



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Evans, 2019 ONCA 715

DATE: 20190911

DOCKET: C59159; C59316; C59325 & C62620

Watt, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Evans, Shane Evans,
    Orrett Francis and Rashard Green

Appellants

Erin Dann, for the appellant, Sheldon
    Evans

Marianne Salih, for the appellant,
    Shane Evans

Janani Shanmuganathan, for the
    appellant, Orrett Francis

Paul Alexander, for the appellant,
    Rashard Green

Randy Schwartz and Peter Scrutton, for
    the respondent

Heard: November 7-8, 2018

On appeal from the convictions entered by
    Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a
    jury, on July 1, 2013, and from the sentences imposed on November 14, 2013,
    with reasons for sentence reported at 2013 ONSC 7003.

Watt J.A.:

[1]

Sheldon and Shane Evans are brothers.

[2]

Rashard Green and Orrett Francis are friends. Of
    each other and of the Evans brothers.

[3]

All four men are drug traffickers. That much was
    clear from the wiretap evidence introduced at trial.

[4]

But, what was not clear from those wiretaps, the
    appellants say, was
what
the appellants were dealing in  marijuana or
    cocaine  and for
whose
benefit.

[5]

The appellants argued they were independent
    contractors.

[6]

The Crown contended that they were members of
    and dealt drugs for a criminal organization: the Five Point Generals (5PG).

[7]

After a three-month jury trial involving six
    accused persons (including the appellants) on a 30-count indictment, the
    appellants were convicted of a total of 21 offences. Among them were offences
    committed for the benefit of or in association with a criminal organization, conspiracy
    to traffic in controlled substances, and firearms offences. After the jury
    delivered its verdict, the appellants Shane Evans and Rashard Green pleaded
    guilty to additional offences against the administration of justice. All
    received substantial penitentiary sentences. Each appeals conviction and sentence.

[8]

These reasons explain why I would dismiss the
    appeals from conviction and, except in the case of one appellant, from sentence.

THE BACKGROUND

[9]

A brief overview of the nature of the underlying
    investigation and of the case presented at trial provides a sufficient preview
    for the grounds of appeal advanced. Where further detail is required to
    understand those grounds or my evaluation of them, those circumstances appear
    at the outset of the discussion of the relevant ground of appeal.

The Investigation

[10]

The charges against the appellants and others
    arose out of a major wiretap investigation  named Project Corral  conducted
    by the Gun and Gang Task Force of the Toronto Police Service during early 2010.
    The principal component of that investigation was the authorized interception
    of private communications of alleged members of the 5PG, their associates, drug
    suppliers and purchasers.

The Evidence at Trial

[11]

At trial, the Crown sought to prove that the
    appellants were members of the 5PG, which the Crown said was a criminal
    organization within the definition of that term in s. 467.1(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
Membership in the 5PG enabled the appellants to traffic in illicit drugs,
    such as marijuana and cocaine, persistently and safely within 5PG territory.
    The Crown also relied on the evidence of intercepted communications to show
    that the appellants were ready, willing and able to defend their territory with
    violence when threatened by their rivals.

[12]

At trial, the Crown supplemented the evidence of
    the intercepted private communications with evidence from a variety of other
    sources, including:


i.

expert opinion evidence about the nature,
    characteristics and activities of Toronto street gangs to explain how the 5PG
    served the criminal purposes of its members and associates;


ii.

expert opinion evidence about the meaning of allegedly
    coded and guarded drug and firearms language in the intercepted communications;
    and


iii.

surveillance, undercover operations and other
    evidence establishing associations, as well as multiple drug trafficking
    transactions, among the 5PG members and associates.

[13]

In addition, the Crown tendered evidence of 5PG
    graffiti, tattoos, jewellery and clothing. According to the expert opinion
    evidence, these
indicia
are instrumental in establishing and
    maintaining a gangs territory and reputation. Searches of various homes and
    vehicles linked to the appellants and other 5PG members and associates also yielded
    various quantities of crack cocaine, drug paraphernalia, cash, firearms and
    ammunition.

The Defence Position

[14]

None of the appellants testified. Counsel for
    Shane Evans sought to call two witnesses to give expert opinion evidence about
    the meaning of terms associated with various drugs. The trial judge ruled the
    evidence inadmissible, a decision challenged in this court. In the end, no
    defence evidence was adduced.

[15]

At the conclusion of the evidence, the
    appellants acknowledged that they were drug dealers, but they contested the
    Crowns ability to prove beyond a reasonable doubt the specific drug alleged in
    the various trafficking-related charges against them. Moreover, even if the
    jury were to find that the 5PG existed, the appellants denied that it was a criminal
    organization, as that term is defined in the
Criminal Code
, and
    denied committing any offences for the benefit of or in association with the
    5PG. And, they resisted any inference of possession from the finding of
    firearms and ammunition in residences attributed to them.

The Verdicts

[16]

The jury found the appellants guilty of the
    following offences:

Sheldon Evans

·

Trafficking controlled substances for a criminal
    organization (
Criminal Code
, s. 467.12);

·

Trafficking marijuana for a criminal
    organization (
Criminal Code
, s. 467.12);

·

Conspiracy to traffic cocaine x 4 (
Criminal
    Code
, s. 465(1)(c));

·

Traffic cocaine (
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19 (
CDSA
), s. 5(1));

·

Possession of cocaine for the purpose of
    trafficking (
CDSA
, s. 5(2));

·

Transfer ammunition (
Criminal Code
, s.
    99(1));

·

Conspiracy to commit aggravated assault (
Criminal
    Code
, s. 465(1)(c)); and

·

Possession of firearm knowing unauthorized (
Criminal
    Code
, s. 91(2)).

Shane Evans

·

Trafficking controlled substances for a criminal
    organization (
Criminal Code
, s. 467.12); and

·

Conspiracy to traffic cocaine x 4 (
Criminal
    Code
, s. 465(1)(c)).

Orrett Francis

·

Trafficking controlled substances for a criminal
    organization (
Criminal Code
, s. 467.12);

·

Conspiracy to traffic cocaine x 4 (
Criminal
    Code
, s. 465(1)(c)); and

·

Conspiracy to traffic marijuana (
Criminal
    Code
, s. 465(1)(c)).

Rashard Green

·

Trafficking controlled substances for a criminal
    organization (
Criminal Code
, s. 467.12);

·

Trafficking marijuana for a criminal
    organization (
Criminal Code
, s. 467.12);

·

Conspiracy to traffic cocaine x 2 (
Criminal
    Code
, s. 465(1)(c)); and

·

Possession of loaded prohibited firearm (
Criminal
    Code
, s. 95(1)).

[17]

After the jury had rendered its verdict, the
    appellants Shane Evans and Rashard Green also pleaded guilty to offences
    against the administration of justice, which were on a separate indictment.

THE GROUNDS OF APPEAL

[18]

On their appeals from conviction, the appellants
    advance five grounds of appeal. They argue that:


i.

the jury was not properly constituted because
    the trial judge, when asked to exclude prospective jurors from the courtroom
    during the challenge for cause, required that the truth of the challenges be
    evaluated by static triers rather than by rotating triers;


ii.

the trial judge improperly curtailed the
    cross-examination of the Crowns expert witness who provided opinion evidence
    about the meaning of various terms used in drug-related conversations;


iii.

the trial judge erred in failing to admit expert
    opinion evidence from two proposed defence witnesses about the usage of various
    terms to describe different drugs;


iv.

the trial judge erred in admitting evidence of
    extrinsic misconduct by persons other than the appellants; and


v.

the charge to the jury was unbalanced.

[19]

On the appeals from sentence, the appellants say
    that the trial judge erred in awarding too little credit for time spent in pre-sentence
    custody when determining the sentences he imposed or otherwise erred in
    principle.

THE APPEALS FROM CONVICTION

Ground #1: The Jury Selection Issue

[20]

This ground challenges the constitution of the
    jury because the truth of the challenges for cause was determined by static
    triers, contrary to the request of trial counsel who sought rotating triers as
    the arbiters of the challenge.

[21]

A brief snapshot of the challenge for cause
    process as it developed at trial will provide the frame necessary for the
    discussion that follows.

The Background

[22]

As various pre-trial applications unfolded,
    defence counsel indicated that they would be seeking to challenge each
    prospective juror for want of indifference due to racial bias. The Crown said
    that it would not oppose the challenge. The precise wording of the question to
    be put to each prospective juror would be discussed among the parties in the
    hope that a formulation satisfactory to all could be achieved.

The Original Proposal

[23]

The discussion about the proposed challenge for
    cause resumed at a later date. Defence counsel confirmed the nature of the
    challenge, suggested a date for argument and indicated that [t]here was one
    aspect that I wanted to add to it with respect to rotating triers and to the
    question being asked.

[24]

The trial judge asked defence counsel to put the
    application in writing to ensure an understanding of just what was being sought
    and the basis for it. Counsel agreed to do so.

The Written Application

[25]

In the written application to exclude potential
    jurors during the challenge for cause process, counsel for Sheldon Evans on
    behalf of all counsel invoked s. 640(2.1) of the
Criminal Code
.
[1]

The notice of application said nothing
    about the mode of trial of the challenge for cause the appellants sought.

The Further Discussion

[26]

After defence counsel had served and filed their
    written application, the parties discussed scheduling of the hearing of the
    application and related issues. The trial judge inquired about the request for
    rotating triers. He had seen nothing about it in the materials filed.

[27]

Counsel who had originally raised the rotating
    triers issue explained that rotating triers were the defence preference.
    Counsel added that they were aware of the trial judges earlier decision in
R.
    v. Riley
(2009), 247 C.C.C. (3d) 517 (Ont. S.C.) (
Riley
(S.C.)).
[2]
In that case, the trial judge
    had determined that when exclusion of potential jurors during the challenge for
    cause process is sought, the trial for the challenge must be heard by static
    triers. Defence counsel indicated they would discuss the issue further among
    themselves. The trial judge stated that if it is something we have to deal
    with, we can deal with it at the same time as the other issue. That is the
    excluding of the  jurors. We can deal with them together. Later in his
    discussion with counsel, the trial judge reiterated the need for proper
    materials to be filed on the various motions.

The Ruling on the Challenge for Cause Question

[28]

On the same date, the trial judge heard
    submissions about the wording of the proposed question on the challenge for
    cause. He approved a wording which included components of both racial and
    anti-gang bias.

The Rotating Triers Inquiry

[29]

About ten days later, the Crown advised the
    court that two procedural issues connected to the challenge for cause remained.
    Defence counsel wanted to argue about rotating triers and exclusion of the
    panel. The Crown pointed out that both issues had been discussed in
Riley
(S.C.). The Crown indicated that it was content to follow the ruling and
    thought that defence was content with that as well.

The Decision of the Trial Judge

[30]

On two separate occasions prior to the
    commencement of jury selection, the trial judge confirmed with counsel that
    they had dealt with the defence application to exclude potential jurors during
    the challenge for cause process. On the second occasion, defence counsel
    confirmed that the Crown had conceded that the panel should be excluded during
    the challenge for cause. Turning to the issue of rotating triers, defence
    counsel said, [B]ased on your ruling in [
Riley
(S.C.)]
whereyou get the panel excluded
    or you get the rotating triers, we are not proceeding on the rotating triers.

Jury Selection

[31]

The challenge for cause proceeded. Prospective
    jurors, as well as the chosen jurors, were excluded from the courtroom. Static
    triers determined the truth of each individual challenge for cause.

The Arguments on Appeal

[32]

The appellants contend that the jury was not
    properly constituted, thus the verdicts rendered cannot stand.

[33]

From the outset, the appellants say, what the
    defence sought at trial was that prospective jurors be excluded from the
    courtroom during the challenge for cause and that the truth of the challenge
    for cause be determined by rotating triers. True, in the end, they accepted
    static triers as the mode of trial of the truth of the challenge. But they did
    not do so willingly. They acquiesced in this mode of trial only because they
    considered a request for rotating triers a foregone conclusion. After all, the
    trial judge had already ruled in an earlier case 
Riley
(S.C.)  that
    the defence could not have both exclusion of the panel and rotating triers.
    Panel exclusion meant static triers.

[34]

The appellants argue that this court has already
    decided that the trial judges interpretation in
Riley
(S.C.)
of the effect of the amendments
    creating ss. 640(2.1) and (2.2) of the
Criminal Code
on the availability
    of panel exclusion and rotating triers was wrong: see
Riley
(C.A.), at
    para. 75. Despite these amendments, a trial judge retains the discretion to
    permit panel exclusion and trial of the truth of the challenge for cause by
    rotating triers.

[35]

In this case, the appellants contend that,
    despite their application which invoked s. 640(2.1) and thus s. 640(2.2), they
    wanted rotating triers. However, they were faced with a trial judge who had
    already decided that what they wanted was not available to them as a matter of
    law. In the end, what happened is that the appellants did not get the mode of
    trial of the challenge for cause they wanted; rather, the appellants got what
    they had to accept or settle for because of the trial judges prior, erroneous
    conclusion in
Riley
(S.C.)
.
    In the result, the appellants say, the jury was not properly constituted and
    the verdicts entered, which are beyond the reach of the proviso in s.
    686(1)(b)(iv), cannot stand.

[36]

The respondent accepts, in oral argument, that
    it is now well-settled in this province that a trial judge has inherent jurisdiction
    to exclude prospective jurors from the courtroom during a challenge for cause
    when the truth of the challenge is determined by rotating triers. The
    amendments that added ss. 640(2.1) and (2.2) to the
Criminal Code

and
    provided for adjudication of the truth of the challenge for cause by static
    triers did not eliminate this inherent jurisdiction.

[37]

The respondent also acknowledges, in oral
    argument, that a jury is improperly constituted when a trial judge directs the
    trial of the truth of the challenge for cause by static triers in the absence
    of an express or implied application by an accused under s. 640(2.1) of the
Criminal
    Code
. This is because s. 640(2.1) only becomes engaged on application by
    an accused to exclude all jurors, sworn and unsworn, during the challenge for
    cause process. An order directing static triers, in the absence of an
    application under s. 640(2.1), violates a mandatory statutory provision and
    results in an improperly constituted jury.

[38]

In this case, however, the respondent submits
    that the appellants expressly applied for an order excluding prospective jurors
    under s. 640(2.1), and the Crown consented to it. The effect of this order was
    twofold. Under s. 640(2.1), the challenge for cause would proceed in the
    absence of all jurors  sworn and unsworn  from the courtroom. And s. 640(2.2)
    would be engaged by virtue of the order made under s. 640(2.1). This subsection
    would require that the truth of the challenge for cause be determined by static
    triers until the full jury, including additional and alternate jurors, were
    sworn.

[39]

The respondent disputes the appellants claim
    that their acceptance of static triers was unwilling or a grudging acceptance
    of the inevitable as a result of the trial judges earlier conclusion in
    similar circumstances in
Riley
(S.C.)
.
    The record reveals no instance on which the trial judge limited the appellants
    choice. The judge invited submissions. None were made. The appellants never sought
    an order excluding the panel of prospective jurors and having the truth of the
    challenge determined by rotating triers. They never asked the trial judge to
    reconsider his prior decision in light of other authorities. The only
    application advanced invoked s. 640(2.1). Its consequences are statutorily
    defined. They wanted the panel excluded. They got the panel excluded. But more
    than that, they also got the sworn jurors excluded so that no individual juror,
    prospective or actual, ever heard the questions asked of or answers given by
    any other jury panel member. No contamination occurred. In the result, the
    respondent concludes, the jury was properly constituted. No statutory provision
    governing jury selection was violated.

The Governing Principles

[40]

This ground of appeal is not in need of
    protracted examination. A few brief points will suffice.

[41]

First, the procedures available for trial of
    challenges for cause.

[42]

The
Criminal Code
provides two methods
    of trial to determine the truth of challenges for cause. The methods differ on
who
determines the truth of the challenge.
[3]

[43]

Subsection 640(2) provides for
rotating
triers. This method of trial of challenges for cause has been available at
    least since our first
Criminal Code
was enacted in 1892. It was the
    exclusive method of trial of challenges for cause until 2008, when ss. 640(2.1)
    and (2.2) introduced
static
triers as a method of trial of challenges
    for cause:
R. v. Noureddine
, 2015 ONCA 770, 332 C.C.C. (3d) 114, at
    paras. 25-26;
R. v. Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, at
    paras. 20-21;
R. v. Murray
, 2017 ONCA 393, 347 C.C.C. (3d) 529, at
    paras. 40-43;
R. v. Husbands
, 2017 ONCA 607, 353 C.C.C. (3d) 317, at
    paras. 33-34, leave to appeal refused, [2017] S.C.C.A. No. 364;
Riley
(C.A.)
, at paras. 61, 64, 65.

[44]

Second, exclusion of prospective jurors and
    adjudication by rotating triers.

