COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., MacPherson and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Christopher Sheriffe
Appellant
and
Awet Asfaha
Appellant
Richard Litkowski, for the appellant Christopher Sheriffe
Nathan Gorham and Breana Vandebeek, for the appellant Awet Asfaha
Susan Reid and Michael Perlin, for the respondent
Heard: September 29 and 30, 2015
On appeal from the conviction entered by Justice Eugene Ewaschuk of the Superior Court of Justice on July 5, 2012, sitting with a jury.
A. Introduction
1Awet Asfaha and Christopher Sheriffe were tried and convicted of the first degree murder of Bishen Golaub.
2Asfaha and Sheriffe both testified at their joint trial. Each claimed that he played no role in the killing of the victim. However, in a particularly vivid example of what is colloquially known as a ‘cut-throat defence’, the strongest evidence at trial that Asfaha was the actual shooter of the victim came from Sheriffe and the strongest evidence that Sheriffe was the knowing driver of the getaway car came from Asfaha. Without their testimony against each other, the cases against them would have been much weaker.
3Asfaha and Sheriffe appeal their convictions. Asfaha raises five issues; Sheriffe advances seven grounds of appeal. The core of both appeals is that the trial judge made errors in the way he conducted the trial and in his jury charge.
B. Facts
4On August 15, 2009, Asfaha attended a barbeque in the Jamestown area of Toronto. He met two young women there. After leaving the barbeque, the three of them met Sheriffe and went to a bar.
5After leaving the bar in the early morning hours of August 16, the four, plus one other man, went to a local hotel and spent the night there. In the early afternoon, Asfaha and Sheriffe and the two women left the hotel. Sheriffe drove the two women to their home, arriving at about 1:42 p.m.
6Shortly after 1:45 p.m., Golaub was standing against the gate leading into the backyard of Unit 155 at 23 Mount Olive Drive. He was wearing a red shirt and talking to a friend in the backyard. A barbeque with many men, women and children was taking place.
7Asfaha and Sheriffe drove along Mount Olive Drive and parked near Unit 155. At about 1:48 p.m., a man walked behind Golaub and shot him twice in the back, killing him. The killer ran back down the street and jumped into Sheriffe’s car. The car left.
8One witness, Narjit Singh, was walking down the street with a friend when he heard three shots. He saw a black man in a gray hoodie holding a gun and running toward a silver Mazda parked around the corner from the shooting at the corner of Mount Olive Drive and Silverstone Drive. The man with the gun got in the front passenger side of the car. The car quickly drove off. Singh managed to get a partial plate number of the Mazda. Police learned that Sheriffe’s parents owned a car matching the description. They watched the Sheriffe address and later that day they saw Sheriffe pull up to the residence in the Mazda. Later that evening, Sheriffe drove to a nearby apartment complex and picked up Asfaha. Both men were arrested after a takedown of the car.
9At trial, the Crown’s theory was that Sheriffe and Asfaha drove down Mount Olive Drive together. After they spotted Golaub, Asfaha got out and Sheriffe then made a u-turn to park his car at the corner of Mount Olive Drive and Silverstone Drive. He waited with the engine running. Meanwhile, Asfaha walked up Mount Olive Drive and, when he arrived at Unit 155, he shot and killed Golaub. He ran back to the car, where Sheriffe alone was waiting. The car left quickly, with only Sheriffe and Asfaha inside.
10The Crown’s theory was that the killing was gang related. The shooting took place in the territory of the street gang called the Mount Olive Crips. In the summer of 2009, the Mount Olive Crips and the Jamestown Crips were involved in a violent feud with several shootings on each side. Based on information received from two confidential informants, the Crown alleged that Asfaha and Sheriffe were members of the Jamestown Crips and that Sheriffe was the leader of a sub-group called the Hustle Squad. The decision to shoot the victim was, as described by the Crown, a crime of opportunity. They saw a man wearing a red shirt (red being the colour of the Mount Olive Crips) on Mount Olive Crips turf and decided to kill him. Unfortunately, the victim had nothing to do with gangs. He was a 34-year old man with a mother, wife and four young sons who just happened to be attending a neighbourhood barbeque at a friend’s house.
11Asfaha and Sheriffe testified at the trial.
12Asfaha testified that he was not the shooter. Rather, a third party, unknown to him, shot the victim. Asfaha was a passenger in Sheriffe’s car when they reached Mount Olive Drive. When Sheriffe pulled over and parked, Sheriffe told Asfaha to get into the back seat. Asfaha had no knowledge that a shooting was going to take place. Asfaha said that the shooter came running up the street and got into the front passenger seat. Sheriffe then drove away.
13Sheriffe acknowledged that he was the driver of the car. He testified that Asfaha, his only passenger, directed him where to drive and park. Asfaha left the car to run “an errand”. Sheriffe said that he did not know what Asfaha intended to do. Sheriffe denied that a third person entered the car. There were only two people in the car that afternoon, himself and Asfaha. Sheriffe testified that he did not hear any gunshots because he was listening to music and did not observe Asfaha running back to the car because he was looking down to find CDs. Because he was not aware of anything bad happening, he drove away in a normal way once Asfaha was back in the car.
14The jury found the appellants guilty of first degree murder. Obviously, the jury believed Asfaha’s testimony about Sheriffe, but not about his own role. Obviously, the jury believed Sheriffe’s testimony about Asfaha, but not about his own role.
15There are other facts relevant to several issues on the appeal. We will discuss those facts in the context of the issues to which they relate.
C. ISSUES
16The appellant Asfaha advances five grounds of appeal:
(1) Did the trial judge err by instructing the jury that exculpatory descriptions by eyewitnesses were inherently frail and mere opinion?
(2) Did the trial judge err by failing to properly relate the burden of proof to exculpatory eyewitness evidence?
(3) Did the trial judge err by refusing to admit evidence of a prior description of the shooter given by a witness?
(4) Did the trial judge err by failing to give a proper limiting instruction regarding Asfaha’s interest in avoiding a conviction for first degree murder?
(5) Did the trial judge err by failing to redress the prejudice arising from Crown counsel’s closing address to the jury?
17The appellant Sheriffe advances seven grounds of appeal:
(1) Did the trial judge fail to direct the jury on the limited use of bad character evidence of an accused elicited by a co-accused?
(2) Did the trial judge err by allowing hearsay evidence provided by confidential informants through a police witness who was qualified as a gang expert?
(3) Did the trial judge err by quashing a subpoena for the police files relating to the confidential informants and in dismissing a mid-trial application for the trial judge to review the files for any information that might assist the defence?
(4) Did the trial judge err in his instruction to the jury about party liability?
(5) Did the trial judge err in his review of the “gang evidence” in his instruction to the jury?
(6) Did the trial judge err in his review of Sheriffe’s testimony and in his W.D. instruction?
(7) Did the trial judge err in his charge relating to post-offence conduct?
