



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mills, 2019 ONCA 940

DATE: 20191129

DOCKET: C59625 & C59931

Feldman, Miller and Fairburn
    JJ.A.

DOCKET:
    C59625

BETWEEN

Her Majesty the Queen

Respondent

and

Chael Mills

Appellant

DOCKET:
    C59931

AND BETWEEN

Her Majesty the Queen

Respondent

and

Lavare Williams

Appellant

Philip Campbell and Lance Beechener,
    for the appellant Chael Mills

Scott Hutchison and Kelsey Flanagan,
    for the appellant Lavare Williams

Benita Wassenaar and Catherine Weiler,
    for the respondent

Heard: April 29 and 30, 2019

On appeal from the convictions entered
    by Justice Robert Clark of the Superior Court of Justice, sitting with a jury,
    on March 23, 2013 (C59625 & C59931), and from the sentence imposed on June
    14, 2013 (C59931).

By the Court:


OVERVIEW

[1]

Just before Mitchell Celise was shot in the
    back, he and Vernon Flavius were walking through an area of Toronto alleged to
    be controlled by a street gang known as the MOB Klick, a subset of another
    street gang known as the Vaughan Road Bloods (VRB). The VRB/MOB Klick are alleged
    to be part of the Blood Nation that associates with the colour red.

[2]

The Eglinton West Crips (EWC) are alleged to
    be a separate street gang controlling an area of Toronto just to the west of
    the VRB/MOB Klick-controlled area. The EWC are alleged to be part of the Crip
    Nation that associates with the colour blue. The prosecution alleged that the appellants
    were VRB/MOB Klick members and that Mr. Celise was an EWC member.

[3]

Mr. Flavius was an eyewitness to the unfolding
    of events that culminated in Mr. Celises murder. Mr. Flavius was walking south
    on Winona Drive with Mr. Celise when a girl asked Mr. Celise if he was S.K..
    Mr. Celise responded by asking how she knew his name. A short time later, Mr. Flavius
    and Mr. Celise were approached by two men. Mr. Celise wanted to run, but Mr.
    Flavius saw no reason to do that. Mr. Flavius referred to the men by their
    sizes: the big guy and the little guy. The Crown maintained that the big
    guy was Chael Mills and the little guy was Lavare Williams.

[4]

Mr. Flavius testified that the big guy asked him
    why Mr. Celise was wearing blue, commenting that wearing blue in that area was
    not allowed, that it was red around here, and that Mr. Celise could get
    himself hurt by wearing blue. The big guy then asked Mr. Celise if he was
    S.K., to which Mr. Celise responded that he was not S.K., but S..

[5]

It soon became clear that things would not end
    well. The big guy made a face and put his hand to his waist. It became obvious
    that he had a gun. Although Mr. Flavius tried to calm things down by showing
    the men the inside of his jacket, which was lined in red, it did not work. Mr.
    Celise started running away. The men chased after him. During the chase, the
    big guy pulled out a gun and fired several shots. One of the bullets hit Mr.
    Celise in the back, perforating his aorta and killing him.

[6]

Mr. Mills was indicted on a charge of
    first-degree murder based on the theory that the murder was committed for the
    benefit of, at the direction of or in association with a criminal
    organization:
Criminal Code
, R.S.C., 1985, c. C-46, s. 231(6.1). Mr.
    Williams was indicted on a charge of second-degree murder based on the theory
    that he aided and/or abetted Mr. Mills in the murder.

[7]

The jury returned verdicts of guilty as charged.
    Mr. Mills received an automatic life sentence with no parole for 25 years:
Criminal
    Code
, s. 745(a). Mr. Williams also received an automatic life sentence,
    the sole sentencing question being one of parole eligibility. The jury made a
    unanimous recommendation that Mr. Williams be eligible for release on parole
    after having served ten years of imprisonment:
Criminal Code
, s.
    745.2. Despite that recommendation, the trial judge imposed a 15-year period of
    parole ineligibility:
Criminal Code
, s. 745.4.

[8]

Mr. Mills appeals against conviction. Mr.
    Williams appeals against both conviction and sentence.

[9]

On the conviction appeal, the appellants make
    four broad objections which can be categorized as follows:

(a)

the trial judge erred in admitting the expert
    opinion evidence of Detective Douglas Backus on street gangs;

(b)

the trial judge erred in admitting documents,
    the vast majority of which were handwritten rap lyrics, seized from an
    apartment alleged to have been inhabited by the appellants at the time of the
    murder;

(c)

the trial judge erred by incorrectly instructing
    the jury on the frailties of the eyewitness identification evidence of Mr. Flavius;
    and

(d)

the trial judges behaviour during the trial
    gave rise to a reasonable apprehension of bias and, in fact, evidenced actual
    bias.

[10]

The appellants contend that, separately or
    combined, these grounds of appeal should lead to a new trial. Although they helpfully
    split their arguments in written and oral submissions, they adopted one
    anothers positions on each issue. The appellants maintain that they stand
    together as a unit on the conviction appeal, meaning that if one receives a new
    trial, so too should the other. Accordingly, throughout these reasons, we will
    often refer to the appellants collectively, even though only one counsel may
    have addressed a particular point.

[11]

If unsuccessful on his conviction appeal, Mr.
    Williams also appeals against the 15-year period of parole ineligibility
    imposed by the trial judge.

[12]

For the reasons that follow, we would dismiss
    the appeals.

BACKGROUND

[13]

This was a brazen, broad daylight shooting,
    resulting in the death of a 17-year-old close to a school that had just been let
    out for the day. Mr. Celise was shot through the back as he attempted to run
    away from two men. Given the context and circumstances in which the chase
    unfolded and the fact that five bullets were discharged from the gun, the jury
    would have had no difficulty in concluding that Mr. Celise was murdered. The
    jury really had to grapple with two core questions: (i) who committed the
    murder; and (ii) was this a first-degree murder in the sense that it was
    committed for the benefit of, at the direction of, or in association with a
    criminal organization?

[14]

On the question of identity, the Crown alleged
    that the appellants had both a general and specific motive to kill Mr. Celise,
    motives that were rooted in deep-seated street gang rivalries. The general
    motive was supported by evidence said to demonstrate the appellants animus
    toward the deceased because of their connections to the VRB/MOB Klick gangs and
    the deceaseds connection to the rival EWC gang. The specific motive was
    supported by evidence said to demonstrate the appellants strong affection for
    a fallen gang member, Robert Flagiello (a.k.a. Bubba), and their desire to
    avenge his death.

[15]

As will be discussed in these reasons, the trial
    Crown elicited expert evidence in support of the suggested motives, as well as
    YouTube rap videos and handwritten rap lyrics. In addition to that evidence, there
    was also other evidence pointing toward the appellants as having committed the
    murder.

[16]

Some of the additional evidence pointing toward
    Mr. Mills included:

(a)

Mr. Flavius photo line-up identification of Mr.
    Mills as the big guy who did the talking and shot Mr. Celise.

(b)

Text messages that Mr. Mills sent just minutes
    before the shooting, including im on winona 366. The shooting took place at
    345 Winona Drive. Cellular tower evidence confirmed that Mr. Mills phone was
    in the general vicinity at the time of the murder.

(c)

A text message from Mr. Mills just before the
    shooting, asking for a ride to another location, and the message recipient
    replying that he/she would be at the korna store. There is a corner store at
    400 Winona Drive, just to the north of Earlsdale Avenue and the location of the
    shooting. A witness described seeing a black male, just after the shooting,
    jump into a car heading southbound on Winona Drive and then turning east onto
    Earlsdale Avenue.

(d)

Cellular tower data showing Mr. Mills phone
    moving out of the Winona Drive area right after the shooting.

(e)

Text messages sent from Mr. Mills phone after
    the shooting, including:


i.

Hes not even goin to da hospital


ii.

Kan u check and make sure it was a nigga not an in[n]ocent


iii.

An exchange between Mr. Mills phone and a phone believed to be used
    by Mr. Williams, making reference to whether Mr. Mills still had Mr. Williams
    daughter. Mr. Mills phone sent a message back saying that Mr. Williams
    daughter was safe at his aunts place. Mr. Williams did not have a daughter and
    the Crown theorized that this was a reference to the gun used to kill Mr.
    Celise.

(f)

A letter alleged to be authored by Mr. Mills
    from jail suggesting that he did not want Spinz, who the Crown alleged was
    Mr. Williams, to say the wrong ting and fuck us up.

(g)

Another jailhouse letter alleged to be authored
    by Mr. Mills in which he wrote about his upcoming preliminary inquiry and that he
    needed as many of da Mobdem to roll to dat to pree da witnesses and shyt, but
    I doubt much of da mandem are gunna roll. Det. Backus testified that the
    Mobdem referred to MOB Klick members and that roll to dat to pree da
    witnesses meant that those people should come to look at the witnesses. The
    Crown argued that this was a request to have gang members attend court to
    intimidate witnesses.

[17]

As for Mr. Williams, the additional evidence
    pointing toward his involvement included:

(a)

The testimony of Patsy Warren, who lived very
    close to the scene of the shooting, that she saw two males running after the
    shooting occurred. One stopped on her porch and said, Oh my god. Oh my god. He
    shot. She noticed white spots on that mans teeth. Mr. Williams has white
    spots on his teeth.

(b)

Mr. Flavius description of the little guy as
    wearing a red hat and a white t-shirt. At other times he called it a shirt.
    Ms. Warren described the man that she saw as wearing a similar shirt.

(c)

Ms. Warrens testimony that, a short time after
    she initially saw the man with the white spotted teeth, she saw him again, but
    he had changed his shirt.

(d)

The recovery of a black and red baseball cap and
    long-sleeved white shirt that had been hidden close to Ms. Warrens home. The
    hat had Oakwood Ave and Vaughan Road embroidered onto the side and appeared
    to be the same hat worn by Mr. Williams in two different YouTube videos the
    jury was permitted to see: Chiibz Freestyle and Hood Life.

(e)

The arrest of Mr. Williams the day after the
    shooting, shortly after he was observed looking in the area where the clothing
    had been found. It was later discovered that the hat and shirt contained Mr.
    Williams DNA and gun shot residue (GSR). The amount of GSR on the items
    suggested that the person wearing them either fired the gun or was standing
    very close to the person who fired the gun. This was consistent with Mr.
    Flavius description of how the little guy ran with the big guy in pursuit of
    Mr. Celise.

(f)

The fact that the phone containing the
    daughter message was in Mr. Williams pocket when he was arrested the day
    after the murder (even though Mr. Williams denied that this was his phone and claimed
    that it was a phone used by a community of people). Critically, Mr. Williams
    former girlfriend testified that Mr. Williams came to see her in Mississauga at
    around 5:30 p.m. to 6:30 p.m. on the day of the murder. The phone that
    contained the daughter message, sent shortly after the murder, also contained
    messages between Mr. Williams and his then-girlfriend, including those sent in
    the wake of the murder seeking clarification about directions to her home.

(g)

Cellular tower data placing Mr. Williams in the
    general vicinity at the time of the murder.

[18]

Finally, there was evidence of association
    between the appellants:

(a)

Their appearance in numerous YouTube rap videos
    together, including posing together in some of the screenshots taken from the
    videos.

(b)

The testimony of police officers that had seen
    the appellants together in the past.

(c)

Phone contact between Mr. Mills phone and the
    phone alleged to belong to Mr. Williams.

(d)

Evidence suggesting that the appellants may have
    been roommates living at 481 Vaughan Road, apartment 604, including police
    evidence suggesting that Mr. Williams identified that location as his residence
    and documents suggesting that they both lived there.

ANALYSIS

A.

Overview

[19]

We commence our analysis by addressing the submission
    that the trial judge erred by permitting Det. Backus to be an expert witness. That
    discussion is followed by an examination of the argument that the trial judge
    erred in admitting the handwritten rap lyrics seized from the apartment on
    Vaughan Road. We then address the eyewitness identification issue, followed by
    the issue relating to the allegation of bias. Mr. Williams sentence appeal is
    addressed last.

B.

THE ADMISSION OF THE EXPERT OPINION EVIDENCE

(1)

Overview

[20]

Mr. Celise was confronted about the colour of
    his clothing just moments before he was shot. Among other things, the jury
    needed to understand: (i) why a teenager would be challenged on his choice of clothing
    colour just before being killed; (ii) what the big guy meant when he said that
    it was red around here; (iii) why Mr. Flavius tried to calm things by opening
    his jacket to reveal its red lining; (iv) why Mr. Celise was asked if he was
    S.K.; and (v) what Mr. Mills meant when he sent a text message in the wake of
    the murder, asking if it was a nigga not an in[n]ocent who had been shot.

[21]

The Crown said that the answers to those
    questions lay in deep-seated street gang rivalries, ones that furnished both a
    motive to kill Mr. Celise and a path to first-degree murder. The Crown
    maintained that, as members of the VRB/MOB Klick, the appellants had
    significant animosity toward members of the rival EWC gang, one of whom was Mr.
    Celise.

[22]

There was a good deal of evidence supporting the
    suggestion that Mr. Celise was a member of the EWC, including that he was seen wearing
    a hat with EWC written on it the night before he was killed. Mr. Celise was
    also in a video in which he was seen posing alongside other known EWC members.

[23]

There was also a good deal of evidence to
    support the theory that the MOB Klick was a street gang, that it was a subset
    of the VRB, that the MOB Klick controlled buildings in the exact area of
    Toronto where Mr. Celise was killed, and that the VRB/MOB Klick hated the EWC. That
    hatred was rooted in both a general animosity between the gangs and an
    animosity arising from the murder of Bubba. The trial Crown alleged that, as
    members of the VRB/MOB Klick, and as friends and co-patriots of Bubba, the
    appellants had a motive to kill Mr. Celise, who was dressed in Crips colours
    while on core Blood territory (i.e.,

MOB Klick territory).

[24]

In order to understand the evidence elicited in
    support of that theory, such as the YouTube rap videos, handwritten documents
    containing rap lyrics, and graffiti in public places, the jurors required the
    assistance of an expert witness to explain matters that lay beyond their ken:
R.
    v. Lavallee
, [1990] 1 S.C.R. 852, at p. 873;
R. v. Mohan
, [1994]
    2 S.C.R. 9, at pp. 23-25;
White Burgess Langille Inman v. Abbott and
    Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 21-23;
R.
    v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 45;
R. v. D.D.
,
    2000 SCC 43, [2000] 2 S.C.R. 275, at para. 57. For instance, the jury needed to
    understand that street gangs exist, that they are territorial in nature, that
    they mark their territory in different ways, that they associate with different
    colours (red being the colour of the Blood Nation and blue being the colour of
    the Crip Nation), and that they use different hand signals to demonstrate their
    gang membership.

[25]

While the appellants acknowledge that there was
    a need for expert evidence in this case  that the threshold of necessity was
    met  they claim that Det. Backus should not have performed that role because
    he was biased. Moreover, the appellants argue that the fact that a portion of
    Det. Backus cross-examination at trial is incapable of transcription and is
    therefore lost results in irreparable prejudice to their ability to advance
    this ground of appeal. Accordingly, they submit that the lost transcript has
    resulted in a miscarriage of justice.

[26]

Although in their oral submissions the
    appellants focused exclusively upon the issue of bias and the lost transcript,
    in their written submissions the appellants also suggest that the trial judge
    erred in failing to appreciate that Det. Backus lacked the qualifications to
    express an opinion on the MOB Klick, employed no methodology in arriving upon
    his opinion and provided merely anecdotal evidence. They also argue in written
    submissions that the trial judge erred by allowing Det. Backus to opine on the
    ultimate issue for determination.

[27]

For the reasons that follow, we do not accede to
    this ground of appeal.

(2)

The expert evidence ruling

[28]

The trial judge had previously qualified Det.
    Backus as an expert witness in the area of street gangs in
R. v. Gager
,
    2012 ONSC 388, appeal to this court pending. He made reference to that ruling
    and stated that he had discussed at some length the law to be applied to the
    issue of expert evidence in it. While that ruling did not preordain the same
    result in this trial, the trial judge noted that to the extent that they are
    applicable, he adopted and applied his reasons from
Gager
on the
    qualification issue in this case, as well as on the scope of the opinions that
    could be offered. The appellants take no objection to that approach.

[29]

The trial judge then focused on the issues in
    dispute before him. Having found the expert evidence necessary, he turned his
    mind to Det. Backus qualifications, including the suggestions made by counsel
    that Det. Backus was a hired gun and a hired mouthpiece. In
Gager
,
    at para. 188, the trial judge held that a perceived bias on the part of a
    proposed expert witness may require the court to exclude the witness
    evidence. He went further in this case and said that, while expert evidence
    can be excluded for bias, the better view is that it goes to weight, not
    admissibility. Despite having expressed that view, the trial judge went on to
    consider the question of bias and concluded that Det. Backus did not raise any
    concerns in that regard.

[30]

Ultimately, the trial judge permitted Det.
    Backus to testify on the subject of street gangs, including as follows:

Backus may testify, and in so doing may rely
    on hearsay, concerning the following matters:

(i)

the phenomenon of the street gang;

(ii)

the structure and organization of gangs
    generally, including the affiliation of many local gangs to the overarching
    Bloodz and Cripz organizations;

(iii)

the symbols and graffiti commonly used by gangs;

(iv)

the concept of a street gang having a core
    territory;

(v)

the use of graffiti by gangs to denote their
    territory;

(vi)

the proposition that, for fear of reprisal, a
    gang member would not likely enter the territory of a rival gang, absent a
    compelling reason to do so;

(vii)

typical gang responses to perceived infringement of territoriality;
    and

(viii)

the existence of such gangs in Toronto.

For greater certainty, the symbols referred
    to in (iii) above include tattoos commonly used by gang members.

[31]

Moreover, Det. Backus was permitted to opine on
    whether the VRB, MOB Klick and EWC exist and their interrelationship; however,
    he was not permitted to state that they existed in fact. Det. Backus was further
    permitted to offer opinions regarding the meaning of certain words, symbols,
    and images that the jury would encounter in the documents, videos, and text
    messages entered into evidence.

