R. v. Evans
Court: Court of Appeal for Ontario
Judges: Watt, van Rensburg and D.M. Brown JJ.A.
Case Summary
Criminal law — Evidence — Expert evidence — Accused charged with drug offences — Crown's case based largely on intercepted communications — Trial judge not erring in refusing to admit expert opinion evidence from two defence witnesses about usage of various terms to describe various drugs — Neither proposed witness meeting requirements to be designated an expert — Evidence not satisfying requirements for threshold admissibility and failing to survive cost-benefit analysis even if it did so.
Criminal law — Evidence — Extrinsic misconduct — Accused charged with criminal organization offences — Trial judge not erring in admitting evidence of extrinsic misconduct associated with organization in question and one of its alleged members — Evidence being relevant and material to contested issue of whether organization was "criminal organization" — Probative value of evidence outweighing its prejudicial effect.
Criminal law — Sentencing — Criminal organization offences — Four accused convicted of trafficking controlled substances for criminal organization, other drug offences and firearms offences — Trial judge imposing sentences ranging from nine to 13 years before credit for pre-trial custody — Sentences not demonstrably unfit — Predominant sentencing principles being deterrence and denunciation given deadly mix of wholesale and street-level drug trafficking, firearms, gangs and attempted intimidation of perceived rivals.
Criminal law — Sentencing — Pre-trial custody — Crown rebutting presumption of enhanced credit arising from fact of pre-trial custody for two accused but not for third — Third accused differing from his co-accused in that most of his offences were committed before or straddled coming into effect of Truth in Sentencing Act — Third accused entitled to enhanced credit for entire time spent in pre-trial custody on 2:1 basis.
Criminal law — Trial — Jury trial — Challenge for cause — Defence counsel seeking order under s. 640(2.1) of Criminal Code excluding potential jurors from courtroom during challenge for cause — Both prospective jurors and sworn jurors excluded — Accused challenging constitution of jury on appeal from conviction on ground that challenge for cause was tried by static triers and defence wanted rotating triers — Appeal dismissed — Accused expressly abandoning their request for rotating triers.
Criminal law — Trial — Witnesses — Cross-examination — Crown calling expert witness to give evidence about interpretation of street and coded language about drugs in intercepted communications — Accused attempting to cross-examine expert based on movie, song lyrics and anonymous posts online — Trial judge not violating right of accused to make full answer and defence by foreclosing certain lines of cross-examination on basis of relevance.
Facts
The four accused were convicted of a number of offences, including drug offences committed for the benefit of or in association with a criminal organization, the Five Point Generals ("5PG"), conspiracy to traffic in controlled substances and firearms offences. The Crown's case was based largely on intercepted communications. The Crown called an expert witness to give evidence about the interpretation of street and coded language about drugs used in the intercepted communications. The accused claimed that the Crown had not proved beyond a reasonable doubt the specific drug alleged in the various trafficking-related charges, and denied that the 5PG was a "criminal organization". They acknowledged that they were drug dealers, but denied committing any offences for the benefit of or in association with the 5PG. The accused were convicted and the following sentences were imposed: for S, 13 years' imprisonment, less a credit of 48 months for 42 months of pre-trial custody; for E, 9.5 years, less a credit of 54 months for 42 months of pre-trial custody; for F, nine years, reduced to eight due to stringent release terms; and for G, 9.5 years, less a credit of 48 months for 42 months of pre-trial custody. Each accused appealed his conviction and sentence.
Held
The conviction appeal should be dismissed; E's sentence appeal should be allowed; the sentence appeals of S, F and G should be dismissed.
Reasons
The Background
Sheldon and Shane Evans are brothers. Rashard Green and Orrett Francis are friends. All four men are drug traffickers. That much was clear from the wiretap evidence introduced at trial.
But what was not clear from those wiretaps, the appellants say, was what the appellants were dealing in — marijuana or cocaine — and for whose benefit.
The appellants argued they were independent contractors. The Crown contended that they were members of and dealt drugs for a criminal organization: the Five Point Generals ("5PG").
After a three-month jury trial involving six accused persons (including the appellants) on a 30-count indictment, the appellants were convicted of a total of 21 offences. Among them were offences committed for the benefit of or in association with a criminal organization, conspiracy to traffic in controlled substances and firearms offences. After the jury delivered its verdict, the appellants Shane Evans and Rashard Green pleaded guilty to additional offences against the administration of justice. All received substantial penitentiary sentences. Each appeals conviction and sentence.
The Investigation
The charges against the appellants and others arose out of a major wiretap investigation — named Project Corral — conducted by the Gun and Gang Task Force of the Toronto Police Service during early 2010. The principal component of that investigation was the authorized interception of private communications of alleged members of the 5PG, their associates, drug suppliers and purchasers.
The Evidence at Trial
At trial, the Crown sought to prove that the appellants were members of the 5PG, which the Crown said was a "criminal organization" within the definition of that term in s. 467.1(1) of the Criminal Code. Membership in the 5PG enabled the appellants to traffic in illicit drugs, such as marijuana and cocaine, persistently and safely within 5PG territory. The Crown also relied on the evidence of intercepted communications to show that the appellants were ready, willing and able to defend their territory with violence when threatened by their rivals.
At trial, the Crown supplemented the evidence of the intercepted private communications with evidence from a variety of other sources, including:
(i) expert opinion evidence about the nature, characteristics and activities of Toronto street gangs to explain how the 5PG served the criminal purposes of its members and associates;
(ii) expert opinion evidence about the meaning of allegedly coded and guarded drug and firearms language in the intercepted communications; and
(iii) surveillance, undercover operations and other evidence establishing associations, as well as multiple drug trafficking transactions, among the 5PG members and associates.
In addition, the Crown tendered evidence of 5PG graffiti, tattoos, jewellery and clothing. According to the expert opinion evidence, these indicia are instrumental in establishing and maintaining a gang's territory and reputation. Searches of various homes and vehicles linked to the appellants and other 5PG members and associates also yielded various quantities of crack cocaine, drug paraphernalia, cash, firearms and ammunition.
The Defence Position
None of the appellants testified. Counsel for Shane Evans sought to call two witnesses to give expert opinion evidence about the meaning of terms associated with various drugs. The trial judge ruled the evidence inadmissible, a decision challenged in this court. In the end, no defence evidence was adduced.
At the conclusion of the evidence, the appellants acknowledged that they were drug dealers, but they contested the Crown's ability to prove beyond a reasonable doubt the specific drug alleged in the various trafficking-related charges against them. Moreover, even if the jury were to find that the 5PG existed, the appellants denied that it was a "criminal organization", as that term is defined in the Criminal Code, and denied committing any offences for the benefit of or in association with the 5PG. And, they resisted any inference of possession from the finding of firearms and ammunition in residences attributed to them.
The Verdicts
The jury found the appellants guilty of the following offences:
Sheldon Evans
- trafficking controlled substances for a criminal organization (Criminal Code, s. 467.12);
- trafficking marijuana for a criminal organization (Criminal Code, s. 467.12);
- conspiracy to traffic cocaine x 4 (Criminal Code, s. 465(1)(c));
- traffic cocaine (Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"), s. 5(1));
- possession of cocaine for the purpose of trafficking (CDSA, s. 5(2));
- transfer ammunition (Criminal Code, s. 99(1));
- conspiracy to commit aggravated assault (Criminal Code, s. 465(1)(c)); and
- possession of firearm knowing unauthorized (Criminal Code, s. 91(2)).
Shane Evans
- trafficking controlled substances for a criminal organization (Criminal Code, s. 467.12); and
- conspiracy to traffic cocaine x 4 (Criminal Code, s. 465(1)(c)).
Orrett Francis
- trafficking controlled substances for a criminal organization (Criminal Code, s. 467.12);
- conspiracy to traffic cocaine x 4 (Criminal Code, s. 465(1)(c)); and
- conspiracy to traffic marijuana (Criminal Code, s. 465(1)(c)).
Rashard Green
- trafficking controlled substances for a criminal organization (Criminal Code, s. 467.12);
- trafficking marijuana for a criminal organization (Criminal Code, s. 467.12);
- conspiracy to traffic cocaine x 2 (Criminal Code, s. 465(1)(c)); and
- possession of loaded prohibited firearm (Criminal Code, s. 95(1)).
After the jury had rendered its verdict, the appellants Shane Evans and Rashard Green also pleaded guilty to offences against the administration of justice, which were on a separate indictment.
The Grounds of Appeal
On their appeals from conviction, the appellants advance five grounds of appeal. They argue that:
(i) the jury was not properly constituted because the trial judge, when asked to exclude prospective jurors from the courtroom during the challenge for cause, required that the truth of the challenges be evaluated by static triers rather than by rotating triers;
(ii) the trial judge improperly curtailed the cross-examination of the Crown's expert witness who provided opinion evidence about the meaning of various terms used in drug-related conversations;
(iii) the trial judge erred in failing to admit expert opinion evidence from two proposed defence witnesses about the usage of various terms to describe different drugs;
(iv) the trial judge erred in admitting evidence of extrinsic misconduct by persons other than the appellants; and
(v) the charge to the jury was unbalanced.
On the appeals from sentence, the appellants say that the trial judge erred in awarding too little credit for time spent in pre-sentence custody when determining the sentences he imposed or otherwise erred in principle.
The Appeals from Conviction
Ground #1: The Jury Selection Issue
This ground challenges the constitution of the jury because the truth of the challenges for cause was determined by static triers, contrary to the request of trial counsel who sought rotating triers as the arbiters of the challenge.
The Background
As various pre-trial applications unfolded, defence counsel indicated that they would be seeking to challenge each prospective juror for want of indifference due to racial bias. The Crown said that it would not oppose the challenge. The precise wording of the question to be put to each prospective juror would be discussed among the parties in the hope that a formulation satisfactory to all could be achieved.
The Original Proposal
The discussion about the proposed challenge for cause resumed at a later date. Defence counsel confirmed the nature of the challenge, suggested a date for argument and indicated that "[t]here was one aspect that I wanted to add to it with respect to rotating triers and to the question being asked".
The trial judge asked defence counsel to put the application in writing to ensure an understanding of just what was being sought and the basis for it. Counsel agreed to do so.
The Written Application
In the written application to exclude potential jurors during the challenge for cause process, counsel for Sheldon Evans on behalf of all counsel invoked s. 640(2.1) of the Criminal Code. The notice of application said nothing about the mode of trial of the challenge for cause the appellants sought.
The Further Discussion
After defence counsel had served and filed their written application, the parties discussed scheduling of the hearing of the application and related issues. The trial judge inquired about the request for rotating triers. He had seen nothing about it in the materials filed.
Counsel who had originally raised the rotating triers issue explained that rotating triers were the defence preference. Counsel added that they were aware of the trial judge's earlier decision in R. v. Riley, 2009 CanLII 22571 (ON SC). In that case, the trial judge had determined that when exclusion of potential jurors during the challenge for cause process is sought, the trial for the challenge must be heard by static triers. Defence counsel indicated they would discuss the issue further among themselves. The trial judge stated that "if it is something we have to deal with, we can deal with it at the same time as the other issue. That is the excluding of the . . . jurors. We can deal with them together." Later in his discussion with counsel, the trial judge reiterated the need for proper materials to be filed on the various motions.
The Ruling on the Challenge for Cause Question
On the same date, the trial judge heard submissions about the wording of the proposed question on the challenge for cause. He approved a wording which included components of both racial and anti-gang bias.
The Rotating Triers Inquiry
About ten days later, the Crown advised the court that two procedural issues connected to the challenge for cause remained. Defence counsel wanted to argue about rotating triers and exclusion of the panel. The Crown pointed out that both issues had been discussed in Riley (S.C.J.). The Crown indicated that it was content to follow the ruling and thought that defence was content with that as well.