D. analysis
Awet Asfaha’s appeal
(1) Eyewitness description evidence
18Two eyewitnesses, Kimorha Robinson and Kurt Berry, were in the backyard where the barbecue was taking place. They saw the shooter and described the shooter as having a hairstyle with braids or cornrows. When Asfaha was arrested on the evening of the shooting, he did not have a similar hairstyle. Hence the Robinson and Berry evidence was potentially exculpatory.
19Under the heading Identification Evidence, the trial judge instructed the jury:
In this case the Crown witnesses Winsome Santokie, Kim Robertson, Kurt Berry, Barrington Chatrie and Narjit Singh have all given differing descriptions about the possible shooter of Bishen Golaub. Their identification evidence may or may not have been correct. That is for you to make the determination.
Identification evidence is generally considered to be frail in nature and prone to honest human error, depending on the mere opinion of a person as to the identity or, in this case, description of another stranger or another person he or she may have seen but for a short time, perhaps only for seconds or even for only a fleeting glance.
Because of the inherent frailty of identification and description evidence and acknowledged mistakes witnesses may make in the identification of strangers, you should assess this evidence most carefully.
20Asfaha submits that the trial judge’s equation of eyewitness evidence and description evidence was erroneous. The first is in the nature of an opinion; the second is not. Eyewitness identification – an opinion that the accused is the person seen committing the offence – has been proven through experience to raise serious issues as to reliability. The same does not hold for eyewitness description evidence. When an eyewitness describes a perpetrator, he or she is not providing an opinion, but relating a descriptive observation. This does not raise as much of a concern about reliability and, therefore, does not require the same special caution that is routinely given about identification evidence.
21We do not accept this submission. Asfaha’s submission on this issue on appeal is directly contrary to the position his counsel took at trial. Trial counsel explicitly asked for a caution in relation to the various eyewitnesses; in his words, the appropriate caution “goes both ways…[t]hat’s what I’m asking for”.
22In any event, the case law does not support the line Asfaha attempts to draw. This court has insisted that the jury be given a proper caution about the inherent frailties of both eyewitness identification evidence and eyewitness description evidence, and in respect of both inculpatory and exculpatory evidence: see R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74, at paras. 10-18 and R. v. Bettencourt, 2008 ONCA 337, at paras. 12-13, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 489.
(2) Burden of proof – exculpatory eyewitness evidence
23The appellant Asfaha contends that, once the trial judge instructed the jury that eyewitness description evidence is inherently frail, it was essential that he clearly relate the burden of proof by explaining that unreliable evidence could still raise a reasonable doubt and be acted on to reach a verdict of not guilty. Instead, the trial judge left the impression that only descriptions found to be correct could be used to reach a verdict.
24We disagree. In our view, the trial judge gave precisely the instruction sought by Asfaha on this issue:
In particular, the accused Awet Asfaha has testified that he was not the person who shot Bishen Golaub to death. He testified that the shooter was a younger, shorter man with braids. That evidence is supported in part by the evidence of Kim Robertson, Kurt Berry and Barrington Chatrie.
[I]f you do not find as fact that the evidence favouring the particular accused on the essential matter is true but have a reasonable doubt as a result of it, you must also acquit the accused.
(3) Admissibility of video of police statement of eyewitness description witness
25During her video-taped statement to police on August 20, 2009, four days after the shooting, Robinson described the shooter as having braids or cornrows. The police asked her the length of the cornrows and she pointed to the back of her neck.
26Initially at trial, almost three years later, Robinson did not remember her prior description given in the police statement. When the video was played for her, she adopted her prior description of the braids, but said that her hand motion referred to the location of the braids, not their length.
27Asfaha made a K.G.B. application for the admission of the video for the truth of its contents. The trial judge denied the application:
The motion fails for lack of threshold necessity. She’s subject to full cross-examination. She has adopted most of the so-called inconsistencies, and with respect to the others, she’s offered rational explanations.
28Asfaha contends that the video statement should have been admitted either as original evidence or as an exception to the rule against hearsay. He says that the reliability of her description of the braids was central to the identity issue at trial.
29We disagree. The video contained no evidence unavailable at trial and was therefore unnecessary. Robinson was there to testify at trial, she did not recant what she said in the video, her explanation about her gesture during the interview was consistent with what she said in her statement, and she adopted almost all of the video statement. She was cross-examined on all of this.
30After the trial judge made his ruling relating to the entire video statement, Asfaha’s counsel signalled that he might want to seek the admission of the portion of the video involving Robinson’s hand gesture as an exhibit and then play it for the jury. The trial judge expressed skepticism about this plan, but invited counsel to return with submissions “later if you want to research this.” Counsel did not raise the issue again.
(4) Jury Charge re Asfaha’s interest in outcome of trial
31During her closing address to the jury, Crown counsel said on several occasions that Asfaha had a motive to lie and that the jury should bear that in mind:
The mystery man theory is nothing more than a desperate attempt by Mr. Asfaha to come up with an alternate suspect so that he is not convicted of first degree murder.
What Mr. Asfaha gave you was a carefully crafted, well-rehearsed performance. It was in fact the performance of his life. Because remember, that when assessing the credibility of any witness, you must consider whether they have an interest in the outcome of the case. No witness has a greater interest in your verdict than does Mr. Asfaha. That is something you have to bear in mind when you are assessing his credibility, because he absolutely had a motive or a reason to lie to you.
The stakes are the highest they’ve ever been. He had nothing to lose and everything to gain by lying to you.
32Asfaha contends that the trial judge should have told the jury that arguments concerning Asfaha’s interest in the outcome of the case were unhelpful and should not be given any consideration. This was not a case where consideration of the accused’s interest was necessary to avoid a distorted picture. The Crown witnesses had not been challenged on the basis of any interest in the outcome of the proceeding. In a jury trial the concern that the jury might inadvertently invoke impermissible legal reasoning operates with even greater force.
33We are not persuaded by this submission. In R. v. Laboucan, 2010 SCC 12, [2012] 1 S.C.R. 397, at paras. 13-14, the Supreme Court of Canada rejected the submission that there is “an absolute prohibition against considering the accused’s motive to lie in assessing his or her credibility as a witness.” Indeed, Charron J. said, at para. 22, that in some cases “it [is] a crucial and unavoidable aspect of determining the credibility issues that the trial judge consider [the accused’s] own motives.”
34In this case, where each accused testified and contended that the other accused was lying to save himself and did so in a concerted effort to implicate the other, we cannot say that Crown counsel’s references to their motives to lie were improper. Crown counsel’s comments did not cross the line by suggesting that the jury should presume Asfaha lied because of his status as an accused in the proceedings. Indeed, Crown counsel cited independent reasons to reject specific portions of each accused’s evidence and submitted that the motive to lie explained the litany of false assertions.
35Moreover, and importantly, the trial judge’s instruction on credibility conformed with Laboucan and removed any risk of impermissible reasoning:
You must not presume that an accused who testifies will lie out of self-interest in order to avoid conviction, although it is permissible to find that the particular accused has lied on a specific matter, especially if there is contrary evidence on the matter, particularly if that contrary evidence emanates from an independent witness who has no interest in the outcome of the case. A witness’ interest in the outcome of the case is merely one relevant factor to be considered in assessing the witness’ credibility and reliability. [Emphasis added.]