[32]

The trial judge also identified case-specific
    information that Det. Backus could rely upon in support of his opinions, such
    as the rap lyrics seized from the apartment where the appellants were alleged to
    be residing at the time of the murder and jailhouse letters alleged to be
    authored by Mr. Mills. In addition, the Crown was permitted to adduce through
    Det. Backus seven videos, one related to the EWC and six related to the MOB
    Klick.

[33]

The trial judge also ruled on the things that
    Det. Backus could not rely upon in rendering his opinion, such as the
    appellants criminal antecedents. Finally, the trial judge ruled that Det.
    Backus could not express an opinion on whether the appellants were members of
    the MOB Klick or the VRB.

(3)

The appellants position that Det. Backus was biased

[34]

The appellants maintain that by failing to
    properly consider the question of bias, the trial judge erroneously allowed
    Det. Backus to testify as an expert when he lacked the necessary independence
    and impartiality to do so. That lack of independence is said to be reflected in
    the manner Det. Backus went about investigating his expert opinion. He is
    said to have suffered from a form of confirmation bias, starting his analysis
    with the desired opinion, one that matched the Crown theory, and then looking backwards
    for anything to support that opinion. The appellants emphasize that this
    conduct is the antithesis of a properly functioning expert, one who should be
    entirely indifferent to the result of the litigation.

[35]

The appellants also emphasize that the single
    most important piece of evidence that should be available to them on appeal, in
    order to demonstrate Det. Backus actual bias at work, is the cross-examination
    that he underwent at trial. Yet around 90 minutes of that cross-examination is
    incapable of transcription because there is a problem with the recording and
    the transcript simply cannot be produced. Bearing in mind the centrality of the
    gang evidence to the prosecutions case at trial, the appellants say that the
    lost transcript causes irreparable prejudice to their bias argument on appeal
    and that a miscarriage of justice has resulted.

[36]

While we agree that the law has changed since
    the impugned admissibility ruling was made, and that, therefore, the trial
    judge erred in his legal approach to the question of bias, for the reasons that
    follow we conclude that the expert evidence was admissible in any event.

(4)

The erroneous conclusion about the role of bias at the admissibility
    stage

[37]

The appellants advance the unassailable argument
    that the trial judge erred when he concluded that bias was a matter better
    suited for weight than admissibility.
White Burgess
demonstrates that
    the trial judges view on this point did not withstand the test of time.

[38]

Expert evidence is presumptively inadmissible.
    As Watt J.A. noted in
R. v. Johnson
, 2019 ONCA 145, 145 O.R. (3d) 453,
    at para. 48, the expert opinion rule will sometimes exclude relevant and
    material evidence because we leave it to the trier of fact, not witnesses, to
    form opinions, to draw inferences and to reach conclusions. There are some
    issues, though, upon which special knowledge, skill or expertise is required in
    order to draw reliable inferences from the facts. In those situations,
    qualified experts may be permitted to assist the trier of fact in understanding
    those facts:
Johnson
, at para. 49;
R. v. Vassel
, 2018 ONCA 721,
    365 C.C.C. (3d) 45, at para. 86.

[39]

Given the importance of expert evidence, and the
    critical role that it can play in the litigation process, Cromwell J. explained
    in
White Burgess,
at para. 32, that experts are expected to be:

(a)

impartial, in the sense that they give only an
    objective assessment of the questions at hand;

(b)

independent, in the sense that their opinions
    result from an exercise of independent judgment, uninfluenced by who has retained
    them or the outcome of the litigation; and

(c)

unbiased, in the sense that they do not
    unfairly favour one partys position over another.

The acid test is whether the
    experts opinion would not change regardless of which party retained him or
    her:
White Burgess
,
at para. 32 (citation omitted).

[40]

In
White Burgess
, the court tackled the
    previously vexing issue about whether alleged bias on the part of the expert
    should be considered at the admissibility stage, or whether it should remain
    within the sole domain of the trier of fact. Cromwell J. reviewed the basic
    two-stage approach to determining the admissibility of expert evidence and
    concluded that the question of bias must be addressed at both stages of
    admissibility.

[41]

At the first stage, the court considers: (i)
    logical relevance; (ii) necessity; (iii) the absence of an exclusionary rule;
    and (iv) the need for a properly qualified expert:
White Burgess
, at
    para. 19;
Mohan
, at pp. 20-25;
R. v. Abbey
, 2017 ONCA 640,
    140 O.R. (3d) 40 (
Abbey
(2017)), at para. 48; and
R. v. Abbey
,
    2009 ONCA 624, 97 O.R. (3d) 330 (
Abbey
(2009)), at para. 80, leave
    to appeal refused, [2010] S.C.C.A. No. 125.
[1]


[42]

An assessment of whether the witness is a
    properly qualified expert must take into account the proposed witness ability
    to understand and to fulfill an experts duty to the court to provide
    impartial, independent and unbiased evidence:
Abbey
(2017), at para.
    48;
White Burgess
, at para. 53. This is not a high threshold. Once the
    expert testifies to this effect, the burden shifts to the party opposing the
    admission of the evidence to show a realistic concern as to why the expert
    might not comply with that duty:
White Burgess
, at para. 48. If that
    realistic concern is shown, the burden shifts back to the party proffering the
    evidence to demonstrate on a balance of probabilities why the expert is a
    properly qualified expert. Expert evidence should only be excluded in rare
    and very clear cases, where the proposed expert is found to be unable or
    unwilling to provide fair, objective and non-partisan evidence:
White
    Burgess
, at para. 49;
R. v. Natsis
, 2018 ONCA 425, 140 O.R. (3d)
    721, at para. 11.

[43]

As clarified in
White Burgess
, at para.
    50, the concept of apparent bias is not relevant to the question of whether
    an expert is biased. Importantly, bias means actual bias, not apparent bias.
    When considering an experts interest or relationship with a party to the
    litigation, the question is not what a reasonable observer would think about
    the experts independence, but whether the relationship or interest results in
    the expert being unable or unwilling to carry out his or her primary duty to
    the court to provide fair, non-partisan and objective assistance:
White
    Burgess
, at para. 50.

[44]

At the second stage of the admissibility
    analysis, the court exercises a residual discretion to exclude the evidence as
    part of what is often referred to as its gatekeeping function. This calls on
    the court to consider whether the benefits of admitting the expert evidence
    outweigh the potential risks:
White Burgess
, at para. 24;
Abbey
(2017), at para. 48;
Mohan
, at p. 21;
R. v.
Shafia
, 2016
    ONCA 812, 341 C.C.C. (3d) 354, at para. 233, leave to appeal refused, [2017]
    S.C.C.A. No. 17.

[45]

While anything short of an experts clear
    unwillingness or inability to meet his or her obligations should not lead to
    exclusion under the first stage of admissibility, the trial judge must still take
    into account any concerns regarding the experts independence and impartiality
    at the second stage, weighing those concerns in the final equation:

White
    Burgess
, at para. 54.

[46]

Accordingly, and contrary to the trial judges
    view, bias is an important consideration in the actual admissibility
    assessment.

(5)

Det. Backus was not biased

[47]

Although this court owes significant deference
    to an admissibility determination on expert opinion evidence, that deference
    lifts where the trial judge commits an error in principle, materially
    misapprehends the evidence or reaches an unreasonable conclusion:
Shafia
,
    at para. 248. Without the benefit of
White Burgess
, the trial judge
    did not appreciate that bias was an issue that had to be addressed at the
    admissibility stage. Accordingly, it is clear that there is an error in
    principle in the admissibility ruling.

[48]

Although the error in principle displaces deference,
    we nonetheless arrive at the same place as the trial judge on the question of
    admissibility. Specifically, we conclude that:

(a)

Det. Backus had significant expertise in
    relation to Toronto street gangs;

(b)

the fact that Det. Backus is a Toronto Police
    Service (TPS) police officer does not suggest bias;

(c)

the trial judge made findings of fact, available
    to him, about a lack of bias to which we defer;

(d)

Det. Backus did not display any bias; and

(e)

there is no prejudice arising from the missing
    transcript.

(i)

Det. Backus was an expert in Toronto street
    gangs

[49]

In their written submissions, the appellants
    claim that Det. Backus lacked the qualifications to express opinions about the
    MOB Klick because, as he admitted, he had not encountered that group before.
    Instead, his investigative experience had focused only on gangs related to the
    rival Crips organization. Accordingly, the appellants take the position that
    Det. Backus should not have been qualified to provide expertise on a subject he
    knew so little about.

[50]

Also in their written submissions, the
    appellants contend that Det. Backus evidence was purely anecdotal in nature,
    detached from any methodology or empirical foundation, and incapable of testing
    for its reliability or accuracy. They argue that he had no formal education in
    urban culture, urban slang, rap music, or anything else that would make it
    possible to objectively assess the evidence before him. He had never written
    anything on the subject or been subjected to peer review. Accordingly, in
    addition to the fact that he was biased, the appellants maintain that his
    evidence should not have been admitted because it was unreliable.

[51]

We do not agree.

[52]

Expert evidence can be provided by a witness who
    has acquired special or peculiar knowledge through study
or experience
in respect of the matters on which he or she undertakes to testify:
Mohan
,
    at p. 25 (emphasis added). Thus, a witness can be qualified by the court as an
    expert whether his or her expertise was acquired through on-the-job experience or
    through formal education (or a combination thereof). Just because that specialized
    knowledge is gained on the job, sometimes developed through the accumulated
    wisdom of a group of people, does not, on its own, diminish its value
    (assuming it otherwise meets the other criteria for admission):
R. v.
    Dominic
, 2016 ABCA 114, 616 A.R. 356, at para. 22.

[53]

As noted by Doherty J.A. in
Abbey
(2009), at para. 109, scientific validity is not a precondition to the
    admissibility of expert opinion evidence. He observed that [m]ost expert
    evidence routinely heard and acted upon in the courts cannot be scientifically
    validated. We advert to the same examples suggested in
Abbey
(2009),
    which demonstrate that expert evidence need not be capable of scientific
    validation. These examples include: psychiatrists testifying about the
    existence of mental states; doctors testifying about the causes of injury or
    death; accident reconstructionists testifying about the location or causes of
    accidents; and professionals from a wide variety of fields testifying about
    prevailing standards of care in their profession. These types of expertise
    cannot be assessed by reference to scientific error rates, resting as they do
    on specialized knowledge gained through experience and specialized training in
    the relevant field:
Abbey

(2009), at para. 109.

[54]

The fact is that sometimes police officers obtain
    expertise on certain matters through practical experience gathered in the
    course of their duties over many years. For instance, expert evidence from
    police officers is sometimes elicited in drug importation cases to demonstrate,
    among other things, distribution routes, means of transportation, and methods
    of concealment:
Sekhon
, at paras. 73-74,
per
Lebel J.
    (dissenting, but not on this point). See also: Bruce A. MacFarlane, Robert J.
    Frater & Croft Michaelson,
Drug Offences in Canada
, loose-leaf,
    4th ed. (Toronto: Thomson Reuters Canada Ltd., 2015), at p. 17-22.5;
R. v.
    Van Bree
, 2011 ONSC 4273;
R. v. Clouden
, 2012 ABCA 175.

[55]

While Det. Backus had taken some gang-related
    courses and taught at some others, his core experience was developed in the
    course of his employment. Det. Backus had years of involvement with
    gang-related investigations. He learned about gang culture, dynamics and
    terminology through those investigations.

[56]

Det. Backus had accumulated significant on-the-job
    experience in relation to Toronto street gangs. He joined the TPS in 1988. In
    about 2005, he joined one of the TPS major project sections referred to as Guns
    and Gangs. While there, Det. Backus worked on and led multiple large-scale
    projects involving Toronto street gangs. Two of those projects alone resulted
    in around 90 arrests of alleged gang members. Det. Backus personally de-briefed
    many of the arrestees. While the appellants are correct that these gang
    projects involved Crips-related gangs, Det. Backus developed an expertise
    around the general animosity between Toronto street gangs, some associating
    with the Crips and others with the Bloods. In relation to one of the projects
    he worked on, the targeted Crips gang operated in very close proximity to
    Blood territory. The intercepted communications in that project in particular
    revealed a great deal about the Blood-related gangs.

[57]

In fact, most of the projects led by Det. Backus
    involved lengthy wiretap authorizations and hundreds of thousands of
    intercepted calls. Of those, Det. Backus had personally listened to more than
    50,000 calls, coming to understand certain terms used in the street gang
    culture. Det. Backus gained clarity around the terms used by those who were
    intercepted on the wires. He was assisted in that task by civilian wiretap
    monitors, working alongside him, who knew both street slang/gang slang and
    Patois.

[58]

Det. Backus was also in charge of the wiretap
    room for many of the projects. Being in this position, Det. Backus was required
    to know the meaning of many terms used by gang members, in part because he was
    responsible for four undercover officers who were working in the field, associating
    with gangs. In addition, his knowledge of certain terms could sometimes mean
    the difference between life and death. For instance, Det. Backus would
    sometimes have to direct an immediate response to something heard over a
    wiretap intercept to ensure that the police intervened before harm came to
    someone.

[59]

We agree with the trial judges assessment that
    Det. Backus experience afforded him the peculiar knowledge necessary to
    provide the expert street gang opinion evidence given in this case.

(ii)

The fact that Det. Backus is a TPS police officer does not suggest
    bias

[60]

Although the appellants accept that a police
    officer sufficiently detached from the TPS could have offered an expert
    opinion in this case, they argue that Det. Backus employment with the TPS and
    the fact that he investigated his opinion precluded him from testifying. The
    appellants rely upon
R. v. McManus
, 2017 ONCA 188, 353 C.C.C. (3d)
    493, in support of that proposition.

[61]

In
McManus
, this court cautioned that,
    while an interest in or connection to litigation does not necessarily render a
    proposed experts evidence inadmissible, when it comes to police expert
    witnesses there is a heightened concern  to ensure their ability to offer
    impartial expert evidence: at para. 68. The police witness who testified as an
    expert in
McManus
was found to be neither independent nor impartial.

[62]

In our view, the fact that a police officer who
    is proffered as an expert witness is from the same police service that
    investigated the matter does not, on its own, inform whether that witness is
    unable or unwilling to fulfill his or her primary duty to the court to be fair,
    non-partisan and objective. As noted in
White Burgess
, at para. 50,
    the fact that a proposed expert witness has a relationship to one of the
    litigants does not necessarily preclude the person from taking on an expert
    mantle. The question is not whether there is a relationship to one of the
    litigants, but whether the relationship results in the witness being unable or
    unwilling to carry out his or her duty to the court. Accordingly, it is not a
    question of apparent bias, but one of actual bias.

[63]

This case is fundamentally distinguishable from
McManus
.
    In
McManus
, it was not the fact that the expert witness was a police
    officer from the same police service as the investigating agency that
    disqualified him from giving expert evidence on the basis of bias. Rather, his
    bias arose from the fact that he: (i) had known the accused for a long period
    of time; (ii) importantly, believed the accused was a drug trafficker; (iii) had
    performed the role of the exhibits officer on the very case being prosecuted; and
    (iv) was integrally tied to the investigation itself. Those facts stand in
    stark contrast with this case.

[64]

In this case, Det. Backus was not involved in
    the homicide investigation. Rather, the investigation was conducted out of the
    TPS Homicide Unit. Nor is there any suggestion that Det. Backus had been
    involved with either one of the appellants in the past. He was simply asked by
    the officer-in-charge of the homicide investigation to provide his expert
    opinion.

[65]

Moreover, while the appellants say that a police
    officer from a different police service could have offered an expert opinion,
    those officers would not stand in the same privileged position as Det. Backus,
    someone who had a penetrating knowledge of Toronto street gangs, their means of
    operation, their structures, and their territories. While we do not suggest
    that it would have been impossible for a police officer from a different police
    service to offer the opinion given, Det. Backus peculiar knowledge was helpfully
    accumulated in the exact same city where the VRB/MOB Klick and EWC were alleged
    to exist and operate.

[66]

We conclude, therefore, that Det. Backus
    relationship to the TPS did not give rise to concerns about bias.

(iii)

The trial judge made findings of fact about a
    lack of bias to which we defer

[67]

Focusing on whether Det. Backus was in fact
    biased, we move to consider the trial judges findings of fact, to which we owe
    deference. Although the trial judge said that the question of bias was better
    suited to assessing the weight of an expert opinion, it is important to recall
    that he went on to discuss bias in the alternative. He went so far as to
    suggest that [e]ven if bias were dispositive for disqualification, Det.
    Backus did not exhibit any bias. He provided the following explanation for this
    conclusion:

In criminal litigation, police officers are
    routinely qualified as experts in many diverse fields, including the area in
    which the Crown seeks to qualify Backus. Nor does the fact that, when
    challenged on certain points in cross-examination, Backus was firm in his
    opinions equate with bias. In short, I saw no demonstrable bias on Backus
    part. I found that his written reports, which the Crown filed as part of its Application
    Record, were balanced and fair. Similarly, I found that, in his
viva voce
evidence in this hearing, Backus answered questions in a consummately
    fair-minded and helpful manner. Moreover, he was quick to acknowledge the very
    few mistakes that counsel were able to find in his extensive written reports.

[68]

The trial judge had an opportunity to consider
    the preliminary inquiry transcript of Det. Backus evidence and to hear him
    testify on the
voir dire
. He also had Det. Backus reports before him.
    With all of that information, the trial judge stood in a good position to
    determine whether Det. Backus showed partiality, a lack of independence, and/or
    bias. Yet the trial judge came to the factual conclusion that Det. Backus was
    fair-minded, helpful, quick to acknowledge mistakes, balanced and fair. We
    defer to those findings of fact.

(iv)

Det. Backus did not display bias

[69]

The appellants maintain that Det. Backus
    demonstrated his bias in the manner in which he investigated the matters upon
    which he opined. During their oral submissions the appellants contended that,
    as a police officer, Det. Backus was necessarily involved in a war on crime. As
    a result, he suffered from a form of confirmation bias, coming first to an
    opinion that assisted the Crown and then looking for things that supported that
    opinion.

[70]

Confirmation bias is defined as an unconscious
    tendency of those who desire a particular outcome to search for things that
    support that outcome and to ignore or reinterpret contradictory information:
    David M. Paciocco, Unplugging Jukebox Testimony in an Adversarial System:
    Strategies for Changing the Tune on Partial Experts (2008-2009) 34 Queens
    L.J. 565, at p. 577. See also:
R. v. Livingston
, 2017 ONCJ 645, 356
    C.C.C. (3d) 514, at para. 37, appeal to this court pending on other grounds;
McManus
,
    at para. 71. We see nothing in the record to support the claim that Det. Backus
    fell victim to confirmation bias.

