WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 110(1): Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(2): Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3): A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(1): Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

WARNING – WITNESS IDENTITY PROTECTION

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order prohibiting disclosure of a witness' identity has been made in this proceeding pursuant to s. 486.31 of the Criminal Code and shall continue. This section of the Criminal Code provides that:

Section 486.31(1): In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Section 486.31(2): The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

Section 486.31(3): In determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone known to the witness;

(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence;

(f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness' testimony to the case;

(h) whether effective alternatives to the making of the proposed order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order; and

(j) any other factor that the judge or justice considers relevant.

Section 486.31(4): No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

S.C. 2015, c. 20, s. 38(3).

COURT OF APPEAL FOR ONTARIO

DATE: November 30, 2017

DOCKET: C55872

Justices: Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lamar Skeete

Appellant

Counsel:

Timothy E. Breen, for the appellant

John Corelli and Kathleen Farrell, for the respondent

Heard: March 28, 2017

On appeal from the conviction entered on March 30, 2012 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

Introduction

1Kenneth Mark was a gentle giant. He worked hard. He tried to be a positive influence in his community.

2In the summer of 2008, Kenneth Mark confronted a youth, J.B., who had reportedly shown a handgun to several young children in a housing complex. Among the children were Kenneth Mark's nephews and nieces.

3Early in September of the same year, two masked men accosted Kenneth Mark. One of the men, armed with a shotgun, shot Mark in the back. Kenneth Mark survived.

4About two months later, Kenneth Mark provided a K.G.B. statement to police about the attempt on his life. He identified the shooter as J.B., the youth he had previously confronted about showing a handgun to children in the housing complex. And Mark identified the shooter's accomplice as Lamar Skeete.

5Police arrested J.B. and Lamar Skeete. Each was charged with attempted murder, as well as several firearms offences. Both were detained in custody.

6Kenneth Mark testified at the preliminary inquiry of J.B. and Lamar Skeete. The presiding judge ordered both J.B. and Lamar Skeete to stand trial.

7On the trial date in December, 2009, Crown counsel (not Mr. Corelli or Ms. Farrell) withdrew the charges against Lamar Skeete on the basis that the evidence provided no reasonable prospect of conviction. The Crown proceeded against J.B. Kenneth Mark testified as a witness for the Crown. The trial judge found J.B. not guilty.

8Lamar Skeete and J.B. were released from custody when proceedings against them ended.

9About two weeks later, as he left his local pizza shop, a man came up behind Kenneth Mark and shot him once in the back of the head. This time, Kenneth Mark died from his wound.

10A jury found Lamar Skeete guilty of first degree murder. He appeals. These reasons explain why I would dismiss the appeal and affirm the conviction.

The Background Facts

11The grounds of appeal advanced on Lamar Skeete's behalf require reference not only to the circumstances of the shooting, but also to others that preceded and followed Kenneth Mark's death. To the extent that further detail is required, it accompanies the ground of appeal to which it relates.

The Handgun Display

12Kenneth Mark lived and worked in the west end of Toronto. He lived not far from a housing complex where his brother lived with his family, including Mark's nephews and nieces.

13During the summer of 2008, Kenneth Mark learned that Lamar Skeete and J.B., a youth, had come to the housing complex and shown a handgun to several children, including Mark's nephews and nieces.

14Later that same summer, Mark confronted and "draped" J.B., aggressively manhandling him. J.B. ran away, leaving his bicycle behind. Mark brought the bicycle back to the housing complex where others vandalized it.

The Shooting of Kenneth Mark

15On September 2, 2008, while Kenneth Mark was sitting outside the complex, two masked men approached him from behind. One of them was carrying a shotgun. He shot Mark in the back, causing injuries to his shoulder, neck and face. Mark ran from the scene. He was found by emergency personnel and taken to the hospital.

Mark Identifies His Assailants

16Kenneth Mark initially described the clothing worn by the shooter. Later, he elaborated on his early description, but did not identify either man. About two months later, when police sought community assistance in connection with another shooting, Kenneth Mark identified his assailants.

17In a K.G.B. statement he provided to police, Kenneth Mark identified J.B. as the shooter and Lamar Skeete as the second assailant. He also recounted several visits by both men to the complex as they sought him (Mark) out after the initial shooting.

18Police arrested both J.B. and Lamar Skeete on charges of attempted murder and related firearms offences. The arrests took place in November, 2008. Both J.B. and Lamar Skeete were detained in custody prior to trial.

The Preliminary Inquiry

19Kenneth Mark testified at the joint preliminary inquiry of J.B. and Lamar Skeete. Mark gave evidence that was consistent with his K.G.B. statement implicating both men in the shooting. Both J.B. and Skeete were ordered to stand trial.

The Trial of the Attempted Murder Charges

20Prior to trial, Kenneth Mark told a co-worker that he had been subpoenaed to testify at trial but was afraid to do so for fear of being labelled a "snitch". Mark was concerned that if he testified, something would happen to him for having done so.

21On December 14, 2009, the date scheduled for the trial of the attempted murder charges, Crown counsel (not Mr. Corelli or Ms. Farrell) withdrew the charges against Lamar Skeete on the basis that there was no reasonable prospect of conviction. Lamar Skeete was released from custody.

22The Crown proceeded against J.B. Kenneth Mark testified as a witness for the Crown. He identified J.B. as the shooter and Lamar Skeete as his accomplice. The trial judge found J.B. not guilty. J.B. was released from custody.

23Once again, Kenneth Mark expressed fear of retaliation for having given evidence about the attack. He tried to avoid places where he was apt to meet J.B. or Lamar Skeete.

The Murder of Kenneth Mark

24Around 9:30 p.m. on December 29, 2009, Kenneth Mark entered a pizza shop to pick up some food on his way to work. Another customer saw two men walking back and forth on the street outside the shop. One of the men was wearing a white jacket.

25Kenneth Mark walked out of the pizza shop onto the adjacent street. The man in the white jacket came up behind Mark and shot him in the back of the head with a handgun. The shooting occurred around 9:35 p.m.

26Video surveillance at nearby businesses recorded some of the events that occurred around the time of the shooting.

27Kenneth Mark was shot and died within about two weeks of the Crown's withdrawal of charges against Lamar Skeete and about one week after J.B.'s acquittal.

28Lamar Skeete was arrested and charged with the murder of Kenneth Mark.

The Whereabouts of Lamar Skeete on the Night of Mark's Murder

29Lamar Skeete testified at the murder trial.

30It was the evidence of Lamar Skeete that around 7:40 p.m. on December 29, 2009, S.M. picked him and D.L.K. up near the Islington subway station and dropped them off at a tattoo parlour around Keele and Dundas. Skeete planned to get a new tattoo.

31Lamar Skeete signed a release at the tattoo parlour, which was filed as an exhibit at trial. The release is dated December 29, 2009, but contains no reference to time. Skeete testified that at 8:30 p.m., the owner of the tattoo parlour told him that there was not enough time before closing for him to get a new tattoo. Skeete settled for a touch-up by another tattoo artist of an existing image.

32The owner of the tattoo parlour contradicted Lamar Skeete's evidence about the time at which the business, which was then in a temporary location, closed on December 29, 2009. Without the assistance of any business records, the owner said that the business closed at 7:00 p.m. at the latest. The owner did not have any records of when freelance artists were in the shop, or the precise time at which this temporary location closed on that evening.

33Lamar Skeete testified that he left the tattoo parlour at 9:00 p.m. He walked across the street to Galaxy Donuts to wait for S.M., who was to drive him home to ensure that he met his 10:00 p.m. curfew.

34S.M., a drug dealer, was in the same area to conclude a drug purchase. He became somewhat apprehensive about being robbed when three or four men approached him. S.M. moved to a position in front of the pizza outlet. At trial, he acknowledged that video from a nearby bakery showed a person wearing the same clothes as he was wearing that night. Although S.M. would not identify himself, he accepted that the person shown in the video must be him. Someone ran by him. S.M. heard a gunshot, then saw the deceased lying on the roadway. He ran to his car and drove home alone.

35Lamar Skeete testified that his cellphone "died" at 9:29 p.m. on December 29, 2009 as he waited for S.M. to give him a ride home. Around 9:40 p.m., he left the donut shop with D.L.K. to hail a cab so that he could be home prior to his 10:00 p.m. curfew. He saw S.M. walking fast or running down the street. S.M. told him that he had just seen someone get shot. Skeete and D.L.K. got into S.M.'s car and left the area.

36The first time Lamar Skeete said that he was at Galaxy Donuts at the time Kenneth Mark was shot and killed was in giving evidence at trial.

The Cellphone Records

37Cellphone records entered as exhibits at trial revealed that between 8:40 p.m. and 9:29 p.m. on December 29, 2009, Lamar Skeete's cellphone was in an area that included not only Galaxy Donuts, but also the place where Kenneth Mark was shot and killed. The next call made on the phone was at 9:59 p.m., transmitted by the nearest tower to Skeete's home.

38S.M.'s cellphone was in the same area from 8:37 p.m. to 9:27 p.m. and inactive between 9:27 p.m. and 9:59 p.m. that same day.

The Murder Weapon

39While in custody on a charge of robbery a few months before the fatal shooting of Kenneth Mark, Lamar Skeete met B.I. During the two weeks immediately prior to Mark's death, Skeete and B.I. were in very frequent contact by cellphone.