(5) Crown counsel’s closing address
36The appellant Asfaha contends that Crown counsel’s closing jury address was improper in four respects.
37First, Asfaha submits that Crown counsel invited the jury to engage in impermissible legal reasoning in four areas: (1) she suggested that Asfaha was less worthy of belief because he did not assist the police with collecting his sweatshirt from his friend’s house where he said he left it; (2) she suggested that eyewitness description evidence is inherently frail; (3) she argued that the delay in bringing the matter to trial impacted on Asfaha’s credibility because he had time to concoct and perfect his story; and (4) she invited the jury to keep Asfaha’s motive to lie front and centre in their deliberations.
38We do not accept this submission. We have addressed points 2 and 4 in previous sections of these reasons. Points 1 and 3 were legitimate points for argument. Crown counsel was entitled to put her interpretation of Asfaha’s conduct in these regards to the jury, as was defence counsel.
39Second, Asfaha asserts that Crown counsel misstated or exaggerated the evidence relating to the gunshot residue (“GSR”) by arguing that four particles of GSR on Asfaha’s clothing were “quite a meaningful quantity to find”. In fact, Crown counsel’s submission on this point was an entirely fair comment flowing from the expert testimony of Dr. Elspeth Lindsay:
Q. In terms of the number of particles that are typical, is there a typical number of G.S.R. particles that are found at [the Centre for Forensic Sciences] in cases?
A. As I indicated earlier, of half the stuff or materials that come in, no gunshot residue is identified. For the remaining 50 percent, the typical number of particles found is between one and three. It is a little bit more unusual when you see numbers in the range of between three and ten….
40Third, Asfaha submits that Crown counsel misstated the evidence of the eyewitness Singh relating to his description of the shooter. There is no basis for this submission. Asfaha’s own testimony about Singh’s evidence was: “I was thinking, like this guy’s pretty much almost describing me”.
41Fourth, Asfaha contends that Crown counsel resorted to inflammatory rhetoric and sarcasm in her closing address. She said “not only is there no honour among thieves, there’s no honour among killers”; “Mr. Asfaha may have presented as an articulate and responsive witness in the little preppy-knit sweaters”; and “Mr. Asfaha’s text records paint a much different picture of him than he tried to present to you. They reveal him to be a foul-mouthed drug dealer”.
42The first comment is fair argument in a case where both accused presented vigorous cut-throat defences. The second comment is innocuous. The third comment was immediately tempered by the statement “[h]e is not on trial for being rude or for dealing drugs”. In any event, in his closing address Asfaha’s counsel agreed that his client used “offensive” and “pretty disgusting” language when the police questioned him and that he was “a young man who is a pest to society for a lot of years.”
Christopher Sheriffe’s appeal
(1) The instructions on evidence of bad character
43This ground focuses on alleged omissions in the trial judge’s final instructions to the jury on their use of evidence of bad character in reaching their verdict on Sheriffe. What is not in issue is the right of one co-accused in a joint trial to adduce evidence of the bad character or disposition of another. Further, Sheriffe does not contest the admissibility of the evidence of bad character adduced by Asfaha in this case.
44Preliminary to a canvass of the arguments advanced on appeal and the principles that control our decision on this issue, it is helpful to recall the positions advanced by the parties at trial and the evidence adduced by Asfaha that is the subject of Sheriffe’s claim of inadequate instruction.
The Positions at Trial
45As the evidence unfolded at trial, Asfaha and Sheriffe were assigned discrete roles in what was alleged to be a planned and deliberate murder fueled by a common motive, rooted in gang rivalry. Asfaha as principal. Sheriffe as an aider.
46In their testimony at trial, Asfaha and Sheriffe denied liability. Each implicated the other as aider and principal respectively. Asfaha claimed Sheriffe was a gang member, but denied membership himself. Sheriffe in turn denied being a gang member.
The Bad Character Evidence
47Asfaha testified about Sheriffe’s membership in the Jamestown Crips and the Hustle Squad. He also cross-examined both Sheriffe and Sheriffe’s mother about several incidents of extrinsic misconduct on Sheriffe’s part.
48Trial counsel for Asfaha cross-examined Sheriffe and Sheriffe’s mother about:
(i) an alleged assault in 2006 in which Sheriffe was alleged to have stabbed his brother with a pen;
(ii) a domestic assault charge relating to a former girlfriend that was resolved by a peace bond; and
(iii) an outstanding charge of aggravated assault on which Sheriffe had been arrested shortly before the joint murder trial began.
He also cross-examined Sheriffe’s mother about Sheriffe’s drug possession charge in 2008, which was withdrawn.
49During Sheriffe’s testimony in his own defence, trial counsel for Asfaha suggested he was lazy, had no regard for human life or respect for his family and was engaged with his friends in a cowardly conspiracy to lie to the jury.
The Trial Judge’s Instructions to the Jury
50In mid-trial and final instructions, the trial judge cautioned the jury about the permitted and prohibited use of the various items of evidence that reflected unfavourably on the character of Sheriffe.
51During the trial, the trial judge repeatedly told the jury that they were not entitled to use the gang evidence as proof of a propensity on Sheriffe’s part to commit crimes in general or violent crimes in particular. He also reminded the jury that the allegations made by Asfaha’s counsel about a stabbing incident were unproven and that Sheriffe was presumed to be innocent of them.
52In final instructions, the trial judge warned the jurors that they were not entitled to use the gang evidence to find that the appellants had a propensity to commit crime in general or violent crime like murder in particular.
53Towards the end of his final instructions, the trial judge turned specifically to the other bad character evidence in relation to each appellant. In connection with Sheriffe, the trial judge explained:
By contrast, the accused Christopher Sheriffe has no formal criminal record. Evidence has been led that he once stabbed his brother and that he pleaded guilty to possession of marijuana. He has an outstanding charge of aggravated assault of which he is presumed innocent. As he already told you, he acted in self-defence. You must disregard that charge except as a possible association between Sheriffe and the accused Asfaha. There was some evidence of a winter glove involved in that particular crime.
Furthermore, the accused Asfaha has testified that the accused Sheriffe is a drug dealer. He delivers marijuana as a car service. Of course, the accused Sheriffe has denied that accusation under oath.
The fact that an accused has been convicted of a crime or has committed a crime which has not resulted in a conviction, may be considered by you for only one purpose. That is, to judge the credibility or truthfulness of the accused as a witness. The fact of such a conviction or commission of crime does not necessarily destroy or impair his or her credibility but it may indicate again a lack of moral responsibility to tell the truth. It is simply one of the circumstances that you may take into consideration in weighing his or her trustworthiness as a witness.
Obviously, you should consider the nature and date of the convictions. Convictions relating to dishonesty tend to bear more directly upon the accused's credibility than convictions for crimes not related to dishonesty. Similarly, older convictions may have less bearing upon the accused's credibility than more recent convictions do. Recall again that the accused Sheriffe has no formal criminal record.