[71]

Moreover, describing Det. Backus actions as an
    improper investigation tends to conflate his work in developing his expert
    opinion with a criminal investigation. They are not the same thing. Although
    Det. Backus acknowledged that he took field information reports into account
    when coming to his opinion, ones that he located in police records, we see
    nothing wrong with him having done so. There is nothing to suggest that, by
    looking at that information, Det. Backus was confirming, as opposed to
    informing his opinion. Nor is there support for the suggestion that, by looking
    into these matters, Det. Backus was essentially turned into one of the
    investigators on the homicide case.

[72]

Det. Backus was careful to catalogue when and
    from whom he received what information. Most of the information on which he
    relied came from materials provided to him by officers involved in the
    investigation. There was nothing wrong with having proceeded in that fashion.

[73]

Like other experts who inform themselves of
    matters on which they are asked to opine, Det. Backus considered numerous
    materials in preparation for offering his opinion. His process was transparent
    and committed to written reports. Although the appellants point toward the fact
    that he authored three reports as problematic, we see no difficulty. The
    evolving reports simply reflected the fact that he had relied on additional
    information and that, in one case, he had been asked to remove from his
    consideration some information upon which he had previously relied.

[74]

While the appellants maintain that Det. Backus
    bias was demonstrated in his suggestion that the word daughter in the text
    message referred to a gun, this actually constitutes a good example of Det.
    Backus neutrality and objectivity in this case. Although it was his view that
    the term referred to a firearm here, he acknowledged that he had only seen the
    term used once before to refer to a firearm and that the term could also
    literally mean daughter.

[75]

Det. Backus appears to have understood his role
    as an expert witness. He rejected the defence suggestion that he was there to
    persuade the jury, responding that he was not there to persuade the jury but
    to present gang indicia and the jury will decide.

[76]

The matter was in fact left to the jury. They
    were provided with careful mid-trial and closing instructions about how to
    approach the expert opinion evidence, including the fact that they could accept
    all, some, or none of that evidence. The jury was also warned not to be
    over-awed by Det. Backus evidence and not to abdicate their fact-finding
    function to him simply because he had been declared an expert. While there was
    some suggestion in the appellants written submissions that the instructions
    fell short of what was required, neither put forward any complaints about the
    instructions during oral argument. Moreover, defence counsel at trial did not
    object to the instructions and did not request any additional instructions on
    this point.

[77]

Indeed, as will be addressed shortly, in the
    closing addresses at trial, neither defence counsel suggested that Det. Backus
    evidence should be rejected on the basis of actual bias.

(v)

There is no prejudice arising from the missing transcript

[78]

The
    parties agree that about 92 minutes of the audiotaped recording of Det. Backus
    cross-examination before the jury is faulty and incapable of reproduction.
    This constitutes about the final 10 minutes of the cross-examination conducted
    by counsel to Mr. Mills. The balance of the missing transcript relates to the
    cross-examination conducted by counsel to Mr. Williams.

[79]

From
    time to time, and for a variety of reasons, a transcript from a proceeding
    under appeal cannot be reproduced. Importantly, a missing transcript does not,
    in and of itself, give rise to the need for a new trial. The question is one of
    prejudice. The appellant bears the burden of proof and must meet a high
    threshold test. As noted by the majority in
R. v. Hayes
, [1989] 1
    S.C.R. 44, at p. 48:

A new trial need not be ordered for every gap in a transcript.
    As a general rule, there must be a
serious possibility
that there was an
    error in the missing portion of the transcript, or that the omission deprived
    the appellant of a ground of appeal. [Emphasis added.]

See also:
R. v. Gagnon
(2000), 136 O.A.C. 116
    (C.A.), at paras. 80-81;
R. v. Le
, 2011 MBCA 83, 270 Man. R. (2d) 82,
    at paras. 265-278, leave to appeal refused, [2011] S.C.C.A. No. 526; and
R.
    v. Dobis
(2002), 58 O.R. (3d) 536 (C.A.), at paras. 19-23.

[80]

This
    is not a case where the missing transcript is alleged to contain an error.
    Rather, the appellants argue that, if it were available, the missing transcript
    would show bias on the part of Det. Backus. Accordingly, their real complaint
    is that it deprives them of a ground of appeal. In our view, the appellants
    have failed to meet this test.

[81]

We
    start with the observation that the evidence informing the admissibility inquiry
    crystalized long before Det. Backus testified at trial. The preliminary inquiry
    transcript and cross-examination of Det. Backus formed the factual backdrop for
    the qualification
voir dire
. Thus, even if
    Det. Backus testimony before the jury demonstrated some form of bias, the most
    obvious remedy would have been for the jury to receive a clear, sharp warning
    about his evidence and instructions on how to approach the question of bias
    when determining what weight, if any, to assign to that evidence. Counsel
    requested no such warning.

[82]

This
    takes us to the second reason for why we reject the suggestion that the gap in
    the transcript deprived the appellants of a ground of appeal and occasioned a
    miscarriage of justice. Silence can be informative. In their closing addresses,
    counsel made no suggestion that Det. Backus had demonstrated bias when he
    testified or that the jury should approach his evidence with caution because of
    possible bias. Nor was there any such suggestion in counsels submissions
    during the pre-charge conferences. Indeed, the trial judge was never asked to
    instruct the jury on bias. Nor were there any objections made to the draft
    charge distributed ahead of the closing addresses. Accordingly, by the end of
    trial, it appeared that any concern about bias had been assuaged.

[83]

Moreover, we have some insight into the general nature of the missing
    cross-examinations. In Mr. Mills counsels cross-examination, a video was
    played during the ten minutes of missing transcript and, presumably, there
    would have been some questioning about that video. As for counsel to Mr.
    Williams, an exchange between the court and counsel the day after Det. Backus
    cross-examination concluded suggests that at least some of counsels
    cross-examination was focused on reviewing the details of the field information
    reports from Mr. Williams police file, and while the cross-examination on this
    point may have been long, it was not particularly revealing. Specifically, the
    trial judge commented that counsel went on for well over an hour yesterday
    with the minutiae of these various reports. He suggested that it would not
    have been lost on the jury that counsels position was that there was no
    substance to what came out of the reports and that, to the extent that Det.
    Backus had relied upon them, the jury should not take his opinion seriously.
    Counsel acknowledged that the trial judges observations may be right and
    added, I think that I saw one juror actually with his eyes closed, so I dont
    doubt that thats a possibility, Your Honour. This exchange provides some
    insight into the diminished importance of the missing transcript.

[84]

Finally,
    we note that the appellants have the onus of establishing they have been
    prejudiced. They have filed no fresh evidence to suggest that what happened
    during the lost cross-examinations would support their contention that they
    have been irreparably prejudiced by the missing transcript. Instead, the
    appellants rely on a chart that the respondent pieced together with the use of
    notes taken during the relevant time involving the missing transcript by the
    court reporter, trial judge, police officer sitting in court, and junior
    counsel to Mr. Williams. A PowerPoint presentation prepared by counsel to Mr.
    Williams was also used to create the chart. The chart is 26 pages long and it
    provides a general window into the nature and pattern of the portions of the cross-examinations
    of Det. Backus that are missing from the transcript.

[85]

Although
    the appellants opposed the admission of the fresh evidence to the extent that
    it depended upon the notes of the police officer and counsel, the appellants were
    content to rely upon the chart in all other respects. We are prepared to adopt
    the appellants approach to the fresh evidence.

[86]

While
    the appellants suggest that aspects of the chart demonstrate a doubling down
    by the expert witness during his evidence and a refusal to change his opinion,
    we see nothing of concern. The appellants point to one part of the chart in
    particular that refers to the following note by the trial judge: Not going to
    change opinion cuz it is what it is. Similarly, the court reporters note on
    this point is Q. Suggest not going to change opinion  A. it is what it is.
    The appellants suggest that this shows that Det. Backus was intractable as an
    expert witness and did not demonstrate the objectivity and open-mindedness
    required of an expert. We do not read the notes that way. The fact that an
    expert witness remains firm in his or her opinion does not, in and of itself,
    mean he or she is intractable or close-minded.

[87]

Finally,
    trial counsel had the best seat from which to assess bias. Their failure to put
    the suggestion of bias to the jury in their closing addresses or to ask for an
    instruction on the point illuminates why there has been no miscarriage of
    justice arising from the missing transcript.

(vi)

Conclusion on expert opinion evidence

[88]

Although
    the trial judge erred in failing to explicitly deal with bias during the
    admissibility
voir dire
, we are satisfied that
    this ground of appeal cannot succeed. Notwithstanding this error, the expert
    opinion evidence of Det. Backus was admissible. The record confirms that Det.
    Backus was impartial, independent and not biased.

(6)

The ultimate issue

[89]

We
    will address one further issue relating to the expert evidence that was put
    forward only in written submissions. In those submissions, the appellants raise
    a concern over whether the trial judge erred in allowing Det. Backus to opine
    upon what they describe as the ultimate issue  i.e., whether the appellants
    were actual members of the MOB Klick.

[90]

Even
    where an experts evidence is necessary, it requires heightened scrutiny as it
    approaches the ultimate issue:
R. v. J.-L.J.
, 2000 SCC 51, [2000] 2
    S.C.R. 600, at para. 37;
Mohan
, at p. 24; and
Sekhon
, at
    para. 50. In
R. v. Singh
, 2014 ONCA 791, 122 O.R. (3d) 481, at para.
    37, this court noted among other concerns that it was improper for an expert to
    opine on an accuseds alleged association with a criminal organization. In
    their written arguments, and despite the pre-trial ruling that precluded Det.
    Backus from doing so, the appellants argue that Det. Backus was improperly permitted
    to opine on that precise topic.

[91]

This
    complaint must be seen in context. During his in-chief examination, the Crown asked
    Det. Backus about the significance of Mr. Celise having been seen in the past with
    members of the EWC and observed wearing a cap with EWC on it. Although counsel
    to Mr. Williams acknowledged that she chose not to object right away, an
    objection was eventually made, and the trial Crown was told not to inquire into
    actual gang membership again.

[92]

Even
    so, counsel to Mr. Mills pursued that type of questioning with both Mr. Flavius
    and Det. Backus. Counsel specifically suggested to Mr. Flavius that he knew
    that Mr. Celise belonged to a gang. Counsel also put the same proposition to
    Det. Backus: And today youre aware and its your opinion that Mitchell Celise
    was a member of the Eglinton West Crips? Having been asked the question by the
    defence, Det. Backus answered the question.

[93]

Moreover,
    counsel to Mr. Mills asked Det. Backus about the membership of the MOB Klick:
    And the members of that group [MOB Klick] are who? Among others, Det. Backus
    said the appellants.

[94]

Accordingly,
    although Det. Backus gave an opinion on the membership of the MOB Klick, the
    matter was raised and pursued by Mr. Mills counsel. Mr. Williams counsel did
    not object to this line of cross-examination. Moreover, not much turned on this
    evidence as, by the end of the trial, the question was not so much whether the
    appellants were members of the MOB Klick, but whether the MOB Klick was a
    street gang, a legitimate rap group or both.

[95]

Based
    upon how this matter unfolded at trial, we would not interfere on this ground.

C.

THE ADMISSION OF RAP LYRICS

(1)

Overview

[96]

Rap videos and rap lyrics were admitted into
    evidence at this trial. Regarding the videos, the trial Crown initially asked
    to have 10 out of 76 available YouTube videos admitted into evidence. The trial
    judge ultimately permitted the admission of only 6: Bloodz, Cocaine Alumni,
    Hood Life, Thug Mentality, You Dont Really Want It, and Chiibz
    Freestyle. In each of these, at least one of the appellants appeared. On
    consent, the Crown also played a video named Eglinton N Northcliff, which was
    alleged to demonstrate that the EWC was a street gang and the geographical area
    in which it operated.

[97]

As for the lyrics, the Crown was granted
    permission to file documents seized from the apartment where the appellants
    were alleged to reside at the time of the murder, 481 Vaughan Road, apartment
    604. The vast majority of those documents were handwritten rap lyrics. They
    also included some official documents that contained both Mr. Mills full name
    and the address of the apartment from where they were seized. Among others, the
    documents included a letter from probation, as well as a probation order. The trial
    transcript is somewhat unclear on the exact number of pages of actual
    handwritten rap lyrics that were admitted into evidence, but the record that
    has been placed before this court suggests that there were almost 200 pages in
    total.

[98]

Although on appeal the appellants initially
    objected in their written submissions to the admission of some of the YouTube
    rap videos, they narrowed their objection during oral submissions to only the
    handwritten rap lyrics seized from the apartment, with a particular focus upon
    those lyrics that were marked as Exhibit 32 at trial. They argue that the trial
    judge erred in how he approached the admissibility analysis by failing to
    consider the artistic value of the lyrics as a factor in assessing their
    probative value. They also maintain that the trial judge erred in failing to
    appreciate that, at some point, any probative value that the lyrics held was
    subject to the law of diminishing returns. Considered against the backdrop of
    the YouTube videos (the admission of which is no longer challenged on appeal),
    on a cumulative level, the appellants contend that the trial judge erred in
    allowing so much highly prejudicial material to be considered by the jury.

[99]

For the reasons that follow, we do not accede to
    this ground of appeal.

(2)

The YouTube videos
    and rap lyrics

[100]

As the YouTube videos are no longer in dispute on appeal, we will
    only briefly address their content. We do so because of the appellants focus
    upon the cumulative effect of the prejudice that resulted from the further
    admission of the handwritten rap lyrics.

[101]

Det. Backus testified that street gangs will sometimes post videos
    on the internet as a means of marking territory and telling other gangs to stay
    away. The Eglinton N Northcliff video showed men dressed in blue, wearing
    blue bandanas and using hand signs that Det. Backus testified signified the
    Crip hand sign. Street signs can be seen that correspond to the area in which Det.
    Backus testified the EWC operates. The lyrics include references to: Yo Eg
    West crips; Eglinton homicide riders all day; and Fuck Vaughan nigga.

[102]

Among other things, the videos in which the appellants were featured
    showed:

·

the appellants dressed in clothes that were red
    or included red, with M.O.B. Klick and Y-M.O.B. embroidered on them;

·

close-up images of buildings and street signs in
    the Vaughan Road area close to where the murder occurred (which Det. Backus
    testified is a common way to publicly mark gang territory);

·

one image involving a no visitor sign and the
    display of Blood hand signs and a red bandana;

·

images of men pouring alcohol on the ground
    (Det. Backus said that this can be a show of respect for fallen gang members);
    and

·

hand signs that Det. Backus testified were used
    to show membership in a Blood gang.

[103]

The videos also contained references such as:

·

RIP Bubba (the trial Crown alleged that Mr.
    Celises murder was motivated by a desire to seek revenge for Bubbas murder);

·

For the niggas that went and killed Bubba[,]
    Man my clips pouring[,] Let it rain on those niggas;

·

You know Ginga Im bangin blood (Ginga was
    alleged to be a name for Mr. Mills);

·

We tryin a catch a nigga slippin down
    Dufferin and Eglinton[,] Deuce fifth make his body rock as I pop a shot (Det.
    Backus testified that the EWC operate in the area of Dufferin and Eglinton);

·

Dont fuck with them niggas from Vaughan and
    Oakwood; and

·

Rest in piss you know what Im saying, all you
    crab niggas (Det. Backus testified that crab is a reference to a member of
    the Crips).

[104]

As for the handwritten documents seized from the apartment, they
    were admitted into evidence by way of two separate exhibits. Exhibit 70
    contained the handwritten documents examined by a handwriting expert to opine
    upon authorship. Some of those documents were seized from the apartment and
    others from different locations. For instance, some of the documents included
    letters alleged to have been authored by Mr. Mills while he was in custody. The
    expert opined that the documents in Exhibit 70A were all authored by one person
    and the documents in Exhibit 70B were all authored by a different person. The
    Crown maintained that Exhibit 70A contained documents authored by Mr. Mills and
    Exhibit 70B contained documents authored by Mr. Williams.

[105]

Exhibit 32 contained the balance of the handwritten documents (and
    the official documents) that were seized from the apartment, all of which were alleged
    to have been authored by Mr. Mills. Although the appellants argue that none of
    the documents seized from the apartment should have been admitted into
    evidence, they take particular aim at those documents contained within Exhibit
    32.

[106]

Among other things, the documents in totality could be taken to show:

·

the appellants central preoccupation with the
    MOB Klick and Bloods, given the contents of the documents and their sheer
    quantity;

·

the appellants animosity toward the EWC and
    Crips (the lyrics included such direct expressions of animus as: Vaughan and
    Oakwood be da block. Winona [the street on which Mr. Celise was killed] b da
    street. Duff n eggs b da beef [the location in Toronto out of which the EWC
    operated]);

·

assertions of territorial control in the area
    where the murder occurred;

·

Mr. Williams connection to the voice on a
    YouTube rap video titled Chiibz Freestyle where only a picture of him was
    shown (the lyrics were found in handwriting at the apartment and were alleged
    to have been written by Mr. Williams);

·

the appellants connections to one another;

·

Mr. Mills connection, based on handwriting
    analysis, to incriminating jailhouse letters (which included expressions of
    concern over the fact that Spinz  alleged to be Mr. Williams  might say the
    wrong ting and fuck us up, and comments like Mr. Williams talks too much and
    the Mobdem should come to court to pree [look at] da witnesses);

·

the appellants avoidance of the letter c when
    writing lyrics  e.g., spelling the word call as kall, the word come as
    kome, and the word creep as kreep  an approach that Det. Backus
    testified was used by Blood members to avoid the letter c in order to show
    disrespect toward the Crips; and

·

the appellants desire to avenge the death of
    Bubba.

(3)

The two admissibility
    rulings

[107]

During the pre-trial motion regarding the admissibility of Det.
    Backus evidence, the defence objected to the admissibility of the documents
    seized from the apartment. At that time, the defence argument appears to have
    been focused upon the suggestion that there was insufficient evidence of
    authorship by the appellants to permit their admissibility. As part of the
    initial ruling, the trial judge rejected that position and ruled the documents
    admissible.