40On December 31, 2009, two days after Kenneth Mark was shot to death, police surveillance officers saw Skeete and J.B. meet with B.I. in a west end alley. The men shook hands. B.I. denied having received a handgun from Lamar Skeete during this meeting.

41B.I. testified that he bought a handgun and a silencer from two different people after he was released from custody in November, 2009. He purchased the gun from "Kush", a man he met at a bus stop. He bought the silencer from "Flex", a guy who lived in the same neighbourhood. B.I. hid the gun and silencer in the cold air return on the main floor of his home.

42At trial, the parties agreed that "Kush" and "Flex" were fictional characters invented by B.I.

43Police searched B.I.'s home on January 22, 2010. In a cold air return on the main floor, officers found and seized a .22 calibre handgun, a silencer, some ammunition and a magazine. The bullet that killed Kenneth Mark was fired from this gun.

44B.I. testified at the preliminary inquiry. There, he denied that he knew Lamar Skeete. At trial, he acknowledged that he spoke to Skeete as Skeete was being escorted from the courtroom at the preliminary inquiry. B.I. said "I'm gonna talk to that kid". Skeete replied "Yeah, yeah, talk to him". B.I. then told Skeete "Stay tight and keep your head up". Skeete responded "Yeah, yeah".

45A few days later, B.I. posted a message to his Facebook page that read: "Freee Da Niggs Pullin On Da Triggs". He agreed at trial that he intended this message to offer support for his friends, including Lamar Skeete, who had been arrested and were in custody on the murder charge. Days later he removed the message.

The White Jacket

46On December 31, 2009, two days after Kenneth Mark was fatally shot, police recovered a white jacket with the name "Avirex" on the back. The jacket was recovered from the basement of Skeete's home. It was folded up on top of two stacked chairs.

47Scientific testing of the jacket revealed gunshot residue on the external front pockets consistent with someone, who had handled a firearm, putting their hands or the firearm in the pockets of the jacket. A mixture of DNA from at least three people was detected on the jacket. At least one of the donors was male, but forensic examiners were unable to generate a profile suitable for comparison.

The Grounds of Appeal

48Lamar Skeete ("the appellant") advances three grounds of appeal. As I would paraphrase his complaints, he says that the trial judge erred:

i. in admitting evidence of the details of the attempted murder charge ultimately withdrawn against the appellant and then failing to adequately instruct the jury about its limited use;

ii. in admitting evidence of the lyrics of a rap composition authored by the appellant; and

iii. in failing to correct the closing submissions of the trial Crown, which invited the jury to use the appellant's silence and inaction following the killing, and the false testimony of some of his associates, as circumstantial evidence of guilt.

Ground #1: Evidence about the Attempted Murder of Kenneth Mark

49The first ground of appeal raises two issues in connection with the evidence adduced at trial about the attempted murder of Kenneth Mark about 15 months before he was shot to death. The first has to do with the admissibility of the evidence, the second, which assumes it was properly admitted, contests the trial judge's instructions about the use jurors could make of this evidence in reaching their verdict.

The Additional Background

50Prior to jury selection, the trial Crown sought a ruling to permit the introduction of evidence about the nature of the relationship between J.B. and the appellant, on the one hand, and the deceased, on the other.

51Among the sources of evidence the Crown sought to invoke to establish the nature of the relationship were:

i. prior statements of the deceased to his brother and co-workers expressing his (the deceased's) fear of retaliation for his implication of J.B. and the appellant in the attempted murder;

ii. prior statements of the deceased to investigators, including a K.G.B. statement and the deceased's evidence at the preliminary inquiry into the attempt murder charge, implicating the appellant and J.B. in the prior shooting; and

iii. evidence from other sources about the procedural history of the attempt murder charge, including the incarceration of both J.B. and the appellant pending trial and the ultimate disposition of the charges.

The Admissibility Hearing

52The trial Crown advanced her case for the admissibility of what I will designate "the attempted murder evidence" on two grounds:

i. narrative; and

ii. motive.

To the extent that the evidence was hearsay, whether statements by the deceased to investigators about the circumstances of the shooting, or to others expressing fear of retaliation, the Crown invoked the principled exception to the hearsay rule.

53The principal ground upon which the attempted murder evidence was tendered was that it tended to establish a motive on the part of the appellant to kill Kenneth Mark: retaliation. After all, Mark had breached the code of silence (about which there was expert evidence) and this caused both the appellant and J.B. to spend time in custody.

54The trial Crown emphasized that she was not trying to re-litigate the result of the attempt murder proceedings. She pointed out that the motive alleged did not depend on the truth of Kenneth Mark's allegations about the earlier shooting. The motive – retaliation for breach of the code of silence – applied just as much, perhaps even more, if Mark's allegations were false as it did if they were true. Accordingly, the Crown said, there was no need to inquire into the truth of Mark's allegations about the attempted murder, thus no compromise of issue estoppel principles.

55Trial counsel for the appellant (not Mr. Breen) resisted the Crown's application to adduce the attempted murder evidence upon three principal bases.

56First, in light of the failed prosecution of the appellant and J.B., evidence about the attempted murder of Kenneth Mark and its disposition would offend the principle of issue estoppel as explained in R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316.

57Second, the admission of the attempted murder evidence would constitute an abuse of process and thus contravene s. 7 of the Charter.

58Third, and in the alternative, if evidence about the attempted murder were to be admitted at trial it should be closely confined due to its highly prejudicial nature. The relevance of the evidence rested on the fact that Kenneth Mark cooperated with the police, thus breached the code of silence. It followed, according to trial counsel, that there was no need to elicit the details of the shooting or the offence with which the appellant had been charged. It was enough to say that he had been detained in custody as a result of the charge and to describe Mark's conduct after the disposition of the charges.

The Ruling of the Trial Judge

59The trial judge was satisfied that the evidence about the prior attempted murder was relevant to establish motive, which in turn was relevant to proof of identity and of the state of mind that accompanied the shooting. The motive arose from Kenneth Mark's breach of the code of silence by providing statements and evidence against the appellant and J.B. The trial judge was satisfied that introduction of the evidence did not involve re-litigation of the attempted murder charge in contravention of the principles of issue estoppel as elucidated in Mahalingan. This was so because the truth of the allegations was beside the point.

60To guard against any prejudice arising from the introduction of this evidence, the trial judge directed the Crown to elicit the evidence in summary form from an investigating officer. The trial judge also allowed the Crown to adduce, through the deceased's brother and a co-worker, statements allegedly made by the deceased to them expressing his (the deceased's) fear of retaliation after the prior trial proceedings and the release of the appellant and J.B. from custody.

The Appellant's Response

61The appellant, then 21 years old, testified at trial. He denied ever having flashed a gun to children in the housing complex and said he knew nothing about the "draping" incident involving J.B. and Kenneth Mark. He disclaimed any involvement in the prior shooting of Mark.

62The appellant gave evidence that he knew that Mark had implicated him in the attempted murder. He was confused by Mark's having done so, but not angry with Mark. The appellant acknowledged that there was a code of silence in the community. Although he subscribed to the code and recognized that Kenneth Mark had breached it in speaking to the police about the previous shooting, the appellant said that he did not enforce the code.

The Arguments on Appeal

63The appellant says that the trial judge erred in admitting evidence, even in summary form, of the details of the prior shooting, including a description of the offences charged. The relevance of this evidence, which was presented through a summary of the police statements and testimony of Kenneth Mark, rested on the simple fact that Mark cooperated with the authorities in breach of the code of silence. Thus, the details of the shooting and the charges that resulted had no probative value. What is more, the prejudicial effect of this evidence was considerable. It portrayed the appellant as a person who had ready access to firearms and a disposition to plot the use of deadly force to right a perceived wrong.

64The appellant contends that, to the extent of its relevance, the evidence about the prior shooting should have been presented as an agreed statement of facts describing an assault on Mark by two masked men; Mark's identification of J.B. as the shooter and the appellant as his accomplice; the arrests and detention in custody of J.B. and the appellant; and the procedural steps followed until both J.B. and the appellant appeared for trial and were released from custody.

65The appellant also challenges the admissibility of the evidence recounting Mark's fear of retribution from the appellant. This evidence added little to the motive established by the prior inculpation and prosecution of the appellant, yet was highly prejudicial since it reflected Mark's certainty that the appellant had been involved in the earlier shooting. This encouraged disposition-based reasoning.

66In the alternative, the appellant says that the trial judge's instructions about the use jurors could make of this evidence were seriously deficient. The instructions failed:

i. to identify how the evidence was relevant to proof of motive;

ii. to make clear what the evidence could not be used for;

iii. to direct the jury that they should proceed on the basis that the appellant was factually innocent of the prior charges;

iv. to limit the motive evidence to the fact that Mark cooperated with the police; that the appellant was arrested and detained in custody and that Mark testified against both the appellant and J.B.; and

v. to instruct the jury not to rely on Mark's identification of the appellant to conclude that he had participated in the attempted murder, thus had demonstrated an intention to kill Mark or shown himself to be a person deserving of punishment or the kind of person likely to commit murder.

67The respondent rejects the appellant's submissions of error. The evidence was properly admitted, its introduction tailored to curtail any scent of prejudice and its use properly explained to the jury.

