise would be to ignore the strong circumstantial guarantees of
    trustworthiness that surround it, and would be  contrary to the approach [the
    Supreme Court] has taken to the analysis of hearsay evidence in general:
Lavallee
,
    at p. 899.

[50]

To the extent that the experts opinion depends
    on evidence from a party that must be proven, as Sopinka J. observed in
Lavallee
,
    at p. 900, the lack of such proof will  have a direct effect on the weight to
    be given to the opinion, perhaps to the vanishing point.

[51]

The appellants submit that the weight to be
    given to Det. Backus opinion about the appellants gang membership and gang
    rivalry, insofar as it depends on Mr. Gagers letters, directly depends on the admissibility
    of the contents of those letters. The appellants maintain that the jury was not
    properly instructed regarding the use they could make of Det. Backus evidence
    as far as it referenced Mr. Gagers jailhouse letters.

[52]

I disagree. In my view, the trial judges
    instructions, as a whole, were adequate.

[53]

After instructing the jury that the weight, if any,
    to be given to an experts evidence including his opinions, was entirely for
    the jury to say, the trial judge stated:

Speaking
    generally, experts rely on information provided to them to formulate their
    opinions.

Sometimes, not all
the
    information upon w
hich the expert relied is before
    the jury in eviden
ce.

To the
extent that the information relied upon by the expert is
    not before you in
evidence, you may find, but are not
    required to find, his opinion to be of less assistance to you
.

As
    for information that is before you in
evidence, as I
    have told you, nothing becomes a fact in this trial until you decide it is a
    fact.

So, to the extent that the facts as you find them differ
    from
the information
relied
    upon by the witness for his or
her opinion
s, you may find, but are not required to, his or her
    evidence to be of less assistance to you.

[54]

As I read it, the trial judges general
    instruction relating to the use of expert evidence conveys the principle
    discussed by Sopinka J. in
Lavallee
that there may be circumstances in
    which the weight need not be discounted.

[55]

Moreover, as I discuss in more detail below, the
    trial judge also instructed the jury that they could not rely on the portions
    of Mr. Gagers letters that were not proven.

[56]

In my view, the trial judges instruction was adequate.
    He was dealing with a number of expert opinions grounded in both inadmissible
    hearsay collected by the experts in the scope of their expertise and inadmissible
    hearsay evidence from a party. The instructions as a whole alerted the jury to
    the fact that they may discount the weight attributable to an expert opinion to
    the extent it relies on inadmissible evidence. It followed the guidance
per
Wilson J., at para. 77 of
Lavallee
, that [w]here the factual basis of
    an expert's opinion is a melange of admissible and inadmissible evidence the
    duty of the trial judge is to caution the jury that the weight attributable to
    the expert testimony is directly related to the amount and quality of
    admissible evidence on which it relies. The trial judges instruction served
    this purpose.

[57]

It is also noteworthy that this instruction was
    vetted and accepted by counsel. The appellants trial counsel did not seek a
    separate or more particular instruction concerning Det. Backus evidence, nor
    the kind of instruction that they now say was mandatory.

[58]

Mr. Smelie further submits that the jury should
    have been specifically instructed that to the extent that Det. Backus opinion
    depended on Mr. Gagers letters, the jury had to disregard it as far as Mr.
    Smelie was concerned.

[59]

When viewed as a whole, the trial judges charge
    imparted this instruction to the jury. In addition to the general instruction
    about experts, the trial judge strongly warned the jury about using bad
    character evidence in three midtrial instructions and in his final charge. As I
    will discuss in more detail later in these reasons, these instructions forbade
    the jury from relying on the portions of Mr. Gagers letters that were not
    adopted by Mr. Gager in his testimony in their consideration of the case
    against Mr. Smelie.

[60]

For the reasons I have stated, the trial judges
    instructions were sufficient to caution and instruct the jury regarding Det.
    Backus evidence in this case.

(c)

Should the Trial Judge Have Given a No Probative
    Value Instruction with Respect to Mr. Gagers Flight Following the Offence?

[61]

Mr. Gager repeats his submission before the trial
    judge that his flight from the van following the murder had no probative value.
    Mr. Gager testified that he was told to run by Tevane, who placed a firearm
    into his hands, and that he ran out of fear. As a result, his flight was as
    consistent with his dread of Tevanes repercussions, and his fear of
    apprehension for breach of his bail conditions and the unlawful possession of a
    loaded handgun, as it was with guilt because of his participation in the
    murder. The trial judge therefore erred in failing to instruct the jury that
    his flight had no probative value.

[62]

I disagree.

[63]

It is well settled that a no probative value
    instruction will be called for only in limited circumstances:
R. v. White
,
    [1998] 2 S.C.R. 72, at para. 27. This reflects the exclusive fact-finding role
    of the jury to decide, on the basis of the evidence as a whole, whether the after-the-fact
    conduct of the accused is related to the crime before them rather than to some
    other culpable act, and how much weight, if any, such evidence should be given
    in the final determination of guilt or innocence. The trial judge must be
    careful not to interfere with or usurp that role.

[64]

The determination of whether a jury should be
    permitted to consider evidence of after-the-fact conduct is a fact-driven
    exercise dependent on the circumstances of each case. The trial judge must
    consider the question of what the Crown seeks to prove by means of the after-the-fact
    conduct evidence. Although no rigid formula emerges from the jurisprudence, such
    an instruction generally may be warranted where the accused has admitted to participating
    in a criminal act but has denied a specific level of culpability for that act:
White
,
    at para. 28. The contrary is also generally true: a no probative value
    instruction is usually not required where the accused has denied any
    involvement in the facts underlying the charge at issue and has sought to
    explain his actions by reference to some unrelated culpable act:
White
,
    at para. 29.

[65]

Mr. Gager denied participating in Mr. Grants
    shooting and sought to explain his flight from the van as arising from fear of
    gang reprisals and apprehension for other criminal offences. The trial judge declined
    to instruct the jury that Mr. Gagers flight had no probative value.

[66]

It is well established that an inference of
    guilt may be drawn from circumstantial evidence such as flight from the scene
    of a crime. It is important, however, that evidence of flight is not misused. A
    trial judge must take care to caution a jury against the danger of erroneously
    leaping from such evidence to a conclusion of guilty: see
R. v. Arcangioli
,
[1994] 1 S.C.R. 129,
at p. 143.

[67]

That is what the trial judge did here. He instructed
    the jury that they could only use Mr. Gagers flight as circumstantial evidence
    that he was a willing participant in the shooting, if they first considered and
    rejected any other rational explanation for it. This included his fear of Tevane
    and his anxiety of apprehension for the serious criminal offence of possession
    of the .45 calibre pistol. He told the jury that they had to be very careful
    how they would use this evidence because such conduct was often equivocal at
    best and that they should reserve their judgment about the meaning of Mr.
    Gagers flight until after considering all the evidence. The trial judge further
    instructed the jury that they could not use Mr. Gagers flight as
    probative of the issue of whether Mr. Gager possessed the requisite intent for
    murder.