The Decision of the Trial Judge
On two separate occasions prior to the commencement of jury selection, the trial judge confirmed with counsel that they had dealt with the defence application to exclude potential jurors during the challenge for cause process. On the second occasion, defence counsel confirmed that the Crown had conceded that the panel should be excluded during the challenge for cause. Turning to the issue of rotating triers, defence counsel said, "[B]ased on your ruling in [Riley (S.C.J.)] where . . . you get the panel excluded or you get the rotating triers, we are not proceeding on the rotating triers."
Jury Selection
The challenge for cause proceeded. Prospective jurors, as well as the chosen jurors, were excluded from the courtroom. Static triers determined the truth of each individual challenge for cause.
The Arguments on Appeal
The appellants contend that the jury was not properly constituted, thus the verdicts rendered cannot stand.
From the outset, the appellants say, what the defence sought at trial was that prospective jurors be excluded from the courtroom during the challenge for cause and that the truth of the challenge for cause be determined by rotating triers. True, in the end, they accepted static triers as the mode of trial of the truth of the challenge. But they did not do so willingly. They acquiesced in this mode of trial only because they considered a request for rotating triers a foregone conclusion. After all, the trial judge had already ruled in an earlier case — Riley (S.C.J.) — that the defence could not have both exclusion of the panel and rotating triers. Panel exclusion meant static triers.
The appellants argue that this court has already decided that the trial judge's interpretation in Riley (S.C.J.) of the effect of the amendments creating ss. 640(2.1) and (2.2) of the Criminal Code on the availability of panel exclusion and rotating triers was wrong: see Riley (C.A.), at para. 75. Despite these amendments, a trial judge retains the discretion to permit panel exclusion and trial of the truth of the challenge for cause by rotating triers.
In this case, the appellants contend that, despite their application which invoked s. 640(2.1) and thus s. 640(2.2), they wanted rotating triers. However, they were faced with a trial judge who had already decided that what they wanted was not available to them as a matter of law. In the end, what happened is that the appellants did not get the mode of trial of the challenge for cause they wanted; rather, the appellants got what they had to accept or settle for because of the trial judge's prior, erroneous conclusion in Riley (S.C.J.). In the result, the appellants say, the jury was not properly constituted and the verdicts entered, which are beyond the reach of the proviso in s. 686(1)(b)(iv), cannot stand.
The respondent accepts, in oral argument, that it is now well-settled in this province that a trial judge has inherent jurisdiction to exclude prospective jurors from the courtroom during a challenge for cause when the truth of the challenge is determined by rotating triers. The amendments that added s. 640(2.1) and (2.2) to the Criminal Code and provided for adjudication of the truth of the challenge for cause by static triers did not eliminate this inherent jurisdiction.
The respondent also acknowledges, in oral argument, that a jury is improperly constituted when a trial judge directs the trial of the truth of the challenge for cause by static triers in the absence of an express or implied application by an accused under s. 640(2.1) of the Criminal Code. This is because s. 640(2.1) only becomes engaged on application by an accused to exclude all jurors, sworn and unsworn, during the challenge for cause process. An order directing static triers, in the absence of an application under s. 640(2.1), violates a mandatory statutory provision and results in an improperly constituted jury.
In this case, however, the respondent submits that the appellants expressly applied for an order excluding prospective jurors under s. 640(2.1), and the Crown consented to it. The effect of this order was twofold. Under s. 640(2.1), the challenge for cause would proceed in the absence of all jurors — sworn and unsworn — from the courtroom. And s. 640(2.2) would be engaged by virtue of the order made under s. 640(2.1). This subsection would require that the truth of the challenge for cause be determined by static triers until the full jury, including additional and alternate jurors, were sworn.
The respondent disputes the appellant's claim that their acceptance of static triers was unwilling or a grudging acceptance of the inevitable as a result of the trial judge's earlier conclusion in similar circumstances in Riley (S.C.J.). The record reveals no instance on which the trial judge limited the appellant's choice. The judge invited submissions. None were made. The appellants never sought an order excluding the panel of prospective jurors and having the truth of the challenge determined by rotating triers. They never asked the trial judge to reconsider his prior decision in light of other authorities. The only application advanced invoked s. 640(2.1). Its consequences are statutorily defined. They wanted the panel excluded. They got the panel excluded. But more than that, they also got the sworn jurors excluded so that no individual juror, prospective or actual, ever heard the questions asked of or answers given by any other jury panel member. No contamination occurred. In the result, the respondent concludes, the jury was properly constituted. No statutory provision governing jury selection was violated.
The Governing Principles
This ground of appeal is not in need of protracted examination. A few brief points will suffice.
First, the procedures available for trial of challenges for cause.
The Criminal Code provides two methods of trial to determine the truth of challenges for cause. The methods differ on who determines the truth of the challenge.
Subsection 640(2) provides for rotating triers. This method of trial of challenges for cause has been available at least since our first Criminal Code was enacted in 1892. It was the exclusive method of trial of challenges for cause until 2008, when s. 640(2.1) and (2.2) introduced static triers as a method of trial of challenges for cause: R. v. Noureddine, at paras. 25-26; R. v. Grant, at paras. 20-21; R. v. Murray, at paras. 40-43; R. v. Husbands, at paras. 33-34; Riley (C.A.), at paras. 61, 64, 65.
Second, exclusion of prospective jurors and adjudication by rotating triers.
Prior to the 2008 amendments, which added the option of static triers as adjudicators of the truth of challenges for cause, trial judges had a well-established discretion to exclude prospective jurors from the courtroom when rotating triers were engaged in the adjudication of the truth of the challenge. This discretion, which required an evidentiary foundation, was not included by express language or by necessary implication in s. 640(2). Nor did it arise from elsewhere in the Criminal Code: Grant, at paras. 22, 41; Murray, at para. 42; Riley, at para. 62; R. v. Esseghaier, at para. 26.
This discretion to exclude prospective jurors from the courtroom as rotating triers determined the truth of the challenge survived — or, put differently, was not eliminated by — the creation of the static trier adjudication procedure or the exclusionary order for both sworn and unsworn jurors, which is an essential component of that particular regime: Grant, at paras. 18, 41; Murray, at para. 53; Husbands, at para. 36.
Third, the availability of the static trier procedure.
Subsections 640(2.1) and (2.2) create and govern the static trier procedure. The procedure is unavailable absent an application pursuant to s. 640(2.1), whether express or necessarily implied, by an accused for the exclusion of all jurors — sworn and unsworn — from the courtroom as the challenge process unfolds. The exclusionary order does not issue as of right; rather, it requires a preliminary finding by the presiding judge that the order is necessary to preserve the impartiality of the jurors: Noureddine, at para. 35; Grant, at paras. 21, 51; Murray, at paras. 43, 46, 55; Husbands, at para. 37; Riley (C.A.), at paras. 65-67; Esseghaier, at paras. 23-24.
A successful application for an exclusionary order under s. 640(2.1) engages the static triers mode of trial of the truth of the challenge for cause. The mandatory language of s. 640(2.2), engaged when an order is made under s. 640(2.1), makes it clear that the exclusive method of trial of the challenge is by static triers. Under s. 640(2.2), the static triers "shall be sworn to determine whether the ground of challenge is true . . . [and] shall exercise their duties until [the full jury, including any additional jurors and alternates] are sworn" [emphasis added].
A final point concerns the effect of a failure to follow or a contravention of a mandatory statutory provision relating to the jury selection process. Where this occurs, the proviso in s. 686(1)(b)(iv) of the Criminal Code, which applies to procedural irregularities at trial, will not preserve the verdict rendered at trial: Noureddine, at paras. 57-58; Husbands, at para. 41; R. v. V. (W.), at para. 22; R. v. Swite, at para. 28.
The Principles Applied
I would not give effect to this ground of appeal.
To begin, in their written application, the appellants expressly invoked s. 640(2.1) as the statutory authority upon which they relied for the order they sought — i.e., exclusion of all prospective jurors from the courtroom during the challenge for cause process. The Crown consented to the application.
The procedural impact of the order sought by the appellants and made by the trial judge meant that all jurors, sworn and unsworn, would be excluded from the courtroom during the trial of the challenges for cause. And the trial of the truth of the challenges for cause would be determined in accordance with the mandatory provisions of s. 640(2.2), that is to say, by static triers. There is no suggestion that counsel, all experienced criminal lawyers, were unaware of the consequences of a successful application for an exclusionary order under s. 640(2.1). The opening words of s. 640(2.2) permit of no doubt.
Second, in addition to their express invocation of s. 640(2.1), which engaged the mandatory consequences described in s. 640(2.2), counsel expressly abandoned their request for rotating triers to determine the truth of the challenges. It ill lies in their mouths now, on an appeal to this court, to reclaim ground ceded at first instance, all the more so where they did not ask the trial judge to reconsider his earlier ruling in Riley (S.C.J.) in light of further jurisprudential developments on the same subject-matter.
This situation is to be contrasted with that in Esseghaier, where the appellant Jaser did not cede this ground at trial. Rather, on an application to resolve jury selection issues before the trial judge, Jaser sought, as his primary position, rotating triers with unsworn jurors excluded. The trial judge ruled against him, erroneously holding that he did not have the discretion to exclude unsworn jurors when rotating triers are used to try a challenge for cause. Even though Jaser had put forward an alternate position (i.e., static triers with sworn and unsworn jurors excluded) that ended up being the one implemented, resort to this alternative position was the direct result of the trial judge's erroneous ruling. By contrast, in the case at bar, there was no ruling. Instead, the appellants abandoned their request for rotating triers.
Third, although the written application did not seek the full ambit of exclusion for which s. 640(2.1) provides — i.e., the exclusion of both unsworn and sworn jurors, the appellants do not suggest that this omission entitles them to circumvent the mandatory consequences of s. 640(2.2).
Fourth, although the appellants colour it differently — describing it as unwilling acquiescence to the ruling in Riley (S.C.J.) — their abandonment of the claim for rotating triers is explicable otherwise. And that is that their primary concern was that prospective jurors be excluded and thereby shielded from any contaminants that might emerge as the challenge for cause process played out, not the composition of the adjudicators of the challenges for cause.
Fifth, this case differs from Noureddine and Husbands, where similar interpretations of the impact of s. 640(2.1) and (2.2) resulted in a fatal flaw in the jury selection process. In this case, there was an application under s. 640(2.1), not a disavowal of any such application. In addition, counsel expressly abandoned pursuit of rotating triers as the adjudicative authority of the challenges for cause. And, the orders made did not contravene or fail to apply any mandatory Criminal Code provision concerning jury selection.
Finally, and of no little significance, the appellants got what they sought, indeed more than that. They asked that unsworn jurors be excluded from the courtroom during the challenge for cause process. That request was fulfilled. In addition, the sworn jurors were excluded. This eliminated the further prospect of contamination had they remained present in the courtroom while subsequent prospective jurors were called and challenged for cause.
Ground #2: The Cross-Examination of the Crown's Drug Expert
This ground of appeal, advanced by the appellants Shane Evans and Orrett Francis and adopted by the others, focuses on various interventions by the trial judge during the course of the cross-examination of one of the Crown's expert witnesses, Sergeant Jeffrey Ross.
The Essential Background
The circumstances in which the interventions occurred are essential to an understanding of the nature of the appellants' complaint and a determination of its validity. The incidents on which the appellants focus all occurred during the cross-examination by trial counsel for Shane Evans (who is not counsel on appeal). It was a cross-examination that continued for several hours on different days of the trial.
The Expertise of Sgt. Ross
Sgt. Ross was qualified, without objection, as an expert in the distribution of illicit drugs and the interpretation of street and coded language about drugs, including cocaine and marijuana. His expertise was grounded in his experience over many years spent as a drug investigator, including his experience in undercover operations. As a drug investigator, he had repeated interactions with drug users, persons arrested for drug offences and confidential informants. In carrying out these activities, it was essential for Sgt. Ross to know and speak the language of those with whom he was involved. Sgt. Ross also consulted with other police officers and drug experts.
Excluded from the experience upon which Sgt. Ross' expertise was grounded were items of popular culture, such as movies, music, Internet posts, websites, magazines and pamphlets.