68The respondent says that the ultimate issue for the jury to resolve was whether the Crown had proven beyond a reasonable doubt the appellant's participation in the murder of Kenneth Mark. To identify a person as responsible for a killing, the Crown may adduce evidence of that person's motive to do so. Here, the evidence of motive emerged from the state of the relationship between the appellant and Kenneth Mark over a period of 15 months prior to the killing. Among the predicate or foundational facts providing objective support for the motive of retaliation was Mark's breach of the code of silence. This entailed the introduction of evidence about the circumstances of the prior shooting and the nature of the offence charged.

69The respondent acknowledges that the introduction of evidence about the attempted murder raised concerns about prior discreditable conduct on the appellant's part. This required the trial judge to determine where the balance settled as between probative value and prejudicial effect. The trial judge did so and made no error in this analysis. His determination of the issue is entitled to deference on appeal.

70In a similar way, the respondent continues, the trial judge adopted a solution that limited not only the scope, but also the manner in which evidence about the attempted murder would be elicited before the jury. This solution minimized, or at least curtailed any tendency towards propensity or disposition-based reasoning that might be inherent in the evidence.

71As for the appellant's submission that an agreed statement of facts should have been created and filed to eliminate any potential prejudice, the respondent invites us to recall that no such submission was ever advanced by experienced trial counsel. What is more, the respondent continues, such a suggestion is inconsistent with the defence position at trial, which was to establish that the appellant had nothing to do with the prior shooting, thus had no motive as alleged by the Crown. To now suggest an agreed statement of facts as a method of proof implicitly accepts the existence of a motive, a position diametrically opposed to that advanced at trial.

72In connection with the hearsay statements of the deceased, the respondent says that ante mortem statements of the deceased, which reveal the nature of the relationship between the deceased and an accused charged with his murder, may support an inference of animus, a common antecedent of motive. And evidence of motive is relevant and admissible to establish an accused's participation in an unlawful killing, as well as his state of mind. It may also rebut participation by a third party.

73In this case, the respondent continues, the reception of these ante mortem statements was established under the principled exception to the hearsay rule. Necessity was established because of the death of the declarant. Nor was there any serious controversy about reliability. The only point of controversy was whether the prejudicial effect of the evidence exceeded its probative value. The trial judge's determination that probative value predominated was not infected by error and is entitled to deference. Besides, the trial judge gave thorough limiting instructions when the evidence was introduced and later in his charge to the jury. These prophylactics, the nature of the evidence and the manner in which it was presented ensured that the jury fully appreciated the limitations the law imposed on their use of this evidence.

74The respondent submits that a functional evaluation of the trial judge's instructions to the jury, both mid-trial and final, about the permitted and prohibited use of the evidence relating to the prior shooting and the deceased's fear of retaliation were free of error. Those instructions enjoined propensity reasoning and the use of the deceased's statements about his state of mind as evidence of the appellant's mental state. Indicative of the adequacy of these instructions to delineate proper jury use and abjure prohibited reasoning is the lack of objection by experienced trial counsel, who had ample opportunity to review drafts of the proposed instructions before they were delivered.

The Governing Principles

75As with many if not most of the issues concerning the reception of evidence and its use by the trier of fact in determining whether the Crown has proven guilt beyond a reasonable doubt, the issues raised by this ground of appeal can be decided by the application of general principles. At work in this case are the principles that govern the admissibility of evidence of motive, in particular, those that permit the reception of hearsay and evidence of extrinsic misconduct in proof of motive. Further, there is the question of whether the doctrine of issue estoppel intercedes to bar the reception of evidence about the prior shooting on account of the outcome of the prior proceedings against the appellant and J.B.

Evidence of Motive

76The principles that govern the reception of evidence of motive are largely uncontroversial, although their application to the singular circumstances of individual cases often provokes disagreement.

77As a circumstance ulterior to the actus reus and mens rea of a crime, motive is no part of the definition of a crime, thus irrelevant to criminal responsibility. A person may be lawfully convicted of a crime whatever his motive may have been, or even if he had no motive: Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, at pp. 833-835.

78On the other hand, the mere fact that motive is not part of the definition of a crime does not mean that evidence of motive is not relevant to or admissible in proof of guilt. For the existence of a motive to commit an offence, as a matter of common sense and everyday experience, renders it more likely that a person with the motive committed it than a person who lacked that motive. And so it is that evidence of motive is relevant to and admissible in proof not only of an accused's commission of an offence, but also of the state of mind with which the offence was committed: Plomp v. The Queen (1963), 110 C.L.R. 234 (Austl. H.C.), at pp. 242-243 and 249-250; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-60; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 113.

79No special evidentiary rule governs the reception of evidence of motive when it is tendered in a criminal trial. The evidence must be relevant, material and compliant with the governing rules of admissibility.

80Evidence of motive is a species of circumstantial evidence which invokes a prospectant chain of reasoning. In other words, the path of reasoning is that the previous occurrence of an act, state of mind or state of affairs justifies the inference that another act was done, or state of mind or state of affairs existed at some time afterwards that is material to proof of guilt: Peter Tillers, ed., Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983), at § 43, pp. 1138-1142 and § 117, p. 1696; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 64.

81Just as no special rule of evidence governs the admissibility of evidence of motive, so it is that we recognize that there is not, nor can there be, a closed list of circumstances that may serve as a motive for conduct. Indeed, the circumstances that may excite a motive are as innumerable as the dispositions of humankind: Salah, at para. 64. That said, some motives tend to occur with greater frequency than others. Among those is retaliation, a desire of revenging some real or perceived wrong: Sir Alfred Wills, ed., Wills on Circumstantial Evidence, 5th edition (London: Butterworth & Co., 1902), at p. 49. See, as an example, R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 2.

82In prosecutions for unlawful homicide, especially those charged as murder, evidence of motive or animus is relevant to establish the identity of the responsible party, as well as the state of mind with which the unlawful killing was done: Salah, at para. 65; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 51.

83Sometimes, motive is evidenced by human acts. The law of evidence, which chiefly consists of exclusionary rules, imposes limits on the extent to which human acts may be introduced by the Crown to establish that an accused had a motive to commit the crime(s) charged: Lewis, at p. 833. See also, The King v. Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465, at p. 470.

84On other occasions animus or motive may be evidenced by things said, either alone or in addition to things done. This includes things said by the deceased, reflecting the deceased's state of mind. These statements may afford evidence of the nature of the relationship between a deceased and an accused. And the deceased's state of mind is an item of evidence that may be relevant to an accused's motive: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31; Griffin, at para. 63. But, once again, the law of evidence imposes an admissibility rule which must be satisfied to permit the introduction of this evidence.

Evidence of Extrinsic Misconduct

85As a general rule, evidence of extrinsic misconduct beyond what is alleged in the indictment, which does no more than tarnish the reputation of the person charged, is inadmissible. This rule prohibits the use of evidence of (bad) character as circumstantial proof of guilt: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; R. v. G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 63. In other words, we do not permit an inference from extrinsic misconduct that an accused has a propensity or disposition to do the type of acts charged and therefore is guilty of the offence(s) charged. Inherent in admitting this evidence is the danger that the jury:

i. might be confused by a multiplicity of incidents and put more weight than is justified on the evidence of extrinsic misconduct (reasoning prejudice); or

ii. might convict on the basis of bad personhood (moral prejudice).

See, Handy, at para. 31.

86As with other rules of admissibility, at its core, this rule is exclusionary. Despite its chief work as a rule that keeps evidence out, this canon of exclusion yields on occasion to permit the introduction of evidence of extrinsic misconduct that is so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse: Handy, at para. 41.

87Evidence of extrinsic misconduct may be relevant to an issue in the case: G.(S.G.), at para. 63. And among the issues to which evidence of extrinsic misconduct which incidentally demonstrates bad character may be relevant is motive: G.(S.G.), at para. 64. To gain entry by exception to the general rule of exclusion, the law requires something more of the evidence of extrinsic misconduct than mere relevance to an issue at trial, such as motive. What it requires is that the probative value of the proposed evidence outweigh its prejudicial effect: Handy, at para. 49; G.(S.G.), at para. 65.

88The balancing of probative value, on the one hand, and prejudicial effect, on the other, is a task for which trial judges are pre-eminently suited. In the absence of any error in law or in principle, any misapprehension of material evidence or a decision that is plainly unreasonable, their determination of where the balance settles between probative value and prejudicial effect is entitled to significant deference on appeal: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at paras. 31 and 38; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

89A final point concerns the obligation of a trial judge to provide instructions to the jury warning them against the improper use of evidence of extrinsic misconduct. No such obligation arises where the basis upon which this evidence is received is as evidence relevant to motive: Salah, at para. 88; R. v. Holtam, 2002 BCCA 339, 165 C.C.C. (3d) 502, at paras. 44-45.

The Hearsay Rule

90It is commonplace that evidence of the relationship between an accused and the deceased in a prosecution for a crime of unlawful homicide may be relevant to establish an animus or motive on the part of the accused to kill the deceased. As we have already seen, evidence of animus or motive is circumstantial evidence relevant to the issues of identity or participation and the mental state that accompanied the killing: Griffin, at para. 61; Candir, at para. 51; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98.

91In prosecutions for unlawful homicide, motive or animus has to do with the state of mind of the person charged, not the deceased. But evidence of a deceased's state of mind, contemporaneous with the unlawful killing, may provide a link in a chain of reasoning that could support an inference that the accused bore the deceased some animus or had a motive to kill the deceased: Candir, at para. 52; R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para. 30; Griffin, at paras. 65 and 66.