[68]

The trial judges instructions conform to the
    requirements set out by the Supreme Court of Canada for after-the-fact conduct.
    As the Court recently instructed in
Calnen
, at para. 117:

To
    meet the general concern that such evidence may be highly ambiguous and
    susceptible
to jury error, the jury must be told to
    take into account alternative explanations for the accused

s behaviour. In this
    way, jurors are instructed to avoid a mistaken leap from such evidence to a
    conclusion of guilt when the conduct
may be motivated
    by an
d attributable to panic, embarrassment, fear of
    a false accusation, or some other innocent explanation
. [Citations omitted.]

[69]

The trial judge gave the jury a proper limiting
    instruction on the permissible uses of the after-the-fact conduct. There was no
    objection to the form of the instruction after it was given. I see no error
    that requires appellate intervention.

(d)

Did the Trial Judge Err in Failing to Instruct
    the Jury that Motive Had to be Considered Separately for Each Appellant?

[70]

Mr. Smelie submits that the trial judge erred in
    failing to instruct the jury that motive had to be considered separately for
    each of the appellants. Specifically, the jury should have been instructed that
    they could not consider their findings with respect to whether Mr. Gager had a
    gang-related motive in committing the murder in assessing the case against Mr.
    Smelie.

[71]

I do not accept these submissions.

[72]

In my view, the trial judges instructions made
    it very clear to the jury that they had to consider separately the issue of motive
    in relation to each appellant.

[73]

The trial judge gave a midtrial instruction
    concerning the use the jury could make of Det. Backus evidence regarding the
    appellants associations with gang members. When explaining that the gang
    evidence is relevant to only the issue of motive, he then reiterated that each
    of the appellants was entitled to an individual verdict and that the jury had to
    consider their guilt or innocence individually.

[74]

In his final jury charge, the trial judge
    expressly instructed the jury separately on motive for each appellant. In particular,
    the trial judge instructed the jury that they could not use Mr. Gagers
    reference in his letter fuck driftwood as evidence of motive against Mr.
    Smelie, and that this reference was applicable only to Mr. Gager in terms
    of establishing animosity between the two gangs.

[75]

Trial counsel for Mr. Smelie did not raise any
    issue with this aspect of the midtrial instruction or the draft final
    instruction and made no objection to them after they were provided to the jury.

[76]

I see no error in the trial judges
    instructions.

(e)

Did the Trial Judge Err in Not Permitting the Jury
    to Rely Upon Mr. Gagers Letters?

[77]

Mr. Smelie submits that the trial judge erred in
    not permitting the jury to rely on Mr. Gagers letters in relation to him to
    the extent they were adopted by Mr. Gager in his testimony, because this
    undermined the reliance placed on them by Mr. Smelies counsel in his closing
    address. He submits that the trial judge erred in instructing the jury that
    they must assess the guilt or innocence of Mr. Smelie ... without any
    reference whatsoever to those letters.

[78]

I do not accept this submission.

[79]

The trial judge properly instructed the jury during
    the trial and in his final charge that they could not consider what a witness
    said on an earlier occasion for its truth unless, in his or her evidence in the
    trial, the witness expressly adopted what he or she earlier said as being the
    truth.

[80]

Before Mr. Gager testified about his jailhouse
    letters, the trial judge gave three mid-trial instructions to the jury that
    they could not use anything in the letters as evidence against Mr. Smelie,
    including using the letters as evidence of animosity between the two gangs. No
    objection was taken to these instructions by Mr. Smelies counsel who
    repeatedly expressed his approval of them.

[81]

In his final charge, the trial judge explained
    the difference between out-of-court statements, like Mr. Gagers letters, and
    statements made at trial. He expressly instructed the jury that they could use
    Mr. Gagers testimony for or against Mr. Gager and Mr. Smelie:

U
nlike Mr. Gagers
    out-of-court statements to the police and
his le
tters, which are no evidence against Mr. Smelie, you do not
    consider Mr. Gagers testimony only to help you decide his case.

Y
ou may consider Mr. Gager
s
    testimony in this trial to help you decide both the case respecting him and the
    case respecti
ng Mr. Sm
elie.

[82]

During his testimony, Mr. Gager adopted portions
    of his letters, including his statements that he would fuck up Mr. Smelie if
    he said anything about the murder. These adopted statements were part of Mr.
    Gagers trial testimony that the jury was instructed to consider. In accordance
    with the trial judges instructions, his letters were admissible for and
    against Mr. Smelie to the extent they were adopted by Mr. Gager. In fact, Mr.
    Smelies counsel relied on the adopted portions to argue that these should
    raise a doubt about his clients guilt.

[83]

There was no objection to these portions of the
    final jury instructions by Mr. Smelies counsel.

[84]

I see no error in the trial judges instructions.

(f)

Did the Trial Judge Fail to Adequately Remedy
    the Prejudice Caused by the Closing Address of Mr. Smelies Counsel?

[85]

Mr. Gager submits that the trial judge erred in
    failing to grant a mistrial and that his jury instruction was inadequate to
    correct the prejudice caused by comments made by Mr. Smelies trial counsel in
    his closing address to the jury.

[86]

In his closing address, Mr. Smelies counsel referred
    to the reference in Mr. Gagers jailhouse letters to fuck him up if Mr.
    Smelie crack[ed], asked the jury to consider the evidence they did not hear
    from Mr. Smelie, and suggested to the jury that his client did not testify
    because he was afraid to testify and suffer gang reprisals. He asked the jury
    to consider:

[W]
heth
er you would put your life and th
e
    lives of your family at
risk if you cracked and told
    the truth? What if the truth required you to tell the world who really
    committed the crime?

Wha
t if
    your only two cho
ices were either tell the truth and
    risk being killed, or not say anything at all
and
    risk being convicted for
something you did not do?

W
hat would
you do?

[87]

Mr. Gagers trial counsel did not immediately
    object to the closing that day, Wednesday, March 14, nor following the Crowns
    closing address on the following day, Thursday, March 15. The trial was
    adjourned to Monday, March 19 to begin the trial judges final charge to the
    jury. When court recommenced, Mr. Gagers counsel raised objections to the
    closing addresses of Mr. Smelies counsel and Crown counsel and requested the
    trial judge declare a mistrial. He argued that his counsel was giving evidence
    about why Mr. Smelie did not testify and improperly asserting that Mr. Smelie
    would have testified against Mr. Gager but was afraid that he would be killed
    by Mr. Gager if he did so. In the alternative, Mr. Gagers counsel requested
    that the trial judge give a corrective instruction that highlighted the
    impropriety of the comments made by Mr. Smelies counsel in his closing
    address.