[45]

Prior to the 2008 amendments, which added the
    option of static triers as adjudicators of the truth of challenges for cause,
    trial judges had a well-established discretion to exclude prospective jurors
    from the courtroom when rotating triers were engaged in the adjudication of the
    truth of the challenge. This discretion, which required an evidentiary
    foundation, was not included by express language or by necessary implication in
    s. 640(2). Nor did it arise from elsewhere in the
Criminal Code
:
Grant
,
    at paras. 22, 41;
Murray
, at para. 42;
Riley
, at para. 62;
R.
    v. Esseghaier
, 2019 ONCA 672, at para. 26.

[46]

This discretion to exclude prospective jurors from
    the courtroom as rotating triers determined the truth of the challenge survived
     or, put differently, was not eliminated by  the creation of the static trier
    adjudication procedure or the exclusionary order for both sworn and unsworn
    jurors, which is an essential component of that particular regime:
Grant
,
    at paras. 18, 41;
Murray
, at para. 53;
Husbands
, at para. 36.

[47]

Third, the availability of the static trier
    procedure.

[48]

Subsections 640(2.1) and (2.2) create and govern
    the static trier procedure. The procedure is unavailable absent an application
    pursuant to s. 640(2.1), whether express or necessarily implied, by an accused
    for the exclusion of all jurors  sworn and unsworn  from the courtroom as the
    challenge process unfolds. The exclusionary order does not issue as of right;
    rather, it requires a preliminary finding by the presiding judge that the order
    is necessary to preserve the impartiality of the jurors:
Noureddine
,
    at para. 35;
Grant
, at paras. 21, 51;
Murray
, at paras. 43,
    46, 55;
Husbands
, at para. 37;
Riley
(C.A.)
, at paras. 65-67;
Esseghaier
,
    at paras. 23-24.

[49]

A successful application for an
    exclusionary order under s. 640(2.1) engages the static triers mode of trial of
    the truth of the challenge for cause. The mandatory language of s. 640(2.2),
    engaged when an order is made under s. 640(2.1), makes it clear that the
    exclusive method of trial of the challenge is by static triers. Under s. 640(2.2),
    the static triers 
shall
be sworn to determine whether the ground of
    challenge is true [and]
shall
exercise their duties until [the full jury, including any additional jurors and
    alternates] are sworn.

[50]

A final point concerns the effect of a failure
    to follow or a contravention of a mandatory statutory provision relating to the
    jury selection process. Where this occurs, the proviso in s. 686(1)(b)(iv) of
    the
Criminal Code
, which applies to procedural irregularities at
    trial, will not preserve the verdict rendered at trial:
Noureddine
, at
    paras. 57-58;
Husbands
, at para. 41;
R. v. W.V.
, 2007 ONCA
    546, at para. 22, leave to appeal refused, [2007] S.C.C.A. No. 615;
R. v.
    Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para. 28.

The Principles Applied

[51]

As I will explain, I would not give effect to
    this ground of appeal.

[52]

To begin, in their written application, the
    appellants expressly invoked s. 640(2.1) as the statutory authority upon which
    they relied for the order they sought 
i.e
.
exclusion of all
    prospective jurors from the courtroom during the challenge for cause process.
    The Crown consented to the application.

[53]

The procedural impact of the order sought by the
    appellants and made by the trial judge meant that all jurors, sworn and
    unsworn, would be excluded from the courtroom during the trial of the
    challenges for cause. And the trial of the truth of the challenges for cause
    would be determined in accordance with the mandatory provisions of s. 640(2.2),
    that is to say, by static triers. There is no suggestion that counsel, all
    experienced criminal lawyers, were unaware of the consequences of a successful
    application for an exclusionary order under s. 640(2.1). The opening words of s.
    640(2.2) permit of no doubt.

[54]

Second, in addition to their express invocation
    of s. 640(2.1), which engaged the mandatory consequences described in s.
    640(2.2), counsel expressly abandoned their request for rotating triers to
    determine the truth of the challenges. It ill lies in their mouths now, on an
    appeal to this court, to reclaim ground ceded at first instance, all the more
    so where they did not ask the trial judge to reconsider his earlier ruling in
Riley
(S.C.)
in light of further
    jurisprudential developments on the same subject-matter.

[55]

This situation is to be contrasted with that in
Esseghaier
,
    where the appellant Jaser did not cede this ground at trial. Rather, on an
    application to resolve jury selection issues before the trial judge, Jaser
    sought, as his primary position, rotating triers with unsworn jurors excluded.
    The trial judge ruled against him, erroneously holding that he did not have the
    discretion to exclude unsworn jurors when rotating triers are used to try a
    challenge for cause. Even though Jaser had put forward an alternate position (
i.e.
static triers with sworn and unsworn jurors excluded) that ended up being
    the one implemented, resort to this alternative position was the direct result
    of the trial judges erroneous ruling. By contrast, in the case at bar, there
    was no ruling. Instead, the appellants abandoned their request for rotating
    triers.

[56]

Third, although the written application did not
    seek the full ambit of exclusion for which s. 640(2.1) provides 
i.e
.
the exclusion of
both
unsworn and sworn jurors, the appellants do not
    suggest that this omission entitles them to circumvent the mandatory
    consequences of s. 640(2.2).

[57]

Fourth, although the appellants colour it
    differently  describing it as unwilling acquiescence to the ruling in
Riley
(S.C.)
 their abandonment
    of the claim for rotating triers is explicable otherwise. And that is that
    their primary concern was that prospective jurors be excluded and thereby
    shielded from any contaminants that might emerge as the challenge for cause
    process played out, not the composition of the adjudicators of the challenges
    for cause.

[58]

Fifth, this case differs from
Noureddine
and
Husbands
,
where
    similar interpretations of the impact of ss. 640(2.1) and (2.2) resulted in a
    fatal flaw in the jury selection process. In this case, there was an
    application under s. 640(2.1),
not
a disavowal of any such application.
    In addition, counsel expressly abandoned pursuit of rotating triers as the
    adjudicative authority of the challenges for cause. And, the orders made did
not
contravene or fail to apply any mandatory
Criminal Code
provision
    concerning jury selection.

[59]

Finally, and of no little significance, the
    appellants got what they sought, indeed more than that. They asked that
unsworn
jurors be excluded from the courtroom during the challenge for cause process.
    That request was fulfilled. In addition, the
sworn
jurors were
    excluded. This eliminated the further prospect of contamination had they
    remained present in the courtroom while subsequent prospective jurors were
    called and challenged for cause.

Ground #2: The Cross-Examination of the Crowns Drug
    Expert

[60]

This ground of appeal, advanced by the appellants
    Shane Evans and Orrett Francis and adopted by the others, focuses on various
    interventions by the trial judge during the course of the cross-examination of
    one of the Crowns expert witnesses, Sergeant Jeffrey Ross.

The Essential Background

[61]

The circumstances in which the interventions
    occurred are essential to an understanding of the nature of the appellants
    complaint and a determination of its validity. The incidents on which the
    appellants focus all occurred during the cross-examination by trial counsel for
    Shane Evans (who is not counsel on appeal). It was a cross-examination that
    continued for several hours on different days of the trial.

The Expertise of Sgt. Ross

[62]

Sgt. Ross was qualified, without objection, as
    an expert in the distribution of illicit drugs and the interpretation of street
    and coded language about drugs, including cocaine and marijuana. His expertise
    was grounded in his experience over many years spent as a drug investigator,
    including his experience in undercover operations. As a drug investigator, he
    had repeated interactions with drug users, persons arrested for drug offences
    and confidential informants.  In carrying out these activities, it was
    essential for Sgt. Ross to know and speak the language of those with whom he
    was involved. Sgt. Ross also consulted with other police officers and drug
    experts.

[63]

Excluded from the experience upon which Sgt.
    Ross expertise was grounded were items of popular culture, such as movies,
    music, internet posts, websites, magazines and pamphlets.

[64]

Sgt. Ross employed a contextual approach when assigning
    meaning to certain words and expressions used in various intercepts tendered as
    part of the case for the Crown. He listened to and reviewed the intercepts. He examined
    the words used. He compared them to the quantities and prices quoted. He
    considered the entirety of the conversation in question. He also considered the
    words used in any other associated conversations, and how the same speakers may
    have used the same word in other conversations.

The Opinions Proffered

[65]

Sgt. Ross reviewed the intercepted
    communications involving the appellants and their co-accused. In some cases,
    the collocutors were other appellants or accused. In other cases, they were associates,
    purchasers or suppliers. He then gave his opinion about the meaning of certain
    terms used in the communications.  He explained why he attributed the meaning
    he did to those terms. More specifically, he elaborated on why he concluded
    that certain terms or expressions, such as Cuban and twenty, referred to
    cocaine, but not to marijuana, as cross-examining counsel repeatedly suggested
    to him.

The Contested Ground

[66]

The principal cross-examiner of Sgt. Ross at
    trial was counsel for Shane Evans. It was during that cross-examination that
    most of the interventions in issue occurred. It is not necessary to review in
    exquisite detail the entirety of the cross-examination. The appellants focus
    their submissions on several specific subjects. I will do likewise.

The Popular Culture References

[67]

Trial counsel sought to cross-examine Sgt. Ross
    on the use of certain words that appeared in the intercepted communications in
    popular culture, including in an internet post, song lyrics and a clip from a movie.

The Internet Post

[68]

Counsel sought to cross-examine Sgt. Ross on a
    document by someone self-styled as imagrower. The document was posted on an
    online forum, Grasscity Forums. In the document, imagrower asserted that a
    rapper named Wiz Khalifa had used the term Cuban joint to describe a cigar
    filled with marijuana, and he or she sought advice from other members of Grasscity
    Forums about how to roll a Cuban joint.

[69]

This post was written after the offences alleged
    in the indictment were committed. Trial counsel did not suggest that any of the
    appellants, or for that matter Sgt. Ross, had ever read the post or were aware
    of Wiz Khalifas alleged use of the term Cuban joint.

[70]

Defence counsel sought to put the internet post
    before Sgt. Ross and the jury, then to cross-examine the officer about its
    content. The trial judge allowed counsel to cross-examine Sgt. Ross about:


i.

his interpretation of the wording of the post;
    and


ii.

his knowledge of Wiz Khalifas use of the term Cuban
    joint and whether that use would affect his expert opinion about the meaning
    of the term Cuban.

The officer explained that Wiz Khalifas
    use of the term Cuban joint would not affect his conclusion about the meaning
    of the term Cuban in the intercepted communications.

[71]

The trial judge permitted defence counsel to
    adduce admissible evidence about the phrase Cuban joint, but precluded the
    double hearsay contained in the post being put before the jury. Counsel adduced
    no such evidence.

The Song Lyrics

[72]

Defence counsel sought to cross-examine Sgt.
    Ross about some lyrics sung by the rapper Jay-Z about smoking Cubans. Counsel
    asked the witness to interpret the lyrics and advise whether his opinion about
    the meaning of the term Cuban would be affected by Jay-Zs use of the term.
    The officer explained that his opinion about the meaning of the term in the
    intercepted private communications would not be affected.

The Movie Clip

[73]

Defence counsel sought to play a clip from a movie
    for Sgt. Ross and the jury in which the term twenty twen twen was used to
    describe a small baggy of marijuana. He then proposed to ask the witness to
    interpret the term. Counsel did not suggest that the appellants had seen this
    movie, much less that the language used in the movie influenced their own words
    in the intercepted communications. Nor was it suggested that Sgt. Ross had seen
    or been influenced by the language used in the movie.

[74]

The trial judge did not permit this proposed
    line of cross-examination essentially on the basis of relevance, concluding
    that usage of terms in works of fiction was of no probative value in
    interpreting language used in the real world of drug trafficking.

The Dictionaries

[75]

Defence counsel for Shane Evans sought to ask
    Sgt. Ross whether he considered the
Oxford English Dictionary
to be an
    authoritative source on the meaning of words. The trial judge terminated this
    inquiry; but, counsel persisted in cross-examining the witness about the
Oxford
    English Dictionary
s definition of the slang term eight ball and, more
    generally, about the organizations that decide when a new word or phrase should
    be added to the dictionary. The trial judge considered these inquiries to be
    outside the witness expertise.

[76]

Defence counsel for Orrett Francis sought to put
    an excerpt from the
Urban Dictionary
, a website,

to the witness
    in the presence of the jury. A previous witness had described the
Urban
    Dictionary

website as one where anyone can post a term and state
    what the term means.

[77]

Sgt. Ross did not rely on this dictionary as a
    source to assist him in interpreting the language used in the intercepts. Nor
    did he consider it authoritative.

[78]

The trial judge foreclosed this proposed line of
    cross-examination. The witness did not regard the source as authoritative, thus
    it could not be put to the witness on the basis that it represented a contrary
    opinion of an authoritative source. As substantive evidence, its introduction
    was barred by the hearsay rule.

The Pamphlet

[79]

In the presence of the jury, defence counsel
    inquired of Sgt. Ross whether he was aware that the Community Police Liaison
    Committee of 52 Division (Toronto Police Service) had hosted a community
    barbeque on a particular date. The officer was unaware of this event. Counsel
    assured the trial judge that this is very important. The witness and jury
    were excused. Counsel explained that he had attended the barbeque. He had
    picked up a pamphlet titled The Truth about Marijuana, which contained some
    information that contradicted Sgt. Ross evidence. Specifically, it listed the
    word white as a street name for marijuana.

[80]

When the jury and witness returned, defence
    counsel asked Sgt. Ross whether he was aware of the pamphlet titled 
The Truth about Marijuana
, or the
    organization that produced it, Drug Free World. The officer was unaware of
    either. The trial judge said, Thats the end of it.

The
Drug Identification Bible

[81]

During cross-examination about materials he had
    consulted, Sgt. Ross mentioned that he had received the
Drug Identification
    Bible
at a conference for drug experts. He had read parts of it about
    coded terminology and found no errors in it.

[82]

Without intervention of the trial judge, defence
    counsel cross-examined Sgt. Ross about passages in the
Drug Identification
    Bible
relating to the purity of imported cocaine; the coded words for
    marijuana; marijuana pricing; and different qualities of marijuana.

[83]

Defence counsel then attempted to cross-examine
    Sgt. Ross on passages in the
Drug Identification Bible
about:

i.

a 2006 RCMP seizure of 50,000 pounds of hashish;

ii.

different strains of marijuana grown in Canada;

iii.

wholesale prices of marijuana in British Columbia;

iv.

Health Canada authorizations for medical marijuana;

v.

street prices for cocaine in the United States; and

vi.

the yearly average expenditures by residents of New York on
    marijuana.

The trial judge curtailed
    cross-examination on these subjects.

The Arguments on Appeal

[84]

The overarching submission advanced by the
    appellants is that the trial judge erred in curtailing several lines of cross-examination.
    The frequency and nature of these interventions, the appellants say, caused a
    miscarriage of justice, not only because it created an appearance of
    unfairness, but also because it compromised the appellants rights to make full
    answer and defence to the charges they faced.

[85]

The appellants accept that, although it is an
    essential component of the right to make full answer and defence, the right of
    cross-examination is not unlimited. It is subject to well-established rules, including
    rules of relevance and admissibility. For some witnesses, such as experts
    cross-examined on authoritative texts, specific procedures must be followed.
    Questioning cannot be frivolous, vexatious, demeaning of the witness or
    repetitious.

[86]

On the other hand, the appellants point out that
    a trial judge has a discretion to loosen these strictures to ensure a fair
    trial. In this instance, where all the heavy lifting in the case for the Crown
    fell to the testimony of Sgt. Ross, the trial judge should have permitted some
    latitude in cross-examination rather than imposing additional restraints.

[87]

The appellants say that the trial judge erred in
    restricting cross-examination about language usage and the meaning of certain terms
    in popular culture. This error, they contend, originated in a misapprehension
    of the principles governing the cross-examination of experts on authoritative
    texts. This was not the point of the proposed cross-examination, which was
    designed simply to demonstrate that these terms had different meanings in
    popular culture.

[88]

In connection with the proposed
    cross-examination on the meaning assigned to words in the
Oxford English
    Dictionary
, defence counsel sought to qualify the publication as an
    authoritative source of the meaning of words. The trial judge intervened before
    the witness was permitted to respond to the qualifying question of whether he
    considered the work authoritative. This was wrong, the appellants say. The
    witness should have been permitted to answer, with the answer dictating the
    future course of the cross-examination.

[89]

As for the pamphlet The
Truth about Marijuana
, defence counsel
    sought to point to the use therein of the term white to describe marijuana.
    This, in a publication authored by members of the same police service that employed
    Sgt. Ross, contradicted Sgt. Ross testimony that white referred to cocaine,
    not to marijuana. This evidence was relevant and not subject to the rules
    governing cross-examination on authoritative texts.