Finally, I must warn you that you must not use a prior conviction or commission of a crime as evidence that the accused committed the crime with which he is now charged. You must not conclude that because the accused has been convicted of other crimes or has committed another crime that he is predisposed or has a propensity to commit further crimes. The law does not permit you to do so and it would be most unfair to do so. You can only consider the prior convictions or crimes, as I have said, in deciding the credibility of the accused and you will decide what weight, if any, should be given to the prior criminal record or the crime committed on the accused on that matter. You must not conclude that the accused has a propensity to commit further crimes and in particular a propensity to commit violent crimes such as those before the Court. That reasoning is not permissible.
The Arguments on Appeal
54Sheriffe recognizes that a joint trial requires a balancing of the interests of both accused when one adduces bad character evidence about the other. The right of one accused to make full answer and defence entitles that accused to adduce evidence of extrinsic misconduct by the other accused that Crown counsel would not be able to adduce as part of the Crown’s case. But the accused against whom the bad character evidence is adduced is equally entitled to have his fair trial rights respected. In extreme cases, by a severance. But more usually, by jury instructions that carefully confine the bad character evidence to its legitimate purpose.
55Limiting instructions to confine the inherent prejudice of bad character evidence, Sheriffe says, are mandatory, not discretionary. Those instructions should contain three elements:
(i) identification of the evidence to which they relate;
(ii) a positive instruction explaining the use jurors are permitted to make of the evidence; and
(iii) a negative instruction describing the use jurors are not allowed to make of the evidence.
56In this case, Sheriffe continues, the trial judge was required, but failed to instruct the jury that they:
(i) could use the evidence to decide whether the Crown had proven Asfaha’s guilt beyond a reasonable doubt;
(ii) could not use the evidence to determine whether the Crown had proven Sheriffe’s guilt beyond a reasonable doubt; and
(iii) could not use the evidence to help them make up their mind whether they believed Sheriffe’s testimony.
57Sheriffe argues that, although the trial judge properly warned the jury not to use the evidence to find Sheriffe guilty by propensity reasoning, he erred by expressly inviting the jury to consider the bad character evidence in assessing Sheriffe’s credibility. This was contrary to R. v. Diu (2000), 2000 CanLII 4535 (ON CA), 144 C.C.C. (3d) 481 (Ont. C.A.) and R. v. Akins (2002), 2002 CanLII 44926 (ON CA), 164 C.C.C. (3d) 289 (Ont. C.A.). The error, Sheriffe argues, is sufficiently serious to warrant a new trial.
58The respondent says the trial judge’s mid-trial and final instructions, considered as a whole, were adequate to the task set for them. They were legally correct and responsive to the use the law permits and prohibits in this case.
59In this case, the respondent contends, the trial judge was under no obligation to provide instructions like those required by R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 583, and R. v. Diu (2000), 2000 CanLII 4535 (ON CA), 144 C.C.C. (3d) 481 (Ont. C.A.). The evidence about Sheriffe’s gang membership and drug dealing was admitted by agreement and was relevant to establish a motive for the shooting. In addition, Sheriffe had put his character in issue and thus the evidence was relevant to rebut the good character evidence adduced on his behalf. The jury was entitled to consider the gang membership evidence on the issue of motive and the bad character evidence as a whole on the issue of credibility.
60The respondent submits that a Suzack/Diu instruction is appropriate in the typical cut-throat defence where each accused alleges the other is the killer. But that is not this case. The role each assigns to the other is different, not equivalent. One a perpetrator, or principal. The other, an aider or party. More importantly, however, Sheriffe put his character in issue, leaving open its rebuttal by evidence of bad character, the relevance of which extends to credibility.
61In the end, the respondent urges, even if the instructions were in some respects erroneous, the risk of jury misuse was minimal and the impact on the verdict imperceptible.
The Governing Principles
62To focus the discussion of the governing principles, it is helpful to shunt aside two issues that do not arise on this record.
63It is beyond controversy that in a joint trial it is open to those charged to introduce evidence that could not be tendered as part of the case for the Crown. To be more specific, one accused may introduce evidence that shows or tends to show the disposition or propensity of another accused to commit the offence charged. The manner in which the disposition may be proven varies but includes evidence of extrinsic misconduct. Neither the right of a co-accused to adduce the evidence nor the manner of proof advanced is an issue here.
64The second uncontested issue concerns the mode in which each appellant is alleged to have participated in the killing. This is not a “You did it. No, you did it” case. Asfaha is said to be the shooter. Sheriffe, an aider.
Bad Character Evidence in Joint Trials
65In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to another accused and could not have been elicited by the Crown: Suzack, at para. 111; R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 108, leave to appeal refused, [2004] S.C.C.A. No. 405; R. v. Earhart, 2010 ONCA 874, 272 C.C.C. (3d) 475, at para.73, leave to appeal refused, [2011] S.C.C.A. No. 397. One such example of this type of evidence relates to a co-accused’s disposition to commit the offence with which two or more accused persons are jointly charged.
66The risk of prejudice to the accused against whom bad character evidence is adduced is not attenuated because the evidence is elicited by a co-accused rather than by the Crown: Pollock, at para. 105. The trial judge must therefore still examine closely the probative value of the proposed evidence and the purposes for which it is adduced. A sound evidentiary foundation is essential: Pollock, at para. 106; Earhart, at para. 75. Likewise, a careful balancing of the fair trial rights of the two (or more) accused: Suzack, at para. 111; Pollock, at paras. 106-107; Diu, at para. 137.
Jury Instructions on Bad Character Evidence
67One method available to a trial judge to balance the fair trial rights of an accused against whom bad character evidence is led, as well as the accused who introduces the evidence, is by jury instructions that clearly define the limited use the jury may make of this evidence: Pollock, at para. 109; Suzack, at paras. 114, 127; Diu, at para. 137. The instructions should:
(i) identify the evidence to which it applies;
(ii) define the permitted use of the evidence (the positive instruction); and
(iii) describe the prohibited use of the evidence (the negative instruction). See Suzack, at para. 127; Pollock, at para. 109; Diu, at para. 139; and R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 304-5, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777.
68An important feature of the negative instruction about prohibited use is a direction that the Crown cannot rely on the bad character evidence to advance its case substantively or even on the issue of credibility: Diu, at paras. 142, 144-46; Suzack, at paras. 97, 127; and Akins, at paras. 20-21.
Bad Character and Credibility
69It is uncontroversial that when an accused adduces evidence of good character and testifies in his or her own defence, a trier of fact may consider the evidence of good character as:
(i) rendering unlikely the accused’s participation in the offence(s) charged; and
(ii) supporting the credibility of the accused as a witness in the proceedings.