[88]

The trial judge did not grant a mistrial but
    determined that any prejudice could be remedied by an appropriate corrective
    instruction:
R. v. Gager
, 2012 ONSC 2712, at para. 48. While
    acknowledging that the remarks made by Mr. Smelies counsel were close to
    the line, the trial judge was not convinced that he suggested that Mr. Smelie
    would have made those assertions had he testified. As part of his final charge
    to the jury, he gave a corrective instruction that was reviewed and discussed
    with counsel. Following a review of Mr. Smelies counsels comments, the core
    of the trial judges instruction on this point was as follows:

I
    instruct you as a matter of law that you must ignore
[counsel]
s submission in this
    regard.

Wh
atever the
reason Mr. Smelie decided not to testify, it is entirely
    his affair, an
d apart from the one limited
use I have already indicated you may make of his failure
    to tes
t
ify
, neither his failure
    to testify nor the reason for his decision in that regard is of any concern to
    you whatsoever.



As
    oppos
ed to using the failure of Mr. Sm
elie to testify as a factor
that
    may point towards Mr. Gagers innocence, which you may do if you see fit, I
    want to stress in the strongest possible terms that you must not use the fact
    that Mr. Smelie failed to testify in
any way, or to
    any degree whatso
ever, against Mr. Gager.

M
or
e specifically, yo
u must not reason that Mr. Smelie failed to testify because
    he feared Mr. Gager.

Such reasoning sugg
ests, albeit tacitly, that Mr. Gager must be a dangerous or
    violent man, or someone to be feared.

T
o use
    such reasoning to assi
st you in d
eciding the case against Mr. Gager would be both improper
    and very unfair to Mr. Gager.

So, again, as opposed
    to usi
ng it to raise a doubt on Mr.
Gagers behalf, you must not use Mr. Smelies failure to
    testify, in even
the slightest degree, in deciding wh
ether the Crown has proven the case against Mr. Gager.

[89]

Mr. Gager repeats on appeal the argument made
    before the trial judge about the deleterious effect of the cumulative prejudice
    caused by counsels remarks. There was bad character evidence concerning Mr.
    Gagers criminal record, his jailhouse letters, and gang membership. The
    remarks of Mr. Smelies counsel exacerbated the prejudice to Mr. Gager: he
    spoke of Mr. Gagers violence and Mr. Smelies fear of him. As a result, Mr.
    Gager submits that the remarks were so prejudicial and rendered the trial so
    unfair that no corrective instruction could have been adequate. The trial judge
    should have declared a mistrial, in his submission.

[90]

I do not agree.

[91]

Mistrials are a remedy of last resort only to be
    granted where necessary to prevent a miscarriage of justice:
R. v. Chiasson
,
    2009 ONCA 789, 258 O.A.C. 50, at para. 14. Determining whether a mistrial is
    necessary to prevent a miscarriage of justice is a matter within the discretion
    of the trial judge because the trial judge is in the best position to determine
    whether the misconduct will affect the fair trial interests of an accused. Therefore,
    on appeal, deference will be shown to the trial judges decision absent an error
    in principle or a decision that is clearly wrong: see
R. v. Jeanvenne
,
    2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 58;
R. v. John
, 2016 ONCA
    615, 133 O.R. (3d) 360, at para. 82, leave to appeal refused, [2017] S.C.C.A.
    No. 101.

[92]

I see no such error here.

[93]

As the trial judge properly noted, Mr. Gagers
    delay in making the objection, while not fatal to his mistrial application,
    foreclosed other less extreme remedies, such as his counsel making submissions
    in reply, or asking the trial judge to give an immediate jury instruction. I
    agree with the trial judges observation that the late timing of the objection
    belies the irreparability of the prejudice. If the remarks were so egregiously
    prejudicial, the sooner they were remedied the better.

[94]

The trial judge carefully considered the
    question of cumulative prejudice. He reviewed the impugned closing remarks in
    the context of the bad character and gang evidence against Mr. Gager, including
    his letters, as well as the suggestions made to Mr. Gager during his
    cross-examination by Mr. Smelies counsel that Mr. Gager had participated
    in the shooting while Mr. Smelie stayed in the van. The trial judge concluded
    that the cumulative prejudice would be attenuated by appropriate jury
    instructions. His final instructions included that questions posed by counsel
    were not evidence unless adopted as correct by the witness and the jury was
    specifically instructed to disregard that line of questioning. The jury was
    told they could not consider evidence they did not hear, and they were
    cautioned against engaging in prejudicial propensity reasoning engendered by
    counsels closing remarks.

[95]

The trial judge expressly acknowledged and did
    not minimize the impropriety and potential prejudice caused by Mr. Smelies
    closing remarks about Mr. Gagers threat against Mr. Smelie. However, it was
    open to the trial judge to conclude that it was possible that the jury would
    have understood [Mr. Smelies counsels] remark as referable to some
    retribution from gang members generally, as opposed to revenge by Mr. Gager
    specifically, and the inference that Mr. Gager would murder Mr. Smelie if he
    testified against him was not the only inference to be drawn from Mr. Smelies
    counsels remarks.

[96]

The trial judge properly distinguished the
    circumstances in
R. v. Giesecke
(1993), 82 C.C.C. (3d) 331 (Ont.
    C.A.), leave to appeal refused, [1993] S.C.C.A. No. 412, from the present case.
    Most importantly, in
Giesecke
,
the trial judges instructions unnecessarily repeated the prejudicial remarks
    and failed to correct their prejudice.

[97]

That is not the case here. In my view, the trial
    judges instructions were adequate to address any prejudice caused by Mr.
    Smelies counsels remarks. They left the jury in no doubt that the remarks
    were inappropriate and that they had to be disregarded. It is even arguable
    that Mr. Gager obtained a benefit that he would not otherwise had obtained in
    that the instruction effectively neutralized the negative connotation of the
    threat against Mr. Smelie arising from Mr. Gagers letters and emphasized the
    favourable use of Mr. Smelies failure to testify to prove Mr. Gagers
    innocence.

[98]

Jurors are presumed to follow instructions. There
    is no basis here to interfere with the trial judges conclusion that the
    corrective instruction was sufficient and that a mistrial was not called for in
    the circumstances.

(3)

Did the Trial Judge Err in Dismissing Portions
    of the Appellants Applications for Further Disclosure of Materials Underpinning
    Det. Backus Opinion Evidence?

[99]

Mr. Gager submits that the trial judge erred in
    dismissing the appellants two applications for further disclosure of various
    materials that they argued underpinned Det. Backus expertise and opinion.
    These materials included the Toronto Police Services confidential informant
    (CI) database, and intercepts and the informations to obtain (ITOs) from
    projects on which Det. Backus had been the lead investigator, namely, Projects
    XXX, Kryptic and Fusion. As a result, they said they were denied vital tools to
    challenge Det. Backus qualifications, credibility and reliability.