[90]

According to the appellants, Sgt. Ross
    recognized the
Drug Identification Bible
as an authority on the topic
    of drugs. It contained information about drug pricing on which counsel sought
    to cross-examine, because Sgt. Ross considered the prices discussed in the intercepted
    communications as one of the factors he used to determine the meaning to assign
    to specific terms. The information was relevant, and the trial judge erred in
    foreclosing cross-examination on it.

[91]

The respondent takes a different view of the
    trial judges rulings during the cross-examination of Sgt. Ross. The respondent
    submits that these context-specific determinations properly balanced the
    appellants right to challenge the expert opinion evidence, on the one hand,
    with the trial judges duty to ensure that only admissible evidence was adduced
    before the jury and that the trial proceeded efficiently and unencumbered by
    the needless pursuit of irrelevant issues, on the other. Even if some error could
    be teased out of the myriad instances of complaint advanced here, none had any
    effect on the ability of the jury to evaluate Sgt. Ross credibility or the
    reliability of his evidence. In every event, any such errors would relate only
    to the drug convictions, not to any other findings of guilt.

[92]

The respondent says that the trial judge did not
    preclude defence counsel from adducing evidence of popular usage of terms that
    appear in the intercepted communications. The judge simply insisted, as the law
    requires, that the evidence be adduced in admissible form. The judge permitted
    cross-examination on the effect of popular usage of terms on the interpretation
    of those same terms by Sgt. Ross. The prohibition on cross-examination on the
    internet post about a Cuban joint was based on the double hearsay nature of
    the post. The trial judge did permit cross-examination about the term itself.
    The restriction on cross-examination on language used in a movie was correct.
    The language used or meaning given to terms in a dated, fictional context was
    irrelevant to the issue at trial, the meaning of terms used in then current
    drug transactions.

[93]

In connection with the
Urban Dictionary
,
    the contents of which were double hearsay, the respondent submits that the trial
    judge correctly noted that Sgt. Ross did not recognize it as authoritative;
    thus, it could not be put before the jury.  However, this ruling did not
    preclude counsel from asking Sgt. Ross whether a particular use of a word on
    the internet might affect his opinion of its meaning and, if not, why not.

[94]

The trial judges interventions in
    cross-examination about the
Oxford English

Dictionary
were
    justified, the respondent says, on the basis of relevance. Whether Sgt. Ross
    recognized the
Oxford English Dictionary
as authoritative on the
    meaning of the words or how new words were added to the dictionary was of no
    relevance to an assessment of his opinion.

[95]

As for the pamphlet
The Truth about Marijuana
, questions about its
    distribution or availability at a police barbeque and its hearsay nature
    justified the ruling of the trial judge. The respondent adds that, contrary to
    the appellants claim, the publication was
not
authored by the Toronto
    Police Service.

[96]

The restrictions imposed on cross-examination on
    certain passages in the
Drug Identification Bible
, the respondent
    says, were fully warranted. Many passages were irrelevant. Some constituted
    facts, not authoritative opinions. And others were beyond the scope of Sgt.
    Ross expertise.

The Governing Principles

[97]

Despite their differences about the result their
    application should yield, the parties are not at odds about the principles that
    control our response to this ground of appeal. Some of those principles have to
    do with the permissible scope of cross-examination, others with the limits on
    judicial intervention in counsels conduct at the trial.

[98]

The right of an accused to cross-examine
    witnesses called by the Crown, whether of fact or of opinion, without
    significant and unwarranted constraint is an essential component of the common
    law and the constitutional right to make full answer and defence:
R. v.
    Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 41, citing
R. v.
    Seaboyer
, [1991] 2 S.C.R. 577, at p. 608. Cross-examination is of
    essential importance in determining whether a witness is credible and his or
    her evidence is reliable:
Lyttle
, at para. 42, citing
R. v. Osolin
,
    [1993] 4 S.C.R. 595, at p. 663. And, in some circumstances, it may be the only
    way to get at the truth:
R. v. R.V.
, 2019 SCC 41, at para. 39.

[99]

It follows ineluctably from what I have said
    that not only must the right of cross-examination be jealously protected, but
    also that it must be broadly construed:
Lyttle
, at para. 44. On the
    other hand, the right must not be abused. Cross-examining counsel are bound by
    the rules of relevance. They are barred from resorting to harassment,
    misrepresentation, repetitiousness or, more generally, from putting questions whose
    prejudicial effect outweighs their probative value:
Lyttle
, at para.
    44.

[100]

Cross-examination must conform to the general principles of the law
    of evidence. Questions put, in addition to having a good faith basis, must
    elicit evidence that is relevant, material and admissible under the adjective
    law of evidence. The popular courthouse folklore But this is cross-examination
    is simply that. It is not a lifetime pass around and through the thicket of the
    fundamental principles of the law of evidence:
Osolin
, at pp. 665-66,
    citing
Morris v. The Queen
, [1983] 2 S.C.R. 190, at p. 201.

[101]

Relevance and probative value are determined in cross-examination,
    as they are in examination-in-chief and in re-examination, in the context of
    each case and with respect to the purpose for which the evidence is being
    tendered:
Osolin
, at para. 162.

[102]

The proper procedure to be followed in examining, or cross-examining,
    an expert witness on other expert opinions found in papers or books is to first
    ask the witness whether he or she knows the work. If the witness answers no,
    or denies the works authority, the matter ends there. Examining counsel cannot
    read from the work, for to permit counsel to do so would be to countenance
    introduction of the work as evidence, thus contravening both the hearsay and
    opinion rules. If the answer is yes, and the witness acknowledges the works
    authority, then the witness has confirmed it by his or her testimony. Counsel
    may then read parts of the admittedly authoritative work to the witness. To the
    extent, but only to the extent, that the witness confirms their accuracy, the passages
    become evidence for the trier of fact to consider:
R. v. Marquard
,
    [1993] 4 S.C.R. 223, at p. 251. And, if the witness disagrees with the
    authoritative work, his or her explanation may be considered in assessing the
    credibility of his or her expert opinion.

[103]

The authorities make it clear that the right of cross-examination is
    not absolute. But it is equally so for the limitations on that right. Trial
    judges enjoy, as in connection with other aspects of the trial, a broad
    discretion to ensure fairness and to see that justice is not only done, but
    also that it is seen to be done. As a result, on some occasions at least, a
    trial judge may think it right to relax the requirement of relevance or a rule
    of admissibility:
Lyttle
, at para. 45; see also
R. v. Kimberley
(2001)
, 157 C.C.C. (3d) 129 (Ont. C.A.),
    at para. 80, leave to appeal refused,
R. v. Clancey
, [2002] S.C.C.A.
    No. 29.

[104]

As a necessary incident of the trial management power, a trial judge
    has the authority to control the conduct of cross-examination. Interventions
    must be exercised with caution so as to leave unfettered the right of the
    accused, through his counsel, to subject any witness testimony to the test of
    cross-examination. We permit interventions to disallow questions ruled
    improper, for example, because they invite the introduction of hearsay or other
    inadmissible evidence, or because the answers are irrelevant or immaterial, or in
    order to protect the witness from repetitious questioning or unwarranted
    harassment:
R. v. Bradbury
(1973), 14 C.C.C. (2d) 139 (Ont. C.A.), at
    pp. 140-141. The ultimate question to be answered is whether, as a result of
    the number and nature of interventions, the accused might
reasonably
consider that he had not had a fair trial, or whether a reasonably-minded
    person, who had been present throughout the trial, would consider that the
    accused had not had a fair trial:
R. v. Hungwe
, 2018 ONCA 456, 361
    C.C.C. (3d) 534, at para. 43, citing
R. v. Valley
(1986), 26 C.C.C.
    (3d) 207 (Ont. C.A.), at p. 232, leave to appeal refused, [1986] S.C.C.A. No.
    298.

The Principles Applied

[105]

I would not accede to this ground of appeal. In my view, the
    propriety of the trial judges rulings and interventions, as well as their
    cumulative effect on the actual and apparent fairness of the trial, can be
    resolved at the level of general principle without the need to descend into the
    mire of
minutiae
.

[106]

The analysis begins from a stance of deference. The trial judge has
    and is under a duty to exercise his or her inherent jurisdiction to control and
    manage the trial process as it unfolds before him or her. A specific incident
    of that inherent jurisdiction is superintendence of the introduction of
    evidence, irrespective of its form, whether testimony, exhibit or admission.
    The trial judge, not counsel, decides what comes in. And what stays out. This
    includes ensuring that, at each stage of the examination of a witness, what is
    adduced is relevant, material and admissible under the adjective law. This is
    so whether counsel opposite objects or remains mute. Absent an error of law or
    of principle, a misapprehension of the evidence or a conclusion that is plainly
    unreasonable, determinations of admissibility are subject to deference in this
    court.

[107]

This experienced trial judge, as might be expected, displayed a firm
    grasp of the controlling principles. He permitted some lines of
    cross-examination, but foreclosed others. He did so by an unerring application
    of the requirement of relevance and the applicable rules of admissibility. The
    appellants have not persuaded me that these decisions are cumbered by any
    impropriety that would disentitle them to deference.

[108]

Second, neither the number nor the nature of the trial judges
    rulings during the cross-examination of Sgt. Ross, whether considered individually
    or cumulatively, compromised the actual or apparent fairness of the trial
    proceedings.

[109]

This was forecast and proved to be a lengthy and complex jury trial.
    The cross-examination with which we are concerned extended for at least ten
    hours, according to the trial judges reckoning at one point in the
    proceedings. On several occasions, the principal cross-examiner veered off the
    well-defined path into irrelevancies. These included:


i.

the language used in so-called stoner genre
    movies;


ii.

how words got added to dictionaries;


iii.

the 
The
    Truth about Marijuana
pamphlet;


iv.

song lyrics;


v.

the imagrower post;


vi.

the
Urban Dictionary
; and


vii.

the
Drug Identification Bible
.

The principal cross-examiner also
    failed to follow the proper procedure to cross-examine an expert witness on
    authoritative works, and was, at times, unheeding of the trial judges rulings.

[110]

That the trial judge considered it necessary to intervene several
    times in the cross-examination of Sgt. Ross does not, without more, render the
    trial unfair as a matter of fact or perception. Such a conclusion would reduce
    actual or apparent fairness to a contest of numbers. The trial judge did not
    create the cause for correction. Cross-examining counsel did.

[111]

Third, this is not a case in which the trial judge interfered with
    the cross-examination to such an extent that the interventions intruded on the
    appellants rights to make full answer and defence by challenging the
    credibility of Sgt. Ross and the reliability of his evidence. The jury was
    well-equipped to decide the case and relieved of irrelevant clutter and
    inadmissible evidence in performing its task.

Ground #3: The Proposed Expert Evidence

[112]

This ground of appeal has to do with the admissibility of the
    evidence of two witnesses whom counsel for Shane Evans sought to call at trial.
    The trial judge ruled that counsel had failed to satisfy the conditions
    precedent required to have the proposed testimony received as expert opinion
    evidence. As a result, neither witness testified.

The Essential Background

[113]

This evidence was proposed to counter the expert opinion provided by
    Sgt. Ross, whose testimony was the subject of the preceding ground of appeal.
    Some further background is necessary to appreciate the arguments advanced in
    this court and how I propose to resolve them.

The Initial Proposal

[114]

At the end of the case for the Crown, counsel for Shane Evans
    advised the trial judge that he wanted to call two experts to testify as
    defence witnesses:

i.

John Turner, a journalist; and

ii.

Inspector Howard Page, a police officer.

Counsel had not complied with the
    notice and disclosure provisions of s. 657.3 of the
Criminal Code
and
    had not then firmly decided whether he would seek to call Insp. Page.

[115]

In time, counsel provided a résumé and will-say statement for John
    Turner and a résumé and a portion of a transcript of testimony given by Insp. Page
    in 2007, over six years prior to trial.

The Admissibility Inquiry

[116]

The admissibility inquiry proceeded on the basis of the statements
    of counsel, rather than the
viva voce
testimony of the proposed
    witnesses. The principal focus of the submissions, which were advanced by Shane
    Evans only, was on the
relevance
of the proposed evidence and the
qualifications
of the proposed witnesses who would provide that evidence. Counsel sought to
    qualify the proposed witness John Turner as an expert in hip-hop culture,
    including the vernacular used; the perception of marijuana strains, seeds and
    their values; and, the influences of familiar figures who are part of the
    culture.

[117]

It was expected that John Turner would give evidence that, based on
    his research, the term white describes certain strains of marijuana; the term
    20 usually refers to two grams of hashish or a small amount of marijuana; and,
    a Cuban, according to the popular rapper Wiz Khalifa in a YouTube video,
    represented a hollowed-out cigar filled with marijuana.

[118]

As for Insp. Page, counsel proposed that he be permitted to testify
    as an expert on the meaning of drug terminology. The officer had not been
    involved in drug investigations since 2007, six years earlier. He no longer
    considered himself an expert on the subject. In 2007, he had testified in an
    unrelated trial that the term Cuban generally referred to one-quarter ounce
    of cocaine, but that, on occasion, it could also refer to marijuana. He also
    gave evidence at that trial that deciphering coded words depended on the
    relationship between the dealer and the purchaser. Trying to interpret guarded
    language in a single conversation was a difficult task because it was often
    necessary to consider references to weights, prices and patterns over a number
    of calls and to consider any subsequent drug seizures that related to the
    relevant calls.

[119]

Trial counsel acknowledged that Insp. Pages expertise was dated.

The Ruling of the Trial Judge

[120]

In oral reasons given at the conclusion of the inquiry into
    admissibility, the trial judge ruled that the evidence of both proposed
    witnesses was inadmissible. He promised and later provided written reasons for
    his decision.

[121]

In connection with the potential witness John Turner, the trial
    judge concluded that his proposed evidence about the terms white, 20 and Cuban
    was not relevant to the question of the meaning of those terms in the
    intercepted communications. In addition, John Turner was not a properly
    qualified expert in the subject upon which he was being tendered to testify. In
    his brief discussion of cost-benefit analysis, the trial judge noted that John
    Turners proposed evidence lacked sufficient probative value.

[122]

With respect to the proposed evidence of Insp. Page, the trial judge
    had doubts about the relevance of the proposed evidence but was prepared to
    assume that it satisfied the threshold requirement. He rejected the evidence on
    the basis that Insp. Page was not a properly qualified expert, as well as on
    the application of the cost-benefit analysis. The cost of admitting this
    evidence would include a lengthy adjournment, in order to allow the proposed
    witness to review the intercepted communications in detail.

The Arguments on Appeal

[123]

The appellants say that the trial judge erred in finding that the
    proposed evidence of John Turner was not relevant. In reaching his conclusion,
    the trial judge relied on assumptions he made about the appellants clientele.
    But the purpose of Turners evidence was not linked to the language used in the
    intercepts; rather, it was proffered to diminish the weight the jury might
    assign to Sgt. Ross testimony by showing that the terms Sgt. Ross interpreted
    had meanings other than those he ascribed to them.

[124]

In addition, the appellants continue, the trial judge erred in
    finding that Turner was not a properly qualified expert. He had significant
    experience with hip-hop culture, including the language of its members. His evidence
    was tendered simply to show the usage of these terms in popular culture, a
    usage different than that described by Sgt. Ross.

[125]

The appellants also invoke trial fairness considerations, because
    the trial judge required counsel to argue the admissibility issue on the basis
    of the materials filed in support of the application rather than on Turners
viva
    voce
testimony.

[126]

Turning to the evidence of the proposed witness Insp. Page, the
    appellants repeat their claim of error in connection with the trial judges
    determination that Insp. Page was not a properly qualified expert on the
    subject-matter of his potential testimony. He was not proffered as an expert on
    what was
then
the current meaning of the terms; rather, he was
    proffered as an expert who could say what the understanding was of their
    meaning in 2006 (the subject of his testimony in 2007).

[127]

The respondent says that we should approach this admissibility issue
    from the stance of deference. After all, each determination is context-specific.
    The trial judge is best positioned to identify the live issues at trial;
    whether expert opinion evidence meets the necessity requirement; and where the
    balance of the cost-benefit analysis settles.

[128]

In relation to John Turner, the respondent submits that the trial
    judge was correct in his conclusions on the threshold issues of relevance and
    the witness qualifications. There was no nexus between the usage of words or
    terms in hip-hop culture and in guarded conversations arranging drug
    transactions in Toronto in 2010. The former usage did not render more likely
    the same meaning in the latter, thus the proposed evidence failed the threshold
    test of logical relevance. And John Turner had no expertise in the language
    used by members and associates of Toronto street gangs in 2010. The bulk of his
    experience had nothing to do with the issues at trial. The substance of his
    evidence amounted to nothing more than what he learned from magazines and videos.