Sgt. Ross employed a contextual approach when assigning meaning to certain words and expressions used in various intercepts tendered as part of the case for the Crown. He listened to and reviewed the intercepts. He examined the words used. He compared them to the quantities and prices quoted. He considered the entirety of the conversation in question. He also considered the words used in any other associated conversations, and how the same speakers may have used the same word in other conversations.
The Opinions Proffered
Sgt. Ross reviewed the intercepted communications involving the appellants and their co-accused. In some cases, the collocutors were other appellants or accused. In other cases, they were associates, purchasers or suppliers. He then gave his opinion about the meaning of certain terms used in the communications. He explained why he attributed the meaning he did to those terms. More specifically, he elaborated on why he concluded that certain terms or expressions, such as "Cuban" and "twenty", referred to cocaine, but not to marijuana, as cross-examining counsel repeatedly suggested to him.
The Contested Ground
The principal cross-examiner of Sgt. Ross at trial was counsel for Shane Evans. It was during that cross-examination that most of the interventions in issue occurred. It is not necessary to review in exquisite detail the entirety of the cross-examination. The appellants focus their submissions on several specific subjects.
The Popular Culture References
Trial counsel sought to cross-examine Sgt. Ross on the use of certain words that appeared in the intercepted communications in popular culture, including in an Internet post, song lyrics and a clip from a movie.
The Internet Post
Counsel sought to cross-examine Sgt. Ross on a document by someone self-styled as "imagrower". The document was posted on an online forum, "Grasscity Forums". In the document, "imagrower" asserted that a rapper named Wiz Khalifa had used the term "Cuban joint" to describe a cigar filled with marijuana, and he or she sought advice from other members of "Grasscity Forums" about how to roll a "Cuban joint".
This post was written after the offences alleged in the indictment were committed. Trial counsel did not suggest that any of the appellants, or for that matter Sgt. Ross, had ever read the post or were aware of Wiz Khalifa's alleged use of the term "Cuban joint".
Defence counsel sought to put the Internet post before Sgt. Ross and the jury, then to cross-examine the officer about its content. The trial judge allowed counsel to cross-examine Sgt. Ross about:
(i) his interpretation of the wording of the post; and
(ii) his knowledge of Wiz Khalifa's use of the term "Cuban joint" and whether that use would affect his expert opinion about the meaning of the term "Cuban".
The officer explained that Wiz Khalifa's use of the term "Cuban joint" would not affect his conclusion about the meaning of the term "Cuban" in the intercepted communications.
The trial judge permitted defence counsel to adduce admissible evidence about the phrase "Cuban joint", but precluded the double hearsay contained in the post being put before the jury. Counsel adduced no such evidence.
The Song Lyrics
Defence counsel sought to cross-examine Sgt. Ross about some lyrics sung by the rapper Jay-Z about smoking "Cubans". Counsel asked the witness to interpret the lyrics and advise whether his opinion about the meaning of the term "Cuban" would be affected by Jay-Z's use of the term. The officer explained that his opinion about the meaning of the term in the intercepted private communications would not be affected.
The Movie Clip
Defence counsel sought to play a clip from a movie for Sgt. Ross and the jury in which the term "twenty twen twen" was used to describe a small baggy of marijuana. He then proposed to ask the witness to interpret the term. Counsel did not suggest that the appellants had seen this movie, much less that the language used in the movie influenced their own words in the intercepted communications. Nor was it suggested that Sgt. Ross had seen or been influenced by the language used in the movie.
The trial judge did not permit this proposed line of cross-examination essentially on the basis of relevance, concluding that usage of terms in works of fiction was of no probative value in interpreting language used in the real world of drug trafficking.
The Dictionaries
Defence counsel for Shane Evans sought to ask Sgt. Ross whether he considered the Oxford English Dictionary to be an authoritative source on the meaning of words. The trial judge terminated this inquiry; but, counsel persisted in cross-examining the witness about the Oxford English Dictionary's definition of the slang term "eight ball" and, more generally, about the organizations that decide when a new word or phrase should be added to the dictionary. The trial judge considered these inquiries to be outside the witness' expertise.
Defence counsel for Orrett Francis sought to put an excerpt from the Urban Dictionary, a website, to the witness in the presence of the jury. A previous witness had described the Urban Dictionary website as one where anyone can post a term and state what the term means.
Sgt. Ross did not rely on this dictionary as a source to assist him in interpreting the language used in the intercepts. Nor did he consider it authoritative.
The trial judge foreclosed this proposed line of cross-examination. The witness did not regard the source as authoritative, thus it could not be put to the witness on the basis that it represented a contrary opinion of an authoritative source. As substantive evidence, its introduction was barred by the hearsay rule.
The Pamphlet
In the presence of the jury, defence counsel inquired of Sgt. Ross whether he was aware that the Community Police Liaison Committee of 52 Division (Toronto Police Service) had hosted a community barbeque on a particular date. The officer was unaware of this event. Counsel assured the trial judge that "this is very important". The witness and jury were excused. Counsel explained that he had attended the barbeque. He had picked up a pamphlet titled "The Truth about Marijuana", which contained some information that contradicted Sgt. Ross' evidence. Specifically, it listed the word "white" as a street name for marijuana.
When the jury and witness returned, defence counsel asked Sgt. Ross whether he was aware of the pamphlet titled "The Truth about Marijuana", or the organization that produced it, Drug Free World. The officer was unaware of either. The trial judge said, "That's the end of it."
The Drug Identification Bible
During cross-examination about materials he had consulted, Sgt. Ross mentioned that he had received the Drug Identification Bible at a conference for drug experts. He had read parts of it about coded terminology and found no errors in it.
Without intervention of the trial judge, defence counsel cross-examined Sgt. Ross about passages in the Drug Identification Bible relating to the purity of imported cocaine; the coded words for marijuana; marijuana pricing; and different qualities of marijuana.
Defence counsel then attempted to cross-examine Sgt. Ross on passages in the Drug Identification Bible about:
(i) a 2006 RCMP seizure of 50,000 pounds of hashish;
(ii) different strains of marijuana grown in Canada;
(iii) wholesale prices of marijuana in British Columbia;
(iv) Health Canada authorizations for medical marijuana;
(v) street prices for cocaine in the United States; and
(vi) the yearly average expenditures by residents of New York on marijuana.
The trial judge curtailed cross-examination on these subjects.
The Arguments on Appeal
The overarching submission advanced by the appellants is that the trial judge erred in curtailing several lines of cross-examination. The frequency and nature of these interventions, the appellants say, caused a miscarriage of justice, not only because it created an appearance of unfairness, but also because it compromised the appellants' rights to make full answer and defence to the charges they faced.
The appellants accept that, although it is an essential component of the right to make full answer and defence, the right of cross-examination is not unlimited. It is subject to well-established rules, including rules of relevance and admissibility. For some witnesses, such as experts cross-examined on authoritative texts, specific procedures must be followed. Questioning cannot be frivolous, vexatious, demeaning of the witness or repetitious.
On the other hand, the appellants point out that a trial judge has a discretion to loosen these strictures to ensure a fair trial. In this instance, where all the heavy lifting in the case for the Crown fell to the testimony of Sgt. Ross, the trial judge should have permitted some latitude in cross-examination rather than imposing additional restraints.
The appellants say that the trial judge erred in restricting cross-examination about language usage and the meaning of certain terms in popular culture. This error, they contend, originated in a misapprehension of the principles governing the cross-examination of experts on authoritative texts. This was not the point of the proposed cross-examination, which was designed simply to demonstrate that these terms had different meanings in popular culture.
In connection with the proposed cross-examination on the meaning assigned to words in the Oxford English Dictionary, defence counsel sought to qualify the publication as an authoritative source of the meaning of words. The trial judge intervened before the witness was permitted to respond to the qualifying question of whether he considered the work authoritative. This was wrong, the appellants say. The witness should have been permitted to answer, with the answer dictating the future course of the cross-examination.
As for the pamphlet "The Truth about Marijuana", defence counsel sought to point to the use therein of the term "white" to describe marijuana. This, in a publication authored by members of the same police service that employed Sgt. Ross, contradicted Sgt. Ross' testimony that "white" referred to cocaine, not to marijuana. This evidence was relevant and not subject to the rules governing cross-examination on authoritative texts.
According to the appellants, Sgt. Ross recognized the Drug Identification Bible as an authority on the topic of drugs. It contained information about drug pricing on which counsel sought to cross-examine, because Sgt. Ross considered the prices discussed in the intercepted communications as one of the factors he used to determine the meaning to assign to specific terms. The information was relevant, and the trial judge erred in foreclosing cross-examination on it.
The respondent takes a different view of the trial judge's rulings during the cross-examination of Sgt. Ross. The respondent submits that these context-specific determinations properly balanced the appellants' right to challenge the expert opinion evidence, on the one hand, with the trial judge's duty to ensure that only admissible evidence was adduced before the jury and that the trial proceeded efficiently and unencumbered by the needless pursuit of irrelevant issues, on the other. Even if some error could be teased out of the myriad instances of complaint advanced here, none had any effect on the ability of the jury to evaluate Sgt. Ross' credibility or the reliability of his evidence. In every event, any such errors would relate only to the drug convictions, not to any other findings of guilt.
The respondent says that the trial judge did not preclude defence counsel from adducing evidence of popular usage of terms that appear in the intercepted communications. The judge simply insisted, as the law requires, that the evidence be adduced in admissible form. The judge permitted cross-examination on the effect of popular usage of terms on the interpretation of those same terms by Sgt. Ross. The prohibition on cross-examination on the Internet post about a "Cuban joint" was based on the double hearsay nature of the post. The trial judge did permit cross-examination about the term itself. The restriction on cross-examination on language used in a movie was correct. The language used or meaning given to terms in a dated, fictional context was irrelevant to the issue at trial, the meaning of terms used in then current drug transactions.
In connection with the Urban Dictionary, the contents of which were double hearsay, the respondent submits that the trial judge correctly noted that Sgt. Ross did not recognize it as authoritative; thus, it could not be put before the jury. However, this ruling did not preclude counsel from asking Sgt. Ross whether a particular use of a word on the Internet might affect his opinion of its meaning and, if not, why not.
The trial judge's interventions in cross-examination about the Oxford English Dictionary were justified, the respondent says, on the basis of relevance. Whether Sgt. Ross recognized the Oxford English Dictionary as authoritative on the meaning of the words or how new words were added to the dictionary was of no relevance to an assessment of his opinion.
As for the pamphlet "The Truth about Marijuana", questions about its distribution or availability at a police barbeque and its hearsay nature justified the ruling of the trial judge. The respondent adds that, contrary to the appellants' claim, the publication was not authored by the Toronto Police Service.
The restrictions imposed on cross-examination on certain passages in the Drug Identification Bible, the respondent says, were fully warranted. Many passages were irrelevant. Some constituted facts, not authoritative opinions. And others were beyond the scope of Sgt. Ross' expertise.
The Governing Principles
Despite their differences about the result their application should yield, the parties are not at odds about the principles that control our response to this ground of appeal. Some of those principles have to do with the permissible scope of cross-examination, others with the limits on judicial intervention in counsel's conduct at the trial.
The right of an accused to cross-examine witnesses called by the Crown, whether of fact or of opinion, without significant and unwarranted constraint is an essential component of the common law and the constitutional right to make full answer and defence: R. v. Lyttle, at para. 41, citing R. v. Seaboyer, at p. 608 S.C.R. Cross-examination is of essential importance in determining whether a witness is credible and his or her evidence is reliable: Lyttle, at para. 42, citing R. v. Osolin, at p. 663 S.C.R. And, in some circumstances, it may be the only way to get at the truth: R. v. V. (R.), at para. 39.
It follows ineluctably from what I have said that not only must the right of cross-examination be jealously protected, but also that it must be broadly construed: Lyttle, at para. 44. On the other hand, the right must not be abused. Cross-examining counsel are bound by the rules of relevance. They are "barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value": Lyttle, at para. 44.