[108]

After the exhibits had already been filed, but before the documents
    contained in Exhibit 32 and most of the documents contained in Exhibit 70 had
    been shown to the jury, the trial judge raised a concern about the content of
    those documents. Having reviewed them, the trial judge observed that there were
    some highly prejudicial aspects to them and wanted to provide counsel with the
    opportunity to address the matter before the jury saw anything further. He was
    prepared to entertain submissions about removing some of the documents from
    those exhibits. The Crown was also prepared to do so. Even so, for reasons that
    will become clear, no documents were removed from the exhibits.

[109]

Following the conclusion of the trial, the trial judge released his
    written reasons in support of the decision to admit the documents. In summarizing
    counsels submissions, the trial judge correctly noted that Mr. Mills had
    earlier opposed the admission of all of the documents seized from the apartment
    on the basis that they were too prejudicial. Counsel did not make any
    document-specific submissions.

[110]

In contrast, Mr. Williams counsel had acknowledged the probity of
    some of the documents in Exhibit 70B (the ones alleged to be authored by Mr.
    Williams). She made submissions directed at a few of those documents in Exhibit
    70B that contained lyrics where, according to counsel, the prejudicial effect outweighed
    the probative value.

[111]

Ultimately, the trial judge concluded that, taken in totality, the
    probative value of the handwritten documents outweighed their prejudicial
    effect. The trial judge found that any prejudice arising from the content of
    the documents could be addressed by a forceful jury instruction. (As will be
    seen, that instruction was in fact given.)

[112]

The trial judge concluded that the content of the documents demonstrated
    an animus toward the EWC, one that supported the alleged motive in this case.
    As for the number of documents that should be admitted into evidence, the trial
    judge concluded that the considerable volume of material had the potential to
    establish that the accused not only hated members of the Crips and, by
    extension the EWC, but that their hatred was profound and all-consuming [in]
    nature. He expressed the further view that the potential prejudice associated
    with the writings would not increase greatly with the amount adduced, but,
    even if he was wrong in that regard, the probative value increases more than
    the prejudice, by showing  the depth of the animus (and hence motive). To
    restrict the number of documents to be adduced would present an anemic and artificial
    picture of the depth of hatred the Crown contends the documents reflect.

[113]

Finally, the trial judge emphasized the defence position that the
    lyrics were nothing more than the reflections of aspiring rap artists. In the
    trial judges view, limiting the number of documents going to the jury could
    undermine the defence in the sense that the more material there is the more
    likely it may seem to the jury that the accused was seriously engaged in
    creating rap music.

[114]

As will be explained shortly, the use of the handwritten lyrics to
    support the defence position that the appellants were nothing more than young,
    aspiring rap artists was consistent with Mr. Mills position at the end of
    trial. Although the matter was addressed over a number of days in discussions
    that will be summarized in some detail later, Mr. Mills counsel ultimately
    took a position that heavily informs this ground of appeal. As summarized by
    the trial Crown, agreed to by trial counsel to Mr. Mills, and not objected to
    by trial counsel to Mr. Williams, 
the defence position [was] that all
    of the documents should go in for
their purposes
 (emphasis added).

(4)

Objections on appeal

[115]

The appellants submit that the handwritten lyrics would necessarily
    shock any juror and cause prejudice to the appellants that would be impossible
    to set aside. The appellants accurately observe that there are passages within
    the documents that show a strong tendency toward violence, a dedication to
    trafficking in drugs, and serious misogynistic and homophobic beliefs.

[116]

Although the appellants take no issue with the mid-trial or final
    instructions directed at the potential prejudice arising from the documents,
    something we will return to shortly, they say that no instruction, no matter
    how carefully and appropriately phrased, could have cured the prejudice
    resulting from their admission.

[117]

The appellants point to what they say are two fundamental errors in
    the trial judges ruling that led him astray when it came to properly
    calibrating whether the prejudicial effect of the evidence exceeded its
    probative value: (i) he failed to take into account the artistic value of the
    documents; and (ii) he failed to appreciate that, at some point, the probative
    value of evidence loses its force when too much of it gets admitted. Had the
    trial judge properly applied these principles, and more carefully considered
    the strong prejudicial effect arising from their content, the appellants
    contend that many of the handwritten rap lyrics would have been excluded and
    Exhibit 32 would have been excluded in its entirety.

(5)

Analysis

(i)

The alleged
Skeete
error

[118]

The appellants maintain that the trial judge erred in failing to
    properly grapple with the nature of the rap lyrics as artistic expression and
    how that can affect the assessment of probative value. They point to a comment
    made by the trial judge during oral submissions about the admissibility of the
    YouTube videos that is said to underscore his failure to appreciate the impact
    of the fact that rap lyrics are a form of artistic expression. Specifically,
    the trial judge told the Crown that she need not respond to the defence
    suggestion that the words were nothing more than lyrics in a song. He explained:
    Its circumstantial evidence of motive and the mere fact that it may form the
    lyrics of what one can loosely call a song I suppose is neither here nor
    there.

[119]

The appellants argue that, by so fundamentally failing to grapple
    with the fact that rap music is an art form, the trial judge overemphasized the
    probative value to be assigned the evidence. They rely on
R. v. Skeete
,
    2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 182, leave to appeal refused,
    [2018] S.C.C.A. No. 508, in support of the proposition that the trial judge was
    duty-bound to take the artistic expression involved in the rap lyrics into
    account:

The lyric was also a form of artistic self-expression. Unlike
    the typical case involving admissions, we cannot infer, much less presume, that
    simply because an author has chosen to write or speak about a certain topic,
    she or he has acted in accordance with its terms.
And so it is that, in my
    respectful view, the nature of the evidence  a form of artistic
    self-expression  is a factor a trial judge should consider in assessing its
    probative value
. [Emphasis added.]

[120]

In
Skeete
, at para. 156, Watt J.A. cited to
State v.
    Skinner
, 218 N.J. 496, at pp. 520-21 (Sup. Ct. 2014), in support of the
    proposition that, because rap lyrics are also a form of artistic expression, it
    may not be reasonable to infer that, simply because an author has written about
    a certain topic, he or she actually holds or acts in accordance with those
    views. As the court noted in
Skinner
, at pp. 521-22:

One would not presume that Bob Marley, who wrote the well-known
    song I Shot the Sheriff, actually shot a sheriff, or that Edgar Allan Poe
    buried a man beneath his floorboards as depicted in his short story The
    Tell-Tale Heart, simply because of their respective artistic endeavors on those
    subjects.

[121]

In terms of their prejudicial impact, the appellants also point to
    the fact that rap lyrics are strongly linked to Black culture and, as such,
    there is a danger in allowing their admission because they can trigger and
    inflame stereotypical assumptions that triers of fact bring with them to court
    about race and crime, citing in support the article written by David M.
    Tanovich, 
R v. Campbell
: Rethinking the Admissibility of Rap Lyrics
    in Criminal Cases (2016) 24 C.R. (7th) 27, at p. 42. See also: Charis E.
    Kubrin & Erik Nielson, Rap on Trial (2014) 4:3 Race and Justice 185, at
    p. 201.

[122]

While we accept that rap lyrics can constitute a form of artistic
    expression and do not dispute the appellants suggestion that courts must be
    alive to the risk that they may trigger or inflame stereotypical assumptions
    about race and culture, these factors alone do not render them
prima facie
inadmissible in a criminal trial. Although they are factors that must be taken
    into account in determining the probative value of those lyrics and any
    prejudice that may flow as a result of admission, as with much art, rap lyrics
    can carry artistic meaning while at the same time reflect real life events. For
    instance, while we agree with the sentiment that no one would seriously think
    that just because someone writes and sings about having shot a sheriff he or
    she actually engaged in that act, if charged with that exact act, accompanied
    by other circumstantial evidence suggesting the singer actually committed that
    act, it may be that the lyrics would take on a much more probative posture.

[123]

Indeed, that is precisely what this court concluded in
Skeete
,
    an appeal from a first-degree murder conviction
.
The Crown alleged that
    the deceased was killed because he broke the code of silence by providing the
    police with a statement about an attempt that had been made on his life. The
    deceased gave his statement to police about two months after that attempt.

[124]

Mr. Skeete authored a rap composition in jail while he awaited his
    trial. The overwhelming majority of the entire composition was described by
    Watt J.A. as irrelevant to the issues at trial. Even so, considered against the
    evidentiary backdrop of the case, and the theory behind the killing, there was
    a sentence in the rap compostion that had probative value: Real niggaz dont
    crack to the coppers muthafucka. Accordingly, despite the fact that the
    overwhelming majority of the lyrics were irrelevant to the issues at trial,
    the lyrics largely being a biographical description of inmate life, that did
    not diminish or otherwise sully the probative value of the lyric relied upon
    by the Crown:
Skeete
,
at para. 190.

[125]

Like in
Skeete
,
we accept that rap lyrics are not
    necessarily akin to typical admissions against interest, and a court ought not
    to be too ready to embrace lyrics as a basis upon which to infer a particular
    state of mind in their author given their nature as artistic expression:
Skeete
,
at para. 156. While we agree with the appellants that the nature of rap
    lyrics as artistic expression is a factor that must be taken into account when
    determining the probative value to be attached to any such lyrics, we disagree
    that the trial judge erred by failing to recognize this fact.

[126]

The trial judge well understood the defence position that the
    YouTube videos and handwritten rap lyrics reflected nothing more than
    legitimate, artistic endeavours. The appellants took the position that they
    were rap artists and that the MOB Klick was nothing more than a music group.
    The appellants maintained that they wrote and performed lyrics as members of
    that group.

[127]

In contrast with the defence position, the Crown alleged that the
    MOB Klick was a street gang, a subset of the VRB and part of the Blood Nation.
    While the appellants may have been aspiring rap artists, they were also gang
    members. Moreover, the Crown alleged that the MOB Klick controlled the
    territory exactly where Mr. Celise was killed. The YouTube rap videos and
    handwritten lyrics were critical to establishing that contention and, more
    generally, to making some sense of this otherwise senseless murder over the
    colour blue.

[128]

Read as a whole, we are satisfied that the trial judge was aware of
    the need to turn his mind to the artistic nature of the rap lyrics when
    determining their admissibility. He carefully considered the positions of all
    parties and accurately described the defence position. He understood that
    artistic expressions do not necessarily represent the truth. For instance, the
    trial judge quoted the following passage from
R. v. Terry
, [1996] 2
    S.C.R. 207, at para. 29:

As a form of artistic expression, a poem is not necessarily
    probative of the truth expressed therein; an author may have any number of
    motivations for expressing him- or herself in a given fashion, only one of
    which is to recite what he or she did.

[129]

Even so, in the end, the trial judge determined that, taken
    together, the probative value of the handwritten lyrics was high and outweighed
    any prejudicial effect arising from them. Unlike
Skeete

where
    it was a single sentence that held probative value in a single rap song, in
    this case, as previously reviewed, the probity of the documents was multi-fold.
    They showed connections between people, revealed aliases used, allowed for
    handwriting analysis to connect Mr. Mills to other incriminating documents, and
    demonstrated what the Crown alleged to be the true nature of the MOB Klick, the
    appellants connections to it, their general dislike of the Crips, and their
    desire to avenge Bubbas murder. As the trial judge found, the volume of the
    material could establish the profound and all-consuming nature of the hatred
    toward the Crips.

[130]

In these circumstances, although the lyrics could represent nothing
    more than a legitimate artistic endeavour, given the multi-faceted nature and
    strong probative value of the lyrics, the trial judge concluded that it should
    be for the jury to decide with the benefit of careful instruction[s]
    respecting the permissible and impermissible uses of the evidence, whether the
    writings are reflective of sentiments that amount to motive or whether they are
    merely the efforts of an aspiring rap artist.

[131]

Those instructions were, in fact, given, both prior to the evidence
    being elicited and then in the charge to the jury. Among other things, the
    trial judge told the jury in both the mid-trial instruction and in the charge to
    the jury to consider whether the lyrics were nothing more than a legitimate
    musical endeavour. For instance, the trial judge instructed the jury that rap
    is a recognized music genre and, therefore, it is possible that the lyrics
    represent nothing more than artistic expression and do not reflect or represent
    serious attitudes on the part of persons involved or real events, either past
    or contemplated to take place in the future. He went on to instruct the jury
    that even if the lyrics are meant to be artistic expression it does not necessarily
    exclude the possibility that they reflect seriously held attitudes or that they
    refer to real events, past or future. He then told the jury that it would be entirely
    for them to make that decision and that they should not be hasty in that
    regard.

[132]

We do not agree that the trial judge committed a
Skeete

error.

(ii)

The alleged
Candir
error

[133]

The appellants second objection arises from what they describe as a
    
Candir

error:
R. v. Candir
, 2009 ONCA 915, 250
    C.C.C. (3d) 139, motion for extension of time to serve and file application for
    leave to appeal dismissed, [2012] S.C.C.A. No. 8. In
Candir
, at para.
    59, Watt J.A. addressed the fact that trial judges may exclude probative
    evidence where its impact on the trial process exceeds its value to the
    correct disposal of the litigation at hand. He referred to this exclusionary
    rule as one driven by concerns over the forensic piling on of evidence by the
    acre, something that can unnecessarily lengthen a trial and distract the trier
    of fact. As Watt J.A. said, [c]umulative evidence, whether testimony, exhibits
    or both, often occupies a borderland around the periphery of the case, adding
    nothing to the contested issues, preferring instead to suffocate the trier of
    fact with the uncontroversial or marginal:
Candir
, at para. 60.

[134]

We agree with the respondent that, taken together, the lyrics did
    not focus upon the uncontroversial or marginal. On the issue of animus towards
    the Crips and the EWC, not only did the writings reveal that animus, they also
    demonstrated its sheer depth. As the respondent suggests, the appellants did
    not have a mild aversion to the EWC. Rather, they were preoccupied by their
    intense hatred of the EWC and Crips more generally; a hatred so deep that, as
    alleged by the trial Crown, Mr. Mills was prepared to shoot a teenager in the
    back and then send a text message to someone to confirm that he had actually
    shot a a nigga and not an in[n]ocent. In other words, the Crown alleged
    that his gang-related animus was so strong that he was prepared to kill Mr.
    Celise when he was not even sure that Mr. Celise was a Crip.

[135]

If the jury was satisfied that the lyrics in Exhibits 70 and 32 were
    authored by Mr. Mills and Mr. Williams, they could use those documents, along
    with all of the other evidence in the case, to decide that the MOB Klick was
    not only a rap group but also a street gang to which the appellants belonged,
    and that they had a beef with the EWC and Crips.

[136]

The question is whether, at some point, the quantity of the
    handwritten lyrics simply became too much, particularly in light of their
    highly prejudicial contents. There is some traction to the appellants position
    on this point. While the appellants acknowledge the probative value of the
    handwritten lyrics, they say that the total number of documents was too much
    and, at some point, caused the prejudicial effect to overtake the probative
    value. They specifically point to the lyrics in Exhibit 32 as the documents
    that tipped the balance.

[137]

Certainly, a more surgical approach could have been taken to the
    documents so that they were not susceptible to the suggestion of a forensic
    piling on. Had that approach been taken, then the prejudicial effect arising
    from the documents could have been better attended to. Undoubtedly, those
    discussions should have taken place before the documents were ever admitted
    into evidence.

[138]

As we see it, though, the difficulty with this submission on appeal
    is that it fails to accord with the position taken by the appellants at trial,
    one that ultimately resulted in a defence rejection of the Crowns agreement to
    remove some of the documents from the record. We must take that position into
    account on appeal:
R. v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373, at
    para. 76.

(a)

The defence position at trial

[139]

Det. Backus evidence commenced on Friday, March 8, 2013. When court
    resumed on Monday, March 11, 2013, the trial judge opened the day with an
    observation that he had been studying Exhibits 70 and 32 over the weekend, and
    it had struck him that the parties had not spent a lot of time, if any, in the
    course of the application in connection with this evidence in terms of the
    content of those documents. As the trial judge explained, the thrust of the
    earlier defence objection to admission had been related to a lack of evidence
    connecting the appellants to the documents.

[140]

In any event, having considered the documents over the weekend
    leading into March 11, 2013, the trial judge had developed concerns about their
    content. Of his own motion, he asked that the matter be revisited. As the trial
    judge later observed in his second written ruling, the revisiting of the
    admissibility of these documents took place at a time after the material had
    been filed as an exhibit, but, with one exception, before the jury had had an
    opportunity to peruse the documents.
[2]


[141]

Accordingly, before matters went any further, and despite the
    somewhat unusual circumstances, the trial judge asked to hear from counsel on
    the issue of prejudice. The trial judge was alive, though, to the fact that the
    defence position may be that the documents represented rap lyrics, nothing
    more and nothing less. If so, however distasteful, the defence may not want
    redactions made because it would focus unduly and unfairly on what the Crown
    says is important here to the exclusion of other things that may neutralize
    some of this.

[142]

Mr. Mills counsel suggested to the court that he was aware of the
    content of the documents, but that he was expecting to address the point
    later in the proceedings. He said that he was hopeful that as certain evidence
    came out, there would be a basis to suggest that certain of the documents may
    no longer be needed. He went on in this vein as follows:

[A]side from that in respect of the editing of what I say are
    obviously lyrics found in that document Im not prepared to make any
    submissions to Your Honour presently and that  thats primarily because it is
    my position that, as Your Honour said,
my take on it is these are lyrics
.
    [Emphasis added.]

[143]

On the second day that the matter was addressed, the Crown started
    the day by raising the topic. She said that she had gone through Exhibit 32 and
    had flagged some documents that she had no issue with redacting. The defence
    needed an opportunity to see what the Crown was proposing and asked for some
    time.

[144]

On the third day that the issue was addressed, Crown counsel again
    started the day by raising the issue. She informed the court that she had gone
    through everything and marked documents that we had no issue with the removal
    of and provided that to the defence.
[3]
As it related to Exhibit 32, Mr. Mills counsel said that he was pleased with
    their redactions and had no others that he would be urging the court to
    consider. He suggested that there may be a change of landscape before the end
    of the trial, but that he had no further submissions at that point in time.