70Another equally uncontroversial rule emerges in cases where evidence of extrinsic misconduct or bad character is admitted and an accused testifies in his or her own defence. In these cases, the trier of fact may use, and be instructed to use, the bad character or disposition evidence in assessing the credibility of the accused as a witness in the proceedings: R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at pp. 66, 68; R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 336-37; R. v. Cameron (1995), 1995 CanLII 1283 (ON CA), 96 C.C.C. (3d) 346 (Ont. C.A.), at p. 354; R. v. Teresinski (1992), 1992 CanLII 12816 (ON CA), 70 C.C.C. (3d) 268 (Ont. C.A.), at p. 278, leave to appeal refused, (1992) 73 C.C.C. (3d) vi (S.C.C.); and R. v. Hogan (1982), 1982 CanLII 3820 (ON CA), 2 C.C.C. (3d) 557 (Ont. C.A.), at pp. 564-65, leave to appeal refused, (1983) 51 N.R. 154 (S.C.C.). In each of these authorities, the bad character evidence was adduced by the Crown and admitted for a substantive purpose, for example, to establish motive or a common purpose. In other words, the evidence was used substantively to assist in proof of the accused’s participation in the offence charged and as a factor to diminish the credibility of the accused’s evidence in defence.
The Principles Applied
71As we will explain, we would not give effect to this ground of appeal in the circumstances of this case. We do not suggest that the instruction at issue was a model of clarity. It was not.
72But any analysis of the correctness or adequacy of a jury instruction cannot take leave of the circumstances in which it arises. Context is critical. What falls short in one case may not do so in another. And so it is necessary to begin with the circumstances in which the claim of error is advanced here.
73Asfaha and Sheriffe each implicated the other in the shooting of Bishen Golaub. But unlike many cut-throat defences, neither implicated the other in the role he assigned to himself. In other words, this was not a case of “You shot him. No, you shot him”.
74Two additional features of the case warrant mention. First, the Crown adduced evidence about Sheriffe’s membership in the Hustle Squad and Jamestown Crips, relying upon it as evidence of motive. Second, in giving evidence on his own behalf and introducing other defence evidence, Sheriffe put his character in issue, thereby permitting the introduction of evidence that would not have otherwise been admissible.
75With this context in mind, we turn to the factors persuading us that, despite some imperfections in the charge on the issue, this ground of appeal should fail.
76First, in both mid-trial and final instructions, the trial judge emphasized, in unequivocal terms, the prohibition against propensity reasoning. This ensured that jurors would not use gang membership or other alleged misconduct as a foundation for a finding of guilt through reasoning by propensity. Such an instruction also made certain that the evidence did not become part of the Crown’s case to prove guilt.
77Second, the circumstances of this case differ from those in Diu and in Akins. In neither of those decisions did the appellant against whom the bad character evidence was tendered put his character in issue. Further, neither decision makes reference to a line of authority illustrated by the decisions of the Supreme Court of Canada in G. (S.G.)and Chambers and of this court in Cameron, Teresinski and Hogan that hold that evidence of extrinsic misconduct is relevant to an accused’s credibility.
78As a matter of general principle, evidence of character, the tendency or disposition of a person to do a certain act, is relevant to indicate the probability of that person doing or not doing the act. But if the person testifies, evidence of character is a relevant factor in an assessment of his or her credibility as a witness. This is so even in cases in which the evidence of extrinsic misconduct is admitted by exception in the case for the Crown.
79In this case, at the very least, Asfaha, who was identified by Sheriffe as the shooter, was entitled to have jurors consider Sheriffe’s extrinsic misconduct when they came to assess Sheriffe’s credibility as a witness at trial. This would not advance the case for the Crown and, accordingly, not run afoul of the principle that the Crown cannot take advantage of this evidence to advance its case.
80Finally, even if the instruction was over inclusive, it caused no real prejudice to Sheriffe.
81The principal evidence relevant to establish Sheriffe’s culpable participation was the evidence of gang membership that was said to furnish a motive for the shooting. Evidence of motive can assist not only in proof of participation, but also of the state of mind that accompanied that participation. The instructions on motive are not challenged.
82Moreover, much of the evidence of bad character or extrinsic misconduct related to suggestions put to Sheriffe and his mother in cross-examination by trial counsel for Asfaha. For the most part, these suggestions were denied or qualified by the witness. The trial judge instructed the jurors that counsel’s suggestions were not evidence. The witness’ answers were the evidence on which the jurors could rely to the extent they saw fit. In the absence of any evidence to suggest otherwise, the jurors would understand that these suggestions were not and could not be used as evidence for any purpose.
83And finally, on any objective view, Sheriffe’s version of events beggared belief. It was incompatible not only with common sense, but also with the objective eyewitness testimony.
(2) Gang expert opinion evidence and the hearsay rule
84Sheriffe takes issue with the admissibility of part of the evidence of Det. Nasser, who was qualified as an expert and gave opinion evidence about street gangs in the Jamestown area and their characteristics.
85Sheriffe does not question the relevance of Det. Nasser’s opinion evidence or the necessity for it to assist the trier of fact. Det. Nasser, admittedly, is a properly qualified expert. But an exclusionary rule – the hearsay rule – should have prevented Det. Nasser from repeating to the jury what two confidential informants told him about Sheriffe’s gang affiliation.
86Some background is essential to an understanding of the complaint and how it came to be advanced at trial.
The Evidence at Trial
87Trial counsel for Sheriffe agreed that the Crown could lead expert opinion evidence about gang membership and street gangs from Det. Nasser. The officer described the seven indicia relied upon by the Toronto Police Service (the “TPS”) to identify individuals as members of a street gang. He went on to explain that Sheriffe satisfied five of the seven indicia.
88Det. Nasser also explained that one of the confidential informants had given him a photograph showing ten young men aligned in a particular configuration. Both informants had told Det. Nasser that the photograph showed members of the Hustle Squad, a sub-group of the Jamestown Crips. The informants identified each of the young men in the photograph and pointed out that several had their hands shaped in a “C”, a symbol Asfaha testified was associated with the Jamestown Crips. Sheriffe was the leader of the group. Det. Nasser repeated the substance of what the informants told him in his testimony before the jury. Neither of the two informants to whom Det. Nasser spoke testified at trial.
89The testimony of Det. Nasser was not the only evidence the jury heard about Sheriffe’s gang membership. Asfaha testified that Sheriffe was a member of the Hustle Squad. Asfaha identified several of the young men in the photo, noted the “C” sign displayed by some and pointed out that, in another photo, several of the same men were wearing blue bandanas, another sign of membership along with the “C” sign. In a text message filed as an exhibit, Sheriffe referred to himself as “Hitz from the Town”. Sheriffe acknowledged that “Hitz” was his nickname. Det. Nasser explained that members of the Jamestown gangs called their territory “Doomztown” or “The Town”.
The Ruling of the Trial Judge
90The single contested issue about the evidence of Det. Nasser was his repetition of what the confidential informants told him about Sheriffe’s gang membership.
91The trial judge permitted Det. Nasser to report to the jury what the confidential informants had told him about the identity of the persons in the photograph the informant provided and the membership of each, including Sheriffe, in the Hustle Squad. Det. Nasser also reported what the informants told him about the membership of those in the photo in the Jamestown Crips.