92One method of establishing the contemporaneous state of mind of the deceased, and thus the animus or motive of an accused, is by the introduction through a recipient of ante mortem statements of the deceased: Blackman, at para. 31; Candir, at para. 55. These statements are evidence of the deceased's state of mind, not that of the accused, and a trial judge should instruct the jury accordingly: Griffin, at para. 71. That said, the connection between a deceased's state of mind and that of an accused arises by virtue of a pre-existing relationship between the two principals. That the relationship was acrimonious or that the principals had been involved in a dispute in the period leading up to an unlawful killing afford evidence relevant to the issue of motive, because such information may afford evidence of an accused's animus or intention to act against the deceased: Griffin, at para. 63.

93It is beyond controversy that even where hearsay evidence satisfies the requirements of a common law exception or qualifies for reception as necessary and reliable, a trial judge retains a discretion to exclude it where its prejudicial effect exceeds its probative value: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3. See also, R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21.

Issue Estoppel and the Decision in Mahalingan

94In R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, Mahalingan was charged with attempted murder. A jury convicted him of aggravated assault. The central issue at trial was identity. At trial, the principal witness for the Crown testified, among other things, that Mahalingan had called him after his arrest, apologized and asked him (the witness) not to testify. After the attempted murder trial had concluded, Mahalingan was charged with attempting to obstruct justice as a result of the telephone call. He was acquitted.

95Mahalingan appealed his conviction of aggravated assault. He applied to have this court receive evidence of his later acquittal of attempting to obstruct justice as fresh evidence. This court allowed the application to introduce fresh evidence, allowed the appeal and ordered a new trial. The court concluded that issue estoppel operated retrospectively to render the phone call evidence inadmissible at the appellant's trial on the charge of attempted murder. The Supreme Court of Canada dismissed the appeal by the Crown and affirmed the order for a new trial.

96The Supreme Court of Canada made it clear that not every factual issue resulting in an acquittal results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, in light of how the case was argued, had to be resolved for an acquittal to result. Provided a particular issue was decided in favour of an accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies: Mahalingan, at para. 23.

97Issue estoppel applies only to findings made on a prior trial. In each case, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial. It follows that, absent the operation of some other exclusionary rule, the Crown may lead evidence in a subsequent trial relating to issues litigated at an earlier proceeding in two instances:

i. if the issue was not decided in the accused's favour in the previous proceeding; and

ii. if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.

See, Mahalingan, at para. 26.

98In each case, the relevant question that requires response is whether the Crown is adducing evidence at a second trial which is inconsistent with the factual findings in the first trial: Mahalingan, at para. 65.

99One further point warrants brief mention. The doctrine of issue estoppel does not prevent the Crown from leading evidence underlying a prior acquittal to establish an accused's state of mind in connection with another charge, as long as the Crown does not seek to contradict the original acquittal: Mahalingan, at para. 63.

The Principles Applied

100As I will explain, I would reject this ground of appeal.

101First, the evidence about the attempted murder of Kenneth Mark was relevant and prima facie admissible at the appellant's trial.

102This evidence was relevant to proof of motive. The Crown's theory at trial was that the appellant shot and killed the deceased in retaliation for the deceased's having accused him of the prior shooting, in breach of the code of silence. Evidence that the deceased reported the shooting and that the appellant participated in it resulted in the appellant being charged with attempted murder and detained in custody prior to trial. This evidence was relevant to show the existence of animus between them. Animus is a precursor to motive. And in its turn, evidence of motive is relevant to help to establish the identity of the deceased's killer and the state of mind with which the killing was done.

103Evidence of motive is relevant and thus admissible unless barred by some exclusionary rule. The appellant enlists the hearsay and bad character rules and the principle of issue estoppel in support of his claim that the evidence about the attempted murder should have been excluded. None is availing.

104As I read the record, the appellant did not mount a serious challenge to the admissibility of various ante mortem statements of the deceased when tendered through their recipients. The death of the declarant established the necessity requirement. And the circumstances in which the statements were made established their substantive reliability.

105It is well-established that the ante mortem statements of a deceased reflective of his or her state of mind can assist in proof of a motive on the part of an accused to cause the death of the deceased. The connection between the deceased's state of mind evidenced by his ante mortem statements and that of the appellant arises because of the pre-existing relationship between the two men. That the relationship between them was acrimonious, or that they had engaged in a dispute in the period leading up to the murder, is relevant to the issue of motive because this information may afford evidence of the appellant's animus or intention to act against the deceased in retaliation. To the extent that a deceased's ante mortem statements afford evidence of the nature of the relationship between the principals, the deceased's state of mind is an item of evidence relevant to proof of motive.

106Nor do I consider that the bad character rule warranted exclusion of the evidence about the attempted murder.

107The trial judge was cognizant of the potential prejudice of the evidence about the attempted murder: its tendency to promote propensity reasoning. His assessment of probative value, on the one hand, and prejudicial effect, on the other, is entitled to deference. As is his determination of where the balance settled between these competing interests.

108In this case, the jury knew that the Crown had withdrawn the attempted murder charge on the ground that there was no reasonable prospect of conviction. The jurors were also instructed that they were not to try or retry the attempted murder charge. The trial judge provided clear mid-trial and final instructions explaining the purposes for which the evidence about the attempted murder and the deceased's ante mortem statements could be, and must not be used in determining the adequacy of the Crown's proof. Experienced trial counsel, provided with a draft of the proposed instructions in advance of their delivery, never suggested that the directives were inadequate to stifle the tendency to propensity reasoning.

109I would not give effect to the argument first advanced in this court that the trial judge should have directed that the attempt murder evidence be reduced to an agreed statement of facts to minimize any inherent prejudice caused by its introduction.

110The solution adopted by the trial judge – to have the evidence given in summary form, rather than in painstaking detail – was practical and designed to keep the issues the jury was required to decide in focus. It ensured that the sideshow did not take over the main stage.

111It is worthy of reminder that not only was this proposed manner of proof not suggested by experienced trial counsel, but also that it is inconsistent with the position advanced at trial. There, the appellant sought to demonstrate, by his own testimony, that he had no part in the previous shooting of Kenneth Mark and had been wrongly accused of it.

112Further, the doctrine of issue estoppel created no bar to the admissibility of the evidence of the attempted murder. I reach this conclusion for essentially three reasons.

113First, the doctrine prevents the Crown from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in an accused's favour or resolved on the basis of reasonable doubt. Issue estoppel applies only to findings made on a prior trial.

114Findings are made by triers of fact. The stuff of which findings are made is evidence. But the appellant had no trial. There was no evidence. There was no trier of fact, hence no findings of fact because the charge was withdrawn.

115Second, issue estoppel requires that the parties in both proceedings be the same. This forecloses the appellant's alternative reliance on the proceedings against J.B. as a basis upon which to invoke the doctrine.

116Third, the evidence was not adduced to re-litigate or contradict the factual findings at the first trial, rather as relevant to the appellant's state of mind at the time of the second offence. The relevance of the evidence to establish motive was not dependent on contradiction of any factual finding that could be teased out of the withdrawal at the first trial.

117The first ground of appeal fails.

Ground #2: The Admissibility of "Live from the Don"

118This ground of appeal contests the admissibility of a single rap lyric selected by the Crown from a composition authored by the appellant entitled "Live from the Don", referring to the Don Jail in Toronto. Some additional background is essential to an understanding of how the rap lyric came to be tendered and admitted as evidence at trial.

The Additional Background

119While in custody after the preliminary inquiry, the appellant recorded a four-part rap on the telephone, then uploaded it to a website. The post was accompanied by the heading: "Listen: Ammo – 'Live from the Don' PT.1". The introduction described it as "a poetic presentation of some of the raw realities within the don jail". It was posted to the website after the preliminary inquiry but prior to the trial.

The Admissibility Hearing

120Partway through the trial, the Crown became aware of the posting of "Live from the Don" on the website and sought a ruling on the admissibility of a single lyric from the composition: "Real niggaz don't crack to the coppers, muthafucka".

121The trial Crown argued that this lyric was relevant to and probative of a motive for murder. It demonstrated that the appellant subscribed to the code of silence. Kenneth Mark broke the code of silence when he identified J.B. and the appellant as the persons responsible for his earlier shooting. In retaliation for this breach, the appellant shot and killed the deceased to enforce the code of silence.

122Trial counsel for the appellant resisted the admission of the evidence. The lyric, he submitted, was evidence of bad character, thus prima facie inadmissible at the instance of the Crown. To gain entry the probative value of the evidence had to exceed its prejudicial effect, but failed to do so. Even if one were to accept that the lyric was relevant and could not be considered evidence of bad character, its prejudicial effect outweighed its probative value and thus required its exclusion.

The Ruling of the Trial Judge

123The trial judge was satisfied that the evidence of the lyric was relevant since it tended to establish motive by its reference to the code of silence and supported an inference that the appellant believed in that code. This dovetailed with the theory of the Crown that the killing was in retaliation for Kenneth Mark's breach of the code of silence. The lyric demonstrated the possible belief of the appellant in that code which, in turn, rendered it more likely that he would enforce it in the manner alleged. What is more, there was a close temporal nexus between the lyric and the killing.