[100]

The first defence application, commenced at the end of November 2011,
    sought disclosure of three things: (1) the CI database information on which the
    appellants submitted Det. Backus relied to formulate his opinion, (2)
    debriefing notes detailing information gathered from arrestees in the projects
    in which Det. Backus was involved, and (3) two slideshow presentations
    that he uses to educate other officers about gangs. The trial judge dismissed the
    application respecting the CI database on the basis that the material had
    marginal relevance, disclosure was unnecessary, and the interest in protecting
    CI privilege prevailed. The Crown was ordered to produce vetted copies of the
    debriefing materials and the slideshow presentations.

[101]

Mr. Smelie brought a second disclosure application orally on
    December 2, 2011 and in writing on December 5, 2011, in which Mr. Gager
    initially joined. The appellants sought hard-drive disclosure, in other words,
    the fruits of the entire investigation, including transcripts and wave files of
    each intercepted communication relied on by Det. Backus in Project Kryptic, as
    well as transcripts and wave files of the intercepted communications relied on
    by Det. Backus from Project XXX and Project Fusion. The appellants ultimately focused
    their submissions on the Project Kryptic intercepts and ITO material relevant
    to the issue of rivalry between Doomztown and Driftwood.

[102]

The trial judge dismissed this second application. He determined
    that, again, the additional material had minimal relevance to the issues at
    trial, and that the intercepts and ITO material were third party records, not
    in the possession of the prosecuting Crown, and not the fruits of the investigation
    in this case. He concluded that the Crowns disclosure obligation was satisfied
    by the Crowns voluntary disclosure of the 15-page excerpt of the ITO in
    Project Kryptic that summarized information and intercepted communications.
    Moreover, the trial judge observed that his decision not to permit Det. Backus
    to opine on the issues of Mr. Smelies membership in the Doomztown Crips, as
    well as the gang rivalry said to exist between the Doomztown and Driftwood Crips,
    rendered the disclosure application effectively moot.

[103]

I see no error in the trial judges disclosure rulings.

(a)

Applicable Legal Principles

[104]

The Crowns well-established duty to disclose non-privileged relevant
    materials in its possession was helpfully summarized by Cory J. in
R. v.
    Dixon
, [1998] 1 S.C.R. 244, at para. 20, as follows:

In
R. v. Stinchcombe
,
it was held that the Crown has
    an obligati
on to disclose all relevant material in
    its possession, so long as the m
aterial is not
    privileged. Material is relevant if it could reasonably be used by the defence
    in meeting the case for the Crown. Relevance was described in
R. v. Egger
,
in this way:

One measure of the relevance of information
    in the Crowns hands is its usefulness to the defence: if it is of some use, it
    is relevant and should be disclosed. This requires a determination by the
    reviewing judge that production of the information can reasonably be used by
    the accused either in meeting the case for the Crown, advancing a defence or
    otherwise in making a decision which may affect the conduct of the defence such
    as, for example, whether to call evidence.

[Citations
    omitted.]

[105]

The disclosure threshold is low. The Crowns
    duty to disclose is triggered whenever there is a reasonable possibility of the
    information being useful to the accused in making full answer and defence:
Dixon
,
    at para. 21.

[106]

On appeal, this court must engage in a two-step
    process to determine if the appellants fair trial rights were breached and a
    new trial should be ordered as the appellants request:
Dixon
, at paras.
    35 to 39. First, the court looks at the materiality of the refused material to
    determine whether there is a reasonable possibility that it could have impacted
    the verdicts. Where the remedy sought is a new trial, an accused need only
    persuade the appellate court of the reasonable possibility that the failure to
    disclose affected either the outcome at trial or the overall fairness of the
    trial process.

[107]

Second, the court takes into account defence counsels diligence in
    pursuing disclosure from the Crown in its consideration of the overall fairness
    of the trial process. Where the materiality of the undisclosed information is
    relatively low, an appellate court will have to determine whether any realistic
    opportunities were lost to the defence to seek and obtain disclosure. To that
    end, the due diligence or lack of due diligence of defence counsel in pursuing
    disclosure will be a very significant factor in deciding whether to order a new
    trial.

(b)

Analysis

[108]

I do not accept that the trial judge did not allow for meaningful
    disclosure nor that the refused disclosure would have been relevant or useful
    or have impacted the verdicts. I am also of the view that the lateness of the appellants
    disclosure applications undercuts their allegation of trial unfairness.

[109]

Det. Backus relied on CI database information and hundreds of
    thousands of intercepts to formulate his general expertise and opinion on all
    aspects of gang membership, organization, operations and coded language. The particular
    basis of his proposed expert opinion had been disclosed to the appellants long
    in advance of trial. The appellants were provided with all Project XXX
    disclosure materials and intercepts as part of their disclosure package. In
    response to their disclosure applications, the Crown provided vetted copies of
    debriefs and a vetted copy of the PowerPoint presentations that Det. Backus presented
    in seminars to police officers, as well as the 15-page Crown summary.

[110]

There is no reason to challenge the trial judges conclusion that
    the disclosure of the CI database could not possibly affect the outcome of the
    trial. He correctly concluded that the CI database played an extremely minor
    role in the formation of Det. Backus general expertise. As the trial judge
    found, Det. Backus expertise came from years of experience working the
    wiretap rooms of several major gang investigations and listening to intercepts,
    in addition to his experience as lead investigator reviewing wiretap
    affidavits, surveillance and seeing the culmination of that work in arrests and
    seizures. The appellants contention that the CI database could have provided
    some useful information is entirely speculative.

[111]

The appellants argue that the trial judge erred by denying
    disclosure to protect informer privilege, when they had argued that the
    information was not covered by informer privilege. In my view, there is no
    basis to interfere with the trial judges finding that the privilege did in fact
    attach to the information in the database and that it had not been waived. In
    any event, he denied disclosure because he found that it could not possibly
    affect the outcome of trial. I see no error here.

[112]

Mr. Gager argues that the Project Kryptic materials were relevant
    first party disclosure as required under
R. v. McNeil
, 2009 SCC 3,
    [2009] 1 S.C.R. 66.

[113]

I disagree.

[114]

As referenced by the trial judge in his reasons, where the records
    sought either fall outside the scope of the fruits of the investigation or are
    not in possession of the prosecuting Crown, they are third party records as a
    matter of first impression:
McNeil
, at paras. 13, 25; see also
R.
    v. Jackson
, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 91-98, leave to
    appeal refused, [2016] S.C.C.A. No. 38;
R. v. Gubbins
, 2018 SCC 44, [2018]
    3 S.C.R. 35, at para. 33;
R. v. Quesnelle
, 2014 SCC 46, [2014] 2
    S.C.R. 390, at paras. 11-13.

[115]

In my view, the trial judge correctly concluded that the records
    were third party material. Although Det. Backus was the lead officer for Project
    Kryptic, the materials sought were records created in the course of a
    different criminal investigation and as such were third party records.