92The trial judge was satisfied that what the informants told Det. Nasser about Sheriffe’s membership and leadership of the Hustle Squad and the membership of others in the Jamestown Crips was admissible under the principled exception to the hearsay rule. Necessity was established because to require an informant to testify would eviscerate informer privilege. The evidence was reliable because of the informants’ documented history of providing accurate information to the police. Thus while the expert could not express his opinion as to Sheriffe’s membership or lack thereof in either the Hustle Squad or the Jamestown Crips, he could point to possible indicia of gang membership.
The Arguments on Appeal
93Sheriffe complains that, by permitting an expert to repeat a confidential informant’s statement about Sheriffe’s gang membership, the trial judge allowed the jury to hear evidence from a person immune from cross-examination through a person cloaked with expertise, thereby enhancing the evidence’s value in the collective mind of the jury. The effect of the ruling was that the expert ceased to give evidence as an expert and became a mere conduit, a witness of fact whose testimony consisted of inadmissible hearsay.
94Sheriffe invokes studies conducted in the United States that, he says, demonstrate the great influence of this evidence on jurors’ decisions and emphasize the dangers inherent in permitting an expert to repeat or relate hearsay as part of his or her opinion. In this case, the trial judge failed to properly exercise his gatekeeper function, erroneously concluding that the requirement of necessity had been met when the same evidence was available from other sources trimmed of the enhancement added by its introduction through an expert.
95The respondent points out that Sheriffe did not contest the admissibility of expert evidence about gang membership or suggest that Det. Nasser was not properly qualified to give that evidence. Experts routinely rely on hearsay in the formation of their opinions. That Det. Nasser did so here affords no ground for excluding his evidence or the reference to what he was told by confidential informants.
96The respondent says that the trial judge was well aware of the hearsay nature of the information provided by the confidential informants. So the trial judge conducted a hearsay analysis. He applied the proper principles and concluded that the Crown had established both necessity and reliability. His conclusions are soundly grounded and entitled to deference. The officer was cross-examined at length about the sources of his information, leaving the jury well-positioned to assign appropriate weight to his evidence.
97In the alternative, the respondent continues, there was overwhelming evidence of Sheriffe’s gang membership and thus evidence of a motive for his participation in the murder of Bishen Golaub, who was erroneously thought to be a rival gang member. The testimony of Asfaha established Sheriffe’s membership. Likewise, the photograph filed as exhibit 40. And Sheriffe met the TPS criteria for gang membership. None of these sources were tainted by any hearsay from confidential informants.
The Governing Principles
98The issue Sheriffe raises involves general principles governing the admissibility of expert opinion evidence. It also relates to a subject – gang membership and activities – that has become of greater importance in recent years as a result of the enactment of several Criminal Code provisions creating a variety of offences associated with the activities of criminal organizations.
99It is helpful to clear away at the outset what is not in issue here. In this case, no dispute arises about:
(i) the relevance, materiality and admissibility of expert opinion evidence about gang membership, culture and activities;
(ii) the relevance, materiality and admissibility of gang membership as a motive to commit an offence against a member, or a person thought to be a member, of a rival gang; and
(iii) the qualifications of Det. Nasser to give expert opinion evidence about gang membership, culture and activities in this case.
100The controversy here focuses on the intersection of two exclusionary rules of the law of evidence – the opinion rule and the hearsay rule – and their application to the evidence admitted here.
Expert Opinion Evidence and the Hearsay Rule
101In general terms, the admissibility of expert evidence is determined by the application of a two-step or two-stage process. The first step is concerned with the threshold requirements of admissibility. The second – the discretionary gatekeeping step – requires the judge to balance the potential risks and benefits of admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 22-24; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 43-44.
102Among the threshold requirements for the admissibility of expert opinion evidence is the absence of an exclusionary rule, other than the opinion rule itself. Usually, the exclusionary rule that intercedes is the character rule, which generally prohibits the Crown from introducing evidence of an accused’s bad character in proof of guilt: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 25. But another exclusionary rule, such as the hearsay rule, could also intervene.
103A trial judge must take seriously the role of gatekeeper assigned by the authorities. And this is so at not only the second or gatekeeper stage, but also at the threshold stage and as the evidence is given: Sekhon, at paras. 46-47; R. v. J.(J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.
104It is well established that expert opinion evidence may be founded, in whole or in part, on the basis of statements made to the expert by others. For example, a psychiatric opinion about criminal responsibility is frequently based, at least in part, on what an accused told the expert about relevant events. But in order for the out-of-court account to be admitted as evidence of the truth of what was said, that account must be established by admissible evidence: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 46 (Abbey 1982). See also: R. c. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 31; R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 55.
105Where the factual premise of the expert’s opinion includes out-of-court statements made by others that are not established by otherwise admissible evidence, as for example by a listed or the principled exception to the hearsay rule, the opinion is entitled to less, and in some cases to no, weight: Abbey 1982, at p. 46; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.
106A final point has to do with the capacity of an expert to give evidence of firsthand observations that she or he makes that may be relevant to issues at trial. The opinion rule does not bar an expert from giving evidence of fact: Abbey 1982, at p. 42. Put another way, an expert is not confined by the opinion rule to expressing opinions only. The expert is entitled to give evidence of firsthand observations, including for example, those made during a psychiatric interview by a psychiatrist called to proffer an opinion on criminal responsibility.
Expert Evidence about Gangs and their Culture
107The enactment of legislation targeting criminal organizations and their activities has required courts to consider how gang membership and related issues can be proven without an undue risk of a conviction rooted in prejudice not proof.
108One type of evidence proffered in proof of various features of gang culture relevant to a particular case is expert opinion evidence. The admissibility of this evidence is governed by the two-step process adumbrated in R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, leave to appeal refused, [2010] S.C.C.A. No. 125 (Abbey 2009), and approved in White Burgess: Abbey 2009, at paras. 75-76; White Burgess, at paras. 22-24; Sekhon, at paras. 43-44.
109The expert in Abbey 2009 was a sociologist. He was qualified as an expert in the culture of urban street gangs in Canada. Crown counsel proposed to have the expert give his opinion about the meaning of a teardrop tattoo within the urban street gang culture and to give his opinion on the meaning of Abbey’s teardrop tattoo. The basis of the opinion included:
(i) research projects conducted over ten years;
(ii) a review of the relevant literature;
(iii) information gained through a 25 year clinical practice involving long-term relationship with gang members in and out of custody; and
(iv) detailed interviews with persons who lived in the gang culture. See Abbey 2009, at paras. 37-38.
110Nothing in the decision in Abbey 2009 suggests that the expert gave evidence of the contents of anything said to the expert on interview or that any of those interviewed gave evidence at trial.
111In other jurisdictions, some courts have permitted experts to rely upon hearsay as a constituent of their knowledge base in the area of their expertise, but invoked the exclusionary rule to bar reception of specific statements related to the facts of a case. Two authorities illustrate this distinction. The latter suggests, however, that specific statements related to the facts of a case can be admitted if in accordance with an established hearsay exception.