124The trial judge then balanced the probative value of the evidence against its prejudicial effect. Its probative value resided in its relevance to proof of motive. As for prejudicial effect, the trial judge did not consider the lyric to be evidence of bad character. At all events, any drift towards propensity reasoning could be curtailed by an injunction against it in mid-trial and final jury instructions. Probative value predominated and warranted admission of the evidence.

125The trial judge invited further submissions from counsel about the manner in which the evidence could be presented to the jury.

The Post-Ruling Approach at Trial

126In her case-in-chief, the trial Crown adduced the single lyric that the trial judge had ruled admissible on the voir dire. In addition, the Crown elicited evidence from a police officer who was qualified as an expert in the interpretation of urban street language and the prevalence of the code of silence in various communities.

127After the trial judge had ruled the single lyric proposed for reception by the Crown admissible, defence counsel took the position that the first three parts of "Live from the Don" should be played for the jury and filed as an exhibit to provide essential context for the lyric on which the Crown relied. The trial judge acceded to this request.

The Appellant's Response

128The appellant testified that he had been involved in rap music since he was ten years old. He was 21 when he gave evidence at trial. He adopted the nickname "Ammo" because of his lyrical ammunition and used it as his stage name. He had been involved in rap programs and workshops in different Canadian cities. He described himself as a talented performer, a real rapper who took his music seriously and considered rap his career.

129During his examination-in-chief, defence counsel took the appellant through the lyrics in detail. The appellant explained their meaning. He told the jury that "Live from the Don" was not about his feelings, rather painted a vivid picture of the Don Jail environment. The appellant said the lyric "Real niggaz don't crack to the coppers, muthafucka" did not refer to the code of silence. Rather, it meant that real inmates do not open up to correctional officers and ask to leave the unit to which they may have been assigned.

130During his testimony, the appellant agreed that the code of silence existed both in jail and in his community. He acknowledged that Kenneth Mark breached the code of silence by telling the police about the prior shooting. The appellant admitted that he followed the code of silence, but denied that he enforced it.

The Arguments on Appeal

131The appellant contends that the trial judge erred in admitting as evidence the lyric tendered by the Crown. The error consisted of a flawed assessment and balancing of the probative value and prejudicial effect of the evidence.

132The appellant submits that the trial judge erred in his assessment of probative value in three respects.

133The trial judge, the appellant says, gave insufficient consideration to the context in which the words were spoken. These words were an artistic expression, not an admission, and should not have been treated as if they were a statement made to or in the presence of another.

134Further, while it is true that the trial judge recognized that the words may not have reflected the appellant's personal views, the judge characterized this possibility as an issue for the jury to consider, rather than, as it should have been, a circumstance undermining the probative value of the evidence.

135In addition, the appellant continues, the trial judge erred in failing to consider the probative value of the single lyric in light of the record as a whole. This evidence was largely redundant. After all, the history between the principals and the expert evidence supported a ready inference that the appellant subscribed to the code of silence. But, more importantly, this evidence lacked probative value on the essential issue, which was not whether the appellant believed in the code of silence, but whether he enforced it.

136Further, the appellant contends, the trial judge undervalued the prejudicial effect of the evidence. The lyric encouraged a positive response to the question of whether the appellant enforced the code of silence through violence and did so by disposition reasoning informed by racial stereotypes. The trial judge wholly failed to appreciate the substantial risk that the jury would give effect to the bias that rap is the language of young black criminals. The risk was accentuated by the prominence of rap in the evidence of the appellant and the emphasis upon it in the closing address of the trial Crown.

137The appellant concludes with a submission that evidence of rap lyrics should only be admitted where there is a concrete nexus between the specific details of the lyrics and those of the crime.

The Respondent's Position

138The respondent rejects the claims of error advanced by the appellant. The trial judge appreciated and properly analysed the essential components of the balancing exercise in which he was engaged: probative value, on the one hand, and prejudicial effect on the other. In balancing these interests, the trial judge applied the proper principles and took into account the concerns now said to have been left out of his analysis.

139At the outset, the respondent reminds us that the trial judge's assessment of probative value and prejudicial effect, as well his determination of where the balance settled between them, is entitled to significant deference in this court, absent any error of law or of principle, any misapprehension of the evidence or a conclusion that is plainly unreasonable, factors absent here.

140In his assessment of the probative value of the evidence, the respondent says, the trial judge appreciated that the rap lyric upon which the Crown relied may not represent the appellant's views. But that was an inference for the jury to draw, if they wished to do so, not something that extinguished or diminished the probative value of the evidence in the first place.

141According to the respondent, the trial judge's approach to an assessment of probative value was consistent with his gatekeeper role to ensure that evidence introduced before the jury was worthwhile for them to consider in reaching their verdict. Among other things, the trial judge considered the content of the lyrics and their reference to the code of silence, as well as their temporal and causal nexus to the appellant's custody and that the appellant was their sole author. The probative value of the evidence was not diminished simply because other evidence tended to show the appellant's adherence to the code of silence and supported an inference that subscribers tend to enforce a code to which they subscribe. Besides, at the time of the admissibility ruling there was no direct evidence that the appellant subscribed to the code.

142The respondent also supports the trial judge's assessment of the prejudicial effect of this evidence. The lyrics themselves do not reflect badly on the appellant's character. After all, for the most part at least, the lyrics were about conditions at the Don Jail – none of which were the responsibility of the appellant. The trial judge considered the risk that the evidence would foster impermissible propensity reasoning and concluded, as he was entitled to do, that mid-trial and final instructions warning jurors of this impermissible use of the evidence would curtail any prohibited reasoning. This conclusion was consistent with prevailing authority.

143In the alternative, the respondent urges us to dismiss the appeal on the basis that, even if the lyrics were wrongly admitted into evidence, their reception caused the appellant no substantial wrong or miscarriage of justice.

The Governing Principles

144In the absence of any specific rule of admissibility governing the reception of evidence of rap lyrics in a criminal trial, as well as any argument inviting the creation of such a bright-line rule, its reception at trial depends upon its relevance, materiality and compliance with any applicable rule of admissibility.

145The threshold for relevance is not rigorous. To decide whether an item of evidence is relevant, a judge must determine whether, as a matter of human experience and logic, the existence of particular fact, directly or indirectly, makes the existence (or non-existence) of a material fact more probable than it would be without the evidence. That a single item of evidence may give rise to different or competing inferences does not warrant its exclusion for want of relevance: Candir, at para. 48.

146The governing substantive and procedural law, together with the allegations contained in the indictment, determine whether evidence is material: Candir, at para. 49. As we saw in connection in with the first ground of appeal, evidence of motive is material.

147Among the rules of admissibility is the rule that excludes evidence tendered by the Crown of an accused's extrinsic misconduct, bad character or disposition as circumstantial evidence of guilt. This rule of presumptive inadmissibility prevails unless the Crown is able to demonstrate, on a balance of probabilities, that the probative value of the evidence exceeds its prejudicial effect: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 73; Handy, at para. 41.

148A second admissibility rule – the hearsay rule – excludes out-of-court statements offered to prove their truth: R. v. Bradshaw, 2017 SCC 35, 349 C.C.C. (3d) 429, at paras. 1 and 20. But like other rules of admissibility, the hearsay rule also permits the introduction of what is presumptively inadmissible by exception, as for example where the evidence meets the requirements of a defined exception, or where the evidence is both necessary and reliable: Bradshaw, at paras. 22-23.

149Among the list of exceptions to the hearsay rule are admissions made by a party. These are received as an incident or product of the adversary system when tendered by the opposite party. Reception of admissions is rooted in the belief that what a party has previously stated can be admitted against the party in whose mouth it ill lies to complain of the unreliability of his or her own statement: Hart, at para. 63; R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664.

150Although not one of the great exclusionary canons of the law of evidence, like hearsay, opinion and bad character, it is well-established that a trial judge has a discretion to exclude evidence which would, if admitted, cause an unfair trial. This is so because as a matter of general principle, not to mention constitutional entitlement, every person accused of a crime is entitled to a fair trial. This entitlement cannot be entirely reduced to specific rules: Hart, at para. 88; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 23. As a result, trial fairness may require exclusion of evidence in an exceptional case even where no specific exclusionary rule would do so.

151We also recognize that a trial judge has a discretion to exclude evidence that is relevant, material and otherwise admissible where the impact of the evidence on the trial process – the cost of introducing the evidence – exceeds the value of the evidence – the benefit of introducing the evidence – to the correct disposal of the litigation. The prejudicial effect of the evidence may overwhelm its probative value. Introduction of the evidence may involve a significant expenditure of time, not commensurate with the value of the evidence. The evidence may mislead because its effect on the trier of fact, especially a jury, may be disproportionate to its reliability: Candir, at para. 59; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; Khelawon, at para. 3.

152Consideration of this exclusionary discretion involves the exercise of a gatekeeper function, the purpose of which is to ensure that any evidence that is introduced before the trier of fact is sufficiently reliable to warrant consideration in the determination of guilt: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24.

153An assessment of the probative value of evidence tendered for reception involves more than a routine inquiry into its relevance. Some weighing of the evidence is involved. Since the term "probative" means "tending to prove an issue", a trial judge engaged in a determination of probative value cannot ignore defects in the evidence during this assessment. As a general rule, what this weighing exercise requires will vary according to the specific inferences sought to be drawn from the piece of evidence: Hart, at para. 95.