[116]

In any event, with respect to the portion of the Project Kryptic materials
    that were ultimately pursued on the second application, they related only to
    the issue of gang rivalry. The trial judges decision not to allow Det. Backus
    to opine on that issue effectively foreclosed any reasonable possibility that the
    disclosure would have any impact on the verdicts.

[117]

Respecting Project XXX, the appellants had access to some transcript
    and call summaries and a much larger number of audio recordings. The intercepts
    could be searched by certain keywords. Det. Backus was willing to provide
    specific references to intercepts upon which he relied and to do whatever
    searches were required. Accordingly, I do not accept the appellants argument
    that the Crown failed in its obligation to provide reasonably accessible disclosure
    with respect to those intercepts.

[118]

The trial judge dealt with evolving late-breaking additional
    disclosure applications in a principled and fair manner. As the trial judge
    correctly noted, the timing of the defence applications is a significant factor
    in determining the impact of non-disclosure on trial fairness.

[119]

In the result, there was no trial unfairness to the appellants. I
    would therefore dismiss this ground of appeal.

(4)

Were the Verdicts Inconsistent?

[120]

The appellants submit that the first degree murder verdict for Mr.
    Gager and the second degree murder verdict for Mr. Smelie cannot be reconciled.
    They suggest that the jury reached some sort of unjustifiable compromise, did
    not follow the trial judges instructions, or were confused by the evidence.

[121]

Specifically, the appellants say there was no difference in the
    evidence between them that would have justified the difference in verdicts: (1)
    both were in the stolen van at the time of the murder; (2) there were loaded
    firearms in the van; (3) the occupants of the van monitored the area in the minutes
    prior to the shooting; and, (4) while there was more recent evidence of Mr.
    Gagers gang involvement because of his letters, there was also evidence on which
    the jury could infer that Mr. Smelie was still a gang member.

[122]

Moreover, the appellants submit, if the jury accepted that Mr. Gager
    knew the murder was planned and deliberate, the jury must have accepted that he
    was a gang member. It is not possible to be in a stolen van with loaded
    firearms and knowingly and intentionally participate in the killing without
    knowing that the killing was planned and deliberate. On the evidence, Mr.
    Smelie must have had some prior awareness because he acted without hesitation.
    The jurys verdict necessarily meant that Mr. Smelie was found to be a gang
    member and they necessarily implied a gang related motive. It was therefore impossible
    in these circumstances to convict Mr. Gager of first degree murder and Mr.
    Smelie of second degree murder.

[123]

Respectfully, I do not agree that the verdicts are inconsistent.

[124]

Inconsistent verdicts are a subspecies of unreasonable verdicts. The
    test for assessing whether verdicts between co-accused are inconsistent is
    whether the verdicts are supportable on any theory of the evidence consistent
    with the legal instructions given by the trial judge:
R. v. Pittiman
,
    2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7;
R. v. Catton
, 2015 ONCA
    13, 319 C.C.C. (3d) 99, at para. 21.

[125]

For Mr. Gager, the jury must have rejected his evidence that his
    presence in the van was accidental and his possession of the firearm forced,
    and that he later feigned gang membership while in custody awaiting trial in
    order to secure protection against rival gang members who threatened him. There
    can be no question that based on his letters, his presence in the van, his
    association and communication with other known gang members, and his possession
    of a firearm that matched spent gun casings at the scene of the murder, it was
    open to the jury to find that he was a gang member at the time of the shooting.

[126]

Similarly, it was open for the jury to equally infer that Mr. Smelie
    was still associated with the gang at the time of the shooting, based on his
    previous gang involvement.

[127]

I do not accept that the jurys finding of gang membership for both
    appellants would preclude them from reaching a second degree verdict for Mr.
    Smelie. In my view, contrary to the appellants assertion, it would not be
    impossible for the jury to conclude that Mr. Smelie did not know about the
    planning and deliberation for the murder and that he decided on the sudden to
    participate in the shooting of Mr. Grant. The distinction lies in the
    meaning of planned and deliberate.

[128]

The meaning of planned and deliberate was
    recently reviewed by this court in
R. v. Campbell
, 2020 ONCA 221, at
    para. 33:

A
    murder is

planned

if it is the product of

a calculated scheme or design
    which has been carefully thought out, and the nature and con
sequences of which have been considered and weighed

. A murder is

deliberate

if it is

considered,



not impulsive

,

slow in deciding,



cautious,

implying that the
    accused must take time to weigh the advantages and disadvantages of his
    intended action
. [Citations omitted.]

[129]

The Crown here was required to prove beyond a reasonable doubt that
    each of the appellants had carefully thought out and calculated a scheme,
    considered the nature and consequences, and weighed the pros and cons of the
    murder, or that they aided or abetted the other participants in the shooting to
    commit a planned and deliberate murder. The trial judge instructed the jury
    accordingly:

Not
    every murder i
s first degree murder.

To prove that the
murder of Mr. Grant was first
degree
    murder, Crown counsel must
prove beyond a reasonable
    doubt not only that the accused committed murder, but also that the murder was
    both planned and deliberate.

It is not e
nough for Crown counsel to prove that the murd
er was planned or that the murd
er
    was deliberate.

In
order
    to esta
blish that the murder of Mr. Grant was first
    degree murder, the Crown must prove both.

It must be the murder
    itself that is p
lanned and deliberate, not something
    else the accused d
id.

The
    word planned has its common, e
v
eryday meaning, namely, a calculated scheme or design that
    has been carefully thought out and the consequences of which have been thought
    over and sized up.

A
plan
    need be neither complicated nor sensible.

It may be ve
ry simple.

A
    person may prepare a plan
and carry it out
    immediately or he may wait some period of time to carry it out.

In deciding whether an
    act was the result of a plan, an impo
rtant factor is
    the time it took to develop or decide upon that course of acti
on, not how much or how little time
it took between developing it and carrying it out.

A
    planned murder is one that is committed as a result of a scheme or plan that
    has been formulated before the do
ing of the act that
    causes death.

The murder is the implementation of
that previously conceiv
ed
scheme or design.

A murder
committed on a sudd
en impulse
    and without prior consideration, even where the killer intends to kill, is not
    a planned murder.

Tu
rning to the concept of deliberation, unlike the word,
    plan, the word deliberate i
s not used
according to its everyday meaning.

In co
mmon parlance, when we say something is
deliberate, we usually mean that it was done intenti
o
nally or on purpose.

That is not, however,
    what is meant by
deliberate in this context.

Rather
, in this context, we
use the wor
d

deliberate
 according to its
    dictionary definition, namely, consid
e
red, not impulsive, carefully
    thought-out, not hasty or rash, slow in decidin
g,
    cautious.

A
    deliberate act is one that the actor has taken time to weigh the
advant
ages
and dis
advantages of
    doing.

Moreover,
just as the plannin
g

must precede the actual killing,
    so, too, must the deliberation take place be
f
ore the act of murder commences.