Cross-examination must conform to the general principles of the law of evidence. Questions put, in addition to having a good faith basis, must elicit evidence that is relevant, material and admissible under the adjective law of evidence. The popular courthouse folklore "But this is cross-examination" is simply that. It is not a lifetime pass around and through the thicket of the fundamental principles of the law of evidence: Osolin, at pp. 665-66 S.C.R., citing R. v. Morris, at p. 201 S.C.R.
Relevance and probative value are determined in cross-examination, as they are in examination-in-chief and in re-examination, in the context of each case and with respect to the purpose for which the evidence is being tendered: Osolin, at para. 162.
The proper procedure to be followed in examining, or cross-examining, an expert witness on other expert opinions found in papers or books is to first ask the witness whether he or she knows the work. If the witness answers "no", or denies the work's authority, the matter ends there. Examining counsel cannot read from the work, for to permit counsel to do so would be to countenance introduction of the work as evidence, thus contravening both the hearsay and opinion rules. If the answer is yes, and the witness acknowledges the work's authority, then the witness has confirmed it by his or her testimony. Counsel may then read parts of the admittedly authoritative work to the witness. To the extent, but only to the extent, that the witness confirms their accuracy, the passages become evidence for the trier of fact to consider: R. v. Marquard, at p. 251 S.C.R. And if the witness disagrees with the authoritative work, his or her explanation may be considered in assessing the credibility of his or her expert opinion.
The authorities make it clear that the right of cross-examination is not absolute. But it is equally so for the limitations on that right. Trial judges enjoy, as in connection with other aspects of the trial, a broad discretion to ensure fairness and to see that justice is not only done, but also that it is seen to be done. As a result, on some occasions at least, a trial judge may think it right to relax the requirement of relevance or a rule of admissibility: Lyttle, at para. 45; see, also, R. v. Kimberley, at para. 80.
As a necessary incident of the trial management power, a trial judge has the authority to control the conduct of cross-examination. Interventions must be exercised with caution so as to leave unfettered the right of the accused, through his counsel, to subject any witness' testimony to the test of cross-examination. We permit interventions to disallow questions ruled improper, for example, because they invite the introduction of hearsay or other inadmissible evidence, or because the answers are irrelevant or immaterial, or in order to protect the witness from repetitious questioning or unwarranted harassment: R. v. Bradbury, at pp. 140-41 C.C.C. The ultimate question to be answered is whether, as a result of the number and nature of interventions, the accused might reasonably consider that he had not had a fair trial, or whether a reasonably minded person, who had been present throughout the trial, would consider that the accused had not had a fair trial: R. v. Hungwe, at para. 43, citing R. v. Valley, at p. 232 C.C.C.
The Principles Applied
I would not accede to this ground of appeal. In my view, the propriety of the trial judge's rulings and interventions, as well as their cumulative effect on the actual and apparent fairness of the trial, can be resolved at the level of general principle without the need to descend into the mire of minutiae.
The analysis begins from a stance of deference. The trial judge has and is under a duty to exercise his or her inherent jurisdiction to control and manage the trial process as it unfolds before him or her. A specific incident of that inherent jurisdiction is superintendence of the introduction of evidence, irrespective of its form, whether testimony, exhibit or admission. The trial judge, not counsel, decides what comes in. And what stays out. This includes ensuring that, at each stage of the examination of a witness, what is adduced is relevant, material and admissible under the adjective law. This is so whether counsel opposite objects or remains mute. Absent an error of law or of principle, a misapprehension of the evidence or a conclusion that is plainly unreasonable, determinations of admissibility are subject to deference in this court.
This experienced trial judge, as might be expected, displayed a firm grasp of the controlling principles. He permitted some lines of cross-examination, but foreclosed others. He did so by an unerring application of the requirement of relevance and the applicable rules of admissibility. The appellants have not persuaded me that these decisions are cumbered by any impropriety that would disentitle them to deference.
Second, neither the number nor the nature of the trial judge's rulings during the cross-examination of Sgt. Ross, whether considered individually or cumulatively, compromised the actual or apparent fairness of the trial proceedings.
This was forecast and proved to be a lengthy and complex jury trial. The cross-examination with which we are concerned extended for at least ten hours, according to the trial judge's reckoning at one point in the proceedings. On several occasions, the principal cross-examiner veered off the well-defined path into irrelevancies. These included:
(i) the language used in so-called "stoner genre" movies;
(ii) how words got added to dictionaries;
(iii) the "The Truth about Marijuana" pamphlet;
(iv) song lyrics;
(v) the "imagrower" post;
(vi) the Urban Dictionary; and
(vii) the Drug Identification Bible.
The principal cross-examiner also failed to follow the proper procedure to cross-examine an expert witness on authoritative works, and was, at times, unheeding of the trial judge's rulings.
That the trial judge considered it necessary to intervene several times in the cross-examination of Sgt. Ross does not, without more, render the trial unfair as a matter of fact or perception. Such a conclusion would reduce actual or apparent fairness to a contest of numbers. The trial judge did not create the cause for correction. Cross-examining counsel did.
Third, this is not a case in which the trial judge interfered with the cross-examination to such an extent that the interventions intruded on the appellants' rights to make full answer and defence by challenging the credibility of Sgt. Ross and the reliability of his evidence. The jury was well-equipped to decide the case and relieved of irrelevant clutter and inadmissible evidence in performing its task.
Ground #3: The Proposed Expert Evidence
This ground of appeal has to do with the admissibility of the evidence of two witnesses whom counsel for Shane Evans sought to call at trial. The trial judge ruled that counsel had failed to satisfy the conditions precedent required to have the proposed testimony received as expert opinion evidence. As a result, neither witness testified.
The Essential Background
This evidence was proposed to counter the expert opinion provided by Sgt. Ross, whose testimony was the subject of the preceding ground of appeal. Some further background is necessary to appreciate the arguments advanced in this court and how I propose to resolve them.
The Initial Proposal
At the end of the case for the Crown, counsel for Shane Evans advised the trial judge that he wanted to call two experts to testify as defence witnesses:
(i) John Turner, a journalist; and
(ii) Inspector Howard Page, a police officer.
Counsel had not complied with the notice and disclosure provisions of s. 657.3 of the Criminal Code and had not then firmly decided whether he would seek to call Insp. Page.
In time, counsel provided a résumé and will-say statement for John Turner and a résumé and a portion of a transcript of testimony given by Insp. Page in 2007, over six years prior to trial.
The Admissibility Inquiry
The admissibility inquiry proceeded on the basis of the statements of counsel, rather than the viva voce testimony of the proposed witnesses. The principal focus of the submissions, which were advanced by Shane Evans only, was on the relevance of the proposed evidence and the qualifications of the proposed witnesses who would provide that evidence. Counsel sought to qualify the proposed witness John Turner as an expert in hip-hop culture, including the vernacular used; the perception of marijuana strains, seeds and their values; and, the influences of familiar figures who are part of the culture.
It was expected that John Turner would give evidence that, based on his research, the term "white" describes certain strains of marijuana; the term "20" usually refers to two grams of hashish or a small amount of marijuana; and, a "Cuban", according to the popular rapper Wiz Khalifa in a YouTube video, represented a hollowed-out cigar filled with marijuana.
As for Insp. Page, counsel proposed that he be permitted to testify as an expert on the meaning of drug terminology. The officer had not been involved in drug investigations since 2007, six years earlier. He no longer considered himself an expert on the subject. In 2007, he had testified in an unrelated trial that the term "Cuban" generally referred to one-quarter ounce of cocaine, but that, on occasion, it could also refer to marijuana. He also gave evidence at that trial that deciphering coded words depended on the relationship between the dealer and the purchaser. Trying to interpret guarded language in a single conversation was a difficult task because it was often necessary to consider references to weights, prices and patterns over a number of calls and to consider any subsequent drug seizures that related to the relevant calls.
Trial counsel acknowledged that Insp. Page's expertise was dated.
The Ruling of the Trial Judge
In oral reasons given at the conclusion of the inquiry into admissibility, the trial judge ruled that the evidence of both proposed witnesses was inadmissible. He promised and later provided written reasons for his decision.
In connection with the potential witness John Turner, the trial judge concluded that his proposed evidence about the terms "white", "20" and "Cuban" was not relevant to the question of the meaning of those terms in the intercepted communications. In addition, John Turner was not a properly qualified expert in the subject upon which he was being tendered to testify. In his brief discussion of cost-benefit analysis, the trial judge noted that John Turner's proposed evidence lacked sufficient probative value.
With respect to the proposed evidence of Insp. Page, the trial judge had doubts about the relevance of the proposed evidence but was prepared to assume that it satisfied the threshold requirement. He rejected the evidence on the basis that Insp. Page was not a properly qualified expert, as well as on the application of the cost-benefit analysis. The cost of admitting this evidence would include a lengthy adjournment, in order to allow the proposed witness to review the intercepted communications in detail.
The Arguments on Appeal
The appellants say that the trial judge erred in finding that the proposed evidence of John Turner was not relevant. In reaching his conclusion, the trial judge relied on assumptions he made about the appellants' clientele. But the purpose of Turner's evidence was not linked to the language used in the intercepts; rather, it was proffered to diminish the weight the jury might assign to Sgt. Ross' testimony by showing that the terms Sgt. Ross interpreted had meanings other than those he ascribed to them.
In addition, the appellants continue, the trial judge erred in finding that Turner was not a properly qualified expert. He had significant experience with hip-hop culture, including the language of its members. His evidence was tendered simply to show the usage of these terms in popular culture, a usage different than that described by Sgt. Ross.
The appellants also invoke trial fairness considerations, because the trial judge required counsel to argue the admissibility issue on the basis of the materials filed in support of the application rather than on Turner's viva voce testimony.
Turning to the evidence of the proposed witness Insp. Page, the appellants repeat their claim of error in connection with the trial judge's determination that Insp. Page was not a properly qualified expert on the subject-matter of his potential testimony. He was not proffered as an expert on what was then the current meaning of the terms; rather, he was proffered as an expert who could say what the understanding was of their meaning in 2006 (the subject of his testimony in 2007).
The respondent says that we should approach this admissibility issue from the stance of deference. After all, each determination is context-specific. The trial judge is best positioned to identify the live issues at trial; whether expert opinion evidence meets the necessity requirement; and where the balance of the cost-benefit analysis settles.
In relation to John Turner, the respondent submits that the trial judge was correct in his conclusions on the threshold issues of relevance and the witness' qualifications. There was no nexus between the usage of words or terms in hip-hop culture and in guarded conversations arranging drug transactions in Toronto in 2010. The former usage did not render more likely the same meaning in the latter, thus the proposed evidence failed the threshold test of logical relevance. And John Turner had no expertise in the language used by members and associates of Toronto street gangs in 2010. The bulk of his experience had nothing to do with the issues at trial. The substance of his evidence amounted to nothing more than what he learned from magazines and videos.
The respondent submits that the trial judge could also have excluded the proposed evidence of John Turner because it failed to meet the threshold requirement of necessity. The respondent adds that the trial judge correctly applied the cost-benefit analysis at the gatekeeper stage. This proposed evidence lacked probative value and was not sufficiently reliable to warrant its admission for consideration by the jury.
As for Insp. Page, the respondent submits that the trial judge correctly determined that the officer was not a properly qualified expert. He was unprepared to testify. He had not prepared a report. He had no familiarity with the case. He had not reviewed the intercepts. He lacked any current special or peculiar knowledge through study or experience about the meaning of street language in 2010.
In addition, the respondent contends, the trial judge did not err in rejecting this evidence through the application of the cost-benefit analysis at the gatekeeper stage of the admissibility inquiry. He fully appreciated that this was defence evidence, indicating that he was loath to deprive an accused of the benefit of any logically relevant evidence on the basis of a cost-benefit analysis, but was convinced this was one of the rare cases where he must do so. To determine the meaning of terms used in the intercepted communications required a review of those communications. Insp. Page had conducted no such review. To permit him to testify would have required a lengthy adjournment in the waning stages of a three-month jury trial. And this for a witness who did not consider himself an expert and gave no indication that he was prepared to undertake the necessary background work.