[129]

The respondent submits that the trial judge could also have excluded
    the proposed evidence of John Turner because it failed to meet the threshold
    requirement of necessity. The respondent adds that the trial judge correctly
    applied the cost-benefit analysis at the gatekeeper stage. This proposed
    evidence lacked probative value and was not sufficiently reliable to warrant
    its admission for consideration by the jury.

[130]

As for Insp. Page, the respondent submits that the trial judge
    correctly determined that the officer was not a properly qualified expert. He
    was unprepared to testify. He had not prepared a report. He had no familiarity
    with the case. He had not reviewed the intercepts. He lacked any current
    special or peculiar knowledge through study or experience about the meaning of
    street language in 2010.

[131]

In addition, the respondent contends, the trial judge did not err in
    rejecting this evidence through the application of the cost-benefit analysis at
    the gatekeeper stage of the admissibility inquiry. He fully appreciated that
    this was defence evidence, indicating that he was loath to deprive an accused
    of the benefit of any logically relevant evidence on the basis of a
    cost-benefit analysis, but was convinced this was one of the rare cases where
    he must do so. To determine the meaning of terms used in the intercepted
    communications required a review of those communications. Insp. Page had
    conducted no such review. To permit him to testify would have required a
    lengthy adjournment in the waning stages of a three-month jury trial. And this
    for a witness who did not consider himself an expert and gave no indication
    that he was prepared to undertake the necessary background work.

The Governing Principles

[132]

Once again, the principles which control our decision on this ground
    are not in serious dispute. The controversy has to do with the result their
    application mandates in the circumstances of this case.

[133]

The authorities teach that the admissibility of expert opinion
    evidence is to be determined in accordance with a two-step analysis:
White
    Burgess Langille Inman v. Abbott and Haliburton Co
.
, 2015 SCC 23,
    [2015] 2 S.C.R. 182, at paras. 19, 20, 22, 23, 24;
R. v. Abbey
, 2009 ONCA
    624, 246 C.C.C. (3d) 301, at para. 76, leave to appeal refused, [2010] S.C.C.A.
    No. 125;
R. v. Johnson
, 2019 ONCA 145, at para. 49.

[134]

At the first step of the analysis, it falls to the proponent of the
    evidence to establish, on the balance of probabilities, the threshold
    requirements of admissibility. These include, but are not limited to, relevance
    and a properly qualified expert:
White Burgess
, at para. 23;
R. v.
    Mohan
, [1994] 2 S.C.R. 9, at pp. 20-25;
R. v. J.-L.J
., 2000 SCC
    51, [2000] 2 S.C.R. 600, at paras. 33, 35-36, 47. Evidence that does not meet
    these requirements should be excluded:
White Burgess
, at para. 23.

[135]

At this first step, relevance refers to logical  not legal  relevance:
White Burgess
, at para. 23;
J.-L.J.
, at para. 47;
Abbey
,
    at para. 82. Relevance is a matter of everyday common sense and experience. It
    is not some inherent characteristic of an item of evidence. It is relative, not
    absolute. It eschews
per se
or bright line rules. We assess the
    relevance of items of evidence in the context of the entire case and the
    positions of counsel. An item of evidence is relevant if it renders the fact it
    seeks to establish slightly more or less probable than that fact would be
    without that evidence through the application of everyday experience and common
    sense:
Cloutier v. The Queen
, [1979] 2 S.C.R. 709, at pp. 730-32;
R.
    v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-5.

[136]

The logical relevance of expert evidence is determined by asking two
    questions:

i.

Does the proposed expert opinion relate to a
    fact in issue at the trial?

ii.

Is the expert opinion evidence so related to a fact in issue that it
    tends to prove it?

The determination of whether proposed
    expert opinion evidence is logically relevant is a matter of law to be decided
    by the trial judge:
R. v. K. (A.)
(1999), 137 C.C.C. (3d) 225 (Ont.
    C.A.), at para. 77, application for leave quashed for want of jurisdiction,
    [2000] S.C.C.A. No. 16.

[137]

Expert evidence on a subject must be given by an expert, that is to
    say, by a witness who is shown to have acquired special or peculiar knowledge
    of a subject through study or experience. Such evidence can only assist the
    trier of fact to the extent that the witness has acquired special knowledge
    about that subject that the average trier of fact lacks:
Mohan
, at p. 23;
K. (A.)
, at para. 103. If the proposed experts special or peculiar
    knowledge of the subject on which he or she is tendered to testify is minimal,
    he or she should not be qualified as an expert on that subject:
K. (A.)
,
    at para. 103.

[138]

At the second step, the gatekeeper stage of the admissibility analysis,
    the judge balances the potential risks and benefits of admitting the expert
    opinion evidence that has satisfied the threshold admissibility requirements.
    By this balancing, the judge decides whether the potential benefits of
    admitting the evidence justify the risks associated with its introduction. The
    relevance and reliability of the evidence and its necessity to assist the trier
    of fact in the correct disposal of the case, on the one hand, are measured
    against the counterweights of consumption of time, prejudice and confusion, on
    the other. The reliability versus effect factor is of special importance:
Mohan
,
    at p. 21;
J.-L.J
., at para. 47;
White Burgess
, at paras. 19,
    24.

[139]

The case-specific nature of the cost-benefit analysis at the second
    step of the admissibility inquiry attracts deference from appellate courts,
    absent an error of law or of principle, a misapprehension of the evidence or a
    plainly unreasonable conclusion:
R. v. D.D.
, 2000 SCC 43, [2000] 2 S.C.R.
    275, at paras. 12-13.

The Principles Applied

[140]

I would reject this ground of appeal. I am satisfied that the trial
    judge was correct in excluding the proposed evidence. What was proffered failed
    to satisfy the requirements for threshold admissibility at the first step of
    the expert evidence analysis. But even if it could be said to have met the
    threshold requirements, it could not survive the cost-benefit analysis at the
    second step, the gatekeeping stage of the inquiry.

[141]

In approaching the issue raised by this ground of appeal, I find it
    helpful to begin with some background about how this evidence came to be
    tendered at trial.

[142]

Recall that this was forecast to be, and was, a lengthy trial. It
    involved several accused and a 30-count indictment. The indictment charged a
    variety of offences, including drug, firearm and criminal organization
    offences.

[143]

A significant part of the case for the Crown consisted of evidence
    of intercepted communications. These communications were spoken in guarded and
    coded language. To assist the jury in understanding the meaning of various
    terms used, the Crown called an expert, Sgt. Ross. He was not a surprise
    witness. His qualifications were admitted. He gave evidence about the meaning of
    certain words used by the collocutors. Some terms, he said, referred to
    cocaine, not to marijuana as the appellants suggested. Counsel for Shane Evans
    cross-examined Sgt. Ross for many hours over several sitting days.

[144]

At the end of the case for the Crown, counsel for Shane Evans
    indicated to the trial judge and counsel that he intended to introduce opinion
    evidence from two experts to rebut the testimony of Sgt. Ross about the meaning
    of various terms in the intercepted communications. Defence counsel for all
    other accused, including the appellants Francis, Sheldon Evans and Green, did
    not join the application.

[145]

When counsel for Shane Evans first raised this issue at trial, he
    had not complied with the notice and disclosure provisions of s. 657.3(3) of
    the
Criminal Code

i.e.
he had not given at least 30 days notice
    to the other parties of his intention to call the expert evidence along with
    the names of the proposed experts and their areas of expertise and statements
    of qualifications (see s. 657.3(3)(a)), nor had he provided the parties with
    copies of the proposed experts reports or summaries of their anticipated
    evidence by the close of the Crowns case (see s. 657.3(3)(c)).

[146]

My references to counsels failure to comply with the notice and
    disclosure requirements of s. 657.3(3) are not meant to suggest that failure to
    comply with the subsection, without more, entitled the trial judge to exclude
    the evidence. Evidentiary exclusion is not among the remedies available under s.
    657.3(4) for non-compliance. But in a jury trial, where lack of timely notice
    and disclosure may well result in a lengthy adjournment of proceedings to
    permit preparation by the proposed witness (here, Insp. Page), these
    deficiencies may be relevant to the second step of the admissibility inquiry.

[147]

Before turning to the reasons for rejecting this ground of appeal,
    there is one point made in the appellant Shane Evans factum, less so in oral
    argument, that warrants brief mention. It concerns the form of the
    admissibility inquiry in connection with the proposed evidence of John Turner.
    The complaint is that the trial judge directed counsel to proceed on the basis
    of the written materials, even though John Turner was present and counsel
    proposed that he testify on the inquiry.

[148]

Neither the common law nor the
Canadian Charter of Rights and
    Freedoms
requires that any specific procedure, to the exclusion of all
    others, be followed to determine the admissibility of evidence. The form of
voir
    dire
is determined by the trial judge on the basis of the issues involved
    and the nature of the case being tried. There is no requirement that the
    inquiry must proceed on the basis of
viva voce
testimony:
R. v. Kematch
, 2010 MBCA 18,
252 C.C.C. (3d) 349, at
    para. 43;
R. v. Dietrich
(1970), 1 C.C.C. (2d) 49 (Ont. C.A.), at p.
    62, leave to appeal refused, [1970] S.C.R. xi.

[149]

I now turn to the reasons why the trial judge did not err in
    rejecting the proposed evidence of John Turner.

[150]

Taking first,
relevance
. The fact, as reported by Turner,
    that some persons in hip-hop culture in different times and places used words
    in a way in which the appellants claimed they were used here does not render it
    more or less likely that the appellants and co-accused used the words in that
    way in the absence of any link between the appellants and those other persons.
    Although the proposed evidence relates to a fact in issue at trial 
i.e
.
the meaning of the words used by the collocutors, it is not so related to
    that fact that it tends to prove it. Thus, the proposed evidence does not
    satisfy the relevance requirement at the first stage of the admissibility
    inquiry.

[151]

Second, the requirement that the evidence be given by a
qualified
    expert
.

[152]

John Turner was not a properly qualified expert. For all practical
    purposes, he lacked any identifiable expertise that qualified him to testify
    about the language used by Toronto street gangs in 2010. Here, as in
R. v.
    Bedford
(2000), 143 C.C.C. (3d) 311 (Ont. C.A.), at para. 51, leave to
    appeal refused, [2000] S.C.C.A. No. 328, he was doing nothing more than
    expressing his personal opinion based on his own experience, some anecdotal
    material and little else. He had not reviewed the relevant interceptions. That
    he reported on culture elsewhere did not make him an expert in the
    interpretation of the coded language of Toronto street gangs.

[153]

Further, expert opinion evidence must meet a certain threshold of
    reliability in order to have sufficient probative value to meet the requirement
    of relevance. The reliability of the evidence also requires consideration with
    respect to the threshold requirement of necessity. The reception of unreliable
    evidence, such as that of John Turner, is not necessary to enable a proper
    adjudication of an issue by the trier of fact.

[154]

For similar reasons, I am satisfied that the trial judge did not err
    in excluding the proposed evidence of Insp. Page.

[155]

By his own admission, Insp. Page had not worked in this environment
    for several years. In addition, in the excerpt of his prior testimony in 2007,
    upon which counsel relied to advance the case for admissibility, the officer
    made it clear that, in order to formulate any opinion on the meaning of terms
    used in communications, it was necessary to listen to all the intercepted communications.
    This Insp. Page had not done. At the very least, a lengthy adjournment, in the
    late stages of a months-long jury trial, would be required for him to do so. A proper
    application of the cost-benefit analysis at the gatekeeper stage doomed the
    case for admissibility.

Ground #4: The Evidence of Extrinsic Misconduct

[156]

This ground of appeal concerns the reception of evidence at trial
    that disclosed uncharged misconduct associated with the 5PG and one of its
    alleged members. The evidence revealed two homicides and the unlawful
    possession of handguns found during a warranted search of premises occupied by
    Omar Grizzle, an alleged member of the 5PG.

[157]

At trial, the appellants and other co-accused did not dispute that
    they trafficked drugs. But they did contest the Crowns allegations that:

i.

the 5PG was a criminal organization within the
    meaning of s. 467.1(1) of the
Criminal Code
; and

ii.

they trafficked the drugs in association with or for the benefit of the
    5PG, a criminal organization.

[158]

To provide some perspective on the issues raised here, a brief
    description of the nature of the evidence adduced at trial and the reasons for
    its reception will suffice.

The Relevant Evidence

[159]

The appellants accept that because the indictment contained counts
    charging criminal organization offences, and because they disputed that the 5PG
    was a criminal organization within the meaning of s. 467.1(1) of the
Criminal
    Code
, the Crown was entitled to adduce
some
evidence of extrinsic
    misconduct to prove that the 5PG was a criminal organization.

[160]

The appellants complaints focus on three, but principally two,
    categories of evidence:

i.

graffiti;

ii.

the Duffus homicide; and

iii.

the finding of two handguns during a warranted search of Omar Grizzles
    residence.

The Graffiti

[161]

The Crown sought the admission of five photographs taken in the
    stairwell of an apartment building allegedly within 5PG territory. Depicted in
    the photographs are:

i.

numerous references to 5PG, Generalz and symbols
    said to represent the 5PG;

ii.

the words Weston Road and Weston and Lawrence, the alleged
    territory of the 5PG, as well as a map of the territory, including addresses of
    certain landmarks within the territory;

iii.

the letters GP, said to represent the nickname Gunpowder of Romaine
    Lawrence, a member of the 5PG shot and killed in 2006, along with the phrases Ill
    kill a nigga for my niggaz with my triggerz and 2003, 5PG still here, fuck
    all you haters/GP;

iv.

a representation of a handgun along with the words shoot them, twin
    towers and get dat; and

v.

a so-called family tree together with what appeared to be the
    nicknames of 5PG members, ordered by seniority or significance.

The Duffus Homicide

[162]

Tyrone Duffus was a cousin of the Evans brothers and allegedly
    Sheldon Evans drug supplier. In intercepted calls on February 8, 2010, Duffus
    and Sheldon Evans talked about a joint sale to another person of a quantity of
    cocaine. Duffus and Evans agreed to meet. Evans would take a cab. While waiting
    for Evans to arrive, Duffus was shot and killed in a stairwell at 24 Falstaff
    Avenue.

[163]

Sheldon Evans was advised of the killing of Duffus the next day. In
    an intercepted conversation with his brother Shane that evening, Sheldon Evans
    said, I dont feel too comfortable walking around naked no more still. The
    term naked is said to mean unarmed.

The Guns of Omar Grizzle

[164]

In a warranted search after Omar Grizzles arrest on May 4, 2010,
    police located two loaded semi-automatic handguns, together with 5PG
    paraphernalia, at his home.

The Reasons of the Trial Judge

[165]

The trial judge admitted the photographs depicting the graffiti
    except for the photograph that displayed the family tree of the 5PG. The
    trial judge concluded that evidence of the presence of gang-related graffiti in
    a particular place, in conjunction with expert evidence about graffiti and
    symbols as
indicia
of a criminal organization, was relevant to establish
    the existence and nature of the gang as a criminal organization. The evidence
    did not engender any significant moral prejudice since it was not linked to any
    of the persons on trial. Nor did it spawn reasoning prejudice by distracting
    the jury from its proper focus. After all, the existence and nature of the 5PG
    was an essential issue at trial.

[166]

The trial judge admitted the evidence of the Duffus homicide. He was
    satisfied that the evidence was admissible because it was necessary for an
    understanding of subsequent intercepted calls, which, in turn, were relevant to
    show the existence and nature of the 5PG as a criminal organization. The
    evidence was also relevant to prove the conspiracy alleged in counts 22 and 23 
    to commit an aggravated assault on Ian Chambers  as well as several firearms
    offences with which Sheldon Evans was charged, and it assisted in proof of the criminal
    organization charge against a co-accused that was contained in count 3 of the
    indictment.

[167]

The trial judge acknowledged that this evidence introduced evidence
    of a second murder (with the Romaine Lawrence murder being the first) into a
    prosecution that contained no counts of murder. He pointed out that no
    objection had been taken to the admissibility of evidence of the murder of Romaine
    Lawrence, also known as Gunpowder and by GP, the initials contained in much
    of the graffiti. This evidence, the trial judge concluded, tended to show the
    existence and nature of the 5PG. It did not suggest that any person charged
    killed Duffus; thus, it was not likely to invite forbidden propensity
    reasoning.

[168]

As for the evidence of guns seized at Omar Grizzles home, this
    evidence, the trial judge said, showed that a non-accused member of the 5PG was
    in illegal possession of firearms. This too was relevant to proof of the
    existence and nature of the 5PG. Its probative value exceeded its prejudicial
    effect. Like the evidence of the Duffus homicide, any tendency to engage in propensity
    reasoning could be curtailed by appropriate mid-trial and final instructions to
    the jury about the permitted and prohibited uses of the evidence.