112In R. v. Cluse, [2014] SASCFC 97, 120 S.A.S.R. 268, a home invasion and shooting of an occupant by a gang of intruders was alleged to form part of ongoing violence between two motorcycle gangs. A police officer with experience in dealing with gangs, including motorcycle gangs, gave evidence at trial. The officer’s testimony included information on the culture and history of outlaw motorcycle clubs and several specific incidents of violence between motorcycle gang members. On appeal, the admissibility of the officer’s evidence was challenged on the basis, among others, that it was based in part on hearsay.
113The court concluded that the officer’s evidence about the culture of the specific clubs and their operations was not opinion evidence, rather evidence of knowledge of facts gleaned from long observation and study. The court held that the witness’ evidence about specific episodes of inter-gang conflict not based on his own direct observation was not admissible. Vanstone J. made the following distinction in para. 49:
It is one thing to allow a police officer to give evidence of his knowledge of practices in the drug trade or his knowledge of the culture of motorcycle gangs where the witness’s knowledge of such matters may well be based on a mass of information, some of it hearsay. Yet, it is quite another to allow a witness simply to relate the details of specific incidents which he has learned from secondary sources. Even expert witnesses in the traditional sense do not do that as a basis for expression of an opinion. I consider that the evidence given by Featherby of specific episodes of inter-gang conflict was, with some possible exceptions based on direct observation, inadmissible.
114In Myers v. The Queen, [2015] UKPC 40, [2015] 3 W.L.R. 1145, three appeals involving apparently motiveless shootings were heard together. Two victims died. One survived. In each case, the Crown called a police officer assigned to a unit that targeted criminal gangs to give evidence as an expert on gangs in Bermuda. The witness identified the gunman and victims as members of rival gangs and gave evidence about the criminal activities and culture of the gangs, including violent retaliation against a random member of a rival gang in response to a perceived insult or an attack on one of its own members. The evidence was received as expert opinion evidence and challenged on appeal, in part, as inadmissible hearsay.
115The Privy Council affirmed the general rule that an expert may rely on information gathered from a variety of sources (hearsay) in formulating an opinion within the subject-matter of his or her expertise: Myers, at para. 63. But a witness’ status as an expert does not immunize him or her “from all inhibition on hearsay”: Myers, at para. 64. After a brief reference to Cluse, the Privy Council formulated a test to determine whether an expert can give evidence based on hearsay material:
The test of whether evidence based on hearsay material can be given is better seen to be whether it ceases to be the expounding of general study (whether by the witness or others) and becomes the assertion of a particular fact in issue in the case. The first is expert evidence, grounded on a body of learning or study; the second is not, even if it may be given by someone who is also an expert. See Myers, at para. 66.
116The Privy Council went on to suggest that assertions of fact that fell on the particular as opposed to the general side of the line could be proven by admissible hearsay: Myers, at para. 67.
The Principles Applied
117Several reasons persuade us to reject this ground of appeal.
118First, the fact that Det. Nasser’s opinion was founded in part on hearsay did not, without more, render his opinion inadmissible, although it was a factor the jury could take into account in assessing the weight to assign to that opinion.
119Second, the trial judge recognized the information provided by the confidential informants to Det. Nasser was hearsay and properly required either a listed or principled exception to permit jury consideration of evidence of the truth of what the informants said.
120Third, the trial judge applied the principled exception to the statements made by the informants. He concluded that the necessity requirement was met because the confidential informant privilege rule rendered the informants’ testimony unavailable. As for reliability, Det. Nasser’s evidence about the informants’ history in providing accurate and truthful information to the police was sufficient to satisfy the threshold reliability requirement. These findings of the trial judge are grounded in the evidence, untainted by legal error and entitled to deference in this court.
121Fourth, the trial judge correctly instructed the jury on the manner in which they were to assess the weight, if any, they would assign to the out-of-court statements of the confidential informants. No personal appearance. No oath. No cross-examination. Circumstances accompanying the statement. Accuracy of reporting.
122Finally, there was ample evidence identifying Sheriffe as a member of the “Hustle Squad”, none of which was dependent on the truth of the confidential informants’ say-so. Asfaha said so. The photograph, exhibit 40, showed it. And Sheriffe met the criteria for gang membership of the TPS.
(3) Failure to review the confidential informant files
123This ground of appeal challenges the correctness of a ruling made by the trial judge on a mid-trial application by Sheriffe for disclosure of portions of the TPS files on the confidential informers from whom Det. Nasser received information about gang membership.
124The record reveals that Sheriffe was provided with a copy of the TPS protocols for the management of confidential informers. Det. Nasser gave evidence in general terms that each informant was paid, had a criminal record and had previously provided reliable information to the police that was confirmed by other investigative means. He was cross-examined by counsel for Sheriffe on these issues.
125The informant files were brought to the courtroom at trial as required by a subpoena duces tecum served by Sheriffe on the Chief of the TPS.
The Motion to Quash the Subpoena
126On the return of the subpoena, counsel for the TPS appeared before the trial judge and sought to have the subpoena quashed. The trial Crown supported the TPS motion. Each contended that the materials sought by service of the subpoena were subject to confidential informer privilege.
127Trial counsel for Sheriffe sought the production of the records to the trial judge so that the judge could “take a look at them” to determine whether the informants had been properly handled by investigators. Counsel emphasized that he was not seeking disclosure of the identity of the informant.
128The trial judge quashed the subpoenas and dismissed Sheriffe’s application for disclosure. The judge was satisfied that the information was encompassed by confidential informer privilege and not subject to disclosure except to the extent that it fell within the innocence-at-stake exception. That exception, counsel acknowledged, was not engaged. It followed that the motion to quash the subpoena succeeded and the disclosure sought was refused.
The Arguments on Appeal
129Sheriffe says that once the trial judge permitted the Crown to adduce hearsay evidence from Det. Nasser of what the confidential informants told him, he (the trial judge) was required to accommodate Sheriffe’s right to make full answer and defence. To ensure that Sheriffe’s right to make full answer and defence was preserved, the trial judge should have conducted an ex parte review of the confidential informant files, as is done in other class privilege cases, to determine whether those files contained anything that could have assisted Sheriffe in vindicating his constitutional right. Any relevant material could have been disclosed in redacted form to Sheriffe for this purpose.
130The respondent points out that trial counsel for Sheriffe acknowledged that the materials sought fell within confidential informer privilege and were not disclosable except to the extent permitted by the innocence-at-stake exception. Trial counsel accepted further that he was “not there yet” for the innocence-at-stake exception. In the result, the respondent says, the subpoena was properly quashed and disclosure rightly refused.
131The respondent says that judicial review of the file, as proposed by Sheriffe, would itself have breached the privilege. Sheriffe provided no evidentiary foundation for his disclosure application, relying instead on conjecture and speculation. To the extent that Sheriffe’s application was premised upon a balancing of confidential informer privilege on the one hand, with full answer and defence on the other, it proceeded from a false premise. Once confidential informer privilege is engaged, no balancing is permitted.