154It is worthy of emphasis that in conducting this weighing exercise, a trial judge is only deciding the threshold question of whether the evidence is worthy of being heard by the jury, not the ultimate question of whether the evidence should be accepted and acted upon by the jury: Hart, at para. 98. In this respect, the probative value analysis has parallels to the reliability analysis conducted under the principled exception to the hearsay rule. In some circumstances, as with the substantive reliability analysis under the principled exception to the hearsay rule, the circumstances in which a statement was made may be a relevant consideration in an assessment of its probative value: Hart, at paras. 101-102.

155An assessment of the prejudicial effect of an item of evidence may involve consideration of factors such as whether the proposed evidence can be adequately tested in the trial process and whether, if admitted, it would threaten or compromise trial fairness, create a real risk of jury misuse or elude an informed assessment of its probative worth: R. v. Frimpong, 2013 ONCA 243, 1 C.R. (7th) 242, at para. 18.

156For the most part, judicial experience in assessing probative value and prejudicial effect, and determining where the balance settles when one is counterpoised against the other, involves evidence of things done or said from which something about the actor's or speaker's state of mind can be reasonably inferred. But artistic expression is different in the sense that simply because an author has chosen to write about certain topics, it may not be reasonable to infer that he or she holds or acts in accordance with those views: State v. Skinner, 218 N.J. 496, at pp. 520-521 (2014). It logically follows that we ought not to be too ready to embrace lyrics as a basis upon which to infer a particular state of mind in their author.

157In Skinner, the New Jersey Supreme Court held that violent, profane and disturbing rap lyrics written by the accused prior to his indictment on a charge of attempted murder constituted highly prejudicial and thus inadmissible evidence. The decision in Skinner points out the difficulty in identifying probative value in fictional or other forms of artistic self-expression.

158In R. v. Simard (2000), 2000 CanLII 30040 (QC CA), 151 C.C.C. (3d) 290 (Que. C.A.), a compact disc was filed as an exhibit at trial. The cover of the disc displayed a photo of the appellant. The Crown sought to use the cover, including the photo, to contradict two defence witnesses, one of whom was the appellant, on certain statements each had made. Either during the trial or later before rendering judgment, the trial judge listened to the disc and, in some manner or other, made use of lyrics he heard about violence and attacks on women in concluding that the Crown had proven the appellant's guilt beyond a reasonable doubt.

159A majority of the Quebec Court of Appeal found that the trial judge "made an unusual use of the [lyrics of violence] and attacks against women uttered by the appellant in his songs", but was satisfied that this use did not play a conclusive role in the finding of guilt. The majority dismissed the appeal. Fish J.A., as he then was, dissented. He pointed out that the compact disc was not filed for the purpose for which the judge used it. Further, the content of the disc was not subject to cross-examination or the submissions of either party. He considered the lyrics propensity evidence that was "patently inadmissible". As a result, Fish J.A. would have allowed the appeal, set aside the conviction and ordered a new trial.

160A further appeal to the Supreme Court of Canada was dismissed substantially for the reasons of the majority in the Quebec Court of Appeal: R. v. Simard, 2000 SCC 61, 151 C.C.C. (3d) 289.

The Principles Applied

161As I will explain, I would reject this ground of appeal.

162I approach my determination of this issue in a series of steps relying on well-established principles of the law of evidence.

163First, relevance.

164The case for the Crown was that the fatal shooting of Kenneth Mark was a retaliatory killing. Kenneth Mark was killed because he told police that J.B. and the appellant were the persons responsible for his prior shooting. This violated the code of silence and resulted in the arrest, incarceration and prosecution of J.B. and the appellant. When proceedings terminated favourably for both J.B. and the appellant, it was their turn to enforce the code of silence.

165The relevance of an item of evidence is determined by reference to the context of the entire case and the positions of the parties. This standard is a modest one: whether, as a matter of human experience and logic, the existence of a particular fact directly or indirectly makes the existence of a material fact slightly more probable than it would otherwise be.

166In this case, the specific lyric proposed for reception could be interpreted as describing the code of silence. As the sole author of the lyric, it was a reasonable inference that the appellant was aware of the code of silence. Knowledge may support an inference of belief, and belief, of enforcement. This evidence complements the more general evidence of the expert witness and brings it to the appellant's doorstep.

167A final point about relevance. Experienced counsel who appeared for the appellant at trial did not suggest that the lyric should be excluded on the basis of lack of relevance.

168Second, materiality.

169Retaliation for a perceived wrong may provide a motive for a crime. Evidence of motive assists in proof of authorship of a crime, as well as of the mental state that accompanied it. In this case, evidence of the rap lyrics assisted in proof of the appellant's retaliatory motive for killing Kenneth Mark. As a result, the evidence was material.

170Third, admissibility.

171In the absence of any deficits in relevance and materiality, it becomes necessary to consider whether any exclusionary rule is engaged and requires satisfaction of an exception to permit reception of the evidence.

172At trial, counsel for the appellant took the position that the lyrics were evidence of bad character, thus prima facie inadmissible when tendered by the Crown in proof of guilt. The trial judge rejected this submission. And so would I.

173The rap lyrics did not reveal the appellant as a person who had committed other crimes, or who had participated in other disreputable conduct apt to support a conclusion that he had a propensity or disposition to do the type of acts charged and was therefore guilty of the offence charged. Nor did the lyrics refer to other incidents likely to cause confusion in the minds of jurors. The lyrics reflected a state of mind, not an unrelated course of conduct. They were largely concerned with conditions in a detention centre and the conduct of the persons confined there.

174To the extent that the lyrics are considered an out-of-court statement tendered to prove the truth of its contents, it becomes necessary to consider whether evidence of the lyrics falls within the exclusionary reach of the hearsay rule or qualifies for admission under a listed or the principled exception.

175The trial judge was satisfied that the lyrics fell within the "admissions against interest" exception to the hearsay rule. As is well known, that exception is a function of the adversary system. The admissibility of admissions rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements: Evans, at p. 664.

176I agree with the trial judge that the admissions exception can provide a basis upon which to remove the hearsay rule as a bar to the admissibility of the lyrics contained in "Live from the Don".

177In the end, the admissibility of the rap lyrics fell to be determined by a balancing of their probative value against their prejudicial effect. The trial judge undertook this analysis. He concluded that probative value prevailed over prejudicial effect and admitted the evidence.

178As a general rule, a trial judge's assessment of probative value, prejudicial effect and where the balance settles between them is entitled to deference when challenged on appeal. But deference gives way when it is made to appear that the judge erred in principle, considered an irrelevant factor, failed to consider a relevant factor or reached a conclusion that was plainly unreasonable.

179After thorough consideration, I am satisfied that the trial judge's probative value versus prejudicial effect analysis is flawed such that his conclusion is not entitled to deference in this court.

180First, the trial judge failed to consider the nature of the evidence as a factor in assessing its probative value, thus its admissibility.

181The evidence the Crown tendered for admission was a lyric, a single lyric in a lengthy musical composition. The composition focused on inmate life in a pre-trial detention facility. Leaving aside the lyric on which the Crown proposed to rely, the rest of the composition was irrelevant as far as the issues at trial were concerned. It was not a typical admission, something said to or in the presence of another called as a witness to repeat it for the jury as evidence of its truth.

182The 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.

183In this case, the trial judge considered that the nature of the evidence was a factor for the jury to consider in assessing the weight it would assign to the evidence. I do not gainsay that conclusion. But that it may be a relevant factor for the trier of fact to consider in assessing the weight it will assign to the evidence, as we have seen elsewhere, does not deny it a place in the determination of admissibility: see White Burgess, at para. 45.

184Second, in assessing the prejudicial effect of the evidence, the trial judge considered that the appellant could counter the inference that he believed in and would enforce the code of silence by testifying to that effect in his own defence. I am not persuaded that the availability of a testimonial response from an accused is a proper consideration in assessing the prejudicial effect of evidence tendered by the prosecution. The same response could be offered in respect of other evidence with a potential for significant prejudice, such as evidence of similar acts or other extrinsic misconduct, but has played no role in the admissibility determination in those cases.

185Given these errors, it falls to this court to consider afresh the issue of admissibility based on the same record that was before the trial judge.

186Turning first to the probative value of the evidence. Recall that experienced trial counsel for the appellant acknowledged that this evidence had probative value on the basis advanced by Crown counsel.

187In this case, there was a significant nexus between the lyrics tendered for admission and the offence with which the appellant was charged.

188Temporally, the composition was recorded and uploaded while the appellant was in custody awaiting trial. The preliminary inquiry had concluded. It is a reasonable inference that the appellant learned there, if not before, that the Crown alleged that he murdered Kenneth Mark in retaliation for Mark's implication of him and J.B. in the prior shooting.

189But the nexus was not simply a matter of timing. There was also a causal link. The lyric expressed the code of silence. It was open to an inference that the appellant, as its composer, knew about the code. Knowledge of the code may support an inference of belief in it, and belief may support an inference of enforcement in response to a breach. These need not be the only inferences available for the evidence to have probative value.

190As a matter of artistic expression, "Live from the Don" was neither autobiographical nor fictional. It was a biographical description of inmate life in the Don Jail. That the overwhelming majority of the entire composition discussed subjects that were irrelevant to the issues at trial does not diminish or otherwise sully the probative value of the lyric relied upon by the Crown.