[145]

The trial judge continued to encourage counsel to give a long hard
    look at the documents so that there could be a meaningful discussion document
    by document concerning what should or shouldnt remain. He expressed his
    concern that leaving the matter to the end of trial could be chaotic.

[146]

While Mr. Williams counsel took no exception to a number of the rap
    lyrics contained within Exhibit 70B, she made targeted submissions about a few
    documents that she argued should be removed. Although she acknowledged their
    probative value, she submitted that it was outweighed by their prejudicial
    effect.

[147]

The Crown responded by making submissions about the strong probative
    value of each of the particular documents placed in dispute by Mr. Williams
    counsel. By way of example, the lyrics referred to things like letting it rip
    if someone was from eglinton, that the MOB Klick is what I do kuz I bang
    blood!, and Damn nigguhz never ever catch my nigguhz ever wearin blue. Ultimately,
    in his later written ruling, the trial judge addressed each of the impugned
    documents and his reasons for admitting them, concluding that their strong
    probative value outweighed their prejudicial effect.

[148]

Despite being encouraged to make document by document submissions,
    Mr. Mills counsel did not do so. At one point, he adverted to possible
    forthcoming admissions that could result in the removal of even more documents
    than what the Crown had already identified. At the same time, counsel to Mr.
    Mills was clear that he was not asking the court to edit the documents for
    prejudicial content. The following comments illustrate counsel to Mr. Mills
    position:

Im not urging upon Your Honour that sort of nitpick sort of
    editing because I will be putting before this jury our position that these are
    lyrics and those lyrics need to be put before them so they see the entire
    document.



[W]hat I understand the Crown will eventually be doing on the
    basis of my admission, just whittling away the sheer volume of the some 230
    pages.
I dont want there to be an editing merely because Im offended by
    the notion of the reference to guns. My client is involved in gangster rap
    music and I want the jury to understand that fully. I dont want the individual
    lyrics to be edited. I want just the volume to be cut down, thats all, and I
    think thats in large measure why I have made everyone know what our admission
    is because it is a key objective of mine to simply make sure that when Exhibit [32]
    goes before the jury, to the extent that they look at it, theyre not looking
    at a lot of quite unnecessary documents
. [Emphasis added.]

[149]

Ultimately, on the fifth day that this matter was addressed, the
    Crown told the court that the matter had not unfolded in the manner she had
    anticipated. When she addressed the court at a later point, the Crown said that
    she and Mr. Mills counsel had been unable to come to an agreement.
[4]
The Crown summarized the
    positions of counsel as follows:

And we also canvassed the issue with respect to the prejudicial
    impact of some of these documents. The Crown had flagged a number of them which
    we were prepared to remove on the basis that they are not needed in the grand
    scheme of things and arguably are particularly misogynistic or unduly violent,
but
    the defence position is that all of the documents should go in for their
    purposes. So it looks like all of the parties are of the view that in all of
    the circumstances the entire exhibit should be before the jury as I understand
    it.
[Emphasis added.]

[150]

Mr. Mills counsel expressed his dissatisfaction with the present
    state of affairs, thinking that a concession he had given would clear away some
    of the documents that had concerned him the most, being the probation
    documents (not the handwritten lyrics). He went on:

So I appreciate [Crown counsels] comments,
she has
    accurately advised Your Honour about the current state of affairs
, but Im
    not quite satisfied that that will remain the state of affairs, and so I just
    apprise Your Honour that we may be playing a little bit more hockey on that
    one. [Emphasis added.]

[151]

The trial judge encouraged counsel to get on with that exercise. In
    the end, though, the record reveals that no agreement was ever reached and all
    documents remained in the record.

(b)

Was there a forensic piling on?

[152]

This was a highly unusual case. Although Mr. Mills eventually admitted
    that he was a member of the VRB, that admission came at the eleventh hour, mere
    moments before his counsel rose to make his closing submissions. Importantly,
    the entire case was litigated without that agreement in place. Moreover, there
    was no admission that the MOB Klick was a street gang or a subset of the VRB.
    While the appellants acknowledged a connection to the MOB Klick, they
    maintained to the very end that it was a legitimate rap group and nothing more.
    The Crown maintained that, while it may well have constituted a group of men
    who rapped, and while the appellants may well have been aspiring rap artists,
    the MOB Klick was not nearly as benign as suggested by the appellants. The
    amount that the appellants wrote and rapped about their gang affiliations and
    rivalries was capable of demonstrating that this was the central preoccupation
    of their lives.

[153]

The key is that the trial judge, albeit belatedly, became alive to the
    contents of the documents. He raised it of his own motion and repeatedly and
    forcefully asked counsel to address the matter. While Mr. Williams counsel
    made a few document-specific submissions, the trial judges reasons respecting
    why those particular documents should remain a part of the record are not
    specifically challenged on appeal. Rather, the suggestion is that, considered in
    totality, at some point the prejudicial effect of all of the documents was
    simply too great.

[154]

In the end, as for the balance of the documents,

when he
    could not reach an agreement with Crown counsel, Mr. Mills counsel took what
    can only be described as a strategic decision to keep all of the unedited documents
    as part of the record. While Crown counsel repeatedly addressed the fact that
    she had identified documents that she agreed could be removed, and was also
    prepared to engage in an editing exercise, the defence chose not to take the
    Crown up on that offer. We repeat here that the Crown told the trial judge that
    the 
defence position is that all of the documents should go in for
    their purposes.
Mr. Mills counsel confirmed that the Crown
    had accurately stated the position. Counsel to Mr. Williams did not deny that
    position.

[155]

We note that the final defence position was taken against the
    backdrop of their strategy that the lyrics represented nothing more than the
    writings of aspiring, young artists. In short, while the position had morphed
    over time, in the end, counsel made no further submissions about removing
    documents and agreed with the Crowns characterization that the entire exhibit
    should be before the jury.

[156]

Accordingly, counsel were provided with a clear opportunity to cut
    down on the sheer quantity of the handwritten rap lyrics that were placed
    before the court. While the Crown identified documents she was prepared to
    remove from the exhibits, the concluding defence position was that they should
    all go in for their purposes. In light of that position, we would not
    interfere.

(iii)

Charge to the jury

[157]

Moreover, as previously mentioned, the appellants take no issue with
    the jury instructions in this case. While the lyrics held significant potential
    for prejudice, the trial judges instructions  both mid-trial and during his
    charge to the jury  were strong and unequivocal. He provided clear, sharp and
    forceful instructions about the prohibited uses of the documents and videos.
    His instructions were a prophylactic against any incidental prejudice:
Skeete
,
    at para. 192. As there is no objection to these instructions, we will not set
    them out in full. Just one quotation from the jury charge will suffice to make
    the point:

I want to turn now to impermissible uses of evidence bespeaking
    bad character.

Inasmuch as the letters, the text messages, the lyrics seized
    at 481 Vaughan Rd. and the YouTube videos all celebrate, to varying degrees,
    violence, the possession of illegal guns and the sale of illegal drugs, you may
    find them highly offensive. You must not, however, permit yourselves to become
    incensed or inflamed by sentiments or attitudes expressed by either accused or
    by anyone else. Likewise, you must not permit yourselves to become incensed or
    inflamed by individual acts on the part of the accused you are then considering
    or, more generally, by the lifestyle the accused appears to have adopted.

For the duration of this trial, you are judges and you must
    conduct yourselves as such. You have now heard all the evidence and listened to
    the arguments of counsel. As I have already explained, your task now is to make
    findings of fact based on that evidence, and to apply the law to the facts that
    you find to arrive at your decisions.

The essence of judging is to make decisions objectively and
    dispassionately. You must exercise self-discipline to put aside any personal
    distaste or revulsion you might feel as a result of some of the evidence you
    have seen and heard. When considering the evidence in relation to the issues I
    have identified, you must rigorously resist any temptation to let your personal
    feelings about this evidence affect your judgment. That may prove difficult,
    but I am confident that you can do that.

Some of the evidence may cause you to have a low opinion of the
    character of one or both of the accused. That said, apart from using the
    evidence bespeaking bad character for purposes I have [previously] described,
    you must not use it for any other purpose.

In particular, you may not use any evidence bespeaking bad
    character on the part of the accused you are then considering to decide, or to
    help you decide, in even the slightest degree, that, by reason of that bad
    character standing alone, the Crown has proven its case against that accused.



I stress, again, that, if you find that the accused you are
    then considering did one or more disreputable things, or has discreditable
    views or attitudes, you must not use that evidence to conclude, or even to help
    you conclude, that he is a person of general bad character or disposition and
    therefore he is more likely to have committed the offence charged merely by
    virtue of that general bad character.



[Y]ou must not find him guilty of
    the offence charged on this indictment in order to punish him for any specific
    misconduct in the past or for his general bad character. Either line of
    reasoning would be an improper use of this evidence and most unfair to the accused.
    Accordingly, you are forbidden to engage in any such reasoning.

[158]

In our view, the trial judges mid-trial instructions and charge
    went a considerable distance toward limiting the prejudice that could arise
    from the evidence admitted:
R. v. Sarrazin
, 2010 ONCA 577, 259 C.C.C.
    (3d) 293, at para. 18, affd 2011 SCC 54, [2011] 3 S.C.R. 505;
R. v.
    Sheriffe
, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 76, leave to appeal
    refused, [2016] S.C.C.A. No. 299 (
Sheriffe
) and [2016] S.C.C.A. No.
    514 (
Asfaha
).

[159]

In all of the circumstances, we would not give effect to this ground
    of appeal.

D.

The Eyewitness Identification

(1)

Overview

[160]

Mr. Flavius was with Mr. Celise when he was killed. He interacted
    with the shooter, the big guy, and with the second man, the little guy, before
    the murder took place, he saw the shooting, and he ran for his life. When he
    ran to Mr. Celises house and no one was home, he went next door to the home of
    a girl he knew. This girl, whom we shall refer to as the neighbour, showed
    him videos from YouTube to see if he could identify the shooter, and he did. He
    saw the shooter in one of the videos singing with other men. Three days later,
    Mr. Flavius picked Mr. Mills photo from a photo line-up at the police station
    and identified him as the shooter.

[161]

On this appeal, the appellants submit that the trial judges
    instruction to the jury regarding Mr. Flavius identification evidence was
    flawed for two main reasons. First, the trial judge failed to properly warn the
    jury about the serious risk of tainting associated with Mr. Flavius
    interaction with the neighbour, and wrongly suggested to the jury that it could
    find that this interaction enhanced the reliability of Mr. Flavius subsequent
    photo line-up identification of Mr. Mills.

[162]

Second, the trial judge failed to present Mr. Flavius evidence on
    his encounter with the neighbour in a balanced way by ignoring the portions of Mr.
    Flavius evidence that the appellants submit indicated the neighbour had
    suggested to him that Mr. Mills was the shooter.

[163]

The appellants argue that these two errors were rendered more
    significant by other inconsistencies in Mr. Flavius testimony, such as whether
    or not he knew Mr. Celises nickname was S.K., his inaccurate description of
    the shooters neck tattoo, the timing of his visit to the neighbours home, and
    whether or not he was at Mr. Celises house the night before the shooting.

[164]

The Crown takes the position that Mr. Flavius evidence was reliable
    and that his identification of Mr. Mills was supported by corroborating
    evidence implicating Mr. Mills, including text messages placing Mr. Mills at
    the scene of the crime, letters sent from jail, cellphone location data, and
    motive. The Crown says that the trial judges charge on the eyewitness
    identification evidence, which included a discussion of the potential for
    tainting from the interaction with the neighbour, gave the jury the tools it
    needed to assess the issue. Finally, the Crown says that the charge was
    balanced in the presentation of the evidence that could impact the jurys
    assessment of the potential for tainting.

[165]

The Crown accepts that if this court finds the jury charge to be
    inadequate, a new trial should be ordered for Mr. Mills, but not for Mr.
    Williams. Mr. Williams submits that if a new trial is ordered for Mr. Mills on
    this ground, a new trial must necessarily be ordered for him as well, because
    the case against him is inextricably linked with Mr. Flavius identification of
    Mr. Mills as the shooter.

[166]

For the reasons that follow, we do not accede to this ground of
    appeal. The charge to the jury adequately and fairly dealt with the potential
    tainting of Mr. Flavius identification of Mr. Mills, and it provided the jury
    with appropriate instructions on how to assess that issue in the context of all
    the evidence.

(2)

Mr. Flavius evidence identifying Mr. Mills as the shooter

[167]

Mr. Flavius described what happened that day to the jury. On May 3,
    2010, Mr. Flavius and the deceased, Mr. Celise, were walking down Winona Drive
    towards Mr. Celises home. It was a sunny afternoon. They saw a group of people
    in a park. One of the girls called out, S.K.. Mr. Celise said, How do you
    know my name? Mr. Flavius and Mr. Celise continued walking past the park down
    Winona Drive. Soon after, two guys approached Mr. Flavius and Mr. Celise. Mr.
    Celise wanted to run, but Mr. Flavius did not understand why.

[168]

The two men eventually came right up to Mr. Celise and Mr. Flavius.
    Mr. Flavius testified that the big guy was right in front of him, and the
    little guy was to his right. The big guy started to ask Mr. Flavius questions
    about why his friend, Mr. Celise, was wearing blue and where they were from.
    The big guy said, Its red around here, right, and you can get yourself hurt.
    Youre not supposed to be wearing blue.

[169]

During his interaction with the two men prior to the shooting, Mr.
    Flavius said that his mind was focused on the big guy who was asking him
    questions. Mr. Flavius described that guy as a young person with braided hair,
    a little size face, and a tattoo on the right side of his neck with the
    letters M.O.B. and J.. Mr. Flavius also testified that this guy was taller
    and bigger than him, and not fat but not slim.

[170]

At some point during this interaction, both Mr. Celise and Mr.
    Flavius shook hands with the big guy and the little guy. The big guy then asked
    Mr. Celise if he was S.K. and Mr. Celise responded that he was S.. Mr.
    Flavius testified that he did not understand what was going on at that point.

[171]

Then, the big guy gave a funny face to his friend and put his hand
    on his waist to expose the outline of a gun through his clothing. Mr. Celise
    ran. The big guy ran straight after him, and the little guy followed. The big guy
    pulled out his gun and fired several shots. Mr. Celise twisted and fell. Mr.
    Flavius was still standing and watching at this point. As soon as Mr. Celise
    fell, the big guy turned right back around toward Mr. Flavius. Mr. Flavius
    began walking away and, once he was around a corner and out of sight, he began
    to run.

[172]

He continued to run all the way to Mr. Celises house. He knocked on
    the door, but no one was home. Because he wanted to get off the street, Mr.
    Flavius went next door to the neighbours house. He testified that he had
    spoken to the neighbour on one occasion in the past. When he got to the
    neighbours house, Mr. Flavius told her his friend had just been shot. He asked
    to borrow a phone and tried without success to get in touch with Mr. Celises
    family. After making the phone calls, Mr. Flavius asked the neighbour for some
    water, which she provided. Then, he testified:

[MR. FLAVIUS]: She gave me water and she tell
    me, she say, just stay right there, everythings going to be okay, and then
    like she showed me one set of pictures on the computer and stuff. And then--

THE COURT: She showed you what? What did she
    show you on the computer?

[MR. FLAVIUS]: Pictures.

THE COURT: Pictures. Okay.

[THE CROWN]: What form were these pictures in?

[MR. FLAVIUS]: Um, like just photo pictures,
    like photos. And then she told me like if I -- shes going to show me some
    pictures to see like if maybe I know the guy, so then I point out the guy for
    her.

[THE CROWN]: Okay.

[MR. FLAVIUS]: And then she was showing me
    some video, like the guy was singing and stuff. Like he had a whole, like a
    gang of guys all up in red and stuff and like just singing. They have the red,
    red, red, a red flag or whatever it is, and just singing all this stuff, and I
    point out for her, like I show her the guy.

[THE CROWN]: And what is it about the person
    that you picked out that drew your attention?

[MR. FLAVIUS]: Thats the person that did the
    shooting.

[173]

Mr. Flavius elaborated that the video was a music film on YouTube.
    He testified that he couldnt remember how many films he watched in total, but
    that he saw the shooter in one. The shooter was singing in the film. There were
    other people in the film, other guys, but not anyone that [Mr. Flavius] knew
    of. He could not recall the skin colour of the other men in the film, nor
    could he remember what the individual he identified as the shooter was wearing
    in the film. He also could not remember how many men were in the film in which
    he identified the shooter.

[174]

Then, Mr. Flavius was asked about how the neighbour responded to his
    identification of the shooter:

[THE CROWN]: And once this has happened,
    youve looked at the film, and did you indicate anything to [the neighbour]
    about that youd seen someone that you recognize?

[MR. FLAVIUS]: Yes.

[THE CROWN]: After that, what did you do?
    Youve identified someone on the film. What happens after that?

[MR. FLAVIUS]: Well, she was just saying to me
    that the guy could be like a very dangerous guy[.]

[175]

After viewing the films, Mr. Flavius stayed at the neighbours house
    until Mr. Celises relatives came home, at which point he went to Mr. Celises
    house.

[176]

On May 5, 2010, Mr. Flavius gave a statement to the police. He
    described the shooter at that time as having a tattoo on the right side of his
    neck with the letters M.O.B. and J.. Mr. Mills in fact has a tattoo on the
    right side of his neck, but it says B.T.T.W.. He also has a tattoo on his
    forearm that says M.O.B. Klick.

[177]

Mr. Flavius was shown a photo line-up by the police on May 6, 2010.
    He picked the shooter out of the photo line-up. The photo that Mr. Flavius
    identified as being a photo of the shooter was a photo of Mr. Mills. There were
    no objections to the photo line-up process.

[178]

In cross-examination by counsel to Mr. Mills, Mr. Flavius made the
    following additions and clarifications to the testimony he gave in-chief about
    his interaction with the neighbour:

Q. And you told [the police officers] that a
    young lady showed you some pictures in her computer and that that led you to
    finding that you had seen the person doing the shooting; correct?

A. Yes.

Q. [The neighbour] is the one that you told
    who you thought was the responsible for the shooting; correct?

THE COURT: Sorry? Put that question again.

[COUNSEL TO MR. MILLS]: Sure.