The Jury Instructions

[169]

In advance or otherwise contemporaneously with the introduction of
    the evidence, the trial judge explained to the jury how it could use the
    evidence of the Duffus homicide as well as the testimony that showed an alleged
    leader of the 5PG was in custody in reaching their verdict. The instructions,
    which were repeated in the charge, also explained how the jury must
not
use this evidence.

The Arguments on Appeal

[170]

The appellants, in an argument advanced by Sheldon Evans but adopted
    by the others, begin with a reminder that at trial they did not dispute that
    they were drug traffickers. However, they did challenge several other aspects
    of the Crowns proof of the criminal organization offences. They contested the
    assertion that the 5PG was a criminal organization. They disputed the Crowns
    allegation that they committed the offences alleged for the benefit of or in association
    with a criminal organization known as the 5PG. And so it was at trial that the
    Crown was required to prove by properly admissible evidence those essential
    elements of the criminal organization offences.

[171]

The appellants then say that evidence of extrinsic misconduct is
    presumptively inadmissible. This is because it has a tendency to generate moral
    and reasoning prejudice. In turn, this promotes a finding of guilt based on
    propensity, not conduct. They accept that in prosecutions of criminal
    organization offences, evidence of extrinsic misconduct by alleged members of
    the organization, whether charged or not, has probative value. But it is also
    prejudicial, fraught with well-known dangers. A trial judge must be especially
    vigilant in balancing the probative value of the evidence against its
    prejudicial effect to ensure that the evidence only comes in where the
    probative value of it clearly prevails over its prejudicial effect.

[172]

In this case, the appellants submit, the trial judge erred in his
    conduct of this critical balancing exercise. He overvalued the probative value
    of the evidence. He discounted its prejudicial effect. And he gave no or
    insufficient attention to the availability of less prejudicial evidence to
    provide adequate proof of the same essential elements. This is particularly so
    for the evidence relating to the Duffus homicide and Omar Grizzles guns.

[173]

The appellants say the evidence of the Duffus homicide did not
    provide any explanation of or for the evidence that Sheldon Evans armed himself
    soon thereafter. Sheldon Evans got his gun because of an incident in which Ian
    Chambers produced a gun at a bar. Nor was the evidence probative of the role
    and authority of a co-accused who was incarcerated during the investigation. In
    any event, there were less prejudicial ways of establishing the same facts.

[174]

According to the appellants, the trial judge improperly discounted
    the prejudicial effect of the evidence about the guns found at Omar Grizzles
    home. Even though this evidence related to a non-accused, its admission risked
    both moral and reasoning prejudice, despite its modest probative value on the
    issue of whether the 5PG was a criminal organization. It engendered reasoning
    prejudice because it added another incident of misconduct beyond what was
    charged in the indictment. It was apt to be accorded more weight than what was
    objectively justified since it tended to show a non-accused alleged member of the
    5PG had guns. It also carried with it moral prejudice, especially for those
    accused who faced firearm charges.

[175]

The respondent acknowledges that evidence of prior discreditable
    conduct is presumptively inadmissible in a criminal trial. But the rule is not
    absolute. Evidence of such conduct is exceptionally admissible if it is
    relevant to an issue at trial and if the probative value of the evidence
    exceeds its prejudicial effect. And where a judge admits this evidence at trial
    after balancing its probative value and prejudicial effect, that decision about
    where the balance falls is owed deference in an appellate court.

[176]

To determine whether this ground of appeal should prevail, the
    respondent continues, we must keep in mind the issues raised at trial in
    connection with the criminal organization counts. This is so because the
    evidence was not proffered for any purpose other than to establish the
    appellants guilt on those counts, and no one suggests otherwise. The defence
    position at trial in relation to those counts was twofold:

i.

the 5PG was
not
a criminal
    organization; and

ii.

the appellants committed no crimes for the benefit of or in association
    with the 5PG, a criminal organization.

[177]

In light of what it was required to prove to make out the criminal
    organization offences, the respondent says that it was entitled to adduce
    evidence of:

i.

the existence, purposes and activities of the 5PG;

ii.

the commission by gang members of criminal offences, such as drug
    and gun offences, which might result in a material benefit to the 5PG; and

iii.

the appellants association with the gang, including general
    evidence of membership, participation in the gangs activities and specific
    evidence of drug trafficking and offences enabling drug trafficking.

This evidence included photographs of
    graffiti; evidence of tattoos and symbols cut in the members hair; videos;
    commemorative clothing; and misconduct by other 5PG members relevant to
    establish the gangs existence, as well as its main purposes and activities.

[178]

According to the respondent, the trial judge fully understood the
    need to carefully consider the relevance of the proposed evidence and to
    closely scrutinize its probative value and prejudicial effect in order to
    determine where the balance settled. He allowed the Crown to lead evidence of
    drug trafficking and other offences by members of the gang in association with the
    group or that could result in a material benefit to it. He also permitted
    evidence of an accuseds membership and participation in gang activities,
    including drug trafficking and other activities that enhanced or enabled drug
    trafficking. But it was not open season. The trial judge excluded evidence of
    firearms-related offences connected to the accused but not alleged in the
    indictment, and he generally limited the evidence to extrinsic misconduct
    within the timeframe covered by the indictment.

[179]

The respondent says that the evidence of the Duffus homicide was
    properly admitted. It was relevant to assist in proof of the existence and
    nature of the 5PG as a criminal organization. It provided context for several
    intercepted communications, including those that tended to show a co-accuseds
    role in the 5PG even though he was incarcerated, and Sheldon Evans intention
    to carry a firearm. There was no suggestion that the appellants were involved
    in the Duffus killing, thus any prejudice could be counteracted by limiting
    instructions. Moreover, the concern about prejudice is significantly diluted by
    the fact that the killing of Romaine Lawrence, also known as Gunpowder or
    GP, was admitted without objection.

[180]

The graffiti evidence, the respondent argues, is properly admissible
    circumstantial evidence of the gangs existence, and the graffiti was not
    linked to any accused on trial.

[181]

The respondent says that the availability of less prejudicial
    evidence or means to establish relevant facts is not dispositive of the
    admissibility of the evidence at issue here. It all comes down to the balancing
    of probative value and prejudicial effect and the repetition of limiting
    instructions to guard against impermissible reasoning.

The Governing Principles

[182]

The principles that inform our decision on this ground of appeal are
    the bedrock of the law of evidence. Relevance. Materiality. Admissibility.
    Exclusionary rules and their exceptions. None is in need of expansive
    treatment, but some aspects of each warrant brief attention.

[183]

As we saw earlier,
relevance
is not an inherent characteristic
    of any item of evidence. Relevance exists as a relation between an item of
    evidence proposed for admission and a proposition of fact the proponent seeks
    to establish by its introduction. Relevance is a matter of common sense and
    everyday experience. Relevance is also relative, not absolute. We assess
    whether an item of evidence is relevant in the context of the case in which the
    evidence is tendered, not in the abstract. There are no
per se
or
    bright line rules about relevance:
Luciano
, at paras. 204-5;
Cloutier
,
    at pp. 730-32.

[184]

Sometimes we fail to keep in mind two aspects of relevance. The
    first is that an item of evidence does not cease to be relevant or become
    irrelevant simply because it can support more than a single inference, such as
    the one advanced by its proponent:
Luciano
, at para. 205, citing
R.
    v. Underwood
, 2002 ABCA 310,
170
    C.C.C. (3d) 500, at para. 25. The second is that to be relevant, an item of
    evidence need not prove conclusively the proposition of fact for which it is
    offered. Nor does the item of evidence need to make the proposition of fact for
    which it is offered as proof more probable than not. Were this so, few, if any
    items of circumstantial evidence would ever see the light of day in a
    courtroom. The reality is otherwise:
Luciano
, at para. 206.

[185]

The requirement of relevance is satisfied if the item of evidence,
    by the application of everyday experience and common sense, can render the fact
    it is tendered to establish slightly more or less probable than that fact would
    be without that evidence:
Luciano
, at paras. 204, 206.

[186]

To be received in a criminal trial, an item of evidence must also be
material
. Evidence is material if what it is offered to prove or
    disprove is a fact in issue. What is in issue is determined by and a function
    of the allegations contained in the indictment and the governing substantive
    and procedural law:
Luciano
, at para. 207.

[187]

The evidence at issue here was marshalled in proof of the criminal
    organization counts contained in the indictment. Thus, the boundaries of
    materiality were marked out by the essential elements of the offences charged
    in those counts. These essential elements included proof of a criminal
    organization within the meaning of s. 467.1(1) of the
Criminal Code
,
    as well as proof that the offence committed was done for the benefit of, at
    the direction of, or in association with, a criminal organization.

[188]

Subsection 467.1(1) exhaustively defines criminal organization:

criminal organization means a group, however
    organized, that

(a)
is composed of three or more persons in
    or outside Canada; and

(b)
has as one of its main purposes or main
    activities the facilitation or commission of one or more serious offences that,
    if committed, would likely result in the direct or indirect receipt of a
    material benefit, including a financial benefit, by the group or by any of the
    persons who constitute the group.

It does not include a group of persons that
    forms randomly for the immediate commission of a single offence.

[189]

The term however organized is meant to capture differently
    structured criminal organizations. But, at bottom, the group must be, and be
    proven to be, organized, at least to some extent:
R. v. Venneri
, 2012
    SCC 33, [2012] 2 S.C.R. 211, at para. 31. Thus, relevant evidence offered to
    prove the fact or nature of a group as an organization and as an organization
    falling within the definition in s. 467.1(1) would be material.

[190]

The goal of the legislation is to identify and undermine groups of
    three or more persons that pose an elevated threat to society due to the
    ongoing and organized association of their members. All evidence relevant to
    this determination requires consideration in proof of a criminal organization
    as defined by Parliament:
Venneri
, at para. 40.

[191]

The requirements that the organized group of three or more persons
    have as one of its main purposes or main activities the facilitation or
    commission of one or more serious offences and that the commission of the
    serious offences would likely result in the direct or indirect receipt of a
    material benefit, including a financial benefit by the group or any of its
    members are important in determining the materiality of evidence proposed for
    reception. Evidence that shows or tends to show that the group had as one of
    its main purposes or activities the commission of serious offences would be
    material. The term serious offence includes various trafficking, importing,
    exporting and production offences under the
CDSA
:
Regulations
    Prescribing Certain Offences to be Serious Offences
,

SOR/2010-161,
    s. 2.

[192]

However, not all relevant and material evidence is admissible in a
    criminal trial. A rule of admissibility, founded on policy considerations we
    regard as of sufficient importance to justify exclusion of relevant and
    material evidence, may result in exclusion. But admissibility rules are not unyielding.
    Sometimes, they give way. They permit reception of evidence by exception
    because the mischief at which the rule is directed is either not at work or is
    sufficiently countermanded by other trial incidents to permit admission.

[193]

As a general rule, evidence of an accuseds bad character or
    extrinsic misconduct is inadmissible as circumstantial evidence to prove
    conduct and thus guilt. The danger of this evidence is its tendency to generate
    both moral and reasoning prejudice that may serve as impermissible substitutes
    for proof:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras.
    31, 37.

[194]

Like other admissibility rules, however, the general injunction
    against evidence of extrinsic misconduct is not unyielding. It permits
    introduction of this evidence provided it is relevant to a material issue at
    trial (a requirement of all evidence) and provided the probative value of the
    evidence exceeds its prejudicial effect:
Handy
, at para. 41;
R. v.
    Hart
, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 73;
Riley
(C.A.)
, at para. 156. A trial judges
    assessment of the probative value and prejudicial effect of evidence, and of
    where the balance settles between them, is normally entitled to deference on
    appeal:
Riley
(C.A.)
, at
    para. 157; see also
R. v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354, at
    para. 255, leave to appeal refused, [2017] S.C.C.A. No. 17;
R. v.
    Tsigirlash
, 2019 ONCA 650, at para. 48.

[195]

A brief point about the availability of less prejudicial evidence in
    service of proof of the same proposition of fact as that for which the evidence
    of extrinsic misconduct is tendered. In some cases, the availability of less
    prejudicial sources, or limiting the scope and nature of the evidence of
    extrinsic misconduct, may reduce or contain the prejudicial impact of the
    evidence, and will thus be an appropriate consideration in an assessment of the
    prejudicial effect of the evidence as proffered:
Handy
, at para. 142.
    The same may be said of limiting instructions describing the permitted and
    prohibited uses of the evidence.

The Principles Applied

[196]

I would not give effect to this ground of appeal. In my respectful
    view, the evidence to which objection was taken was relevant, material and
    admissible, because its probative value on material issues exceeded any
    incidental prejudice it may have engendered.

[197]

Any assessment of a complaint about the wrongful admission of
    evidence in a criminal trial must begin with an appreciation of the
    circumstances in which the evidence was adduced. In this case, the evidence
    with which the appellants seem principally concerned is the testimony about the
    Duffus homicide and the recovery of loaded handguns at Omar Grizzles
    residence. Little is made of the evidence of the photographic evidence
    displaying graffiti, and I shall say little more about it.

[198]

The indictment on which the appellants and two others were charged
    contained four counts alleging criminal organization offences. In one count,
    all four appellants were charged with trafficking in controlled substances for
    the benefit of or in association with a criminal organization. In another
    count, the appellants Sheldon Evans and Rashard Green were alleged to have
    trafficked in marijuana in the same circumstances. Two further counts related
    exclusively to other co-accused.

[199]

Recall next that at trial the issues in controversy in relation to
    the criminal organization counts included:

i.

whether the 5PG was a criminal organization; and

ii.

whether the trafficking offences alleged were committed for the
    benefit of or in association with the 5PG as a criminal organization.

[200]

As a result of this factual controversy, it fell to the Crown to
    prove by circumstantial evidence, if it could, these disputed elements of the
    criminal organization offences charged. In this respect, it had the assistance
    of expert opinion evidence about gang structure, leadership, territory and
    violent dispute resolution, as well as the characteristics of Toronto street
    gangs.

[201]

The exhaustive definition of criminal organization in s. 467.1(1)
    of the
Criminal Code
required the Crown to prove that one of the main
    purposes or activities of the 5PG was the facilitation or commission of one or
    more serious offences that, if committed, would likely result in the direct or
    indirect receipt of a material benefit, including a financial benefit, by the 5PG
    or any of its members. The constituent elements of this definition, more
    particularly the requirement that a main activity of the group be the
    facilitation
or commission
of one or more serious offences, on its
    face, envisages the introduction of evidence of the commission of those serious
    offences. Otherwise, one might ask rhetorically, how could this element be
    proven?

[202]

In its enactment of this legislation, including the definition of criminal
    organization, Parliament must be taken to have been aware of the admissibility
    rule that makes evidence of extrinsic misconduct presumptively inadmissible in
    a criminal trial. Likewise, the entitlement of accused to a jury trial in
    respect of these offences. Proof of the commission of serious offences other
    than those alleged in the criminal organization counts would seem an obvious
    means of proof of this component of the definition. It would seem logically to
    follow that there cannot be any
per se
or bright line rule excluding
    such evidence.

[203]

In this case, the appellants do not appear to contest the relevance
    of the evidence of the Duffus homicide, at least in relation to the proposition
    that an incarcerated co-accused occupied a leadership role in the 5PG, and the
    guns found at Grizzles residence. I am satisfied that, considered contextually
    and in light of the expert evidence about the
indicia
of Toronto
    street gangs, the evidence was relevant to prove not only the existence of the 5PG,
    but also its nature, both of which in turn were relevant to whether it was a criminal
    organization within the meaning of s. 467.1(1) of the
Criminal Code
.

[204]

It follows from what I have said about the relevance of the evidence
    to assist in proof of constituent elements of a criminal organization that
    this evidence was also material.

[205]

In the end, the appellants argument about this evidence, as it
    seems to me, comes down to a complaint that the trial judge erred in his
    assessment of its probative value, its prejudicial effect, and where the
    balance settled between them.

[206]

In my view, this argument cannot prevail. Absent an error of law or
    of principle, a misapprehension of the evidence or a plainly unreasonable
    conclusion, the trial judges assessment of this case-specific balance is
    entitled to deference. The complaint of enhanced prejudice because the evidence
    about Duffus involved a homicide moves no freight in light of the appellants
    concession that the evidence of the Lawrence homicide was admissible. Unlike
    many cases involving evidence of extrinsic misconduct, no one suggested that
    the appellants or anyone else on trial with them were responsible for the killing
    of Duffus. The evidence was also relevant to explain some of the intercepted
    calls taking place between the appellants thereafter.

[207]

The trial judge was careful to tailor the evidence of extrinsic
    misconduct by limiting it to events within the timeframe described in the
    indictment. He also excluded any evidence connecting the appellants to firearms
    offences that did not form part of the indictment. He gave timely limiting
    instructions about the use of evidence of extrinsic misconduct. He repeated
    these instructions in his charge. The verdicts rendered by the jury reflect a
    discriminating analysis of the evidence adduced. No more need be said.