As I have earlier
    indicated, to amount to murder, the k
illing must be
    intentional, but even w
ith an inten
tion

to kill, a murder committed on a
    sudden impulse, and without prior though
t
and consideration, is not a
    deliberate murder.

I
t is for you to say whether the
    murder of Mr. Grant was both planned

and deliberate.

To dec
ide this issue, you shoul
d
consider all the evidence.

[130]

The trial judge correctly set out the governing legal principles for
    the jury to apply. The appellants did not object to this charge either at trial
    or on appeal. This instruction could have led the jury to have reasonable doubt
    about Mr. Smelies knowledge of planning and deliberation.

[131]

The direct evidence of Mr. Smelies participation comes from Mr.
    Gager: (1) when he entered the van, Mr. Smelie was already in the front
    passenger seat; (2) the shooting happened as soon as the van stopped; and (3) Mr.
    Gager saw Mr. Smelie re-enter the van after the shooting. There is no
    evidence from Mr. Gager of any discussions in the van prior to the
    shooting. In my view, it was open to the jury to form a reasonable doubt that Mr.
    Smelie had concocted or been aware of a carefully thought-out scheme with time
    to weigh the advantages and disadvantages of the intended action. That Mr.
    Smelie may have become aware of an attack moments before the killing does not necessarily
    meet the definition of planned and deliberate, nor does it mean that he had
    the requisite knowledge that the murder was planned and deliberate by the
    other participants.

[132]

It was open to the jury to conclude that Mr. Smelie may have decided
    spontaneously to jump out and join the others. There was a wider basis for
    reasonable doubt as to planning and deliberation for Mr. Smelie than for Mr.
    Gager. There was stronger evidence of Mr. Gagers gang involvement in the form
    of his letters and his admitted knowledge of the others in the van. The jury
    could reasonably have found on this record that the others decided that they
    would stop and shoot, and that Mr. Smelie decided to get out and participate
    and therefore was guilty of second degree murder.

[133]

The appellants have not met their burden to demonstrate that on any
    reasonable view of the evidence the verdicts are inconsistent.

(5)

Did the Conduct of the Trial Judge Give Rise to
    a Reasonable Apprehension of Bias?

[134]

The appellants are not alleging actual bias but
    a reasonable apprehension of bias on the part of the trial judge. They say the
    trial judge was an active participant in the trial who unremittingly leveled
    unwarranted and angry criticism and corrections throughout the pre-trial
    motions and the trial. The appellants allege that the trial judges impugned
    conduct included non-verbal conduct related to tone and demeanour, which is not
    reflected in the record, that conveyed a derisive attitude by the trial judge
    towards the appellants and their counsel.

[135]

The appellants submit that the trial judge rebuked both Crown and
    defence counsel, but that defence counsel was the disproportionate target of
    the trial judges ire. While, according to the appellants, most of the trial
    judges interventions occurred in the absence of the jury, the trial judges
    treatment of defence counsel served to belittle and intimidate them which had a
    chilling effect on their ability to represent the appellants interests at
    trial.

[136]

The appellants say that the cumulative effect of the trial judges
    entire conduct, including his summary treatment and dismissal of the
    appellants application for a mistrial on the second day of trial, gave rise to
    a reasonable apprehension of bias and an unfair trial. According to the
    appellants, a new trial is therefore required.

[137]

In support of their application, the appellants seek to file as
    fresh evidence affidavits from trial counsel for the appellants. The appellants
    also seek to file materials from previous, unrelated trials at which
    allegations of unreasonable apprehension of bias were made against the trial
    judge. The Crown opposes the appellants application and filed evidence of the
    trial counsel for the Crown and the investigating officer who attended trial.
    Cross-examination transcripts of the affiants are also proffered.

(a)

Fresh Evidence

[138]

I turn first to the appellants fresh evidence application. In my
    view, the affidavits proffered by the appellants, as well as the
    cross-examination transcripts on these affidavits, are admissible in relation
    to the appellants reasonable apprehension of bias ground of appeal. They go to
    the issue of the fairness of the trial process and are compliant with the normal
    rules of evidence:
R. v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354,
    at para. 157, leave to appeal refused, [2017] S.C.C.A. No. 17. As a result, the
    Crowns responding affidavits and the cross-examination transcripts on these
    affidavits should also be admitted.

[139]

I would not admit the materials from the other proceedings over
    which the trial judge presided. The appellants argue that this material is
    relevant because it goes to the reliability of their affiants by showing that
    similar allegations have been made against this trial judge in other
    proceedings. The appellants invite us, essentially, to use the purportedly
    similar allegations to support a finding that the trial judge engaged in
    similar conduct in this case. In other words, the evidence is effectively tendered
    to show a general disposition of this trial judge toward certain behaviour.
    While there will be cases in which evidence of a broader context may warrant
    admission, this is not such a case. Every trial is different. As the fresh
    evidence in this case is relevant only to the extent we engage in propensity
    reasoning, I would decline to admit it.

[140]

The affidavits and the cross-examinations speak to the allegations
    of verbal and non-verbal misconduct by the trial judge. It is not necessary to
    itemize the allegations in these reasons, but they principally include
    allegations that the trial judge interrupted, displayed annoyance with and
    leveled critiques at trial counsel.

(b)

Reasonable Apprehension of Bias

[141]

Because of the strong presumption of judicial fairness, impartiality
    and integrity that is not easily displaced, there is a high burden on the party
    alleging bias to prove on the basis of substantial grounds that there is a real
    likelihood or probability of the appearance of bias:
Yukon Francophone
    School Board, Education Area #23 v. Yukon (Attorney General)
, 2015 SCC 25,
    [2015] 2 S.C.R. 282, at para. 25;
Miglin v. Miglin
(2001), 198 D.L.R.
    (4th) 385 (Ont. C.A.), at paras. 29-30, revd on other grounds, 2003 SCC 24,
    [2003] 1 S.C.R. 303. As I explain, I am of the view that the appellants have
    fallen far short of this stringent threshold.

[142]

The well-known test for establishing a reasonable apprehension of
    bias, as first articulated by the Supreme Court of Canada in
Committee for
    Justice and Liberty et al. v. National Energy Board et al.
, [1978] 1
    S.C.R. 369, at p. 394, per de Grandpré J. (dissenting), is as follows:

[W]hat
    woul
d an informed pers
on,
    viewing the matter realist
ically and practically 
    and having thought the matter through

conclude
.

W
ould he think that
    it is more likely tha
n not that [the trial judge],
    whether consciously or unconsciously, would not decide fairly.

[143]

As the Supreme Court confirmed in
Yukon
    Francophone School Board
, at para. 22: The objective of the test is to
    ensure not only the reality, but the
appearance
of a fair adjudicative
    process (emphasis in original).