191In evaluating the prejudicial effect of this evidence, it is significant that the lyric does not describe or otherwise support an inference of extrinsic misconduct by its author. In other words, it does not lug into the minds of jurors the commission of other crimes or engagement in disreputable conduct apt to foster moral and reasoning prejudice.

192In addition, as a prophylactic against any incidental prejudice, the trial judge provided careful limiting instructions. He reminded jurors that the lyrics were a form of artistic expression and may not represent the belief of the appellant.

193The trial judge instructed the jury:

The Crown relies on one particular line of lyrics from this rap song in an effort to show that Mr. Skeete was aware of and believed in the code of silence. Mr. Skeete has told you those lyrics have nothing to do with the code of silence but describe how real inmates do not move to different ranges just because they may have an issue on the range where they are housed.

You should consider these lyrics in the context of the rap song as a whole. The whole of the recording is given to you so that you can understand how the lyrics that the Crown identifies fit within the overall recording.

You may be offended by some of the contents of the rap song, but you must not let that influence your consideration of this evidence nor should you use the rest of the contents of the rap song to decide, or help you decide, that Mr. Skeete is the sort of person who would commit the offence charged.

You should also consider the significance of these lyrics in the context of how they were made, that is, this is not a normal statement made by one person to another but rather is a performance in Mr. Skeete's role as a rap artist. You may decide that Mr. Skeete is advocating a particular point of view or you may accept his explanation for the meaning of the lyrics or you may conclude that the lyrics do not assist you one way or the other. It is entirely up to you to decide.

You may give anything that Mr. Skeete said in this rap song as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything that Mr. Skeete said, however, is only part of the evidence in this case. You should consider it along with and in the same way as all of the other evidence.

194The trial judge also explained that the jury's decision must be founded on evidence, not bias or prejudice. Experienced trial counsel, provided with an advance copy of the proposed charge, did not seek any amplification of the draft instructions.

195In the result, I am satisfied that the trial judge properly admitted the evidence of the rap lyric.

Ground #3: Errors in the Closing Address of the Crown

196The third ground of appeal alleges errors in the closing address of the trial Crown and further error by the trial judge in failing to correct these errors in his charge to the jury. The alleged errors have to do with the evidentiary significance of the appellant's late disclosure of his alibi for the time of the shooting and of lies told by two Crown witnesses at trial.

197Some further background is necessary to situate these complaints in their proper setting.

The Alibi Issue

198In giving evidence at trial, the appellant testified that S.M. picked up him and D.L.K. near the Islington subway at about 7:40 p.m. on December 29, 2009 and dropped them off at a tattoo parlour near Keele and Dundas. The appellant entered the shop around 8:30 p.m. and spoke to the owner about getting a new tattoo. Meanwhile, S.M., who was a drug dealer, drove off to purchase more drugs from his supplier.

199According to the appellant, the owner of the tattoo parlour told him that there was not enough time before closing for a new tattoo. The appellant settled for a touch-up of an existing tattoo by another artist and signed a waiver which he produced at trial. The waiver was dated December 29, 2009, but contained no entry about when it was signed on that day.

200The owner of the tattoo parlour contradicted the evidence of the appellant. He explained that this was a temporary location for his business and would have closed at 7 p.m. on that day. The owner gave this evidence from memory without the assistance of business records, and was unable to say whether a freelance artist had been on the premises later that evening.

201The appellant testified that he and D.L.K. left the tattoo parlour at about 9 p.m. They walked across the street to Galaxy Donuts where they waited for S.M. to return from his drug purchase to pick them up so that the appellant could be home in time for his 10 p.m. curfew. The appellant claimed that his cellphone died at 9:29 p.m. while he was waiting for S.M. at Galaxy Donuts.

202At around 9:40 p.m., with no sign of S.M., the appellant and D.L.K. went outside to call a cab. S.M. came by, running. He said he had seen someone get shot. All three got into S.M.'s car and left the area.

203Cellphone records filed at trial confirmed that the appellant's cellphone was in an area that included both Galaxy Donuts and the place where Kenneth Mark was shot to death from 8:40 to 9:29 p.m. on December 29, 2009. The appellant's phone was in the area of his home at 9:59 p.m.

204S.M. testified that he drove home alone from the area of Keele and Dundas.

The Jury Addresses on Alibi

205Defence counsel addressed the jury first. He acknowledged that prior to giving evidence at trial, the appellant had not disclosed his presence at Galaxy Donuts to the police or to the Crown. Counsel submitted that the appellant was then 19 years old and did not think his presence at the tattoo parlour or Galaxy Donuts were important events, so he told nobody about them.

206The trial Crown invited the jury to find that the appellant had not been at the tattoo parlour because the owner had testified that the business closed at 7 p.m. The Crown argued that the alibi was advanced to account for the presence of the appellant's cellphone in the area where the murder occurred. The alibi was not corroborated by any other witness or evidence. If it were true, the appellant would have disclosed it and collected evidence in support of his claim. Earlier disclosure would have permitted police to collect video surveillance evidence and interview the tattoo shop owner to confirm or refute the claim. The Crown urged the jury to reject the alibi and find that the appellant was at the murder scene as the cellphone records confirmed.

The Charge to the Jury

207In his charge to the jury, the trial judge characterized the alibi as involving the appellant's presence at Galaxy Donuts at the time of the shooting. He instructed the jury in accordance with the principles laid down in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and R. v. Parrington (1985), 1985 CanLII 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.). On the evidentiary significance of late disclosure of the alibi the trial judge said:

In considering Mr. Skeete's evidence on this point, you will want to consider that Mr. Skeete did not, by his own admission, tell anyone about being in the doughnut shop until very recently. You will remember that he said that he did not view it as important, and that is why he did not tell anyone. As a consequence, Mr. Skeete's explanation could not be investigated by the police. You may conclude that there was not much by way of an investigation that the police could have undertaken, even if the explanation had been disclosed at an early time. Nevertheless, you are entitled to consider the failure to disclose this explanation at an early stage in assessing Mr. Skeete's evidence in this regard.

The Lying Witnesses/False Evidence Issue

208This complaint relates to the testimony of two witnesses, B.I. and S.M. Each testified on behalf of the Crown. In each case, their credibility and the reliability of their evidence was challenged on various grounds. Both parties sought to distance themselves from the evidence of B.I. and S.M., albeit for different reasons.

209B.I. gave evidence about obtaining the gun that was used to kill Kenneth Mark along with a silencer for the weapon. He claimed that when he was 15 years old he bought the gun from a man he knew as "Kush" at a bus stop as he made his way to school one day. He got the silencer from "Flex". Two days after the murder, the gun and the silencer were found in the cold air return at B.I.'s home. He denied having received the gun and silencer from the appellant during a brief meeting in an alley shortly after the deceased was killed.

210Shortly after the appellant's arrest, B.I. posted on his Facebook page "Freee Da Niggs Pullin On Da Triggs". The same page contains a reference to "Free Tha S.T. Famolay - Ammo,Dego,Retro".

211S.M. described the appellant's whereabouts on the night of December 29, 2009. He contradicted the appellant's claim that he (S.M.) drove him (the appellant) and D.L.K. home after he (S.M.) had seen the shooting.

The Addresses of Counsel

212Defence counsel told the jury that B.I. lied about buying the gun and silencer from Kush and Flex. They were fictitious characters invented by B.I., who did not want to identify his source. This was part of the culture or code of silence. Counsel reminded the jury that their rejection of B.I.'s evidence about the source of the firearm and silencer afforded no evidence and did not permit them to conclude that B.I. got the gun from the appellant and hid it to prevent its discovery by the police and connection to the appellant.

213Defence counsel acknowledged that S.M. was an admitted liar whose falsehoods seriously compromised his credibility. That said, counsel submitted, these deficiencies were in no way evidence of the appellant's guilt.

214The trial Crown argued that B.I. lied about the circumstances in which he came into possession of the gun and silencer. Kush and Flex did not exist. B.I. hid the gun and silencer to protect his friends, as evidenced by his Facebook posts referring to Ammo (the appellant's rap name) as "Famolay" and his statement "Freee Da Niggs Pullin On Da Triggs".

215The trial Crown agreed that S.M.'s credibility was seriously compromised, but invited the jury to find that he had told the truth when he claimed not to have picked up the appellant and D.L.K. after the shooting. This statement was true because, as the Crown argued, no such rendez-vous occurred.

The Instructions of the Trial Judge

216The trial judge gave what has become a standard instruction to jurors about how to assess evidence in their fact-finding exercise. Among other factors jurors were told to consider, in determining whether to believe some, none or all of a witness' evidence, were the honesty of the witness and whether the witness had any reason to favour one side or the other in his or her testimony.

217Defence counsel sought an instruction that put some distance between the falsehoods of B.I. and S.M. and the credibility of the appellant. The trial judge included the following instructions:

Members of the jury, you know that [B.I.] was questioned on the contents of his Facebook page. In particular, he was questioned about the appearance of the nicknames "Ammo, Dego and Retro" that appeared on his page. He was also questioned about a specific phrase, "Free da Niggs that pulled da Trigs". [B.I.] said that this was a rap lyric that he liked, and that is why he put it on his Facebook page.