The Governing Principles
Once again, the principles which control our decision on this ground are not in serious dispute. The controversy has to do with the result their application mandates in the circumstances of this case.
The authorities teach that the admissibility of expert opinion evidence is to be determined in accordance with a two-step analysis: White Burgess Langille Inman v. Abbott and Haliburton Co., at paras. 19, 20, 22, 23, 24; R. v. Abbey, at para. 76; R. v. Johnson, at para. 49.
At the first step of the analysis, it falls to the proponent of the evidence to establish, on the balance of probabilities, the threshold requirements of admissibility. These include, but are not limited to, relevance and a properly qualified expert: White Burgess, at para. 23; R. v. Mohan, at pp. 20-25 S.C.R.; R. v. J. (J.-L.), at paras. 33, 35-36, 47. Evidence that does not meet these requirements should be excluded: White Burgess, at para. 23.
At this first step, relevance refers to logical — not legal — relevance: White Burgess, at para. 23; J. (J.-L.), at para. 47; Abbey, at para. 82. Relevance is a matter of everyday common sense and experience. It is not some inherent characteristic of an item of evidence. It is relative, not absolute. It eschews per se or bright line rules. We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than that fact would be without that evidence through the application of everyday experience and common sense: R. v. Cloutier, at pp. 730-32 S.C.R.; R. v. Luciano, at paras. 204-205.
The logical relevance of expert evidence is determined by asking two questions:
(i) Does the proposed expert opinion relate to a fact in issue at the trial?
(ii) Is the expert opinion evidence so related to a fact in issue that it tends to prove it?
The determination of whether proposed expert opinion evidence is logically relevant is a matter of law to be decided by the trial judge: R. v. K. (A.), at para. 77.
Expert evidence on a subject must be given by an expert, that is to say, by a witness who is shown to have acquired special or peculiar knowledge of a subject through study or experience. Such evidence can only assist the trier of fact to the extent that the witness has acquired special knowledge about that subject that the average trier of fact lacks: Mohan, at p. 23 S.C.R.; K. (A.), at para. 103. If the proposed expert's special or peculiar knowledge of the subject on which he or she is tendered to testify is minimal, he or she should not be qualified as an expert on that subject: K. (A.), at para. 103.
At the second step, the gatekeeper stage of the admissibility analysis, the judge balances the potential risks and benefits of admitting the expert opinion evidence that has satisfied the threshold admissibility requirements. By this balancing, the judge decides whether the potential benefits of admitting the evidence justify the risks associated with its introduction. The relevance and reliability of the evidence and its necessity to assist the trier of fact in the correct disposal of the case, on the one hand, are measured against the counterweights of consumption of time, prejudice and confusion, on the other. The reliability versus effect factor is of special importance: Mohan, at p. 21 S.C.R.; J. (J.-L.), at para. 47; White Burgess, at paras. 19, 24.
The case-specific nature of the cost-benefit analysis at the second step of the admissibility inquiry attracts deference from appellate courts, absent an error of law or of principle, a misapprehension of the evidence or a plainly unreasonable conclusion: R. v. D. (D.), at paras. 12-13.
The Principles Applied
I would reject this ground of appeal. I am satisfied that the trial judge was correct in excluding the proposed evidence. What was proffered failed to satisfy the requirements for threshold admissibility at the first step of the expert evidence analysis. But even if it could be said to have met the threshold requirements, it could not survive the cost-benefit analysis at the second step, the gatekeeping stage of the inquiry.
In approaching the issue raised by this ground of appeal, I find it helpful to begin with some background about how this evidence came to be tendered at trial.
Recall that this was forecast to be, and was, a lengthy trial. It involved several accused and a 30-count indictment. The indictment charged a variety of offences, including drug, firearm and criminal organization offences.
A significant part of the case for the Crown consisted of evidence of intercepted communications. These communications were spoken in guarded and coded language. To assist the jury in understanding the meaning of various terms used, the Crown called an expert, Sgt. Ross. He was not a surprise witness. His qualifications were admitted. He gave evidence about the meaning of certain words used by the collocutors. Some terms, he said, referred to cocaine, not to marijuana as the appellants suggested. Counsel for Shane Evans cross-examined Sgt. Ross for many hours over several sitting days.
At the end of the case for the Crown, counsel for Shane Evans indicated to the trial judge and counsel that he intended to introduce opinion evidence from two experts to rebut the testimony of Sgt. Ross about the meaning of various terms in the intercepted communications. Defence counsel for all other accused, including the appellants Francis, Sheldon Evans and Green, did not join the application.
When counsel for Shane Evans first raised this issue at trial, he had not complied with the notice and disclosure provisions of s. 657.3(3) of the Criminal Code — i.e., he had not given at least 30 days' notice to the other parties of his intention to call the expert evidence along with the names of the proposed experts and their areas of expertise and statements of qualifications (see s. 657.3(3)(a)), nor had he provided the parties with copies of the proposed experts' reports or summaries of their anticipated evidence by the close of the Crown's case (see s. 657.3(3)(c)).
My references to counsel's failure to comply with the notice and disclosure requirements of s. 657.3(3) are not meant to suggest that failure to comply with the subsection, without more, entitled the trial judge to exclude the evidence. Evidentiary exclusion is not among the remedies available under s. 657.3(4) for non-compliance. But in a jury trial, where lack of timely notice and disclosure may well result in a lengthy adjournment of proceedings to permit preparation by the proposed witness (here, Insp. Page), these deficiencies may be relevant to the second step of the admissibility inquiry.
Before turning to the reasons for rejecting this ground of appeal, there is one point made in the appellant Shane Evans' factum, less so in oral argument, that warrants brief mention. It concerns the form of the admissibility inquiry in connection with the proposed evidence of John Turner. The complaint is that the trial judge directed counsel to proceed on the basis of the written materials, even though John Turner was present and counsel proposed that he testify on the inquiry.
Neither the common law nor the Canadian Charter of Rights and Freedoms requires that any specific procedure, to the exclusion of all others, be followed to determine the admissibility of evidence. The form of voir dire is determined by the trial judge on the basis of the issues involved and the nature of the case being tried. There is no requirement that the inquiry must proceed on the basis of viva voce testimony: R. v. Kematch, at para. 43; R. v. Dietrich, at p. 62 C.C.C.
I now turn to the reasons why the trial judge did not err in rejecting the proposed evidence of John Turner.
Taking first, relevance. The fact, as reported by Turner, that some persons in hip-hop culture in different times and places used words in a way in which the appellants claimed they were used here does not render it more or less likely that the appellants and co-accused used the words in that way in the absence of any link between the appellants and those other persons. Although the proposed evidence relates to a fact in issue at trial — i.e., the meaning of the words used by the collocutors, it is not so related to that fact that it tends to prove it. Thus, the proposed evidence does not satisfy the relevance requirement at the first stage of the admissibility inquiry.
Second, the requirement that the evidence be given by a qualified expert.
John Turner was not a properly qualified expert. For all practical purposes, he lacked any identifiable expertise that qualified him to testify about the language used by Toronto street gangs in 2010. Here, as in R. v. Bedford, at para. 51, he was doing nothing more than expressing his personal opinion based on his own experience, some anecdotal material and little else. He had not reviewed the relevant interceptions. That he reported on culture elsewhere did not make him an expert in the interpretation of the coded language of Toronto street gangs.
Further, expert opinion evidence must meet a certain threshold of reliability in order to have sufficient probative value to meet the requirement of relevance. The reliability of the evidence also requires consideration with respect to the threshold requirement of necessity. The reception of unreliable evidence, such as that of John Turner, is not necessary to enable a proper adjudication of an issue by the trier of fact.
For similar reasons, I am satisfied that the trial judge did not err in excluding the proposed evidence of Insp. Page.
By his own admission, Insp. Page had not worked in this environment for several years. In addition, in the excerpt of his prior testimony in 2007, upon which counsel relied to advance the case for admissibility, the officer made it clear that, in order to formulate any opinion on the meaning of terms used in communications, it was necessary to listen to all the intercepted communications. This Insp. Page had not done. At the very least, a lengthy adjournment, in the late stages of a months-long jury trial, would be required for him to do so. A proper application of the cost-benefit analysis at the gatekeeper stage doomed the case for admissibility.
Ground #4: The Evidence of Extrinsic Misconduct
This ground of appeal concerns the reception of evidence at trial that disclosed uncharged misconduct associated with the 5PG and one of its alleged members. The evidence revealed two homicides and the unlawful possession of handguns found during a warranted search of premises occupied by Omar Grizzle, an alleged member of the 5PG.
At trial, the appellants and other co-accused did not dispute that they trafficked drugs. But they did contest the Crown's allegations that:
(i) the 5PG was a "criminal organization" within the meaning of s. 467.1(1) of the Criminal Code; and
(ii) they trafficked the drugs in association with or for the benefit of the 5PG, a criminal organization.
To provide some perspective on the issues raised here, a brief description of the nature of the evidence adduced at trial and the reasons for its reception will suffice.
The Relevant Evidence
The appellants accept that because the indictment contained counts charging criminal organization offences, and because they disputed that the 5PG was a "criminal organization" within the meaning of s. 467.1(1) of the Criminal Code, the Crown was entitled to adduce some evidence of extrinsic misconduct to prove that the 5PG was a criminal organization.
The appellants' complaints focus on three, but principally two, categories of evidence:
(i) graffiti;
(ii) the Duffus homicide; and
(iii) the finding of two handguns during a warranted search of Omar Grizzle's residence.
The Graffiti
The Crown sought the admission of five photographs taken in the stairwell of an apartment building allegedly within 5PG territory. Depicted in the photographs are:
(i) numerous references to "5PG", "Generalz" and symbols said to represent the 5PG;
(ii) the words "Weston Road" and "Weston and Lawrence", the alleged territory of the 5PG, as well as a map of the territory, including addresses of certain landmarks within the territory;
(iii) the letters "GP", said to represent the nickname "Gunpowder" of Romaine Lawrence, a member of the 5PG shot and killed in 2006, along with the phrases "I'll kill a nigga for my niggaz with my triggerz" and "2003, 5PG still here, fuck all you haters/GP";
(iv) a representation of a handgun along with the words "shoot them", "twin towers" and "get dat"; and
(v) a so-called "family tree" together with what appeared to be the nicknames of 5PG members, ordered by seniority or significance.
The Duffus Homicide
Tyrone Duffus was a cousin of the Evans brothers and allegedly Sheldon Evans' drug supplier. In intercepted calls on February 8, 2010, Duffus and Sheldon Evans talked about a joint sale to another person of a quantity of cocaine. Duffus and Evans agreed to meet. Evans would take a cab. While waiting for Evans to arrive, Duffus was shot and killed in a stairwell at 24 Falstaff Avenue.
Sheldon Evans was advised of the killing of Duffus the next day. In an intercepted conversation with his brother Shane that evening, Sheldon Evans said, "I don't feel too comfortable walking around naked no more still." The term "naked" is said to mean "unarmed".
The Guns of Omar Grizzle
In a warranted search after Omar Grizzle's arrest on May 4, 2010, police located two loaded semi-automatic handguns, together with 5PG paraphernalia, at his home.
The Reasons of the Trial Judge
The trial judge admitted the photographs depicting the graffiti except for the photograph that displayed the "family tree" of the 5PG. The trial judge concluded that evidence of the presence of gang-related graffiti in a particular place, in conjunction with expert evidence about graffiti and symbols as indicia of a criminal organization, was relevant to establish the existence and nature of the gang as a criminal organization. The evidence did not engender any significant moral prejudice since it was not linked to any of the persons on trial. Nor did it spawn reasoning prejudice by distracting the jury from its proper focus. After all, the existence and nature of the 5PG was an essential issue at trial.