Ground #5: The Unbalanced Charge

[208]

The final ground of appeal against conviction is advanced by counsel
    for Shane Evans and adopted by counsel for the other appellants. Its focus is
    on a specific passage in the trial judges charge that is said to be
    unbalanced. The background necessary to understand the complaint includes brief
    references to some features of the evidence adduced at trial, as well as to some
    aspects of the instructions themselves.

The Background

[209]

The charge to the jury was delivered in several installments over
    various days. After the charge concluded, jurors received a written copy of the
    instructions to assist them in their deliberations.

[210]

The passage to which exception is taken occurred early in the first
    installment of the charge relating to the assessment of expert opinion
    evidence. The trial judge instructed the jury about how they were to assess the
    opinion evidence of experts, then turned to the specific expert evidence
    adduced at trial. For each expert, the trial judge outlined the experts
    qualifications, described the subject-matter of his expertise and summarized
    the substance of his evidence.

The Evidence of Sgt. Ross

[211]

After reviewing the evidence of an expert on the nature,
    characteristics and activities of Toronto urban street gangs, the trial judge
    turned to the testimony of Sgt. Ross. He described Sgt. Ross qualifications
    and their origins in experience, not book learning, then reviewed the
    substance of his evidence before focusing on the officers interpretation of
    the term Cuban as it was used in the intercepted communications.

[212]

The trial judge pointed out that defence counsel had described the
    officer as defensive and more because he would not change his opinion about
    the meaning of Cuban and other things. After referring to some of the many suggestions
    put to the officer in cross-examination and his responses, the trial judge
    said:

I leave it to you whether he was defensive in
    these encounters, or he was simply repeating, under lengthy cross-examination,
    that all he was in the position to tell us, for better or worse, was what his
    own experience was.

The Evidence of Other Officers

[213]

The trial judge next reminded the jury of the substance of the
    evidence of several other officers about their individual experiences with
    coded words they encountered in drug investigations and the meaning of those
    words. Their answers were the product of their own experience. None were
    qualified as experts. In this respect the trial judge corrected a misstatement
    by counsel for Shane Evans in his jury address that he (counsel) had qualified
    one of them, Detective Constable David Murray, as an expert. The trial judge
    clarified that although he forced [counsel] to attempt to qualify D.C. Murray
    as an expert before allowing him to answer questions about his knowledge of
    certain drug jargon, ultimately the trial judge did not declare him to be an
    expert, because he really isnt one. The trial judge explained to the jury
    that he simply concluded that as an officer who has listened to wiretaps, he
    could tell you how coded words had been used in his experience, and, after
    that, he let other officers who had drug investigation experience testify
    about whether or not they had ever heard particular coded words used in
    particular ways without going through any qualification process at all.

[214]

In concluding his reference to the testimony of D.C. Murray, the
    trial judge reminded the jury of the officers testimony about the term Cuban:

[I]n the course of his cross-examination,
    [counsel for Shane Evans] asked D.C. Murray if he had heard the word Cuban.
    D.C. Murray replied, I have heard it. Its usually in context to a weight of
    marijuana, and it has been used to mean cocaine. He was then asked, And when
    its used in the marijuana context, how much is a Cuban of marijuana? He
    replied, I couldnt tell you.

The trial judge then remarked, Its
    entirely up to you what weight you place on this evidence.

[215]

The trial judge continued to review the evidence of other police
    officers who described their experiences with the use of the term Cuban. None
    said that it referred exclusively, if at all, to marijuana. The most
    experienced officer, Police Constable Tony Canepa, a veteran of 5,000 drug
    investigations and 1,700 undercover buys, asked Sheldon Evans for a Cuban and
    was quoted a price consistent with that charged for 7 grams of crack cocaine,
    which was the object of the officers proposed purchase. The trial judge said:

P.C. Canepa was the most experienced
    undercover officer you heard from. You may find his answers telling. You may
    also think it was telling that when P.C. Canepa asked the person the Crown says
    was Sheldon Evans for a Cuban, without specifying the drug, he got cocaine. Its
    entirely up to you.

The Jury Instructions

[216]

In completing this aspect of his instructions to the jury about the
    expert opinion evidence of Sgt. Ross, the trial judge said:

Members of the jury, none of these officers
    who testified about drug jargon, apart from Sergeant Ross, were really
    qualified as an expert, and none of them were permitted to give an opinion, and
    none of them did. They simply each told you what their experience was with drug
    jargon. You may take their evidence into consideration when you assess Sergeant
    Ross opinion on the use of the word Cuban and other street jargon.

In the end, members of the jury, I think it is
    fair to say that context means a great deal in attempting to interpret many of
    these calls. Look at the whole call to see what prices are mentioned, if any,
    in the call, and what else is said in the call. See what preceded it. See what
    followed it. Consider how the same people used the same language on other
    occasions. And on and on. With a little help from an expert about prices,
    quantity and terminology, and the use of a little common sense, you will be able
    to understand many of these intercepted communications with little difficulty.
    But all of this is up to you.

[217]

A few pages later, the trial judge turned to another aspect of the
    cross-examination of Sgt. Ross  the cross-examination on authoritative
    materials:

In this case, as you are aware, Sergeant Ross
    was asked about a great many sources of supposedly authoritative information.
    For the most part he was unfamiliar with them, or did not acknowledge their
    expertise, and I did not permit those things to be read to him. There were two
    exceptions.

First, I permitted [counsel for Shane Evans]
    to read some definitions of drug coded language to be read to Sergeant Ross
    that apparently came from a lexicon prepared by Inspector Page in relation to
    another drug project some years before this one. Although Sergeant Ross was
    unfamiliar with this lexicon, he acknowledged that Inspector Page had been an
    expert in this field, and so I allowed some of these definitions to be read to
    Sergeant Ross. Insofar as he agreed with or adopted any of those definitions,
    they became evidence that you can consider. But other times  excuse me. But
    other times, Sergeant Ross did not agree with the lexicon. This was
    particularly true of the possibility apparently allowed by Inspector Page that
    Cuban, although it normally refers to cocaine, can also refer to marihuana.
    Sergeant Ross did not agree with or adopt this possibility, at least in respect
    to the time period of these interceptions. He rejected that possibility in
    relation to the recordings before you. As a result, I instruct you that since
    Sergeant Ross didnt adopt it, it is not evidence before you, and you may not
    rely on it. And I should make clear Im saying what Inspector Page may have written
    in that lexicon in that regard is not evidence before you, and you may not rely
    on it.

This may seem odd to you at first blush, but
    if you think about it, it isnt so odd. After all, unlike Sergeant Ross,
    Sergeant Page has not testified before you under oath or affirmation. You know
    nothing about when or where he heard Cuban used that way, if ever, what time
    period he had in mind when he said this, what sort of traffickers he had in
    mind, and most importantly, how he reached this conclusion. It is not
    surprising that his alleged definitions cannot be used in evidence in the
    absence of their being adopted by Sergeant Ross.

Let me turn to the second instance. In the
    course of [counsel for Shane Evans] cross-examination, Sergeant Ross
    acknowledged that he had made use of something called the Drug Identification
    Bible to get information about the purity of cocaine coming into Canada. He
    confirmed the accuracy of the information in the Drug Identification Bible on
    that issue with information from Health Canada, and concluded that it was
    accurate. [Counsel for Shane Evans] then read excerpts from the text to
    Sergeant Ross on the issue of marijuana street prices and street names in 2007.
    Sergeant Ross said that he was not familiar with this part of the book, and did
    not adopt the price list or the list of names. As a result, once again, I
    instruct you that since Sergeant Ross didnt adopt these lists, they are not
    evidence before you, and you may not rely on them.

The Arguments on Appeal

[218]

In this court, the appellants, in an argument advanced by Shane Evans
    and adopted by the others, contend that the trial judges charge was unbalanced,
    unfair to the appellants and resulted in a miscarriage of justice.

[219]

The appellants say that, in their closing addresses, counsel
    stressed D.C. Murrays evidence that, contrary to what Sgt. Ross had said, the
    term Cuban usually referred to marijuana. Although it was clear that D.C.
    Murray had never been involved in undercover drug purchases, he had gained
    significant experience in language usage from listening to wiretaps, a subject
    on which he gave lectures to other police officers. He acknowledged, however,
    that he was not comfortable giving opinion evidence with respect to language
    usage in one-on-one drug conversations.

[220]

The unbalanced thus unfair instructions, the appellants argue,
    emerge from the trial judges mischaracterization of D.C. Murrays evidence and
    its juxtaposition in the charge with the discussion of the testimony of P.C. Canepa,
    whose evidence the trial judge urged the jury to accept because of his vast
    experience as an undercover drug purchaser. D.C. Murrays evidence was essential
    to the defence. The trial judges treatment of it tilted the case heavily in
    favour of the Crown and resulted in a trial that neither was nor appeared fair.

[221]

The respondent contends that the ultimate question we should answer
    in assessing this ground of appeal is whether the alleged deficiencies in the
    charge caused a miscarriage of justice. To do this requires a functional approach.
    When that is done, it becomes clear, according to the respondent, that no
    miscarriage of justice has occurred.

[222]

The respondent says that, as all counsel at trial acknowledged, the
    charge to the jury more than adequately outlined the position of the defence.
    This was done by including the defence position in the discussion of each count
    of the indictment. When the trial judge asked defence counsel whether they
    wished him to repeat the written versions of their positions that each had
    provided to the trial judge, all declined the invitation. Instead, everyone
    agreed to have the written versions, in the language of each counsels
    choosing, accompany the written version of the charge to the jury to the jury
    room for use during deliberations.

[223]

The closing arguments of defence counsel, the respondent points out,
    stressed that jurors should assign little weight to Sgt. Ross evidence about
    the meaning of coded language, such as Cuban, in the intercepted
    communications, and this position was put to the jury by the trial judge in his
    charge.

[224]

The respondent submits that it was counsel for Shane Evans who
    sought to elicit evidence from D.C. Murray about language uses inconsistent
    with what Sgt. Ross had said about the various terms. D.C. Murray had been
    called by the Crown to prove the seizure of a cellphone from a residence.
    Although the officer had some experience from attending and lecturing at
    various seminars about wiretaps, his involvement was primarily in the conduct
    of wiretap investigations, not in the interpretation of language used in actual
    interceptions. He acknowledged that his familiarity with the language of drug
    transactions was limited to the most common phrases to describe the drugs. He
    was very uncomfortable with specifics. He had heard the term Cuban, usually
    in the context of the weight of marijuana, but was also aware that the same
    term had been used to mean cocaine. He understood it to refer to a measure of weight
    but did not know the weight to which it referred.

[225]

It was open for the trial judge, the respondent says, to review the
    evidence on this issue in his charge to the jury. Whether it was favourable or
    unfavourable to the defence position was of no moment, because the references
    accurately reflected the state of the evidence, its alleged strengths and
    apparent weaknesses. Such a summary does not make a charge unbalanced, let
    alone, so unbalanced as to cause a miscarriage of justice and warrant a new
    trial.

The Governing Principles

[226]

The principles that govern our assessment of this ground of appeal
    are well established. A few points of importance emerge from them.

[227]

A trial judges final instructions must leave a jury with a clear
    understanding of:

i.

the factual issues to be resolved;

ii.

the legal principles governing the factual issues and the evidence
    adduced at trial;

iii.

the positions of the parties; and

iv.

the evidence relevant to the positions of the parties.

See
R. v. P.J.B
., 2012 ONCA
    730, 298 O.A.C. 267, at para. 42, citing
R. v. MacKinnon
(1999), 132
    C.C.C. (3d) 545 (Ont. C.A.), at para. 27.

[228]

In final instructions, many, if not most, trial judges include a
    discrete statement of the positions of the parties. This is often a repetition
    of a brief summary prepared by counsel at the trial judges request. On other
    occasions, the trial judge may include the defence position in instructions on
    individual issues or counts. What matters is substance, not form:
P.J.B.
,
    at para. 43.

[229]

As a central feature of a criminal jury trial, the strength of a
    jury charge lies in its objectivity. It is jury education, not jury
    indoctrination. It must be fair and balanced on both sides, especially on that
    of the accused, so as not to compromise the actual and apparent fairness of the
    trial. It should not unduly promote the case for the Crown and effectively
    ignore and denigrate that of the defence:
R. v. Baltovich
(2004), 191
    C.C.C. (3d) 289 (Ont. C.A.), at paras. 113-115.

[230]

Apart from exceptional cases where it would be needless to do so, a
    trial judge must also review the substantial parts of the evidence adduced at
    trial, and give the jury the position of the defence, so that the jury may
    appreciate the value and effect of the evidence and how they are to apply the
    law to their findings of fact. The jury must be left with an adequate
    understanding of the evidence as it relates to the relevant issues in the
    trial:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at pp. 497-98;
Cluett
    v. The Queen
, [1985] 2 S.C.R. 216, at p. 231.

[231]

It is well established that a trial judge is entitled to express his
    or her own view of factual issues, including the credibility of witnesses. The
    judge is also entitled to express those views in strong terms. But what the
    judge must not do is to use such language as leads the jury to think that they
    must find the facts in the same way the judge indicates. Further, the charge
    must not deprive the accused of a fair presentation of his or her case to the
    jury:
R. v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 133,
    reversed on other grounds, [1990] 2 S.C.R. 1421.

[232]

An appellate court is entitled to intervene when the opinion
    expressed by a trial judge:

i.

is far stronger than the facts of the case
    warrant; or

ii.

is expressed in such terms that it is likely that the jury would be
    overawed by the opinion so expressed,

even if the judge has made it clear to
    the jury that they are not bound by his or her views on the evidence or factual
    issues:
Garofoli
, at p. 133; see also
R. v. Ruddick
(1980),
    57 C.C.C. (2d) 421 (Ont. C.A.), at p. 435, leave to appeal refused, [1981] S.C.C.A.
    No. 185;
Broadhurst v. The Queen
, [1964] A.C. 441 (P.C.), at p. 464.

[233]

A final point has to do with the manner in which we are to assess
    claims of error in final instructions to the jury. Our approach is functional.
    We test the instructions against the purposes for which they are given. Among
    those purposes is to ensure that the jury understands what is and what is not
    evidence, and appreciates the value and effect of the evidence on the positions
    advanced at trial, especially, but not only, that of the defence. Instructions
    are not deficient to the point of appellate intervention simply because more
    could have been said, or because what was said could have been phrased
    differently or more felicitously:
R. v. Jacquard
, [1997] 1 S.C.R. 314,
    at paras. 32;
R. v. Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para.
    3;
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58.

[234]

Lack of objection by defence counsel on a ground later advanced
    before an appellate court as an error is not fatal to success on appeal. But
    lack of objection is at once informative and worthy of consideration by the
    appellate court in assessing the alleged deficiency. It is all the more so
    where the claim alleges a lack of balance or fairness in the treatment of the
    defence position at trial:
R. v. Calnen
, 2019 SCC 6, at paras. 38-40;
Royz
,
    at para. 3;
Daley
, at para. 58;
Jacquard
, at para. 38.

The Principles Applied

[235]

I would not give effect to this ground of appeal. A combination of
    reasons persuades me that the appellants claim of an unbalanced charge cannot
    be sustained.

[236]

Context is critical in any assessment of an allegation of error in
    jury instructions. It is no less so where the error alleged is an imbalance in
    those instructions. Claims of imbalance in final instructions cannot be
    sustained on the basis of microscopic scrutiny of a single portion of the
    charge. Imbalance must be made to appear, if at all, upon a review of the
    charge as a whole.

[237]

The passage on which the appellants stake their claim of imbalance
    appears in an early part of a lengthy charge. The trial judge explained what
    constituted evidence for the jurors to consider in their task as fact finders:
    testimony, exhibits and admissions. He then described the types of evidence
    adduced at trial, among them, expert opinion evidence. He distinguished between
    evidence of fact and that of opinion, then instructed the jury on how to assess
    expert opinion evidence in reaching its verdict. After directing the jury on
    the legal principles governing their assessment of the expert opinion evidence
    given at trial, the trial judge turned to the specific expert opinion evidence
    adduced at trial, including the testimony of Sgt. Ross.

[238]

The evidence of Sgt. Ross about the meaning of coded language in the
    intercepted communications had been the subject of lengthy, at times repetitive,
    and improper cross-examination. It featured prominently in the closing
    addresses of counsel. But it was not evidence that was of service to the jury
    in reaching their verdict on all counts contained in the indictment.