Q. You told [the neighbour] a description of a
    person that you said was responsible for the shooting; correct?

A. Yes. I point out to her myself the person.
    She didnt point out to me.

Q. Well, youll agree with me, sir, that she
    was, first of all, the person who was in control of the computer; correct?

A. Yes.

Q. Youll agree with me that after you told
    her what you had seen, she brought you to the computer; correct?

A. Yes.

Q. She sat down at the computer and you were
    standing next to her while she did so; correct?

A. Yes.

Q: Shes the one that drew up what you say
    were YouTube videos as a result of what you told her; correct?

A. She told me that shes going to look and
    shes going to show me some videos and pictures to see if thats the person
    maybe shes thinking that did it, so I just show her. Like she didnt point
    anything out to me. I point out to her on my own.

Q. Right, but as much as thats what you
    suggest, youll readily acknowledge that she gave you the name of someone. She
    didnt just show you some unidentified photos or videos. She gave you the name
    of the person, correct?

A. The name of the person.

Q. Yes.

A. Yeah, she start mentioning -- when she show
    the photos and stuff, then she start mentioning names and all this kind of
    thing. I dont know that guy from nowhere, so I wouldnt know his name, right.

Q. But she knew the name?

A. Yeah.

Q. And she told you the name?

A. Yes, because she live in the same area. She
    live in the area[.]

[179]

Mr. Flavius also explained in cross-examination that the videos and
    photos that the neighbour showed him included individuals other than Mr. Mills,
    and that the neighbour showed him several videos, but he only saw the shooter
    in one:

[The neighbour] wasnt just showing me like
    one picture of your client. She was just showing me photos. She was telling me
    if you see the person, just show me, so she was just showing me photos and
    videos so then I picked out for my own self, so it wasnt like she brought him
    out and like, look, thats the guy. She wasnt picking the guy for me.

[180]

Finally, Mr. Flavius also said in cross-examination by counsel to Mr.
    Williams that the neighbour told him to come look at videos on her computer to
    try to identify the shooter while they were watching news reports about the
    shooting:

I could just see on the news, theyre saying
    like whatever happened, like a man got shot, whatever, whatever, whatever, like
    normally how the news people give the report, right? So I just sat and I just
    watching there but she was more like come, come, come, let me show you if you
    know this guy, tell me if you know the person, right?

(3)

The impugned jury charge on eyewitness identification evidence

[181]

What follows is the trial judges full instruction to the jury on
    the concerns and dangers of eyewitness identification evidence and how they
    should address the issue in this case in respect of Mr. Flavius identification
    of Mr. Mills. It is set out in full so that the impugned portions, which are
    emphasized, can be understood in the context of the full instruction on the
    issue:

I want to turn now to the subject of
    eyewitness identification.

The case against Mr. Mills depends to a
    significant degree on eyewitness testimony, namely, the evidence of Vernon
    Flavius. Although he did not identify Mr. Williams as one of the two persons he
    and Mr. Celise encountered on May 3, 2010, the case against Mr. Williams also
    relies, to some extent, on the evidence of Mr. Flavius.

You must be very cautious about relying on
    eyewitness testimony to find either accused guilty. I give you this instruction
    because in the past there have been miscarriages of justice, that is to say
    people have been wrongly convicted, because eyewitnesses have made mistakes
    identifying the person they thought they saw committing a crime.

Eyewitness testimony is an expression by a
    witness of his belief or impression. It is quite possible for an honest witness
    to make a mistake in identification.

Bear in mind that even a very convincing
    witness can be mistaken. The fact that a witness is sure about the correctness
    of his identification is also something to be careful in considering. Even when
    a witness is very sure that he is correct, he may nonetheless be mistaken.

When you decide how much or little to believe
    of and rely upon Mr. Flavius evidence, everything that I told you earlier
    about assessing evidence applies to him. In addition, you should keep in mind
    any of the following factors that relate specifically to his identification of
    Mr. Mills as the person who shot Mr. Celise and to the description Mr. Flavius
    gave of the other man.

You should bear in mind firstly the
    circumstances in which Mr. Flavius made his observations. Mr. Flavius said that
    this happened suddenly. A short time later, when he saw the shooting take place
    and when the men started to come in his direction, quite understandably, Mr.
    Flavius was, himself, very afraid. That may have had some impact on his ability
    to accurately perceive events as they happened and/or to remember what took
    place.

You should consider that Mr. Flavius said he
    did not know the men who approached him and Mr. Celise and had never seen them
    before.

You should consider how long Mr. Flavius was
    in the presence of the two men.

Consider, as well, whether anything distracted
    Mr. Flavius attention at the time he made his observations. In this regard,
    you may consider that in his evidence in-chief, when asked a question about the
    smaller man, Mr. Flavius said my mind was on the big guy.

You should consider the state of the lighting
    at the time, the visibility and whether anything prevented or hindered Mr.
    Flavius from having a clear view. According to Mr. Flavius, this happened at
    about the time school was letting out and he described the day as sunny and
    said he had no trouble seeing.

You should consider the distance between Mr.
    Flavius and the man he says shot Mr. Celise, whom he later identified as Mr.
    Mills. Consider that distance at the time the man was standing in front of him
    and also at the times he says he later saw him, first when the man was chasing
    Mr. Celise and then when he says the man was chasing him.

As well as considering the situation
    prevailing when Mr. Flavius made his observations, you should also consider the
    descriptions Mr. Flavius later gave of the persons he observed, including how
    detailed, or not, the descriptions were, how close the descriptions were to the
    way that the accused actually looked at the time and whether Mr. Flavius ever
    gave a different description of the persons he saw.

You should also consider any evidence from
    other witnesses that may cast doubt on Mr. Flavius account.

Mr. Flavius said that he and the deceased were
    walking down Winona Drive when they were approached by two men. Throughout much
    of his testimony, Mr. Flavius referred to these two men as the big guy and
    the small guy. For purposes of the rest of these instructions, I am, for the
    most part, going to use those same terms.

Mr. Flavius said one man came up in front of
    him while the other man stood off to the side. He said the man in front of him
    was the bigger of the two and had braided hair. He described him as a young
    person, slightly taller than Mr. Flavius height of 5 9, and somewhat
    heavier set than Mr. Flavius. He said he was not fat, not slim, in between.
    He said the big guy had a Canadian accent. In that regard, while normally it
    might seem a bit odd for a witness in a Canadian trial to describe someone as
    having a Canadian accent, you will remember that Mr. Flavius is from St.
    Lucia, has only been in Canada a relatively short time, and speaks with
    somewhat of an accent.

Mr. Flavius said he remembered a tattoo on the
    side of the big guys neck that consisted of a big letter J and the letters
    MOB. There are two photographs of Mr. Mills neck in evidence, Exhibits 45(c)
    and (d), that show that Mr. Mills has a tattoo on the right side of his neck
    that reads B.T.T.W. While it does not necessarily mean that Mr. Flavius is
    wrong in his identification, the fact that there is a distinguishing feature
    between the man that Mr. Flavius described and Mr. Mills is something to which
    you should pay particular attention in weighing Mr. Flavius identification
    evidence.

You should also consider the length of time
    between the incident on May, 3, 2010, and the photo line-up procedure on May 6,
    at which time Mr. Flavius picked what has been admitted to be a photograph of
    Mr. Mills.

Consider, as well, that Mr. Flavius said he
    was directed by [
the neighbour] to watch certain videos
    on YouTube on May 3, 2010, within a matter of minutes after the shooting. Mr.
    Flavius said that the neighbour operated the computer to call up certain
    videos, but that she did not direct him to any particular person depicted in
    the video. He says that he picked out Mr. Mills without any prompting from her.
    He did say that the neighbour mentioned names to him, but he said that the
    names meant nothing to him.

The particular YouTube video from which Mr.
    Flavius picked out Mr. Mills was never put before you. You have seen some
    videos and you know from other evidence that there are videos on YouTube that
    show Mr. Mills together with many other people, but at least one video that
    shows him by himself. Mr. Flavius said that there were guys in the video. So,
    it would appear from his use of the word guys that there was more than one
    person in the videos he watched.

On the one hand, if there were many people
    in the video from which he picked out Mr. Mills, then it would be much like the
    photo line-up procedure and might, taken together with other evidence, persuade
    you that his identification of Mr. Mills from the video was reliable and,
    further, that it did not negatively impact his later identification of Mr.
    Mills in the photo line-up procedure.

On the other hand, Mr. Flavius said he
    could not recall the skin colour or the race of the guys in the video from
    which he picked out Mr. Mills. Since you do not know how many guys there were or,
    further, whether there was anyone apart from Mr. Mills who, at least to Mr.
    Flavius recollection, resembled the shooter, then you might be concerned that
    [
the neighbour] showing YouTube videos to Mr. Flavius
    might have predisposed Mr. Flavius toward identifying Mr. Mills as the shooter
    in the police line-up procedure. That could, in turn, compromise the validity
    of Mr. Flavius later identification of Mr. Mills from the photo line-up. It is
    for you to say.
[Emphasis added]

[182]

On
    the issue of weight, the trial judge stated:

In considering how much weight, if any, to
    place on Mr. Flavius identification of Mr. Mills as the big guy in the photo
    line-up procedure, you should, on the one hand, carefully consider any
    differences between the man Mr. Flavius described and the accused Mr. Mills.
    Even one significant difference between Mr. Flavius description of the big guy
    and Mr. Mills could be sufficient to raise a reasonable doubt in your minds
    whether they are one and the same person, as Mr. Flavius effectively indicated
    by picking out Mr. Mills photograph from the photo lineup.

On the other hand, you must also consider
    other evidence that links Mr. Mills circumstantially to the shooting. In this
    regard, depending on how you interpret some of the text messages, they may
    connect Mr. Mills to the shooting. You must also consider in this regard any
    evidence that shows motive on the part of Mr. Mills.

[183]

Later, in the portion of his charge highlighting the principal
    arguments advanced by the defence with respect to Mr. Flavius evidence, the
    trial judge said:

In terms of the eyewitness, [counsel to Mr.
    Mills] asks you to find that Mr. Flavius is an extremely untrustworthy witness.
    Mr. Flavius is the cornerstone of the Crowns case, [counsel to Mr. Mills]
    contends. Without Mr. Flavius evidence, he asserts, the Crowns case against
    Mr. Mills does not exist.





[Counsel to Mr. Mills] submits that Mr.
    Flavius evidence is inconsistent with the evidence of the other witnesses.

He asks you to consider that Mr. Flavius
    waited two days before going to the police. He contends that Mr. Flavius
    explanation for why he did not go to the police for two days is improbable.

[Counsel to Mr. Mills] says that Mr. Flavius
    evidence is improbable when he says:


(i)

that he was not wearing a blue baseball cap;


(ii)

that he did not know that Mr. Celise had a crack
  pipe or why Mr. Celise dressed in blue;


(iii)

that he did not know that Mr. Celise was a
  member of the EWC; and


(iv)

that he did not know that Mr. Celise was called
  S.K.

[Counsel to Mr. Mills] asks you to note that
    Mr. Flavius could not explain why he texted [the neighbour] at 3:44 p.m. if, as
    he says, he was at her home at about that time.
[Counsel to Mr. Mills] points out that you
    know very little about what went on with [the neighbour] when Mr. Flavius
    looked at the videos. You do not know what photographs Mr. Flavius looked at
    before he picked out Mr. Mills from the video because Mr. Flavius cannot tell
    you.
In light of the fact that someone identified
    herself to P/C Melo as [the neighbour] at the crime scene at about the time
    that Mr. Flavius says that he went to Mr. Celises home, and found nobody home,
    and then went next door to [the neighbours] home, [counsel to Mr. Mills] asks
    you to consider whether the meeting Mr. Flavius describes with [the neighbour]
    ever took place.
[Counsel to Mr. Mills] suggests that Mr.
    Flavius was trying to distance himself from [the neighbour].
[Counsel to Mr. Mills] suggests that Mr.
    Flavius evidence is tainted in ways that we know and ways that we do not know.
    He points to Patsy Warren telling the police in August that she thought the man
    on her steps had a tattoo on his neck, as an example of how even an honest
    witness can be tainted by things that the witness sees and hears between the
    time an incident occurs and the time the witness is asked to identify someone
    involved in that incident.
[Counsel to Mr. Mills] says that Mr. Flavius
    untrustworthiness was demonstrated time and again.
[Counsel to Mr. Mills] suggests that Mr.
    Flavius lied in the course of the preliminary inquiry about how many times he
    was at Mr. Celises house. [Counsel to Mr. Mills] suggests that he demonstrated
    that Mr. Flavius answer at the preliminary inquiry (that he did not say that
    he was at Mr. Celises house on the night of May 2, 2010, because he was not
    asked) was false. He suggests that Mr. Flavius lied to you.
[Counsel to Mr. Mills] places particular
    emphasis on Mr. Flavius text message that reads the same boys shot S.K.
[5]
when he said that he did not know that Mr. Celise was known as S.K. He asks
    rhetorically: How would the recipient of the message know that Mr. Celise was
    called S.K., if Mr. Flavius did not know until minutes before he sent the text
    message? Nor could Mr. Flavius explain why he referred to the same boys,
    [counsel to Mr. Mills] points out.
(4)

Analysis
(i)

Dangers of eyewitness identification evidence
[184]

Appellate courts have repeatedly stressed the hazards of eyewitness
    identification evidence and the importance of proper pre-trial identification
    procedures in supporting its reliability. The key danger is that an honest
    witness may be mistaken, and that the trier of fact may conflate the credibility
    of the witness with the reliability of his or her evidence.
[185]

In
R. v. Hibbert
,
2002 SCC 39, [2002] 2 S.C.R. 445,
    the Supreme Court discussed

the

danger of wrongful convictions
    arising from eyewitness identification based on live and photo line-ups, the
    recommendations from the
Sophonow Inquiry
,
[6]
and the importance
    of a strong jury caution regarding such evidence. In particular, the Supreme
    Court stated that the jury charge in that case should have stressed the weak
    link between a confident eyewitness and a reliable one, the impact of the
    eyewitness seeing the appellant arrested by the police as her alleged
    assailant, and the impact of seeing his face on the news: at paras. 50-52.
[186]

The dangers of eyewitness identification evidence have been
    emphasized by this court in many cases as well, most recently in
R. v.
    Phillips
,
2018 ONCA 651, 364 C.C.C. (3d) 220;
R. v. Lewis
,
2018 ONCA 351;
R. v. Biddle
,
2018 ONCA 520, 363 C.C.C. (3d)
    118; and
R. v. Bao
,
2019 ONCA 458, 146 O.R. (3d) 225.
(ii)

Instructing a jury with respect to eyewitness identification
    evidence
[187]

When eyewitness identification evidence is being assessed by a jury,
    it is essential that the trial judge caution the jury about the unreliability
    of that evidence generally, and about any specific frailties relevant to the
    facts of the specific case:
R. v. Baltovich

(2004)
,
73
    O.R. (3d) 481 (C.A.), at paras. 77-83.
[188]

The specific frailty in the case at bar is the possibility that Mr.
    Flavius memory of the shooter was tainted by the music videos he watched with the
    neighbour at her house in an effort to identify the perpetrator shortly after
    the shooting. This created the risk that Mr. Flavius may have conflated his
    recollection of the man he identified in the music videos with his recollection
    of the shooter.
[189]

In
Phillips
, this court discussed the potential impact on a
    subsequent photo line-up identification of seeing one picture of the alleged
    perpetrator after-the-fact. In that case, three men committed a robbery. One of
    the three perpetrators, referred to by witnesses as the black man, had his
    face covered during the robbery. One of the other perpetrators, Mr. George, was
    arrested months later. At that time, he told police that he knew the the black
    man only as Virus, and that he had been shown a photograph of Virus by
    another police officer already. Mr. George subsequently selected the appellant
    as the person he knew as Virus out of a photo line-up conducted by police.
[190]

This court found that the risk of contamination when Mr. George was
    shown a photo of Virus in advance of the photo line-up was so great that it,
    together with some other irregularities with the photo line-up process,
    rendered his identification practically worthless. As a result, the trial
    judges generic caution regarding eyewitness identification evidence was not
    sufficient to give the jury the assistance it needed to assess the evidence.
[191]

Other cases from this court and the Supreme Court have recognized
    that showing a witness one photograph of the accused as the suspect,
    particularly when that is done by a police officer, is prejudicial because it
    suggests the identity of the perpetrator to the witness, and, as stated by this
    court many years ago in
R. v. Goldhar
(1941), 76 C.C.C. 270 (Ont.
    C.A.), at p. 271, there is always the risk that thereafter the person who has
    seen the photograph will have stamped upon his memory the face he has seen in
    the photograph, rather than the face he saw on the occasion of the crime. See
    also:
R. v. Smierciak
,
[1947] 2 D.L.R. 156 (Ont. C.A.), at pp.
    157-58;
R. v. Araya
,
2015 SCC 11, [2015] 1 S.C.R. 581, at para.
    36;
Bao
,
at para. 27
.
[192]

As events unfolded in this case, the eyewitness to the murder was
    shown a number of photos and videos from YouTube by another civilian in order
    to try to identify the perpetrator of the crime. The witness was not shown only
    one photograph, which is the typical situation where there is a significant
    concern that the witness ability to identify the perpetrator may be tainted.
    Nor was there a suggestion by police that the photo that was shown was of the
    perpetrator. Rather, the witness was shown a number of photos and videos that
    contained several people. The witness testified that he was the one who
    identified the shooter in one of the videos.
[193]