132The respondent makes a final point that focuses on another principle applicable in cases involving an assertion of confidential informer privilege. Even where it is applicable, the innocence-at-stake exception only applies where disclosure of the informer’s identity is the only way an accused can establish his innocence. In this case, alternative sources could give evidence about the origins of the photograph provided by the informant and what the photograph depicts.
The Governing Principles
133The principles that govern our decision about this ground of appeal are uncontroversial and amenable to brief statement.
134First, confidential informer privilege is not a matter of judicial discretion. A court is under a duty to protect the informer’s identity. Hence the frequently applied characterization that the privilege is “absolute”: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 21, 23.
135Second, the confidential informer privilege rule is extremely broad in its coverage. It extends beyond a prohibition against disclosure of an informer’s name to include any information that might disclose the identity of the informer: Named Person, at para. 26.
136Third, the confidential informer privilege rule admits but a single exception. It can be abridged if necessary to establish the innocence of an accused in a criminal trial. To invoke this exception requires a basis in the evidence adduced at trial for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of an accused. Speculation will not suffice: Named Person, at para. 27; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 21; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 34.
137Fourth, the innocence-at-stake exception applies only where disclosure of the informer’s identity is the only way that an accused can establish his or her innocence: Named Person, at para. 27; R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 4.
138Finally, the confidential informer privilege rule does not allow a balancing of interests or an exception for full answer and defence or disclosure under Stinchcombe1: Named Person, at para. 28; Liepert, at para. 12; Barros, at para. 35.
The Principles Applied
139Our rejection of this allegation of error rests on four grounds.
140First, the procedure invoked by trial counsel sought disclosure on the basis that, even though the only exception to confidential informer privilege – innocence-at-stake – was inapplicable, disclosure should be made nonetheless in order for Sheriffe to make full answer and defence. However, no balancing of interests is countenanced where the informer privilege rule applies and the innocence-at-stake exception is unavailable.
141Second, the judicial review procedure proposed by trial counsel for Sheriffe would itself have infringed the confidential informer privilege rule.
142Third, the information sought by Sheriffe was available (and adduced by Sheriffe) through other sources, including the persons shown in the photograph, exhibit 40, provided by the informant.
143Finally, as counsel acknowledged at trial, the single exception to the confidential informer privilege rule – innocence-at-stake – lacked any evidentiary support in this case.
(4) Party liability
144In his jury charge, the trial judge referred to Sheriffe as having admitted to being the “getaway driver”. He told the jury that there was no key factual issue for them to resolve in respect of Sheriffe; rather, the key legal issue was whether Sheriffe had the requisite knowledge that his passenger was the shooter when he acted as the getaway driver.
145Defence counsel objected to the “getaway driver” phrase in this component of the jury charge on the basis that it was prejudicial.
146The trial judge recharged the jury, using different language:
I have told you that the accused Sheriffe aided and/or abetted either of the accused Asfaha or the unidentified shooter. That is objectively so. The accused Sheriffe’s conduct had the effect of aiding and/or abetting the shooter. However, the real issue is whether the aiding and/or abetting was advertent or inadvertent? That is, was it done knowingly or ignorantly? In other words, the Crown must prove beyond a reasonable doubt that the accused Sheriffe, when he aided and/or abetted the shooter, knew that a shooting was to take place and did so for the subjective purpose that a shooting would take place.
147Defence counsel did not object to this recharge. On appeal, Sheriffe contends that this recharge was confusing and still prejudicial.
148We do not accept this submission. There was no live issue about who was the driver of the car that left the crime scene; the appellant admitted that he was the driver. The key issue was Sheriffe’s knowledge about what his passenger intended to do – did he know that his passenger intended to shoot someone when he got out of the car? In the above passage, the trial judge appropriately addressed this issue.
(5) Review of “gang evidence”
149The appellant Sheriffe submits that the trial judge’s review of the so-called “gang evidence” was inadequate in three respects.
150First, Sheriffe asserts that the trial judge erred by telling the jury that the defence position was that the ‘Hustle Squad’ was not a gang but a basketball team. In fact, says Sheriffe, the ‘Hustle Squad’ did not refer to the whole team, but was a nickname given by a highschool basketball coach to three young men shown in a photograph admitted as evidence.
151We do not accept this submission. The difference between a basketball team and a component of a basketball team is an utterly trivial distinction.
152Second, Sheriffe contends that the trial judge failed to highlight for the jury the weaknesses in the hearsay evidence relied on by the Crown’s expert witness, Officer Anan Nasser, including the fact that the informants misidentified at least one person in the photograph.
153We disagree. The trial judge’s review of the Crown’s expert evidence relating to gang membership was fair and balanced. He pointed out the weaknesses of the confidential informant evidence so that the jury was reminded of its frailties. He also emphasized the defence evidence about the non-likelihood that Sheriffe was a gang member – Sheriffe was a high school graduate with a trade in carpentry, he came from a stable home, his parents owned their home, he was an elite soccer player, and he had no criminal record.
154Third, Sheriffe asserts that the trial judge provided an insufficient review of defence expert Dr. Anthony Hutchinson’s evidence in his jury charge.
155We do not accept this submission. A trial judge is not required to repeat the entirety of a witness’ evidence in a jury charge: R. v. J.S., 2012 ONCA 684, 292 C.C.C. (3d) 202 at para. 38. The trial judge’s brief charge on this issue was almost identical to the equally brief reference to it by defence counsel in his closing address to the jury.
(6) Review of Sheriffe’s testimony and W.D. instruction
156The appellant Sheriffe contends that the trial judge provided an inadequate review of his testimony and an insufficient W.D. instruction in his jury charge.
157We disagree. The trial judge reviewed Sheriffe’s testimony and position in detail on at least three occasions in his jury charge. He also provided a correct W.D. charge twice. There was nothing inadequate or insufficient in these two components of the jury charge.
(7) Post-offence conduct
158Asfaha testified that Sheriffe and others at his behest told him that he should allege that “M-Loc” (McFrinn Paddy) was the shooter. During his charge on post-offence conduct, the trial judge observed that such an inference was “tenuous at best”. Sheriffe contends that the trial judge erred by not giving a stronger “no probative value” instruction in relation to this evidence.
159We are not persuaded by this submission. The trial judge’s general charge with respect to post-offence conduct was correct: see R. v. Rodgerson, 2015 SCC 38, 21 C.R. (7th) 1, at paras. 25 and 33. A “no probative value” charge would have been unfair to Asfaha, a fact recognized by Sheriffe’s trial counsel who took the position that there were “a number of reasons” why the jury should not believe Asfaha, but did not suggest that the evidence relating to this post-offence conduct should be entirely removed from the jury’s consideration. Leaving the determination of the probative value of the post-offence conduct to the jury was entirely appropriate, especially in light of the correct limiting instruction.
E. Disposition
160For the reasons given, the appeals are dismissed.
Released: December 14, 2015 (GS) “George R. Strathy C.J.O.”
“J.C. MacPherson J.A.”
“David Watt J.A.”
Footnotes
- R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