[144]

While a judges conduct, particularly his or her
    interventions, can rebut the presumption of impartiality, a judges individual
    comments or interventions must not be seen in isolation. Rather, the impugned
    conduct must be considered in the context of the circumstances and in the light
    of the whole proceeding. The inquiry is therefore inherently contextual and
    fact-specific: see
Yukon Francophone School Board
, at paras. 25 to 27.

[145]

As Mr. Gagers counsel on this appeal fairly acknowledged, the
    appellants would not likely have raised the issue of reasonable apprehension of
    bias solely on the basis of the trial judges alleged verbal interventions, as
    most of them were justified as being within his case management prerogative as
    trial judge. This is consistent with the comments of Lamer J. in
Brouillard
    Also Known As Chatel v. The Queen
, [1985] 1 S.C.R. 39, at p. 44:

[
I
]t is clear that
    judges are no longer required to be as passive as they once were; to be what I
    call sphinx judges. We now not only accept that a judge may intervene in the
    adversarial
debate, but also believe that it is
    sometimes essential for him to do so for justice in fact to be done. Thus a
    judge may and som
etimes must ask witnesses questions,
    interrupt them in their testimony and if necessary call them to order.

[146]

Rather, the appellants submit that it is the cumulative effect of
    the verbal and non-verbal misconduct that grounds the allegation of bias,
    together with the way the trial judge handled the mistrial application on the
    second day of trial.

[147]

I start with the last point  the trial judges handling of the
    mistrial application. The appellants did not file affidavit evidence at trial in
    support of the mistrial application but made submissions without prior notice that
    the trial judge should declare a mistrial. The appellants alleged that the
    trial judge was engaging in conduct demeaning to the defence such as rolling
    his eyes, sighing audibly, taking off his glasses in frustration, and not
    taking notes during cross-examinations conducted by the defence. Moreover, they
    asserted that the trial judge treated the defence unfairly by criticizing
    counsel, intervening during cross-examinations, and yelling at them, albeit the
    latter not in front of the jury.

[148]

The trial judge declined to hear from junior counsel for Mr. Smelie
    and did not hear submissions from junior counsel for Mr. Gager. The Crown
    declined to make submissions after being denied the opportunity to seek
    instructions. The trial judge immediately dismissed the application with oral
    reasons. He denied engaging in any of the impugned conduct. He maintained he
    treated the defence and Crown equally. As for his demeanour, the trial judge
    stated that nature gave him a stern visage and that the jury would understand
    that the trial judge was a cranky looking fellow. He saw no trial unfairness.

[149]

I see no error in the trial judges handling of the mistrial
    application nor anything that would rise to a reasonable apprehension of bias
    or trial unfairness. Looked at in context, on the second day of trial, the
    trial judge was required during an ongoing jury trial to deal with an
    unexpected oral application without supporting materials and, until prompted by
    the trial judge, without a request for any relief. He patiently listened to
    counsels submissions. He was not required to hear from all counsel for the
    appellants when they confirmed their submissions would be the same nor allow
    the Crown time to seek instructions. He gave the appellants and the Crown an
    opportunity to be heard. His reasons dealt with all the issues that were raised
    by counsel. His response was appropriate in the circumstances.

[150]

In my view, the fresh evidence fails to demonstrate anything that
    would rise to the high level required to substantiate a reasonable apprehension
    of bias on the part of the trial judge. It speaks to defence counsels
    subjective and very general impressions of what occurred at a trial more than seven
    years before they swore their affidavits. Given the absence of any audio or
    video recording, it is not possible to assess directly the trial judges tone
    or his non-verbal demeanour of which the appellants complain. Moreover, this evidence
    as to the trial judges conduct is largely contradicted by Crown trial counsel.
    Even where this evidence is somewhat consistent, there is nothing in it that would
    even approach the kind of behaviour that would give rise to a reasonable
    apprehension of bias. Rather, the trial judges interventions principally served
    to render the trial more efficient and ensure that proper procedure, court
    decorum and the rules of evidence were being followed.

[151]

Similarly, there is nothing in the voluminous transcripts of the
    trial proceedings that demonstrate anything but a trial judge who was anxious to
    protect the appellants fair trial rights, not to keep the jury waiting, and to
    keep the four-month proceeding on track. The appellants list of interventions
    appears immaterial when viewed over the course and in the context of four
    months of proceedings. This context includes, as well, instances where the
    trial judge sought to assist the appellants, such as, for example, when the
    trial judge offered on his own initiative to give a midtrial instruction to
    insulate Mr. Smelie from bad character evidence. Moreover, the hundreds of transcript
    pages devoted to counsels submissions not only indicate a respectful working relationship
    between the trial judge and counsel but serve as clear evidence of the trial
    judges patience and skill in dealing with the numerous and difficult issues
    that sometimes arose without any or very little notice.

[152]

As Mr. Gagers counsel stated in submissions during the mistrial
    application, a trial is not a tea party: see also
Groia v. Law Society of
    Upper Canada
, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 3. This is particularly
    the case in criminal proceedings where the stakes are so enormously high for
    the accused. Defence counsel must feel at liberty to forcefully protect their
    clients interests within the bounds of their professional obligations and the
    rule of law. A trial judge must intervene with caution so as not to create
    trial unfairness. At the same time, he or she has a right and an obligation to
    intervene to control the process, even to intervene to rebuke and correct
    counsel:
Marchand (Litigation guardian of) v. Public General Hospital
    Society of Chatham,
2000 CanLII 16946 (Ont. C.A.), at para. 154, leave to
    appeal refused, [2001] S.C.C.A. No. 66;
R. v. Ibrahim
, 2019 ONCA 631, 147
    O.R. (3d) 272, at para. 97.

[153]

There is no question that trial judges must endeavour to carry out
    their obligation to manage a trial in a courteous manner:
Mills
, at
    para. 234. However, we do not expect trial judges or counsel to be perfect.
    That is why context is so important. The test is whether the objective observer
    would conclude in the circumstances that the trial judge would likely not
    decide fairly or otherwise undermine trial fairness. The fact that the trial
    judge and counsel occasionally and admittedly showed some signs of impatience
    and frustration in the course of a very difficult four-month proceeding was
    entirely understandable in this case. I am satisfied in the circumstances that
    the trial judges interventions, viewed in context, come nowhere close to being
    discourteous, let alone establishing a reasonable apprehension of bias.

[154]

The record clearly demonstrates that there was no chilling effect on
    the ability of trial counsel to fully and ably represent the appellants.
    Indeed, appellants trial counsel had no difficulty in bringing forth
    applications, conducting examinations and cross-examinations, making objections,
    vigorously debating with the trial judge, and forcefully presenting closing
    argument to the jury. That the trial judge reminded counsel to stay on track
    and raised evidentiary and other legal and procedural issues was exactly what
    he was required to do as the trial judge. He had authority and discretion to manage
    the proceedings. He did so justly.