You may use the contents of the Facebook page in your evaluation of [B.I.]'s evidence and which parts of it you may believe or not believe. You must not, however, use the comments that [B.I.] put on his Facebook page as evidence that Mr. Skeete is guilty of the offence with which he is charged. Mr. Skeete cannot be held responsible for what someone else posts on a Facebook page over which he has no control.

Before concluding my instructions, I want to say one other thing about the evidence in this case. As frequently happens in criminal proceedings, you have heard evidence about events that would naturally disturb all of you. You have heard that Kenneth Mark was killed, by a single gunshot to the back of the head, possibly only as a result of him cooperating with the police in investigating his own earlier shooting. You have also heard from some witnesses who were not particularly cooperative and who you may conclude were not willing to be honest and open with us by telling us what they really did and saw. It would be a natural reaction for each of you to be both troubled and saddened at the violent and tragic death of Kenneth Mark and perhaps to be frustrated at the manner in which some witnesses conducted themselves at this trial.

Nevertheless, I want to repeat what I said to you before, and that is that you must approach your deliberations objectively and dispassionately. Your function is not to express forgiveness or condemnation in this case. You must not visit any frustration you may have with the conduct of some of the witnesses on Mr. Skeete or use it to decide, or help you decide, that Mr. Skeete is guilty of the offence.

Rather, your task is to determine the facts in this case and, based on the facts as you find them and the law as I have explained it to you, to determine whether the Crown has proven the guilt of Lamar Skeete beyond a reasonable doubt with respect to the offence with which he is charged. It is only in that way that you will be assured of arriving at a fair and just verdict in this case.

The Arguments on Appeal

218The appellant says that the trial Crown's closing address cast the accused's failure to disclose his alibi in sufficient time to permit its investigation as after-the-fact conduct supporting an inference of guilt. This imposed an obligation on the trial judge to correct this misstatement of the law. The failure of the trial judge to do so constitutes a legal error. The late alibi instruction was generally unobjectionable on its face, but may have left the jury with the mistaken impression that they were entitled to infer the appellant's guilt from his silence about his alibi.

219According to the appellant, the trial judge further erred in failing to correct the trial Crown's submission that B.I. and S.M. lied to protect the appellant. There was no evidence upon which the jury could find a connection between the appellant and the admittedly false testimony of the Crown witnesses, B.I. and S.M.

220The respondent denies that the trial Crown invited the jury to draw an inference of guilt from late disclosure of the alibi. For his part, the trial judge properly charged the jury on the relevance of late disclosure to their assessment of the alibi evidence advanced on the appellant's behalf.

221The respondent says that the trial Crown relied upon late disclosure as a factor that tended to undermine the veracity of the alibi. The Crown advanced no argument directly or by necessary implication that the jury could or should infer guilt because of late disclosure of the alibi. The Crown was entitled to suggest that the appellant told nobody about the alibi because he knew full well that the video at Galaxy Donuts would not have shown him there with D.L.K. as he testified at trial. It was open to the Crown to contend that the late-blooming alibi was false and urge that the balance of the evidence established the appellant's guilt beyond a reasonable doubt.

222The respondent adds that experienced trial counsel did not object to the closing address of the Crown, seek any remedial instruction or contend that the instruction given about the relevance of late disclosure was deficient or prejudicial to the appellant in any way.

223In connection with the lying witnesses, the respondent says that the trial Crown did not invite the jury to infer guilt from the fact that each had lied. The Crown grounded her submission that the witnesses should not be believed on the inconsistencies in their evidence, their close relationship to the appellant and their own involvement in the commission of the offence or assisting the appellant to escape detection. Even the appellant acknowledged the falsehoods in their evidence and their desire to help out his cause.

224The respondent pointed out that none of the trial participants suggested collusion among the appellant, B.I. and S.M. or suggested that guilt could be inferred as a result. Trial counsel sought an instruction to enjoin any unfavourable inferences and made no complaint about the correctness or completeness of the instruction that the trial judge provided.

The Governing Principles

225The parties do not differ on the principles that control our decision on this ground of appeal. Lengthy recital would achieve little return. A few brief points about alibi and the differential treatment afforded disbelieved evidence, on the one hand, and fabricated or concocted evidence, on the other, will suffice.

226First, a general instruction on evidence of alibi incorporates the formula proposed by Cory J. in W.(D.): R. v. Parrington (1985), 1985 CanLII 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.), at pp. 186-187.

227Second, for evidentiary purposes, the law distinguishes between an alibi which is disbelieved and therefore rejected and an alibi which is proven to be false, thus concocted. A disbelieved alibi is an evidentiary naught: it has no evidentiary value. But an alibi that is proven to be false, thus concocted, may provide circumstantial evidence of guilt: R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 17; R. v. Wittwer (1996), 1996 CanLII 4005 (ON CA), 105 C.C.C. (3d) 44 (Ont. C.A.), at pp. 52-53.

228Third, before an inference of guilt may be drawn, there must be evidence from which a reasonable jury could find:

i. that the alibi was deliberately fabricated or concocted; and

ii. that the accused was a party to the fabrication or concoction.

See, Wittwer, at p. 53. Mere rejection of the alibi evidence as untruthful or unreliable does not constitute affirmative evidence of guilt: Wittwer, at p. 53; R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 430.

229Fourth, if an accused fails to make timely disclosure to the prosecution of the substance of an alibi, the trier of fact may, but is not required to, draw an adverse inference against the defence because of that failure: R. v. Wright, 2009 ONCA 623, 247 C.C.C. (3d) 1, at paras. 18 and 20. A trier of fact may find that the alibi is untrue because it was not disclosed when it is reasonable to assume an innocent person would have disclosed it: R. v. Hill (1995), 1995 CanLII 271 (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 477-479.

230Further, by parity of reasoning, a disbelieved explanation for some other piece of inculpatory evidence is of no evidentiary value. But if there is evidence upon which the trier of fact could find that explanation was concocted and that the accused was a party to that concoction, the trier of fact may draw an adverse inference from the evidence: see, James H. Chadbourn, ed., Wigmore on Evidence, vol. II (Toronto: Little, Brown and Company, 1979), at § 278, pp. 133-141.

The Principles Applied

231As I will briefly explain, I would not give effect to this ground of appeal.

232To take first, the alibi issue.

233In her closing address, the trial Crown did not invite the jury, in express terms or by necessary implication, to use their rejection of the appellant's alibi as positive evidence of the appellant's guilt.

234The trial Crown argued, as she was entitled to do, that the jury should conclude that the appellant's alibi was untrue. It was unsupported by any evidence beyond his own say so. The Galaxy Donuts story was fabricated to account for the evidence that his cellphone was in the area of the killing and uncustomarily inactive at about the time of the killing.

235The trial Crown pointed to other evidence that contradicted the appellant's claim that he walked to Galaxy Donuts from a tattoo parlour where he had an existing tattoo "touched up". The owner of the tattoo shop testified, albeit without the assistance of business records, that the shop would have been closed before the time the appellant claimed to have arrived there.

236In her closing address, the trial Crown invited the jury to reject the appellant's alibi because it was first advanced at trial. Its late emergence deprived the police of the opportunity to view surveillance videos from the business establishments in the area of Galaxy Donuts and to interview the tattoo shop operator in a timely way when his memory was more likely to be fresh and records may have been available for him to consult.

237It is also worth mention that experienced trial counsel did not suggest that the closing address of the Crown invited the jury to use their disbelief of the appellant's alibi as an item of evidence from which, along with other evidence, they could find guilt established beyond a reasonable doubt.

238In his instructions to the jury, the trial judge properly charged them on the defence of alibi and made it clear that late disclosure of the alibi was only a factor for them to consider in assessing the weight they would assign to the alibi evidence. This instruction was balanced by a reference to the appellant's reasons for not having disclosed his alibi earlier.

239In connection with the evidence of B.I. and S.M., the trial Crown urged jurors to reject their evidence as unworthy of belief (except S.M.'s testimony that he did not drive the appellant home after the shooting) on several grounds. Inconsistencies in their accounts. Implausibilities, such as the gun and silencer vendors, Kush and Flex. Their own involvement in the offence.

240The Crown was also entitled to argue that the relationship among B.I., S.M. and the appellant, as evidenced, for example, by B.I.'s Facebook post, and adherence to the code of silence, favoured rejection of their evidence. Indeed, the appellant himself recognized the falsity of their evidence and what animated it, although he considered it more a burden than a benefit to his defence.

241Trial counsel for the appellant was keenly aware of the danger that the jury may visit the lies of B.I. and S.M. on the appellant. Yet he raised no complaint about the Crown's closing. Nor did counsel seek any specific or additional instructions to the jury on this issue, apparently satisfied that the trial judge's injunction to jurors not to visit any frustration they might have with the conduct of certain witnesses on the appellant, or use it to decide or help them decide that the appellant was guilty of murder was sufficient.

Conclusion

242For these reasons, I would dismiss the appeal.

Released: November 30, 2017

"David Watt J.A."

"I agree. K. van Rensburg J.A."

"I agree. G. Pardu J.A."

Footnote

1Although most admissions are against interest when made, no such requirement applies to the exception. The common phrase "admissions against interest", invites confusion of two separate measures for admitting hearsay and erroneously engrafts an "against interest" requirement on admissions: Kenneth S. Broun, ed., McCormick on Evidence, 7th ed., vol. 2 (Thomson Reuters, 2013), at § 254, pp. 263-264.