[239]

Turning next to the substance of the instructions said to reflect
    imbalance, I focus first on the trial judges summary of certain aspects of the
    testimony of Sgt. Ross and others about the meaning of the term Cuban in the
    lexicon of those engaged in the sale and purchase of illicit drugs. Such a
    review complies with the trial judges obligation to review the substantial
    parts of the evidence adduced at trial and to relate it to the issues raised so
    that the jurors may appreciate the value and effect of the evidence. This
    recapture of the evidence does not become unbalanced simply because it tends to
    establish one conclusion rather than another.

[240]

In this case, the summary also served to permit correction of some
    inaccurate references to the evidence in the closing addresses of counsel. A
    specific correction is appropriate where the trial judge is concerned that, for
    one reason or another, the general instruction that counsels references to the
    evidence are not themselves evidence may not be sufficient.

[241]

The impugned instruction also included a legal direction about what
    constituted evidence when Sgt. Ross was cross-examined on what were alleged to
    be authoritative works or materials whose authors held different views than
    Sgt. Ross about the meaning of certain terms. On many occasions the
    cross-examiner failed to first establish the acknowledged authority of the
    source. This instruction expanded on the general counsels questions are not
    evidence direction, was appropriate in the circumstances and neither caused nor
    contributed to any imbalance in the charge.

[242]

For the most part, the impugned instruction dealt with the substance
    of evidence adduced at trial on a particular issue. Accordingly, it was subject
    to the trial judges general instruction that the jury was not bound by or
    limited to his factual references, and that it was the jurys collective
    recollection of the evidence that constituted the sole basis upon which they
    could ground their findings of fact and ultimately their verdict. How much
    evidence to review, the manner in which to review it and where to locate it in
    what would obviously be a lengthy charge were matters for the trial judge to
    determine.

[243]

A related point emerges from the nature of the subject-matter of the
    impugned instruction. The evidentiary review was
not
a legal direction
    the jury was bound to accept and follow. Rather it was a reference to evidence
    and to issues of fact that the jury was not only not required to follow, but
    free to ignore.

[244]

Further, to the extent that the challenged instructions state or
    necessarily imply the personal opinion of the trial judge, I am not satisfied
    that they reflect error. The mere fact that such an opinion was stated, in clear
    terms or by necessary implication, offends no principle. Nothing said here was
    far stronger than the facts warranted; would lead the jury to think that they
    must find the facts as the judge described them; would overawe the jury; or
    deprived any appellant of a fair presentation of his case.

[245]

A final point relates to the position of trial counsel. While the
    failure to object is not dispositive of this ground of appeal, it is of
    significance where the nature of the complaint relates to an alleged imbalance in
    the charge.

[246]

This ground of appeal fails, as does the appeal from conviction.

THE APPEALS FROM SENTENCE

[247]

The principal ground of appeal advanced by each appellant, except
    for Orrett Francis, on his appeal from sentence has to do with the amount of
    credit the trial judge awarded for pre-sentence custody in arriving at the net
    sentence he imposed. Each appellant, including Francis, also alleges other
    errors specific to his case.

[248]

As will become apparent, in my view none of the individual
    complaints afford a basis upon which the net sentences imposed by the trial
    judge could be varied. As a result, after a brief canvass of some essential
    background, these reasons focus principally on the common issue of credit for
    pre-sentence custody.

The Background

[249]

The appellants Sheldon Evans and Orrett Francis were arrested on May
    4, 2010. Shane Evans was arrested on his return from Jamaica on May 10, 2010.
    Rashard Green surrendered to police on May 25, 2010.

[250]

The appellants were sentenced on November 14, 2013.

The Pre-Sentence Custody

[251]

For each of the appellants except Orrett Francis, the time spent in
    pre-sentence custody was approximately 42 months.

[252]

The appellant Francis was released from custody shortly after his
    arrest and remained out of custody until the jury rendered its verdict on July
    1, 2013. Since then he has been detained in custody, including a period of four
    and one-half months prior to sentencing.

The Positions of the Parties at Trial

[253]

The trial Crown sought the following substantial terms of imprisonment
    as the appropriate sentencing disposition for each appellant:

·

Sheldon Evans  15 years;

·

Shane Evans  10 years;

·

Orrett Francis  9 years; and

·

Rashard Green  10 years.

Credit for pre-sentence custody, the
    Crown contended, should be granted on a 1:1 basis.

[254]

Defence counsel acknowledged that prison sentences were warranted
    for each appellant, but parted company with the Crown on quantum. Specifically,
    counsel advocated for the following sentences:

·

Sheldon Evans  10 years reduced to 8 on the
    basis of totality;

·

Shane Evans  2.5-3 years;

·

Orrett Francis  3 years; and

·

Rashard Green  7.5-8.5 years.

Counsel for each appellant sought
    enhanced credit for pre-sentence custody. Counsel for Orrett Francis also sought
    some credit for onerous release conditions.

The Sentences Imposed

[255]

The trial judge considered a total sentence approaching 18 years as
    appropriate for Sheldon Evans before consideration of the principle of totality
    and the calculation of credit for pre-sentence custody of 42 months. He reduced
    the sentence to 13 years based on totality, awarded a credit of 48 months for
    42 months of pre-sentence custody and imposed a net sentence of 9 years.

[256]

For Shane Evans, the trial judge considered that an appropriate
    sentence without consideration of the principle of totality or credit for
    pre-sentence custody would approach 13 years. Totality considerations reduced
    the principal sentence to 9.5 years, which the trial judge reduced to 5 years
    after awarding credit of 54 months for 42 months of pre-sentence custody.

[257]

The trial judge concluded that Orrett Francis convictions warranted
    a principal sentence of 9 years, which he reduced to 8 years due to stringent
    terms of release and brief periods of pre-sentence custody.

[258]

For Rashard Green, the trial judge considered a total sentence of
    9.5 years would be fit, less credit of 48 months for 42 months of pre-sentence
    custody. The net sentence imposed was a term of imprisonment of 5.5 years.

The Arguments on Appeal

[259]

In this court, the appellant Sheldon Evans says that, without the
    benefit of
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, which was released
    after the sentencing in this case, the trial judge erred by awarding him inadequate
    credit for time spent in pre-sentence custody. For offences committed prior to
    the coming into force of the
Truth in Sentencing Act
, S.C. 2009, c. 29
    (
TISA
), on February 22, 2010, the credit should have been based on the
    usual ratio of 2:1, and, thereafter, 1.5:1. In the end, the imposed sentence of
    13 years should have been reduced by 70 months, not 48 months as awarded by the
    trial judge, leaving a net sentence of 7 years and 2 months.

[260]

The appellant Shane Evans also alleges that the trial judge erred when
    he assigned only 54 months credit for 42 months of pre-sentence custody. At
    minimum, Shane Evans says, the time should have been credited on a 1.5:1 basis,
    resulting in a credit of 63 months. However, because some of the offences of
    which he was found guilty either pre-dated or straddled the coming into force
    of the
TISA
, Shane Evans submits he should receive credit calculated
    on a 2:1 basis.

[261]

In addition, Shane Evans contends, the trial judge erred in
    considering the appropriate sentencing range for the count of trafficking in a
    controlled substance for the benefit of a criminal organization to be four to
    six years. This range exceeded the range established in the case law. The trial
    judges reasoning was further contaminated by his consideration of an irrelevant
    factor 
i.e
.
that drug trafficking was the primary source of
    the appellants livelihood, and his making of certain unsupported or erroneous findings
    of fact 
i.e
.
the monopolistic nature of the 5PGs trafficking
    business and Shane Evans involvement in a $11,250 drug deal, with respect to which
    the jury found him not guilty.

[262]

The appellant Orrett Francis invokes the principle of parity in
    support of his submission that his sentence should be reduced to one of time
    served. He was not convicted of any firearms offences or of a breach of
    probation. His record was markedly less serious than that of the other
    appellants, and his only prior period of incarceration was for one day. He has served
    almost four years in custody for these offences and should have his sentence
    reduced to time served. He does not allege any error with respect to the trial
    judges calculation of credit for time spent in pre-sentence custody or on
    onerous bail conditions.

[263]

The appellant Rashard Green points to three errors he says the trial
    judge made in concluding that a net sentence of 9.5 years was fit in his case.

[264]

The first error relates to the sentence imposed on the conviction
    for trafficking in a controlled substance for the benefit of a criminal
    organization, where the trial judge imposed a sentence in excess of that
    proposed by counsel in joint submission.

[265]

Second, the appellant Green says, the trial judge failed to assign
    adequate weight to his relative youth and the fact that he had not served a
    custodial sentence longer than 30 days (plus 2 months credit for pre-sentence
    custody) on any prior occasion.

[266]

Finally, the appellant Green joins the appellants Sheldon and Shane Evans
    in their submission that the trial judge gave too little credit for time spent
    in pre-sentence custody. Instead of 48 months of credit for 42 months of actual
    pre-sentence custody, the trial judge should have assigned a credit of 74
    months (44 months credit for pre-
TISA
offences
, 30 months credit for post-
TISA
offences
), thus reducing the net sentence
    imposed of 5.5 years by 26 months.

[267]

The respondent submits that the sentences imposed by the trial judge
    are fit and do not warrant appellate intervention. The trial judge, the
    respondent says, properly exercised his discretion in determining the ranges of
    sentence applicable to the various offences of which the appellants were
    convicted and locating the individual sentences appropriately within each
    range. Even though the trial judge did not have the benefit of the reasons of
    the Supreme Court of Canada in
Summers
, he properly exercised his discretion in apportioning credit for
    pre-sentence custody
. At bottom, any errors that may have occurred
    had no impact on the net sentence imposed on any appellant, thus no case has
    been made out for appellate intervention.

[268]

The respondent contends that whether the awards of credit for
    pre-sentence custody are governed by the principles at work before or after the
TISA
came into force is of no great moment. Neither enhanced rate is
    guaranteed. Prior to the
TISA
, whether credit was awarded and, if so,
    the rate at which it was calculated were matters left to the sound discretion
    of the sentencing judge. Likewise, after the
TISA
came into force, the
    enhanced rate of 1.5:1 generally prevailed, but could be defeated by evidence
    of institutional misconduct and dim prospects for parole.

[269]

As for the appellant Sheldon Evans, the respondent argues, he
    received a substantial benefit from the application of the totality principle.
    His crimes, sentenced individually, warranted a total sentence of 18 years, not
    the 13 years the trial judge imposed because of the totality principle. He was
    convicted of 11 offences, including 2 criminal organization offences, as well
    as offences involving firearms and ammunition and conspiracy to commit
    aggravated assault. His 14 prior convictions, including 5 for breach of
    recognizance, made him unlikely to obtain early release and justified a lower
    amount of credit for pre-sentence custody. Regardless, because the 13-year
    sentence was the lowest sentence the trial judge felt able to impose, the
    respondent argues that any increase in credit would have to be offset by a
    commensurate increase in sentence.

[270]

The respondent submits that no case has been made out to vary the
    sentence imposed on the appellant Shane Evans. Another beneficiary of the
    totality principle, Shane Evans also received an appropriate degree of enhanced
    credit for pre-sentence custody. His lengthy criminal record rendered him an
    unlikely candidate for early parole. The trial judge did not err in determining
    the applicable sentencing range and was entitled to infer Evans ongoing
    involvement in the commercially-motivated trafficking as a relevant factor on
    sentence.

[271]

The respondent argues that the sentence imposed on the appellant
    Orrett Francis is fit. The parity argument, which forms the core of Francis
    submissions, rests on his mitigating personal circumstances and relatively
    minor criminal record. But there are countervailing factors, the most prominent
    of which are the extent of Francis trafficking activities and his position as
    a critical wholesale supplier of drugs to the 5PG to facilitate their
    trafficking business. As a mid-level cocaine trafficker, the sentence imposed
    was fit.

[272]

In connection with Rashard Green, the respondent contends that the
    sentence imposed, a net term of 5.5 years, is fit. While the trial judge
    exceeded the 2 years the Crown sought in respect of Greens conviction of the
    criminal organization offence, the trial judge did not exceed the Crowns global
    sentencing position, which was 10 years.  The trial judge also gave adequate
    weight to Greens youth. Finally, the credit assigned to Green for his time in
    pre-sentence custody was justified because Green was unlikely to receive early
    parole. He had previously been convicted of 11 offences against the
    administration of justice, 5 offences of violence, 2 drug offences and a breach
    of a conditional supervision order. One of the offences of which he was
    convicted at trial involved possession of a loaded and racked prohibited
    firearm, stored near a sleeping infant, when Green was bound by two firearms
    prohibitions. He also incurred institutional offences while detained in custody
    awaiting trial.

The Governing Principles

[273]

The principles whose application control the outcome of this appeal
    include some that define the scope of appellate review in sentencing cases,
    others that focus on specific claims of error, and still others that explain
    how credit is to be awarded for pre-sentence custody and how that credit relates
    to the ultimate determination of a fit sentence.

[274]

On appeals from sentence, s. 687(1) of the
Criminal Code
directs us to consider the fitness of the sentence appealed against, but
    tells us nothing about the standard of review we are to apply or the principles
    that are to guide us in our considerations.

[275]

Our inquiry into fitness under s. 687(1) must focus on the
    fundamental principle of proportionality in s. 718.1 of the
Criminal Code
.
    That principle requires that every sentence must be proportionate to the
    gravity of the offence and the degree of responsibility of the offender who
    committed it. A sentence is demonstrably unfit if it constitutes an
    unreasonable departure from the fundamental principle of proportionality. We
    determine proportionality both on an
individual
basis, by looking at
    the individual offender and his or her offence or offences, and also by
    comparison with sentences imposed on similar
offenders
for similar
offences
committed in similar
circumstances
. To be proportionate, a sentence
    must reconcile both individualization and parity of sentences:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 12, 53.

[276]

Any determination of the fitness of a sentence also requires that
    the objectives of sentencing in s. 718 and the other sentencing principles set
    out in s. 718.2 be taken into account:
Lacasse
, at para. 54.

[277]

Several authorities teach intermediate appellate courts that they
    are not to intervene lightly when considering the fitness of a sentence. Trial
    judges have a broad discretion to impose the sentence they consider appropriate
    within the limits the law imposes upon them. The sentences they impose are
    entitled to considerable deference from appellate courts:
Lacasse
, at
    paras. 39, 41;
R. v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163, at paras.
    14-15;
R. v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123,
    125.

[278]

An error in principle, a failure to consider a relevant factor or
    the erroneous consideration of an aggravating or mitigating factor can justify
    appellate intervention, but only where it appears from the trial judges
    decision that the error had an impact on the sentence imposed:
Lacasse
,
    at paras. 43-44.

[279]

A sentencing judges choice of a sentencing range or of a category
    within that range is a matter that falls within his or her discretion. As a
    result, those choices do not themselves constitute reviewable errors. It also
    follows that an appellate court cannot intervene simply because it would have
    put the sentence in a different range or in a different category within the
    same range. Intervention is limited to cases in which the sentence imposed is
    demonstrably unfit, that is to say, an
unreasonable
departure from the
    fundamental principle of proportionality:
Lacasse
, at paras. 51, 53,
    60.

[280]

To determine a fit sentence in any case where the sentence
    determination involves the exercise of discretion, a trial judge is required to
    consider and assign weight to various sentencing objectives, principles and
    aggravating and mitigating factors. There are no one-size-fits-all sentences.
    Determining the weight to be given to aggravating and mitigating circumstances
    lies at the core of the trial judges discretion. The assignment of weight to
    these factors is not itself an error that opens the gate for appellate intervention
    unless the weighing is unreasonable:
Lacasse
, at para. 78.

[281]

The final area of principle with which we are concerned here
    involves the place of pre-sentence custody in the sentencing decision.

[282]

Subsection 719(3) assigns a place in the sentencing decision for
    time spent in custody by an offender prior to sentencing. The language of the
    section is permissive, not presumptive or mandatory, and is limited in two
    respects. There must be a nexus between the time spent in custody and the
    offence on which the sentence is being imposed: the time spent must be as a
    result of the offence for which the offender is being sentenced. The second
    limitation has to do with the rate at which the credit is to be awarded: one
    day for each day spent in custody.

[283]

On February 22, 2010, the
TISA
came into effect. In
    addition to amending s. 719(3) to cap the credit for pre-sentence custody at a
    rate of 1:1, the
TISA
added s. 719(3.1), which allowed credit at an
    enhanced rate of 1.5:1, if the circumstances justify it and the reason for
    detention did not come within the disqualifier contained in the subsection. This
    disqualifier has since been removed: see
An Act to amend the Criminal Code
    and the Department of Justice Act and to make consequential amendments to
    another Act
, S.C. 2018, c. 29, s. 66.