The trial judge admitted the evidence of the Duffus homicide. He was satisfied that the evidence was admissible because it was necessary for an understanding of subsequent intercepted calls, which, in turn, were relevant to show the existence and nature of the 5PG as a criminal organization. The evidence was also relevant to prove the conspiracy alleged in counts 22 and 23 — to commit an aggravated assault on Ian Chambers — as well as several firearms offences with which Sheldon Evans was charged, and it assisted in proof of the criminal organization charge against a co-accused that was contained in count 3 of the indictment.
The trial judge acknowledged that this evidence introduced evidence of a second murder (with the Romaine Lawrence murder being the first) into a prosecution that contained no counts of murder. He pointed out that no objection had been taken to the admissibility of evidence of the murder of Romaine Lawrence, also known as "Gunpowder" and by "GP", the initials contained in much of the graffiti. This evidence, the trial judge concluded, tended to show the existence and nature of the 5PG. It did not suggest that any person charged killed Duffus; thus, it was not likely to invite forbidden propensity reasoning.
As for the evidence of guns seized at Omar Grizzle's home, this evidence, the trial judge said, showed that a non-accused member of the 5PG was in illegal possession of firearms. This too was relevant to proof of the existence and nature of the 5PG. Its probative value exceeded its prejudicial effect. Like the evidence of the Duffus homicide, any tendency to engage in propensity reasoning could be curtailed by appropriate mid-trial and final instructions to the jury about the permitted and prohibited uses of the evidence.
The Jury Instructions
In advance or otherwise contemporaneously with the introduction of the evidence, the trial judge explained to the jury how it could use the evidence of the Duffus homicide as well as the testimony that showed an alleged leader of the 5PG was in custody in reaching their verdict. The instructions, which were repeated in the charge, also explained how the jury must not use this evidence.
The Arguments on Appeal
The appellants, in an argument advanced by Sheldon Evans but adopted by the others, begin with a reminder that at trial they did not dispute that they were drug traffickers. However, they did challenge several other aspects of the Crown's proof of the criminal organization offences. They contested the assertion that the 5PG was a criminal organization. They disputed the Crown's allegation that they committed the offences alleged for the benefit of or in association with a criminal organization known as the 5PG. And so, it was at trial that the Crown was required to prove by properly admissible evidence those essential elements of the criminal organization offences.
The appellants then say that evidence of extrinsic misconduct is presumptively inadmissible. This is because it has a tendency to generate moral and reasoning prejudice. In turn, this promotes a finding of guilt based on propensity, not conduct. They accept that in prosecutions of criminal organization offences, evidence of extrinsic misconduct by alleged members of the organization, whether charged or not, has probative value. But it is also prejudicial, fraught with well-known dangers. A trial judge must be especially vigilant in balancing the probative value of the evidence against its prejudicial effect to ensure that the evidence only comes in where the probative value of it clearly prevails over its prejudicial effect.
In this case, the appellants submit, the trial judge erred in his conduct of this critical balancing exercise. He overvalued the probative value of the evidence. He discounted its prejudicial effect. And he gave no or insufficient attention to the availability of less prejudicial evidence to provide adequate proof of the same essential elements. This is particularly so for the evidence relating to the Duffus homicide and Omar Grizzle's guns.
The appellants say the evidence of the Duffus homicide did not provide any explanation of or for the evidence that Sheldon Evans armed himself soon thereafter. Sheldon Evans got his gun because of an incident in which Ian Chambers produced a gun at a bar. Nor was the evidence probative of the role and authority of a co-accused who was incarcerated during the investigation. In any event, there were less prejudicial ways of establishing the same facts.
According to the appellants, the trial judge improperly discounted the prejudicial effect of the evidence about the guns found at Omar Grizzle's home. Even though this evidence related to a non-accused, its admission risked both moral and reasoning prejudice, despite its modest probative value on the issue of whether the 5PG was a criminal organization. It engendered reasoning prejudice because it added another incident of misconduct beyond what was charged in the indictment. It was apt to be accorded more weight than what was objectively justified since it tended to show a non-accused alleged member of the 5PG had guns. It also carried with it moral prejudice, especially for those accused who faced firearm charges.
The respondent acknowledges that evidence of prior discreditable conduct is presumptively inadmissible in a criminal trial. But the rule is not absolute. Evidence of such conduct is exceptionally admissible if it is relevant to an issue at trial and if the probative value of the evidence exceeds its prejudicial effect. And where a judge admits this evidence at trial after balancing its probative value and prejudicial effect, that decision about where the balance falls is owed deference in an appellate court.
To determine whether this ground of appeal should prevail, the respondent continues, we must keep in mind the issues raised at trial in connection with the criminal organization counts. This is so because the evidence was not proffered for any purpose other than to establish the appellants' guilt on those counts, and no one suggests otherwise. The defence position at trial in relation to those counts was twofold:
(i) the 5PG was not a criminal organization; and
(ii) the appellants committed no crimes for the benefit of or in association with the 5PG, a criminal organization.
In light of what it was required to prove to make out the criminal organization offences, the respondent says that it was entitled to adduce evidence of:
(i) the existence, purposes and activities of the 5PG;
(ii) the commission by gang members of criminal offences, such as drug and gun offences, which might result in a material benefit to the 5PG; and
(iii) the appellants' association with the gang, including general evidence of membership, participation in the gang's activities and specific evidence of drug trafficking and offences enabling drug trafficking.
This evidence included photographs of graffiti; evidence of tattoos and symbols cut in the members' hair; videos; commemorative clothing; and misconduct by other 5PG members relevant to establish the gang's existence, as well as its main purposes and activities.
According to the respondent, the trial judge fully understood the need to carefully consider the relevance of the proposed evidence and to closely scrutinize its probative value and prejudicial effect in order to determine where the balance settled. He allowed the Crown to lead evidence of drug trafficking and other offences by members of the gang in association with the group or that could result in a material benefit to it. He also permitted evidence of an accused's membership and participation in gang activities, including drug trafficking and other activities that enhanced or enabled drug trafficking. But it was not open season. The trial judge excluded evidence of firearms-related offences connected to the accused but not alleged in the indictment, and he generally limited the evidence to extrinsic misconduct within the timeframe covered by the indictment.
The respondent says that the evidence of the Duffus homicide was properly admitted. It was relevant to assist in proof of the existence and nature of the 5PG as a criminal organization. It provided context for several intercepted communications, including those that tended to show a co-accused's role in the 5PG even though he was incarcerated, and Sheldon Evans' intention to carry a firearm. There was no suggestion that the appellants were involved in the Duffus killing, thus any prejudice could be counteracted by limiting instructions. Moreover, the concern about prejudice is significantly diluted by the fact that the killing of Romaine Lawrence, also known as "Gunpowder" or "GP", was admitted without objection.
The graffiti evidence, the respondent argues, is properly admissible circumstantial evidence of the gang's existence, and the graffiti was not linked to any accused on trial.
The respondent says that the availability of less prejudicial evidence or means to establish relevant facts is not dispositive of the admissibility of the evidence at issue here. It all comes down to the balancing of probative value and prejudicial effect and the repetition of limiting instructions to guard against impermissible reasoning.
The Governing Principles
The principles that inform our decision on this ground of appeal are the bedrock of the law of evidence. Relevance. Materiality. Admissibility. Exclusionary rules and their exceptions. None is in need of expansive treatment, but some aspects of each warrant brief attention.
As we saw earlier, relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact the proponent seeks to establish by its introduction. Relevance is a matter of common sense and everyday experience. Relevance is also relative, not absolute. We assess whether an item of evidence is relevant in the context of the case in which the evidence is tendered, not in the abstract. There are no per se or bright line rules about relevance: Luciano, at paras. 204-205; Cloutier, at pp. 730-32 S.C.R.
Sometimes we fail to keep in mind two aspects of relevance. The first is that an item of evidence does not cease to be relevant or become irrelevant simply because it can support more than a single inference, such as the one advanced by its proponent: Luciano, at para. 205, citing R. v. Underwood, at para. 25. The second is that to be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered. Nor does the item of evidence need to make the proposition of fact for which it is offered as proof more probable than not. Were this so, few, if any items of circumstantial evidence would ever see the light of day in a courtroom. The reality is otherwise: Luciano, at para. 206.
The requirement of relevance is satisfied if the item of evidence, by the application of everyday experience and common sense, can render the fact it is tendered to establish slightly more or less probable than that fact would be without that evidence: Luciano, at paras. 204, 206.
To be received in a criminal trial, an item of evidence must also be material. Evidence is material if what it is offered to prove or disprove is a fact in issue. What is in issue is determined by and a function of the allegations contained in the indictment and the governing substantive and procedural law: Luciano, at para. 207.
The evidence at issue here was marshalled in proof of the criminal organization counts contained in the indictment. Thus, the boundaries of materiality were marked out by the essential elements of the offences charged in those counts. These essential elements included proof of a "criminal organization" within the meaning of s. 467.1(1) of the Criminal Code, as well as proof that the offence committed was done "for the benefit of, at the direction of, or in association with, a criminal organization".
Subsection 467.1(1) exhaustively defines "criminal organization":
"criminal organization" means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
The term "however organized" is meant to capture differently structured criminal organizations. But, at bottom, the group must be, and be proven to be, organized, at least to some extent: R. v. Venneri, at para. 31. Thus, relevant evidence offered to prove the fact or nature of a group as an organization and as an organization falling within the definition in s. 467.1(1) would be material.
The goal of the legislation is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination requires consideration in proof of a "criminal organization" as defined by Parliament: Venneri, at para. 40.
The requirements that the organized group of three or more persons have "as one of its main purposes or main activities the facilitation or commission of one or more serious offences" and that the commission of the serious offences "would likely result in the direct or indirect receipt of a material benefit, including a financial benefit" by the group or any of its members are important in determining the materiality of evidence proposed for reception. Evidence that shows or tends to show that the group had as one of its main purposes or activities the commission of serious offences would be material. The term "serious offence" includes various trafficking, importing, exporting and production offences under the CDSA: Regulations Prescribing Certain Offences to be Serious Offences, SOR/2010-161, s. 2.
However, not all relevant and material evidence is admissible in a criminal trial. A rule of admissibility, founded on policy considerations we regard as of sufficient importance to justify exclusion of relevant and material evidence, may result in exclusion. But admissibility rules are not unyielding. Sometimes, they give way. They permit reception of evidence by exception because the mischief at which the rule is directed is either not at work or is sufficiently countermanded by other trial incidents to permit admission.
As a general rule, evidence of an accused's bad character or extrinsic misconduct is inadmissible as circumstantial evidence to prove conduct and thus guilt. The danger of this evidence is its tendency to generate both moral and reasoning prejudice that may serve as impermissible substitutes for proof: R. v. Handy, at paras. 31, 37.
Like other admissibility rules, however, the general injunction against evidence of extrinsic misconduct is not unyielding. It permits introduction of this evidence provided it is relevant to a material issue at trial (a requirement of all evidence) and provided the probative value of the evidence exceeds its prejudicial effect: Handy, at para. 41; R. v. Hart, at para. 73; Riley (C.A.), at para. 156. A trial judge's assessment of the probative value and prejudicial effect of evidence, and of where the balance settles between them, is normally entitled to deference on appeal: Riley (C.A.), at para. 157; see, also, R. v. Shafia, at para. 255; R. v. Tsigirlash, at para. 48.
A brief point about the availability of less prejudicial evidence in service of proof of the same proposition of fact as that for which the evidence of extrinsic misconduct is tendered. In some cases, the availability of less prejudicial sources, or limiting the scope and nature of the evidence of extrinsic misconduct, may reduce or contain the prejudicial impact of the evidence, and will thus be an appropriate consideration in an assessment of the prejudicial effect of the evidence as proffered: Handy, at para. 142. The same may be said of limiting instructions describing the permitted and prohibited uses of the evidence.
The Principles Applied
I would not give effect to this ground of appeal. In my respectful view, the evidence to which objection was taken was relevant, material and admissible, because its probative value on material issues exceeded any incidental prejudice it may have engendered.