Mr. Flavius exposure to these photos and videos formed part of the
    circumstances of the case that the jury had to consider when assessing the
    reliability of his identification of Mr. Mills. In
Mezzo v. The Queen
,
    [1986] 1 S.C.R. 802, at p. 833, Wilson J. stated in a concurring judgment that
    an improperly conducted police line-up does not necessarily destroy or weaken a
    witness initial identification as long as the jury is instructed about the
    possible effect in a proper charge. It is the trial judges job to instruct the
    jury about how to go about assessing to what extent that exposure may have
    undermined the reliability of the witness identification. It is an appellate
    courts job to assess the adequacy of those instructions, without requiring
    perfection. The Supreme Court recently described the standard of review for
    jury instructions in
Araya
, as follows, at para. 39:
When considering an alleged error in a trial
    judges jury instructions, [a]n appellate court must examine the alleged error
    in the context of the entire charge and of the trial as a whole:
R. v. Jaw
,
    2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32, per LeBel J. Further, trial
    judges are to be afforded some flexibility in crafting the language of jury
    instructions: see
Hay
, [2013 SCC 61, [2013] 3 S.C.R. 694,] at para. 48,
    citing
R. v. Avetysan
, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 9.
    While trial judges must seek to ensure that their instructions adequately
    prepare the jury for deliberation, the standard for jury instructions is not
    perfection. Appellate review of jury instructions is meant to ensure that
    juries are properly  not perfectly  instructed:
R. v. Jacquard
,
    [1997] 1 S.C.R. 314, at para. 62, per Lamer C.J. This Court has emphasized that
    the charge generally should not be endlessly dissected and subjected to minute
    scrutiny and criticism:
R. v. Cooper
, [1993] 1 S.C.R. 146, at p. 163.
    As Bastarache J. has summarized it in
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523, at para. 30:
The cardinal rule is that it is the general
    sense which the words used must have conveyed, in all probability, to the mind
    of the jury that matters, and not whether a particular formula was recited by
    the judge. The particular words used, or the sequence followed, is a matter
    within the discretion of the trial judge and will depend on the particular
    circumstances of the case.
Appellate courts should not examine minute details
    of a jury instruction in isolation. It is the overall effect of the charge
    that matters:
Daley
, at para. 31.
See also:
R. v. Calnen
, 2019
    SCC 6, 420 D.L.R. (4th) 471, at paras. 8-9; and
R. v. Srun
, 2019 ONCA
    453, 377 C.C.C. (3d) 79, at para. 54.
(iii)

The trial judges charge on eyewitness
    identification evidence was adequate
[194]

In his charge, the trial judge brought home to the jury the dangers
    associated with eyewitness identification evidence generally. He instructed the
    jury to consider the four factors from this courts decision in
R. v. Tat

(1997), 35 O.R. (3d) 641 (C.A.), when assessing the reliability of the
    identification: (i) whether the person identified was a stranger or known to
    the witness (because if the witness recognizes the perpetrator as someone he or
    she knows, that makes the identification more reliable than trying to remember
    a stranger); (ii) whether the circumstances of the identification were
    conducive to an accurate identification  if it was easy to see the person, how
    long the encounter was, was it friendly or was there tension or fear; (iii)
    whether the pre-trial identification process was flawed; and (iv) whether there
    was other evidence tending to confirm or support the identification.
[195]

The trial judge did a comprehensive and fair review of these
    factors. We will address the third factor last as it is the focus of the
    appellants principal concern. In respect of the first factor, the trial judge
    told the jury that Mr. Flavius had testified he did not know the men who had
    approached him. For the second factor, the trial judge highlighted the
    circumstances of Mr. Flavius encounter with the two men  i.e., that it was
    sudden, and, when the shooting started, Mr. Flavius was very afraid, which may
    have impacted his ability to perceive events as they happened or to remember
    them. The trial judge also asked the jury to consider how long Mr. Flavius was
    in the presence of the two men and whether he was distracted by anything. The
    trial judge reminded the jury that when Mr. Flavius was asked about the little
    guy, Mr. Flavius said his mind was on the big guy.
[7]
The trial judge told
    the jury to consider whether anything prevented or hindered a clear view,
    including the state of the lighting and visibility, and referred them to Mr.
    Flavius evidence that the encounter happened when school was letting out, that
    it was sunny, and that he had no trouble seeing. The trial judge also referred
    the jury to the distance between Mr. Flavius and the shooter at different
    points during the encounter and the shooting.
[196]

For the fourth factor, the trial judge asked the jury to consider
    Mr. Flavius descriptions of the two men, how much they resembled the two
    accused at the time, and whether he ever gave a different description. The
    trial judge also asked the jury to consider whether the evidence of other
    witnesses could be seen to cast doubt on Mr. Flavius account. With respect to
    the M.O.B. and J. tattoo that Mr. Flavius said he observed on the shooters
    neck, the trial judge directed the jury to two photos of Mr. Mills neck where
    there is a tattoo, but it reads B.T.T.W. The trial judge initially cautioned
    the jury that while the discrepancy does not necessarily make the
    identification wrong, the difference in the tattoo required them to pay
    particular attention when weighing the witness evidence. However, after
    referring to the encounter with the neighbour, the trial judge returned to the
    tattoo discrepancy and told the jury that even one significant difference
    between the man Mr. Flavius described and the accused could be sufficient to
    raise a reasonable doubt. He told them they should also consider other evidence
    that may link the accused to the shooting, such as the text messages. Finally,
    he told them they could also consider whether there was evidence of motive.
(a)

The charge adequately dealt with the risk of tainting
[197]

The appellants principal argument concerns the third
Tat
factor  i.e., whether the pre-trial identification process was flawed. There
    is no objection to the police photo line-up procedure during which Mr. Flavius
    selected a photograph of Mr. Mills; rather, the objection is to the trial
    judges treatment of Mr. Flavius interaction with the neighbour before the
    photo line-up, and whether the trial judge erred in how he instructed the jury on
    the tainting risk it posed.
[198]

Specifically, the appellants submit that the trial judge erred in
    two respects. First, he erred because his warning about the potential tainting
    effect of what occurred at the neighbours house was inadequate in the circumstances.
    Second, the appellants submit that the trial judge misdirected the jury by
    portraying Mr. Flavius evidence as more reliable than it was, specifically by:
    (i) equating what happened at the neighbours house with a proper photo line-up
    procedure; (ii) inviting the jury to conclude that Mr. Flavius YouTube
    identification of the shooter at the neighbours home was reliable when there
    was no evidentiary basis upon which to do so; and (iii) effectively conveying
    to the jury that the YouTube identification may have actually enhanced the
    reliability of Mr. Flavius subsequent photo line-up identification.
[199]

The appellants submit that an adequate jury charge should have
    included the following information:
·

The onus lay on the Crown to establish the reliability
    of the identification process and to answer concerns arising from the witness
    contact with the neighbour.
·

There was a strong possibility that Mr. Flavius
    selected from the photo line-up the man he saw in the video viewing with the
    neighbour; if he was satisfied from looking at the videos of his identification
    at that point, it is unlikely that he would do anything but select Mr. Mills
    when he appeared in the line-up.
·

If Mr. Mills was visibly prominent in the
    videos, then that would be a significant departure from the standards of a
    proper identification procedure.
·

If Mr. Mills were in all of the videos, with
    different companions in the different videos, then this would fall well short
    of a proper identification.
·

If the content of the videos (e.g.,

because
    they were gang-related or expressed hostility to EWC members) or other factors
    (e.g., the neighbours very dangerous remark) contributed to Mr. Flavius
    belief that he was likely viewing the killer, this would affect the reliability
    of the later identification.
[200]

We do not agree that the trial judge gave an inadequate warning or
    misdirected the jury.
[201]

The jury was adequately instructed about the potential tainting
    effect of what occurred at the neighbours house. The trial judge expressly
    warned the jury as follows:
Since you do not know how many guys there were
    or, further, whether there was anyone apart from Mr. Mills who, at least to Mr.
    Flavius recollection, resembled the shooter, then you might be concerned that
    [the neighbour] showing YouTube videos to Mr. Flavius might have predisposed
    Mr. Flavius toward identifying Mr. Mills as the shooter in the police line-up
    procedure. That could, in turn, compromise the validity of Mr. Flavius later
    identification of Mr. Mills from the photo line-up. It is for you to say.
[202]

The risk of tainting was exactly what the trial judge identified 
    that Mr. Flavius exposure right after the event to videos and pictures on
    YouTube, the specific composition of which was unknown, could have had the
    effect of pre-disposing him to pick out Mr. Mills at the police photo line-up
    three days later. The trial judge warned the jury about this possibility and
    that if they thought that could have occurred, then it could have compromised
    the validity of the identification of Mr. Mills in the photo line-up. As with
    all factual issues, it was for them to determine.
[203]

Second, the trial judge did not misdirect the jury because his
    instruction did not have the effect of suggesting to the jury that Mr. Flavius
    evidence was or could be made
more
reliable by what occurred at the
    neighbours home. The specific wording from the charge that forms the basis of
    this submission is the following:
On the one hand, if there were many people in
    the video from which he picked out Mr. Mills, then it would be much like the
    photo line-up procedure and might, taken together with other evidence, persuade
    you that his identification of Mr. Mills from the video was reliable and,
    further, that it did not negatively impact his later identification of Mr.
    Mills in the photo line-up procedure.
[204]

The appellants argue that the trial judges statement that if there
    were many people in the video from which he picked out Mr. Mills, then it would
    be much like the photo line-up procedure falsely equated Mr. Flavius YouTube
    identification process with a proper photo line-up procedure, imbuing it with
    reliability it did not deserve. Also, that impression was enhanced by the trial
    judges use of the word persuade.
[205]

We do not agree. The jury understood well the trial judges
    reference to a photo line-up procedure, because they had heard extensive
    evidence about it. First, during the evidence of Mr. Flavius they saw the video
    of the actual photo line-up procedure where Mr. Flavius identified Mr. Mills as
    the shooter. Second, a forensic artist for the TPS described to the jury how
    she constructed the photo line-up with 12 photos of people who had similar
    features with similar clothing.
[206]

It was in that evidentiary context that the trial judge referred the
    jury to a photo line-up procedure. They would have understood that what
    occurred at the neighbours home was not a formal police photo line-up and that
    the possible similarity to a photo line-up was, as the trial judge stated, that
    Mr. Flavius was given the opportunity to see a number of people and pick out
    the shooter if he appeared in any of the photos or videos that he saw. In other
    words, in the context of the evidence heard in this trial, the jury would have
    understood the trial judges comparison to a photo line-up to be illustrative
    of this specific similarity and not a wholesale equation of the YouTube
    identification with a photo line-up.
[207]

Moreover, the jury was entitled to find, on the basis of this
    evidence together with the other evidence regarding Mr. Flavius identification
    of Mr. Mills, that they were persuaded or satisfied that the YouTube
    identification did not have the effect of tainting his subsequent
    identification of Mr. Mills in the police photo line-up.
[208]

The appellants argue further that the trial judge erred in this
    instruction when he told the jury that they could find Mr. Flavius
    identification of Mr. Mills from the video to be reliable, when Mr. Flavius was
    the only source of information upon which the jury could make any findings
    about what took place during the YouTube identification, and his credibility
    and reliability had been severely damaged at trial.
[209]

We also reject this submission. The evidentiary basis came from Mr.
    Flavius testimony. The jury heard Mr. Flavius evidence and they heard
    counsels submissions about his credibility and reliability. It was for the
    jury to assess his evidence and determine what to make of it.
[210]

The appellants final submission on misdirection is that this
    instruction effectively conveyed to the jury that the YouTube identification
    may have enhanced the reliability of Mr. Flavius subsequent photo line-up
    identification. Again, we reject this submission. The trial judge explained to
    the jury that on one hand, assuming there were many people in the video where
    Mr. Flavius saw Mr. Mills, that could be viewed as similar to a photo line-up
    procedure, and we add here, as opposed to showing one photo. If the jury viewed
    it in that way (and the trial judge told them it was for them to decide), then,
    taken with other evidence, they could find that identification to be reliable,
    and, as such, it would not have tainted, i.e., negatively impacted, Mr.
    Flavius subsequent identification of Mr. Mills in the police photo line-up.
[211]

On the other hand, if Mr. Mills was the only person in the videos
    with his skin colour or of his race, and no one else resembled the shooter,
    then the jury might be concerned that seeing those videos may have pre-disposed
    Mr. Flavius to pick out Mr. Mills in the video and subsequently in the police
    line-up, thus compromising the reliability of the police line-up
    identification.
[212]

In our view, there was no unfairness or misdirection in this
    instruction. The jury would have understood that they were looking for indicia
    of reliability and unreliability in each of the factors they were instructed to
    consider, and that the trial judge was not suggesting that any factor had the
    effect of enhancing the reliability of the identification in the sense of
    giving it extra credit.
[213]

Before leaving this point, we would add that, in the portion of his
    charge titled Evidence potentially linking Mr. Mills to the shooting and sub-titled
    Evidence of Mr. Flavius, the trial judge again warned the jury that when
    considering Mr. Flavius evidence, they must bear in mind all of the earlier
    instructions concerning the caution with which you must approach eyewitness
    identification.
[214]

Further, added to the trial judges own instruction was his review
    of the positions of the parties. This included defence counsels comments on
    the unreliability of Mr. Flavius identification evidence because of what may
    have happened at the neighbours. It also included defence counsels suggestion
    that the jury does not know what photos Mr. Flavius saw or even if the meeting
    took place, because there was evidence of a person with the neighbours name
    talking to police at the crime scene at approximately the same time as Mr.
    Flavius said that the YouTube-viewing encounter occurred.
[215]

It is also significant that the jury charge was vetted with counsel
    before it was delivered, and no objection was made to the portion, now impugned
    on appeal, that described how the jury could assess what occurred at the
    neighbours. While counsels position at trial is not determinative on appeal,
    it is some indication that the charge was not perceived to be unfair on that
    issue at the time it was delivered. As the Supreme Court recently stated in
R.
    v. Barton
,
2019 SCC 33, 435 D.L.R. (4th) 191, at para. 49, quoting
    from
R. v. Jacquard
,
[1997] 1 S.C.R. 314 at para. 38,

trial
    counsels failure to object says something about the overall accuracy of the
    jury instructions and the seriousness of the alleged misdirection. See also
R.
    v. Bouchard
,
2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 38-40,
    affd 2014 SCC 64, [2014] 3 S.C.R. 283.
[216]

To conclude on this point, we are satisfied that the trial judges
    charge, read as a whole, was sufficient to alert the jury to the dangers of
    eyewitness identification evidence, the specific concerns regarding Mr. Flavius
    credibility and reliability, and the potential for the YouTube identification
    that occurred immediately following the event to have tainted the subsequent
    police photo line-up identification process.
(b)

The charge was not unbalanced in its treatment of the evidence of
    Mr. Flavius
[217]

The appellants submit further that the trial judge erred by telling
    the jury that Mr. Flavius evidence was that he picked out Mr. Mills from the
    video with no prompting from the neighbour, without referring to his evidence
    that suggested the opposite. The problem with this submission is two-fold.
[218]

First, the trial judge gave the jury the standard instruction that
    it was their memory of the evidence that counts, and it was for them to find
    the facts based on their memory of the evidence, not the judges.
[219]

Second, there was no evidence that the neighbour directed Mr.
    Flavius to a person in the video. The suggested instances from Mr. Flavius
    cross-examination set out above do not, in our view, contradict the position
    consistently taken by Mr. Flavius in his evidence, both in-chief and on
    cross-examination, that the neighbour did not point anyone out and that it was
    he who saw and pointed to Mr. Mills in one of the videos as the shooter.
    Moreover, defence counsel raised the issue of whether Mr. Flavius gave evidence
    that the neighbour had directed him expressly to a person in the video in
    pre-charge discussions, and the trial judge said he would consider it but did
    not in the end refer to any such evidence. In our view, he was correct not to
    do so, because there was no such evidence.
(c)

The treatment of alleged inconsistencies in Mr. Flavius evidence
    was fair
[220]

With respect to the appellants final argument that the errors in
    the jury charge were rendered more significant because Mr. Flavius credibility
    was undermined by other alleged inconsistencies in his testimony (described
    above), we note that, with the exception of the tattoo, none of these
    inconsistencies bears directly on the reliability of Mr. Flavius
    identification of Mr. Mills. Further, in the same section of the jury charge,
    the trial judge both details defence counsels submissions on these
    inconsistencies and summarizes defence counsels submissions on tainting. The
    jury would have been well-equipped to consider these inconsistencies in
    conjunction with the risk of tainting.
(5)

Conclusion on eyewitness identification evidence
[221]

The trial judge understood that Mr. Flavius identification of Mr.
    Mills as the shooter was a key piece of evidence in the case.
[222]

In our view, the charge on this issue was fair and balanced. It
    pointed out to the jury the significant issues they had to grapple with,
    including the possible tainting by what occurred at the neighbours as well as
    the discrepancy in Mr. Flavius description of the shooters neck tattoo. This
    was not a case like
Phillips
where the identification evidence was
    practically worthless because the eyewitness was shown a single photo by police
    before he identified the accused. While there were potential problems with the
    eyewitness identification evidence, the jury was entitled to consider that
    evidence, and was given fair instructions on how to do so in light of those
    potential problems.
[223]

We are satisfied that no error was made.
E.