[284]

Prior to the enactment and proclamation of the
TISA
, trial
    judges routinely exercised their discretion under the former s. 719(3) to give
    offenders credit for time spent in custody prior to sentencing calculated at a
    rate of greater than one day of credit for every day in custody. The ratio was
    often two days credit for each day of custody, but could be greater or lesser
    depending on the circumstances of that custody. The award of credit and the
    ratio applied were left to the discretion of the presiding judge, not
    pre-determined by a rigid formula much less by a statutory ceiling:
R. v.
    Clarke
, 2014 SCC 28, [2014] 1 S.C.R. 612, at para. 5;
R. v. Wust
,
    2000 SCC 18, [2000] 1 S.C.R. 455, at para. 45;
Summers
, at paras.
    20-22, 30;
R. v. Passera
, 2019 ONCA 527, at para. 32.

[285]

By its terms, the
TISA
, including its limitations on the
    ratio of credit for time spent in pre-sentence custody as a result of the
    offence for which the offender was being sentenced, applied to persons charged
    with offences
after
February 22, 2010, the date the
TISA
came
    into force:
Clarke
, at para. 18. Later, this court clarified that
    persons charged after the
TISA
came into effect, but whose offences
    were committed prior to that date, were not bound by the
TISA
rate;
    rather, they had their credit for pre-disposition custody calculated at the
    former rate, usually 2:1:
R. v. R. S.
, 2015 ONCA 291, 20 C.R. (7th)
    336, at paras. 32, 35-36, 51.

[286]

As was the case prior to the
TISA
, credit for pre-sentence
    custody is not as of right. Section 719(3) of the
Criminal Code
authorizes but does not require a sentencing court, in determining the sentence
    to be imposed on an offender for an offence, to take into account any time the
    offender has spent in custody as a result of that offence. As a matter of
    principle, it falls to the offender seeking to invoke the discretion conferred
    by s. 719(3) to demonstrate that credit for pre-sentence custody should be
    awarded. That said, in reality, there is little controversy in most cases that
    credit should be assigned.

[287]

For the first time under the
TISA
, s. 719(3) capped the
    credit at a maximum of one day for each day spent in custody. The legislation
    also created an exception to this general rule in s. 719(3.1), which permitted
    the credit for time spent in pre-sentence custody to be awarded at a maximum of
    one and one-half days for each day spent in custody prior to sentence. The
    enhanced credit may be awarded if the circumstances justify it. As the party
    who seeks to obtain the benefit of this enhanced credit, the onus of showing
    that the circumstances justify it also settles upon the offender.

[288]

Section 719(3.1) does not require that the circumstances mustered in
    support of a claim for enhanced credit be exceptional:
Summers
, at
    para. 40. The circumstances may include those that result from operation of
    law, as for example, lost eligibility for early release and parole:
Summers
,
    at paras. 40-41.

[289]

As a general rule, the loss of early release affords a sufficient
    basis to award enhanced credit at the rate of 1.5:1. This is so, even if the
    conditions of pre-sentence custody are not particularly harsh and parole is
    unlikely. The fact of pre-sentence custody, on its own, will usually be
    sufficient to support an inference that the offender has lost eligibility for
    early release or parole, thus justifying enhanced credit:
Summers
, at
    paras. 71, 79.

[290]

A final point concerns the obligation of the sentencing judge to
    give reasons for any credit granted for pre-sentence custody. Section 719(3.2)
    of the
Criminal Code
imposes this requirement. It is not particularly
    onerous. But it occupies a prominent place in explaining the nature of the
    sentencing process and the reasons for giving, and, I would add, refusing
    credit, to the public:
Summers
, at para. 74.

The Principles Applied

[291]

As I will explain, I would give effect to one claim of error based
    on the amount of credit awarded for pre-sentence custody, but would not
    otherwise interfere with the sentences imposed. Preliminary to consideration of
    the pre-sentence custody credit issue, I should explain why I am satisfied that
    the sentences imposed do not otherwise reflect error warranting our
    intervention.

[292]

In considering the fitness of a sentence under s. 687(1) of the
Criminal
    Code
, it is critical not to lose sight of the basis upon which an
    appellate court can intervene on review of a sentence imposed at trial. We are
    only entitled to do so when an error in principle, a failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor had an impact on the sentence imposed. It is not enough that,
    individually or collectively, we would choose a different sentencing range, or
    locate the sentence at a different point in the range chosen by the sentencing
    judge. We may intervene only if the sentences imposed are demonstrably unfit,
    in other words, that they amount to an unreasonable departure from the
    fundamental principle of proportionality.

[293]

In determining the principal sentence he considered apt for each of
    the appellants, the trial judge considered the predominant sentencing
    principles at work to be those of denunciation and deterrence. In cases such as
    this, which involve that toxic mix of guns, gang involvement, intimidation of
    perceived adversaries, and commercial trafficking in drugs, those principles
    occupy places of prominence. The trial judge was also mindful of the role of
    rehabilitation, where reasonable prospects emerged from the evidence adduced at
    trial or on sentence, as well the fundamental principle of proportionality and
    the related principle of parity.

[294]

The trial judge devoted a portion of his lengthy reasons for
    sentence to a determination of the range of sentence applicable to the various
    categories of offences with which he was concerned:

i.

criminal organization drug offences;

ii.

street-level drug offences;

iii.

wholesale drug offences;

iv.

firearms and firearms-related offences; and

v.

offences involving violations of court orders.

[295]

After identifying the range of sentence applicable to the several
    categories of offences, the trial judge then considered each appellant
    separately; determined the principal sentence he would impose; apportioned it
    among the counts of which each appellant was convicted; decided how much credit
    would be awarded for pre-sentence custody; and then imposed the net or
    effective sentence.

[296]

Three appellants allege discrete errors by the trial judge in determining
    the range of sentence applicable in their cases, or the place within the range
    the trial judge assigned for their involvement. I would reject these claims of
    error.

[297]

The appellant Shane Evans says that the trial judge erred in making
    three findings of fact that he considered relevant to the sentence he would
    impose:

i.

that drug trafficking was Shane Evans sole
    livelihood;

ii.

that the 5PG had a monopoly on drug trafficking in their area; and

iii.

that Shane Evans was involved in an ounce-level cocaine deal for
    $11,250.

[298]

Although the specific $11,250 deal mentioned by the trial judge
    formed the basis of a count on the indictment of which Shane Evans was
    acquitted, the evidence at trial fully supported the conclusion that he was
    involved in other multi-ounce cocaine deals. There was no suggestion that he
    was an addict trafficker or that he held any form of gainful employment. On
    this evidence, it was open to the trial judge to conclude that Shane Evans
    sole livelihood was as a drug trafficker.

[299]

The evidence adduced at trial and the verdicts rendered by the jury
    amply support the conclusion that the 5PG was a criminal organization that operated
    in a defined geographical area, which it marked out in various ways. There was
    evidence that gangs were protective of their territory and took any steps
    necessary to preserve it, and their lucrative illicit trade in street drugs
    within that territory, from intervention by others. That the 5PG were, or
    operated like, a monopoly within their area was a reasonable inference available
    on all the evidence.

[300]

In the result, I am satisfied that the trial judges erroneous
    reference to the specific $11,250 cocaine deal in relation to Shane Evans had
    no impact on his conclusions about the applicable range of sentence for the
    offences of which Evans was convicted or on his determination of where within
    that range the sentence to be imposed should be located.

[301]

The appellant Green contends that the trial judge did not give
    adequate effect to his youth when determining the sentence to be imposed.

[302]

I would not give effect to this claim of error.

[303]

In his reasons for sentence, the trial judge specifically considered
    the appellant Greens relative youth at the time of sentencing  26 years of
    age. But like other mitigating factors on sentence, the nature and extent of
    mitigation youthful age affords is a variable, not a constant. It varies with
    the nature of the crime and the circumstances in which the crime was committed.
    And it must be considered in light of other mitigating and aggravating features,
    as well as the objectives and principles of sentencing.

[304]

The appellant Green had a substantial record consisting of 20 prior
    convictions, 5 of which involve offences of violence. He was being sentenced
    for two criminal organization offences, one of which involved an agreement to
    traffic 3.5 ounces of marijuana into a jail at the request of a fellow gang
    member. While bound by two firearms prohibitions, he was found in possession of
    a loaded firearm. In these circumstances, I am not satisfied that the trial
    judge erred in the weight he assigned to the appellant Greens relative youth
    in determining the sentence he imposed.

[305]

Nor am I persuaded that the trial judges imposition of a sentence
    in excess of that jointly submitted by counsel in relation to the appellant
    Green on one of the convictions of a criminal organization offence warrants our
    intervention. While the four-year sentence imposed on this count exceeded the
    joint recommendation of two years, the total sentence imposed was less than
    that sought by the Crown.

[306]

The appellant Francis argues that in imposing sentence upon him, the
    trial judge erred in failing to respect the principle of parity, resulting in a
    sentence that was manifestly unfit. I do not agree.

[307]

The principle of parity, expressed statutorily in s. 718.2(b) of the
Criminal Code
, requires a sentencing court to consider the principle
    that a sentence imposed on an offender for an offence should be similar to
    sentences imposed on similar offenders for similar offences committed in similar
    circumstances. Like other sentencing principles, where applicable, the
    principle of parity requires consideration. However, the principle of parity is
    not a first among equals. That position is occupied by the fundamental
    principle of proportionality.

[308]

In this case, the parity submission rests for the most part on
    mitigating circumstances, such as a modest criminal record. But parity involves
    more than a single comparator; its focus is on similar
offences
,
    similar
offenders
and similar
circumstances
. In this case,
    the appellant Francis role was that of the 5PGs chief supplier of cocaine. He
    not only supplied but also repeatedly trafficked in powder and crack cocaine.
    His conduct facilitated and supported the successful and lucrative drug
    business of the 5PG.

[309]

In the result, I am satisfied that the trial judge did not commit
    any of the individual errors alleged by the appellants.

[310]

What remains for determination is the shared submission of the
    appellants other than Francis that the trial judge erred in failing to award
    proper credit for pre-sentence custody in determining the net sentences he
    imposed. These appellants were detained in pre-sentence custody for 42 months.
    Their arrests and detention occurred after the
TISA
came into effect
    on February 22, 2010, although some of the offences of which they were found
    guilty were committed, in whole or in part, before the
TISA
came into
    force.

[311]

The trial judge awarded credit for pre-sentence custody to each of
    these appellants in arriving at the net sentence he imposed, but the rates at
    which the trial judge awarded credit for pre-sentence custody varied. None
    included the enhanced rate generally awarded prior to the
TISA
, nor
    that statutorily provided by the
TISA
after it came into force. The
    reasons are largely unrevealing about the basis upon which the credit was
    awarded or the distinctions made among the various appellants.

[312]

With the benefit of the reasons of the Supreme Court of Canada in
Summers
,
    an advantage of which the trial judge was deprived, I am satisfied that the
    trial judge erred in his decision about credit for pre-sentence custody in two
    respects:

i.

in his determination of the availability of
    enhanced credit both before and after the
TISA
; and

ii.

in his failure to provide reasons for the ratios
    he applied to determine the credit for pre-sentence custody.

[313]

The decision in
Summers
teaches that for an accused
    detained in pre-sentence custody, the fact that pre-sentence detention has
    occurred is generally sufficient to support an inference that the accused has
    lost eligibility for parole or early release. This inference, in turn,
    justifies enhanced credit under s. 719(3.1) of the
Criminal Code
. It
    follows that, with respect to the offences committed after the
TISA
came
    into force, this inference was available here, subject to possible rebuttal by
    the Crown.

[314]

The authorities governing the award of credit for pre-sentence
    custody before the
TISA
came into force do not follow the inference of
    entitlement to enhanced credit from the fact of pre-sentence custody approach
    elucidated in
Summers
. That said, there seems no reason in principle
    to apply a different approach to entitlement despite the absence of a fixed
    rate of enhanced credit. Typically, courts awarded credit prior to the
TISA
at a rate of two days of credit for each day spent in pre-sentence custody.

[315]

The decision in
Summers
does not condition the inference of
    loss of eligibility for parole or early release from the fact of pre-sentence
    custody on the harshness of pre-sentence custody or the unlikelihood of parole.
    However, the foundational inference is rebuttable. The rate of credit may be
    reduced where the Crown demonstrates the detention resulted from the offenders
    bad conduct or where the offender is likely to obtain neither early release nor
    parole:
Summers
, at para. 71. The offenders in-custody conduct is
    relevant in rebuttal of the inference.

[316]

In this case, among the appellants who seek a reduction of their
    sentence based on an error in awarding credit for pre-sentence custody, I am
    satisfied that the Crown has rebutted the inference of enhanced credit from the
    fact of pre-sentence custody for the appellants Green and Sheldon Evans, but
    not in connection with the appellant Shane Evans.

[317]

In my respectful view, the appellant Green is unlikely to obtain
    either early release or parole. His substantial criminal record includes 11
    convictions for offences against the administration of justice and a conviction
    for breach of a conditional sentence order. He was convicted of possession of a
    loaded and racked prohibited firearm while bound by two separate weapons
    prohibitions. One of the offences of which he was found guilty involved a plot
    to traffic 3.5 ounces of marijuana into a jail at the behest of an incarcerated
    member of the 5PG. His institutional record included creating a disturbance,
    two incidents of committing or threatening an assault and possession of
    contraband.

[318]

The appellant Sheldon Evans received the lengthiest sentence of all
    the appellants, a sentence that, but for the principle of totality, would have
    extended for several years more. While bound by two lifetime weapons
    prohibitions, he was convicted of possession of a firearm and ammunition, as
    well as two criminal organization offences. Of greater significance for early
    release and parole purposes are his five previous convictions for breaches of
    recognizances. Although his case may fall somewhat closer to the line than that
    of Green, I am satisfied that the Crown has rebutted the inference supportive
    of enhanced credit.

[319]

The trial judge awarded the appellant Shane Evans enhanced credit
    for pre-sentence custody, but at a rate of less than one and one-half days
    credit for each day spent in custody. The appellants record of 11 previous
    convictions includes 4 convictions of failing to comply with a recognizance and
    2 for trafficking in cocaine. He incurred no institutional offences and
    apparently conducted himself well while in custody.

[320]

In my respectful view, the record does not afford a basis upon which
    to conclude that the Crown has rebutted the inference of enhanced credit
    arising from the fact of pre-sentence custody. The appellant Shane Evans is
    entitled to enhanced credit for the 42 months he spent in pre-sentence custody.

[321]

Among the six offences of which Shane Evans was convicted, the
    majority either preceded or straddled the coming into force of the
TISA
.
    Specifically, one count entirely preceded the
TISA
and three straddled
    the
TISA
. Importantly, among those three that straddled the
TISA
was count 1  trafficking controlled substances for a criminal organization.
    The trial judge described this offence as the centrepiece of the indictment,
    and it had the longest date range, by far, of all the counts on the indictment
    before the jury. (The separate fail to comply with probation count also had the
    same date range.) Count 1s date range also encompassed the date ranges for all
    the other counts on the indictment. In these circumstances, I would award 2:1
    credit for the entire period of time Shane Evans spent in pre-sentence custody.
This results in a credit of 84 months, which is to be
    deducted from his 9.5-year sentence.


[322]

As noted, the appellant Francis does not suggest that his sentence
    should be reduced on the basis of inadequate credit for pre-sentence custody. I
    have already rejected his other grounds of appeal from the sentence imposed
    upon him.

CONCLUSION

[323]

For these reasons, I would dismiss all appeals from conviction. I
    would grant leave to appeal sentence, but dismiss all appeals from sentence
    except that of the appellant Shane Evans, whose appeal I would allow and whose
    sentence I would reduce by 84 months to a net sentence of 2.5 years.

Released: DW SEP 11 2019

David Watt J.A.

I agree. K. van Rensburg J.A.

I agree. David Brown J.A.





[1]
Subsections 640(2.1) and (2.2) in their current terms provide:

(2.1) If the challenge is for cause and if the ground of the challenge is one
    that is not mentioned in subsection (1), on the application of the accused, the
    court may order the exclusion of all jurors  sworn and unsworn  from the
    court room until it is determined whether the ground of challenge is true, if
    the court is of the opinion that such an order is necessary to preserve the
    impartiality of the jurors.

(2.2) If an order is made under
    subsection (2.1), two unsworn jurors, who are then exempt from the order, or
    two persons present who are appointed by the court for that purpose, shall be
    sworn to determine whether the ground of challenge is true. Those persons so
    appointed shall exercise their duties until 12 jurors  or 13 or 14 jurors, as
    the case may be, if the judge makes an order under subsection 631(2.2)  and
    any alternate jurors are sworn.



[2]

As will be discussed, in light of other, relatively recent
    decisions of this court, the trial judges decision in
Riley
(S.C.) was
    acknowledged as incorrect by this court in
R. v. Riley
,
2017 ONCA 650, 351 C.C.C. (3d) 223, at para. 75 (
Riley
(C.A.)), leave to appeal refused, [2018] S.C.C.A. No. 216.



[3]
This procedure will change on September 19, 2019 when amendments to
    the section come into force.