Any assessment of a complaint about the wrongful admission of evidence in a criminal trial must begin with an appreciation of the circumstances in which the evidence was adduced. In this case, the evidence with which the appellants seem principally concerned is the testimony about the Duffus homicide and the recovery of loaded handguns at Omar Grizzle's residence. Little is made of the evidence of the photographic evidence displaying graffiti, and I shall say little more about it.
The indictment on which the appellants and two others were charged contained four counts alleging criminal organization offences. In one count, all four appellants were charged with trafficking in controlled substances for the benefit of or in association with a criminal organization. In another count, the appellants Sheldon Evans and Rashard Green were alleged to have trafficked in marijuana in the same circumstances. Two further counts related exclusively to other co-accused.
Recall next that at trial the issues in controversy in relation to the criminal organization counts included:
(i) whether the 5PG was a criminal organization; and
(ii) whether the trafficking offences alleged were committed for the benefit of or in association with the 5PG as a criminal organization.
As a result of this factual controversy, it fell to the Crown to prove by circumstantial evidence, if it could, these disputed elements of the criminal organization offences charged. In this respect, it had the assistance of expert opinion evidence about gang structure, leadership, territory and violent dispute resolution, as well as the characteristics of Toronto street gangs.
The exhaustive definition of "criminal organization" in s. 467.1(1) of the Criminal Code required the Crown to prove that one of the main purposes or activities of the 5PG was the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the 5PG or any of its members. The constituent elements of this definition, more particularly the requirement that a main activity of the group be the facilitation or commission of one or more serious offences, on its face, envisages the introduction of evidence of the commission of those serious offences. Otherwise, one might ask rhetorically, how could this element be proven?
In its enactment of this legislation, including the definition of "criminal organization", Parliament must be taken to have been aware of the admissibility rule that makes evidence of extrinsic misconduct presumptively inadmissible in a criminal trial. Likewise, the entitlement of accused to a jury trial in respect of these offences. Proof of the commission of serious offences other than those alleged in the criminal organization counts would seem an obvious means of proof of this component of the definition. It would seem logically to follow that there cannot be any per se or bright line rule excluding such evidence.
In this case, the appellants do not appear to contest the relevance of the evidence of the Duffus homicide, at least in relation to the proposition that an incarcerated co-accused occupied a leadership role in the 5PG, and the guns found at Grizzle's residence. I am satisfied that, considered contextually and in light of the expert evidence about the indicia of Toronto street gangs, the evidence was relevant to prove not only the existence of the 5PG, but also its nature, both of which in turn were relevant to whether it was a "criminal organization" within the meaning of s. 467.1(1) of the Criminal Code.
It follows from what I have said about the relevance of the evidence to assist in proof of constituent elements of a "criminal organization" that this evidence was also material.
In the end, the appellants' argument about this evidence, as it seems to me, comes down to a complaint that the trial judge erred in his assessment of its probative value, its prejudicial effect, and where the balance settled between them.
In my view, this argument cannot prevail. Absent an error of law or of principle, a misapprehension of the evidence or a plainly unreasonable conclusion, the trial judge's assessment of this case-specific balance is entitled to deference. The complaint of enhanced prejudice because the evidence about Duffus involved a homicide moves no freight in light of the appellants' concession that the evidence of the Lawrence homicide was admissible. Unlike many cases involving evidence of extrinsic misconduct, no one suggested that the appellants or anyone else on trial with them were responsible for the killing of Duffus. The evidence was also relevant to explain some of the intercepted calls taking place between the appellants thereafter.
The trial judge was careful to tailor the evidence of extrinsic misconduct by limiting it to events within the timeframe described in the indictment. He also excluded any evidence connecting the appellants to firearms offences that did not form part of the indictment. He gave timely limiting instructions about the use of evidence of extrinsic misconduct. He repeated these instructions in his charge. The verdicts rendered by the jury reflect a discriminating analysis of the evidence adduced. No more need be said.
Ground #5: The Unbalanced Charge
The final ground of appeal against conviction is advanced by counsel for Shane Evans and adopted by counsel for the other appellants. Its focus is on a specific passage in the trial judge's charge that is said to be unbalanced. The background necessary to understand the complaint includes brief references to some features of the evidence adduced at trial, as well as to some aspects of the instructions themselves.
The Background
The charge to the jury was delivered in several installments over various days. After the charge concluded, jurors received a written copy of the instructions to assist them in their deliberations.
The passage to which exception is taken occurred early in the first installment of the charge relating to the assessment of expert opinion evidence. The trial judge instructed the jury about how they were to assess the opinion evidence of experts, then turned to the specific expert evidence adduced at trial. For each expert, the trial judge outlined the expert's qualifications, described the subject-matter of his expertise and summarized the substance of his evidence.
The Evidence of Sgt. Ross
After reviewing the evidence of an expert on the nature, characteristics and activities of Toronto urban street gangs, the trial judge turned to the testimony of Sgt. Ross. He described Sgt. Ross' qualifications and their origins in experience, not "book learning", then reviewed the substance of his evidence before focusing on the officer's interpretation of the term "Cuban" as it was used in the intercepted communications.
The trial judge pointed out that defence counsel had described the officer as "defensive and more" because he would not change his opinion about the meaning of "Cuban" and "other things". After referring to some of the many suggestions put to the officer in cross-examination and his responses, the trial judge said:
I leave it to you whether he was defensive in these encounters, or he was simply repeating, under lengthy cross-examination, that all he was in the position to tell us, for better or worse, was what his own experience was.
The Evidence of Other Officers
The trial judge next reminded the jury of the substance of the evidence of several other officers about their individual experiences with coded words they encountered in drug investigations and the meaning of those words. Their answers were the product of their own experience. None were qualified as experts. In this respect the trial judge corrected a misstatement by counsel for Shane Evans in his jury address that he (counsel) had "qualified" one of them, Detective Constable David Murray, as an expert. The trial judge clarified that although he "forced [counsel] to attempt to qualify D.C. Murray as an expert" before allowing him to answer questions about his knowledge of certain drug jargon, ultimately the trial judge "did not declare him to be an expert, because he really isn't one". The trial judge explained to the jury that he "simply concluded that as an officer who has listened to wiretaps, he could tell you how coded words had been used in his experience", and after that, he "let other officers who had drug investigation experience testify about whether or not they had ever heard particular coded words used in particular ways without going through any qualification process at all".
In concluding his reference to the testimony of D.C. Murray, the trial judge reminded the jury of the officer's testimony about the term "Cuban":
[I]n the course of his cross-examination, [counsel for Shane Evans] asked D.C. Murray if he had heard the word "Cuban". D.C. Murray replied, "I have heard it. It's usually in context to a weight of marijuana, and it has been used to mean cocaine." He was then asked, "And when it's used in the marijuana context, how much is a Cuban of marijuana?" He replied, "I couldn't tell you."
The trial judge then remarked, "It's entirely up to you what weight you place on this evidence."
The trial judge continued to review the evidence of other police officers who described their experiences with the use of the term "Cuban". None said that it referred exclusively, if at all, to marijuana. The most experienced officer, Police Constable Tony Canepa, a veteran of 5,000 drug investigations and 1,700 undercover buys, asked Sheldon Evans for a "Cuban" and was quoted a price consistent with that charged for 7 grams of crack cocaine, which was the object of the officer's proposed purchase. The trial judge said:
P.C. Canepa was the most experienced undercover officer you heard from. You may find his answers telling. You may also think it was telling that when P.C. Canepa asked the person the Crown says was Sheldon Evans for a Cuban, without specifying the drug, he got cocaine. It's entirely up to you.
The Jury Instructions
In completing this aspect of his instructions to the jury about the expert opinion evidence of Sgt. Ross, the trial judge said:
Members of the jury, none of these officers who testified about drug jargon, apart from Sergeant Ross, were really qualified as an expert, and none of them were permitted to give an opinion, and none of them did. They simply each told you what their experience was with drug jargon. You may take their evidence into consideration when you assess Sergeant Ross' opinion on the use of the word "Cuban" and other street jargon.
In the end, members of the jury, I think it is fair to say that context means a great deal in attempting to interpret many of these calls. Look at the whole call to see what prices are mentioned, if any, in the call, and what else is said in the call. See what preceded it. See what followed it. Consider how the same people used the same language on other occasions. And on and on. With a little help from an expert about prices, quantity and terminology, and the use of a little common sense, you will be able to understand many of these intercepted communications with little difficulty. But all of this is up to you.
A few pages later, the trial judge turned to another aspect of the cross-examination of Sgt. Ross — the cross-examination on authoritative materials:
In this case, as you are aware, Sergeant Ross was asked about a great many sources of supposedly authoritative information. For the most part he was unfamiliar with them, or did not acknowledge their expertise, and I did not permit those things to be read to him. There were two exceptions.
First, I permitted [counsel for Shane Evans] to read some definitions of drug coded language to be read to Sergeant Ross that apparently came from a lexicon prepared by Inspector Page in relation to another drug project some years before this one. Although Sergeant Ross was unfamiliar with this lexicon, he acknowledged that Inspector Page had been an expert in this field, and so I allowed some of these definitions to be read to Sergeant Ross. Insofar as he agreed with or adopted any of those definitions, they became evidence that you can consider. But other times -- excuse me. But other times, Sergeant Ross did not agree with the lexicon. This was particularly true of the possibility apparently allowed by Inspector Page that Cuban, although it normally refers to cocaine, can also refer to marihuana. Sergeant Ross did not agree with or adopt this possibility, at least in respect to the time period of these interceptions. He rejected that possibility in relation to the recordings before you. As a result, I instruct you that since Sergeant Ross didn't adopt it, it is not evidence before you, and you may not rely on it. And I should make clear I'm saying what Inspector Page may have written in that lexicon in that regard is not evidence before you, and you may not rely on it.
This may seem odd to you at first blush, but if you think about it, it isn't so odd. After all, unlike Sergeant Ross, Sergeant Page has not testified before you under oath or affirmation. You know nothing about when or where he heard Cuban used that way, if ever, what time period he had in mind when he said this, what sort of traffickers he had in mind, and most importantly, how he reached this conclusion. It is not surprising that his alleged definitions cannot be used in evidence in the absence of their being adopted by Sergeant Ross.
Let me turn to the second instance. In the course of [counsel for Shane Evans'] cross-examination, Sergeant Ross acknowledged that he had made use of something called the Drug Identification Bible to get information about the purity of cocaine coming into Canada. He confirmed the accuracy of the information in the Drug Identification Bible on that issue with information from Health Canada, and concluded that it was accurate. [Counsel for Shane Evans] then read excerpts from the text to Sergeant Ross on the issue of marijuana street prices and street names in 2007. Sergeant Ross said that he was not familiar with this part of the book, and did not adopt the price list or the list of names. As a result, once again, I instruct you that since Sergeant Ross didn't adopt these lists, they are not evidence before you, and you may not rely on them.
The Arguments on Appeal
In this court, the appellants, in an argument advanced by Shane Evans and adopted by the others, contend that the trial judge's charge was unbalanced, unfair to the appellants and resulted in a miscarriage of justice.
The appellants say that, in their closing addresses, counsel stressed D.C. Murray's evidence that, contrary to what Sgt. Ross had said, the term "Cuban" usually referred to marijuana. Although it was clear that D.C. Murray had never been involved in undercover drug purchases, he had gained significant experience in language usage from listening to wiretaps, a subject on which he gave lectures to other police officers. He acknowledged, however, that he was not comfortable giving opinion evidence with respect to language usage in one-on-one drug conversations.
The unbalanced thus unfair instructions, the appellants argue, emerge from the trial judge's mischaracterization of D.C. Murray's evidence and its juxtaposition in the charge with the discussion of the testimony of P.C. Canepa, whose evidence the trial judge urged the jury to accept because of his vast experience as an undercover drug purchaser. D.C. Murray's evidence was essential to the defence. The trial judge's treatment of it tilted the case heavily in favour of the Crown and resulted in a trial that neither was nor appeared fair.