[155]

The appellants had a fair trial and the trial judges conduct did
    not raise a reasonable apprehension of bias. There is no basis for appellate
    intervention.

(6)

Did the Trial Judge Err in Imposing on Mr.
    Smelie an 18-year Period of Parole Ineligibility?

[156]

Mr. Smelie submits that the trial judge should have imposed a
    15-year period of parole ineligibility which would have been more consistent
    with that imposed for similar offences by similar offenders in similar
    circumstances. He says that the trial judge erred: (1) by failing to
    acknowledge or give any weight to the highly mitigating factor of Mr. Smelies
    youth  he was 20 at the time of the murder; (2) by finding that Mr. Smelie did
    not earn an honest wage but instead lived off gang activity, when there was no
    evidence to support that finding; and (3) by making findings that were
    inconsistent with the jurys verdict of second degree murder  effectively
    sentencing Mr. Smelie for first degree murder.

[157]

I do not accept these submissions.

[158]

I start with the well-settled principle that a trial judges
    decision on parole ineligibility is entitled to deference absent an error in
    law or principle, or unless it is demonstrably unfit:
R. v. Shropshire
,
    [1995] 4 S.C.R. 227, at paras. 43-53;
R. v. Kormendy
, 2019 ONCA 676,
    147 O.R. (3d) 701, at paras. 21-23;
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at paras. 11-12. I see no reversible error in the present case.

[159]

The trial judge carefully considered the relevant criteria under s.
    745.4 of the
Criminal Code
: the character of the offender; the nature
    of the offence and the circumstances surrounding its commission; and the
    recommendation of the jury: R.S.C. 1985, c. C-46. He also recognized that [i]n
    assessing these considerations and in deciding whether to increase the period
    of parole ineligibility all of the objectives of sentencing are relevant:
R.
    v. McKnight
(1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 9.

[160]

The parole ineligibility of 18 years imposed here was well within
    the range of similar offences for similar offenders in similar circumstances,
    as demonstrated by the trial judges review of the relevant case law. It also represented
    the approximate midpoint between the Crowns position of 22 years and the
    defence range of 12 to 14 years of parole ineligibility. While the trial judge
    decried the heinous nature of the crime and placed it at the high end of moral
    culpability, he did not impose a sentence towards the highest possible end of
    the range. Moreover, it was below the majority jury recommendation on parole
    ineligibility: one juror recommended 15 years; eight jurors recommended 20
    years; and two jurors recommended 25 years.

(a)

Mr. Smelies Youth

[161]

The trial judge was aware of Mr. Smelies youthfulness at the time
    of the offence, as he averted to his age in his reasons. He recognized that rehabilitation
    cannot be ruled out, though he found that Mr. Smelies prospects in that
    behalf are [not] promising.

[162]

The latter conclusion, as well as the trial judges observations
    that Mr. Smelies character is deeply flawed and that he has been
    engaged in a steady pattern of criminality interrupted only by periods of
    incarceration were firmly rooted in the evidence. This evidence included Mr.
    Smelies criminal record of serious robbery and other offences, his gang
    activity, his participation in Mr. Grants senseless murder, and his
    institutional misconduct while incarcerated for the present offence.

(b)

Mr. Smelies Employment

[163]

The trial judge concluded that apart from one employment letter, there
    is no other evidence before me that Mr. Smelie was employed in the years since
    he left school. Mr. Smelies counsel did, in fact, make submissions that
    between 2004 and 2006, Mr. Smelie had worked for another company. The trial
    judge did not avert to this period of employment in his reasons; however, even
    if he had, it would not, in my view, have affected the appropriate period of
    parole eligibility. While there was some evidence before him that Mr. Smelie had
    been employed to some degree, the trial judge also found that he was involved
    in illicit drug dealing and gang activity. In the circumstances it was open to
    the trial judge to conclude beyond a reasonable doubt that Mr. Smelie lived,
    if not entirely, certainly principally on the avails of illegal gang activity.

(c)

Nature of the Offence

[164]

Finally, I do not see anything improper about the findings of fact the
    trial judge made in characterizing the circumstances of the offence. As reflected
    in his reasons, the trial judge was well aware that in convicting Mr. Smelie of
    second degree murder, the jurors were not satisfied beyond a reasonable doubt
    that he both planned and deliberated upon the murder, and the trial judge
    recognized that he was bound by that finding.

[165]

The trial judge went on to grapple with when Mr. Smelie must have
    become aware of what was going to happen or when he decided to participate in
    it and concluded that he was unable to decide these questions on the evidence. He
    determined that Mr. Smelie may not have given sufficient thought to the killing
    to be said to have both planned and deliberated upon it, as the jury was
    obviously satisfied Mr. Gager had done but, whatever was Mr. Smelies mindset
    in the period preceding the shooting, the trial judge was satisfied beyond any
    reasonable doubt that at the time Mr. Smelie took part in the shooting, he was
    fully aware of the motive underlying it, fully intent on killing the persons at
    whom he shot in pursuit of that motive, and knew full well that the other
    shooters were of a like mind.

[166]

Despite Mr. Smelies submissions to the contrary on this appeal,
    this is not the same as finding that Mr. Smelie planned and deliberated or that
    he knew that the other shooters had planned and deliberated, findings which
    would have resulted in his liability for first degree murder and therefore are
    precluded by the verdict. I see no error in the trial judges reasoning or
    conclusion, nor any inconsistency with the jurys verdict of second degree
    murder for Mr. Smelie.

(d)

The Sentence was Fit

[167]

The grounds raised on appeal do not provide a basis to interfere
    with the sentence imposed.

[168]

In any event, the sentence was fit. As the trial judge correctly
    noted, the long litany of seriously aggravating circumstances surrounding the
    murder of Mr. Grant rendered predominant the sentencing principles of
    denunciation and deterrence. These circumstances included: (1) Mr. Smelies and
    the other shooters intent to kill as many people as possible who happened to
    be in Driftwood Court at the time of the murder; (2) the murder took place in a
    public area where it was only because of the shooters ineptitude that
    additional killings did not occur; (3) Mr. Smelies use of a restricted handgun
    in breach of the prior prohibition bans; (4) his previous criminal record
    including offences where an imitation firearm was used; (5) his flight from the
    scene and police; (6) his dangerous discarding of his firearm; and (7) the
    gang-related motive and circumstances in which Mr. Grants murder occurred. As
    the trial judge correctly noted, it is hard to think of a crime that would
    show a more depraved indifference to the sanctity of human life.

[169]

As a result, there is no basis to interfere with this sentence.

E.

Disposition

[170]

I would dismiss the conviction appeals. While I would grant leave to
    appeal sentence, I would dismiss Mr. Smelies sentence appeal.

Released: April 30, 2020 (G.P.)

L.B.
    Roberts J.A.

I
    agree. G. Pardu J.A.

I
    agree. Thorburn J.A.





[1]

Tevane was a co-accused who unfortunately passed away before
    the trial.