REASONABLE APPREHENSION OF BIAS
[224]

The appellants argue that the trial judges interactions with
    counsel to Mr. Williams throughout the trial gave rise to a reasonable
    apprehension of bias and perhaps evidenced actual bias. Although a significant
    portion of the conduct complained of occurred when the jury was not present,
    the appellants argue that the impact of the jurys absence is diminished by the
    fact that the trial judge was also the sentencing judge, and thus was tasked
    with determining the length of Mr. Williams parole ineligibility. In other
    words, the appellants argue that, given the trial judges role in sentencing,
    it is no answer to their allegation of bias or reasonable apprehension of bias
    to say that the jury did not witness much of the trial judges impugned
    conduct.
[225]

Although we agree that on multiple occasions the trial judges remarks
    to defence counsel were critical, harsh, and at times belittling, having regard
    to the entire proceedings (trial and sentencing), we do not agree that there
    was a reasonable apprehension of bias. Nor do we agree that there was actual
    bias.
[226]

The test for establishing a reasonable apprehension of bias was
    recently summarized by this court in
R. v. Ibrahim
,
2019 ONCA 631
, 147 O.R. (3d) 272, at paras. 83-84:
The test for establishing a reasonable
    apprehension of bias is well known  would a reasonable person, properly
    informed and viewing the matter realistically and practically conclude that the
    decision-maker could decide the case fairly:
Committee for Justice and
    Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at p. 394,
per
de Grandpré J. (dissenting);
Yukon Francophone School Board, Education Area
    #23 v. Yukon (Attorney General)
, 2015 SCC 25, [2015] 2 S.C.R. 282, at
    paras. 20-21.
In Canadian law, judges are presumed to be
    impartial. As this court said in
R. v. Dowholis
, 2016 ONCA 801, 133 O.R.
    (3d) 1, at para. 18: There is a strong presumption of judicial impartiality
    and a heavy burden on a party who seeks to rebut this presumption. See also
Wewaykum Indian Band v. Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259, at para.
    59;
R. v. S.(R.D.)
, [1997] 3 S.C.R. 484, at para. 117,
per
Cory
    J.;
R. v. Ruthowsky
, 2018 ONCA 552, at para. 21.
[227]

It is accepted as a general rule that allegations of bias or a
    reasonable apprehension of bias should be advanced as soon as it is reasonably
    possible to do so:
R. v. Curragh Inc.
, [1997] 1 S.C.R. 537, at para.
    11;
R. v. Nero
, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 33, leave
    to appeal refused, [2016] S.C.C.A. No. 184 (
Nero
) and [2016] S.C.C.A.
    No. 187 (
Caputo
). A timely application has two advantages. First, it
    can serve to alert the trial judge to the possible need for modification of his
    or her behaviour and/or for a corrective jury instruction, depending on the
    circumstances: see e.g.,

the instructions given by the trial judge in
R.
    v. Snow
(2004), 73 O.R. (3d) 40 (C.A.), at paras. 48-49. Second, it
    creates an evidentiary record and ruling for purposes of appeal, if necessary. Although
    counsel to Mr. Williams complained about the trial judges conduct at certain
    points in the trial, there was no application for a mistrial in this case, and
    this issue arises for the first time on appeal. Accordingly, while it is
    apparent from the transcript that the trial judges interactions with defence counsel
    were at times inappropriate, we do not have the benefit of an evidentiary
    record and ruling arising from a mistrial application.
[228]

The question is whether the trial judges interactions with counsel
    to Mr. Williams evidenced actual bias on the part of the trial judge or gave
    rise to a reasonable apprehension of bias. Stated more specifically, would the
    cumulative effect of the exchanges, comments, and other behaviour, when
    examined in the context of the trial as a whole, lead a reasonable observer to
    conclude that the trial judge was not an adjudicator disinterested in the
    outcome, and open to persuasion by the evidence and submissions:
R. v. S.
    (R.D.)
, [1997] 3 S.C.R. 484, at para. 104.
[229]

As this court recently emphasized in
Ibrahim
, at para. 85,
    the inquiry is contextual:
When assessing whether the actions of a trial
    judge display a reasonable apprehension of bias, the conduct of the trial judge
    must be viewed in context. In
R. v. Stewart
(1991), 62 C.C.C. (3d) 289
    (Ont. C.A.), appeal quashed, [1991] S.C.C.A. No. 110, Doherty J.A. said, at p.
    320: It is a question of degree. At some point, incidents which, considered in
    isolation, may be excused as regrettable and of no consequence, combine to
    create an overall appearance which is incompatible with our standards of
    fairness. See also
R. v. Hungwe
, 2018 ONCA 456, 142 O.R. (3d) 22, at
    para. 44;
R. v. John
, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 50,
    63;
R. v. Stucky
, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 72; and
R.
    v. Murray
, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 96-97.
[230]

The appellants objections to the trial judges behaviour can be
    grouped for analysis into three categories: (i) the trial judges reprimands of
    defence counsel for real or perceived errors; (ii) the trial judges interventions
    during cross-examination; and (iii) the trial judges statements in the charge
    to the jury.
[231]

With respect to the first group, on multiple occasions the trial
    judge accused defence counsel of deliberately trying to circumvent his rulings.
    The appellants and the Crown characterize these interactions differently.
[232]

The appellants argue that the trial judges criticisms were not warranted.
    Moreover, even if some correction had been necessary, they submit that the
    trial judges criticisms were profoundly inappropriate in tone and substance.
    This is so, they say, notwithstanding the fact that the criticisms were made in
    the absence of the jury. Although the jury may not have been impacted, they
    argue, these outbursts nevertheless left Mr. Williams and his family with a
    sense that the trial judge was fundamentally hostile to defence counsel, and by
    extension, to Mr. Williams and his co-accused. The appellants contend that this
    was particularly concerning given that, after Mr. Williams had been convicted, the
    trial judge became the sentencing judge.
[233]

The Crown argues that the interventions complained of were all
    directed at enforcing the trial judges rulings in an effort to safeguard the
    fairness of the trial. That is, while stated in harsh terms, Crown counsel
    contends that each interjection resulted from the appropriate exercise of the
    trial judges trial management powers. Although the trial judge was obviously
    frustrated and impatient with defence counsel, Crown counsel argues that he was
    attempting to manage a difficult and factually and legally complex trial. A
    reasonable observer who sat through the entire proceedings would not conclude
    that the trial judge had lost his impartiality.
[234]

We accept that the trial judge intermittently used language that was
    harsh and, at times, disparaging. Whatever the underlying reasons for a trial
    judges interventions in pursuit of managing the proper course of a case, a
    courteous approach must be taken. Words matter, particularly when they are
    spoken by the trial judge. The trial judge sits in a privileged position in the
    courtroom. It is the trial judges responsibility to preserve the dignity of
    the proceedings. In so doing, the trial judge helps to uphold the integrity of
    the administration of justice.
[235]

That said, determining whether a trial judge has exhibited bias or a
    reasonable apprehension of bias requires a contextual assessment. It is
    significant in this case that the major flare-ups between the trial judge and
    defence counsel occurred in the context of what the trial judge determined to
    be matters that threatened the fairness of the trial. Although at times the
    trial judge was severe, viewed in the context of an attempt to enforce rules
    established to safeguard trial fairness, we do not agree that an objective observer
    would conclude that the trial judge had lost objectivity or engaged in
    behaviour that cumulatively would have given the appearance that the trial was
    unfair.
[236]

For instance, the appellants point to what can be termed as the
    danger bearing exchange as an example of the trial judges behaviour that
    resulted in a reasonable apprehension of bias. The trial judge had ruled that
    the criminal antecedents of the appellants and their associates were not
    admissible. Yet, during her cross-examination of Det. Backus, some of counsels
    questions went into this general area and, as a result, arguably created a
    false impression about these individuals backgrounds. The Crown objected and
    submitted that counsels cross-examination had re-opened the issue. Although
    both defence counsel opposed this submission, counsel to Mr. Mills stated that
    the Crowns complaint was to some extent well-founded, and counsel to Mr.
    Williams admitted that her question skirted the line, theres no doubt. In
    ruling, the trial judge picked up on the theme of skirting the line:
[I]f [counsel]
    were on the bridge of a ship I wouldnt want to be a passenger. She obviously
    doesnt know what a danger bearing is. Youre a navigator, you create a course,
    and you stay well clear of the reef and [counsel] if youre not on the reef,
    you are as close to it as I have ever seen. You had no business going there[.]
[237]

Although the trial judges statement displayed obvious frustration, like
    some others, it was made in the context of trying to prevent a course of
    improper questioning that may have required, as a remedy, the admission of
    evidence that the trial judge thought prejudicial to the appellants. When that
    context is understood, any contribution the statement might have made to an
    appearance of an unfair trial dissipates. We are satisfied that many of the
    impugned statements fall within a similar contextual framework.
[238]

In sum on this point, while we do not condone the trial judges tone
    and the language he used when addressing counsel, we do not accept that the
    trial judges reprimands of defence counsel, taken in context, revealed bias or
    gave rise to a reasonable apprehension of bias.
[239]

Turning next to the trial judges interventions in cross-examination,
    the appellants argument is not that Mr. Williams counsel was impeded in her
    ability to cross-examine witnesses, but that the interventions demeaned counsel
    in the eyes of the jury, and by extension, demeaned Mr. Williams.
[240]

The trial judge corrected defence counsel during cross-examination
    for such things as referring to Mr. Williams by his first name, referring to
    the unknown (according to the theory of the defence) assailants as gentlemen,
    and using a colloquial vocabulary. In our view, this editorializing on minor
    points was not of the sort that would lower the estimation of counsel or her
    client in the eyes of the jury or otherwise compromise the fairness of the
    trial. In other words, these interventions, while unnecessary in front of the
    jury, did not demonstrate bias or give rise to a reasonable apprehension of
    bias.
[241]

Third, the appellants argue that the trial judges jury charge adds
    to the case that there was a reasonable apprehension of bias or actual bias.
[242]

In the charge to the jury, the trial judge stated that Mr. Williams
    counsel had improperly given evidence in her closing address regarding matters
    such as the presence of GSR on third parties and the identity of the person on Ms.
    Warrens porch (i.e., that it was Mr. Williams). The trial judge stressed that
    these were matters for the jury to decide, based on the evidence before it, and
    that counsels submissions are not themselves evidence. There was nothing
    objectionable in this correction.
[243]

Further, the trial judge instructed the jury to banish defence
    counsels submission from their minds that the Crown had adduced into evidence,
    and the court had permitted, the video and rap lyric evidence for an improper
    purpose of character assassination.
[244]

This instruction came about because counsel had told the jury in her
    closing that this evidence had been presented with only one purpose in mind, which
    she suggested was an improper one related to propensity reasoning.
[245]

We do not agree that the trial judges correcting instruction in the
    jury charge with respect to these comments by counsel evidenced bias or gave
    rise to a reasonable apprehension of bias. It was wrong for this submission to
    have been made and it required a strong correction, leaving the jury with no
    doubt about the legitimacy of the trial judges evidentiary rulings. His
    instruction in this regard was appropriate.
[246]

In summary, as set out above, we do not agree that, when considered
    contextually against the backdrop of the entire proceedings (trial and
    sentencing), the trial judges comments and interventions either evidenced
    actual bias or gave rise to a reasonable apprehension of bias.
[247]

This ground of appeal fails.
F.

SENTENCE APPEAL
[248]

Mr. Williams received a mandatory life sentence and appeals from the
    imposition of a 15-year parole ineligibility period. Mr. Williams argues that
    the sentencing judge erred by exaggerating certain aggravating factors and
    minimizing mitigating factors, and by overemphasizing general deterrence at the
    expense of rehabilitation. He seeks to have the 15-year parole ineligibility
    period set aside and the mandatory minimum 10-year parole ineligibility period
    imposed instead.
[249]

For the reasons that follow, we do not agree that the sentencing
    judge made any reviewable error in imposing the sentence that he did. Although
    we agree that it was an error for the sentencing judge to rely on s.
    718.2(a)(i) of the
Criminal Code
as an aggravating factor, we do not
    agree that this was an error that could have affected the result.
[250]

The sentencing judge considered the four factors under s. 745.4 of
    the
Criminal Code

relevant to the parole ineligibility period:
    (i) the character of the offender; (ii) the nature of the offence; (iii) the
    circumstances surrounding the commission of the offence; and (iv) the jury
    recommendation.
[251]

With respect to the character of the offender, the sentencing judge
    acknowledged Mr. Williams relative youth, the support he received from a
    committed and extended family, and his historical involvement  ending some two
    years before the commission of the offence  with a church community. The
    sentencing judge was not prepared to treat Mr. Williams as a first-time
    offender, but put little weight on a prior conviction for possession of
    marijuana. The sentencing judge noted that since leaving high school, Mr.
    Williams had led anything but a positive, pro-social life and that he was
    dedicated to the credo and criminal lifestyle of the street gang to which he
    belongs.
[252]

With respect to the nature of the offence and circumstances
    surrounding its commission, the sentencing judge found that Mr. Williams
    supplied the weapon that was used to kill Mr. Celise, that the killing took
    place in circumstances that placed many innocent people at risk, and that the
    killing was motivated by a hatred of a rival street gang and a desire to
    protect the operations of the street gang with which Mr. Williams was
    affiliated.
[253]

With respect to rehabilitation, the sentencing judge held, following
R. v. Leduc
(1995), 86 O.A.C. 64 (C.A.), that rehabilitation is to be
    given less weight in cases of this nature where there is a lengthy custodial
    sentence that must be served. The sentencing judge also emphasized the need for
    deterrence and denunciation of gang-related homicides.
[254]

Although the jury unanimously recommended a 10-year parole
    ineligibility period, the sentencing judge rejected this on the basis that it
    was inordinately focused on the needs of the offender, to the detriment of
    considering the wider sentencing context.
[255]

In his discussion of mitigating factors, the sentencing judge noted
    Mr. Williams relative youth, but largely discounted this factor on the basis
    of his longstanding involvement in a street gang. He also briefly noted that the
    appellant benefitted from very strong family support as well as some support
    in the community, although this did not figure prominently in the sentencing
    judges analysis.
[256]

With respect to aggravating factors, the sentencing judge made a
    finding that Mr. Celise was killed because the appellants believed him to
    belong to a rival gang and, by his presence, to have threatened the integrity
    of the MOB Klick territory. He found that, because the killing was motivated by
    hatred of an identifiable group  i.e., the EWC street gang, this engaged the
    statutory aggravating factor set out in s. 718.2(a)(i). He also found that it
    was committed for the benefit of a criminal organization  an aggravating
    factor under s. 718.2(a)(iv)  so as to demonstrate the power of the MOB Klick
    and to send a message that incursions into MOB Klick territory would not be
    tolerated.
[257]

Mr. Williams argues that the sentencing judge erred in general by
    overemphasizing deterrence and denunciation and underemphasizing
    rehabilitation. Mr. Williams submits that the sentencing judge also erred in
    particular by finding that, because the killing was motivated by hatred of the EWC,
    this triggered the application of s. 718.2(a)(i), and by discounting the
    mitigating factor of Mr. Williams supportive family and using it instead as an
    aggravating factor.
[258]

We agree that the sentencing judge erred in the application of s.
    718.2(a)(i). At the time, that section stipulated that where a crime is
    motivated by bias, prejudice, or hate based on race, national or ethnic
    origin, language, colour, religion, sex, age, mental or physical disability,
    sexual orientation, or any other similar factor it constitutes an aggravating
    factor on sentencing. The sentencing judge read any other similar factor as
    encompassing membership in a rival street gang. We do not agree that the phrase
    can bear that meaning. The
ejusdem generis
canon of statutory
    interpretation restricts the meaning of the phrase any other similar factor
    to those factors that are similar to the factors in the enumerated list that
    proceeds it: Antonin Scalia & Bryan A. Garner,
Reading Law: The
    Interpretation of Legal Texts
(St. Paul: Thomson West, 2012), at pp.
    199-213. Section 718.2(a)(i) assigns greater culpability to the commission of
    crimes motivated not by hatred of any identifiable group, but by hatred of
    persons or groups based on personal characteristics that are, to a degree,
    immutable, constitutive, and unchosen. Membership in a street gang is none of
    these things.
[259]

That said, this error does not impact on the sentence. The rest of
    the sentencing judges analysis of aggravating factors carried on in the very
    same paragraph to address the statutorily aggravating factor of committing
    crimes for the benefit of a criminal organization. There is no dispute that
    this factor applies. All of the facts that the sentencing judge wrongly
    considered under s. 718.2(a)(i) apply appropriately to s. 718.2(a)(iv), given
    the nature of his findings with respect to the particular character and ethos
    of the criminal organization in question.
[260]

Finally, we do not agree that the sentencing judge used Mr.
    Williams supportive family as an aggravating factor. The fact that Mr.
    Williams has a supportive family did not feature anywhere in the sentencing
    judges analysis of aggravating factors. The most that can be said is that
    after he had concluded reading out his sentencing reasons and had invited Mr.
    Williams to stand for the imposition of sentence, the sentencing judge began by
    stating, Mr. Williams, despite having a loving and nurturing upbringing, you
    chose, for reasons best known to yourself, to associate with a street gang.
    This cannot reasonably be taken as the sentencing judge having considered Mr.
    Williams supportive family as an aggravating factor in sentencing.
[261]

Absent some error in principle that would affect the result, the
    trial judges decision on sentence is entitled to deference:
R. v. Lacasse,
2015
    SCC 64, [2015] 3 S.C.R. 1089. The appellant Mr. Williams has not identified a
    basis that would entitle this court to interfere with the sentence imposed. The
    appeal from sentence is dismissed.
G.

DISPOSITION
[262]

For the reasons set out above, Mr. Mills and Mr. Williams
    conviction appeals are dismissed. Mr. Williams sentence appeal is also
    dismissed.
Released: K.F. November 29, 2019
K. Feldman
    J.A.
B.W. Miller
    J.A.
Fairburn J.A.

[1]
Where applicable, the reliability of novel or contested science or
    science used for a novel purpose is also considered at the first stage of the
    admissibility analysis:
Abbey
(2017), at para. 48.


[2]
The
    exception related to Exhibit 70, which had been given to the jurors to assist
    them with understanding the handwriting experts evidence. However, as noted by
    the trial judge, the jury had not been focused upon the content of the
    documents at that time.


[3]

Although
    there were times in the course of this discussion that counsel and the court
    referred to Exhibits 70 and 31, it later became clear that the reference to
    Exhibit 31 was in error. Counsel and the court were actually referring to
    Exhibit 32.


[4]
That
    disagreement seems to have related to the official documents contained within
    Exhibit 32. Those documents had Mr. Mills name on them, along with the
    residential address from where they were seized. The Crown was not prepared to
    remove the official documents from Exhibit 32 because Mr. Mills was not
    prepared to admit that he was the author of any of the documents in the
    apartment.


[5]

The
    trial judge originally told the jury this text message said that the same boys
    shot S.K. but later in the jury charge corrected this and told the jury the
    text message did not have the word the and just read same boys shot S.K.
    This mattered because there was a dispute about whether Mr. Flavius intended to
    write some boys shot S.K.


[6]
Peter deC. Cory,
The Inquiry Regarding Thomas Sophonow: The
    Investigation, Prosecution and Consideration of Entitlement to Compensation
(Winnipeg: Manitoba Justice, 2001).


[7]

The actual words were:


Q. What about the
    smaller guy; what did he do, if anything, with his hand?
A: Well, I didnt see any gun print or anything on him, but I was more  my
    mind was more focused on the guy in front of me, the person thats questioning
    me at the time. He was just at the side not saying anything, hes just there,
    so my mind wasnt really on him. It was on the guy in front of him because
    thats the guy doing the questioning and all this thing.