The respondent contends that the ultimate question we should answer in assessing this ground of appeal is whether the alleged deficiencies in the charge caused a miscarriage of justice. To do this requires a functional approach. When that is done, it becomes clear, according to the respondent, that no miscarriage of justice has occurred.
The respondent says that, as all counsel at trial acknowledged, the charge to the jury more than adequately outlined the position of the defence. This was done by including the defence position in the discussion of each count of the indictment. When the trial judge asked defence counsel whether they wished him to repeat the written versions of their positions that each had provided to the trial judge, all declined the invitation. Instead, everyone agreed to have the written versions, in the language of each counsel's choosing, accompany the written version of the charge to the jury to the jury room for use during deliberations.
The closing arguments of defence counsel, the respondent points out, stressed that jurors should assign little weight to Sgt. Ross' evidence about the meaning of coded language, such as "Cuban", in the intercepted communications, and this position was put to the jury by the trial judge in his charge.
The respondent submits that it was counsel for Shane Evans who sought to elicit evidence from D.C. Murray about language uses inconsistent with what Sgt. Ross had said about the various terms. D.C. Murray had been called by the Crown to prove the seizure of a cellphone from a residence. Although the officer had some experience from attending and lecturing at various seminars about wiretaps, his involvement was primarily in the conduct of wiretap investigations, not in the interpretation of language used in actual interceptions. He acknowledged that his familiarity with the language of drug transactions was limited to the most common phrases to describe the drugs. He was very uncomfortable with specifics. He had heard the term "Cuban", usually in the context of the weight of marijuana, but was also aware that the same term had been used to mean cocaine. He understood it to refer to a measure of weight but did not know the weight to which it referred.
It was open for the trial judge, the respondent says, to review the evidence on this issue in his charge to the jury. Whether it was favourable or unfavourable to the defence position was of no moment, because the references accurately reflected the state of the evidence, its alleged strengths and apparent weaknesses. Such a summary does not make a charge unbalanced, let alone, so unbalanced as to cause a miscarriage of justice and warrant a new trial.
The Governing Principles
The principles that govern our assessment of this ground of appeal are well established. A few points of importance emerge from them.
A trial judge's final instructions must leave a jury with a clear understanding of:
(i) the factual issues to be resolved;
(ii) the legal principles governing the factual issues and the evidence adduced at trial;
(iii) the positions of the parties; and
(iv) the evidence relevant to the positions of the parties.
See R. v. B. (P.J.), at para. 42, citing R. v. MacKinnon, at para. 27.
In final instructions, many, if not most, trial judges include a discrete statement of the positions of the parties. This is often a repetition of a brief summary prepared by counsel at the trial judge's request. On other occasions, the trial judge may include the defence position in instructions on individual issues or counts. What matters is substance, not form: B. (P.J.), at para. 43.
As a central feature of a criminal jury trial, the strength of a jury charge lies in its objectivity. It is jury education, not jury indoctrination. It must be fair and balanced on both sides, especially on that of the accused, so as not to compromise the actual and apparent fairness of the trial. It should not unduly promote the case for the Crown and effectively ignore and denigrate that of the defence: R. v. Baltovich, at paras. 113-115.
Apart from exceptional cases where it would be needless to do so, a trial judge must also review the substantial parts of the evidence adduced at trial, and give the jury the position of the defence, so that the jury may appreciate the value and effect of the evidence and how they are to apply the law to their findings of fact. The jury must be left with an adequate understanding of the evidence as it relates to the relevant issues in the trial: R. v. Azoulay, at pp. 497-98 S.C.R.; R. v. Cluett, at p. 231 S.C.R.
It is well established that a trial judge is entitled to express his or her own view of factual issues, including the credibility of witnesses. The judge is also entitled to express those views in strong terms. But what the judge must not do is to use such language as leads the jury to think that they must find the facts in the same way the judge indicates. Further, the charge must not deprive the accused of a fair presentation of his or her case to the jury: R. v. Garofoli, at p. 133 C.C.C.
An appellate court is entitled to intervene when the opinion expressed by a trial judge:
(i) is far stronger than the facts of the case warrant; or
(ii) is expressed in such terms that it is likely that the jury would be overawed by the opinion so expressed,
even if the judge has made it clear to the jury that they are not bound by his or her views on the evidence or factual issues: Garofoli (C.A.), at p. 133 C.C.C.; see, also, R. v. Ruddick, at p. 435 C.C.C.; R. v. Broadhurst, at p. 464 A.C.
A final point has to do with the manner in which we are to assess claims of error in final instructions to the jury. Our approach is functional. We test the instructions against the purposes for which they are given. Among those purposes is to ensure that the jury understands what is and what is not evidence, and appreciates the value and effect of the evidence on the positions advanced at trial, especially, but not only, that of the defence. Instructions are not deficient to the point of appellate intervention simply because more could have been said, or because what was said could have been phrased differently or more felicitously: R. v. Jacquard, at para. 32; R. v. Royz, at para. 3; R. v. Daley, at paras. 54-58.
Lack of objection by defence counsel on a ground later advanced before an appellate court as an error is not fatal to success on appeal. But lack of objection is at once informative and worthy of consideration by the appellate court in assessing the alleged deficiency. It is all the more so where the claim alleges a lack of balance or fairness in the treatment of the defence position at trial: R. v. Calnen, at paras. 38-40; Royz, at para. 3; Daley, at para. 58; Jacquard, at para. 38.
The Principles Applied
I would not give effect to this ground of appeal. A combination of reasons persuades me that the appellants' claim of an unbalanced charge cannot be sustained.
Context is critical in any assessment of an allegation of error in jury instructions. It is no less so where the error alleged is an imbalance in those instructions. Claims of imbalance in final instructions cannot be sustained on the basis of microscopic scrutiny of a single portion of the charge. Imbalance must be made to appear, if at all, upon a review of the charge as a whole.
The passage on which the appellants stake their claim of imbalance appears in an early part of a lengthy charge. The trial judge explained what constituted evidence for the jurors to consider in their task as fact finders: testimony, exhibits and admissions. He then described the types of evidence adduced at trial, among them, expert opinion evidence. He distinguished between evidence of fact and that of opinion, then instructed the jury on how to assess expert opinion evidence in reaching its verdict. After directing the jury on the legal principles governing their assessment of the expert opinion evidence given at trial, the trial judge turned to the specific expert opinion evidence adduced at trial, including the testimony of Sgt. Ross.
The evidence of Sgt. Ross about the meaning of coded language in the intercepted communications had been the subject of lengthy, at times repetitive, and improper cross-examination. It featured prominently in the closing addresses of counsel. But it was not evidence that was of service to the jury in reaching their verdict on all counts contained in the indictment.
Turning next to the substance of the instructions said to reflect imbalance, I focus first on the trial judge's summary of certain aspects of the testimony of Sgt. Ross and others about the meaning of the term "Cuban" in the lexicon of those engaged in the sale and purchase of illicit drugs. Such a review complies with the trial judge's obligation to review the substantial parts of the evidence adduced at trial and to relate it to the issues raised so that the jurors may appreciate the value and effect of the evidence. This recapture of the evidence does not become unbalanced simply because it tends to establish one conclusion rather than another.
In this case, the summary also served to permit correction of some inaccurate references to the evidence in the closing addresses of counsel. A specific correction is appropriate where the trial judge is concerned that, for one reason or another, the general instruction that counsels' references to the evidence are not themselves evidence may not be sufficient.
The impugned instruction also included a legal direction about what constituted evidence when Sgt. Ross was cross-examined on what were alleged to be authoritative works or materials whose authors held different views than Sgt. Ross about the meaning of certain terms. On many occasions the cross-examiner failed to first establish the acknowledged authority of the source. This instruction expanded on the general "counsel's questions are not evidence" direction, was appropriate in the circumstances and neither caused nor contributed to any imbalance in the charge.
For the most part, the impugned instruction dealt with the substance of evidence adduced at trial on a particular issue. Accordingly, it was subject to the trial judge's general instruction that the jury was not bound by or limited to his factual references, and that it was the jury's collective recollection of the evidence that constituted the sole basis upon which they could ground their findings of fact and ultimately their verdict. How much evidence to review, the manner in which to review it and where to locate it in what would obviously be a lengthy charge were matters for the trial judge to determine.
A related point emerges from the nature of the subject-matter of the impugned instruction. The evidentiary review was not a legal direction the jury was bound to accept and follow. Rather it was a reference to evidence and to issues of fact that the jury was not only not required to follow, but free to ignore.
Further, to the extent that the challenged instructions state or necessarily imply the personal opinion of the trial judge, I am not satisfied that they reflect error. The mere fact that such an opinion was stated, in clear terms or by necessary implication, offends no principle. Nothing said here was far stronger than the facts warranted; would lead the jury to think that they must find the facts as the judge described them; would overawe the jury; or deprived any appellant of a fair presentation of his case.
A final point relates to the position of trial counsel. While the failure to object is not dispositive of this ground of appeal, it is of significance where the nature of the complaint relates to an alleged imbalance in the charge.
This ground of appeal fails, as does the appeal from conviction.
The Appeals from Sentence
The principal ground of appeal advanced by each appellant, except for Orrett Francis, on his appeal from sentence has to do with the amount of credit the trial judge awarded for pre-sentence custody in arriving at the net sentence he imposed. Each appellant, including Francis, also alleges other errors specific to his case.
As will become apparent, in my view none of the individual complaints afford a basis upon which the net sentences imposed by the trial judge could be varied. As a result, after a brief canvass of some essential background, these reasons focus principally on the common issue of credit for pre-sentence custody.
The Background
The appellants Sheldon Evans and Orrett Francis were arrested on May 4, 2010. Shane Evans was arrested on his return from Jamaica on May 10, 2010. Rashard Green surrendered to police on May 25, 2010.
The appellants were sentenced on November 14, 2013.
The Pre-Sentence Custody
For each of the appellants except Orrett Francis, the time spent in pre-sentence custody was approximately 42 months.
The appellant Francis was released from custody shortly after his arrest and remained out of custody until the jury rendered its verdict on July 1, 2013. Since then he has been detained in custody, including a period of four and one-half months prior to sentencing.
The Positions of the Parties at Trial
The trial Crown sought the following substantial terms of imprisonment as the appropriate sentencing disposition for each appellant:
- Sheldon Evans -- 15 years;
- Shane Evans -- ten years;
- Orrett Francis -- nine years; and
- Rashard Green -- ten years.
Credit for pre-sentence custody, the Crown contended, should be granted on a 1:1 basis.
Defence counsel acknowledged that prison sentences were warranted for each appellant, but parted company with the Crown on quantum. Specifically, counsel advocated for the following sentences:
- Sheldon Evans -- ten years reduced to eight on the basis of totality;
- Shane Evans -- 2.5 to three years;
- Orrett Francis -- three years; and
- Rashard Green -- 7.5-8.5 years.
Counsel for each appellant sought enhanced credit for pre-sentence custody. Counsel for Orrett Francis also sought some credit for onerous release conditions.
The Sentences Imposed
The trial judge considered a total sentence approaching 18 years as appropriate for Sheldon Evans before consideration of the principle of totality and the calculation of credit for pre-sentence custody of 42 months. He reduced the sentence to 13 years based on totality, awarded a credit of 48 months for 42 months of pre-sentence custody and imposed a net sentence of nine years.
For Shane Evans, the trial judge considered that an appropriate sentence without consideration of the principle of totality or credit for pre-sentence custody would approach 13 years. Totality considerations reduced the principal sentence to 9.5 years, which the trial judge reduced to five years after awarding credit of 54 months for 42 months of pre-sentence custody.
The trial judge concluded that Orrett Francis' convictions warranted a principal sentence of nine years, which he reduced to eight years due to stringent terms of release and brief periods of pre-sentence custody.
For Rashard Green, the trial judge considered a total sentence of 9.5 years would be fit, less credit of 48 months for 42 months of pre-sentence custody. The net sentence imposed was a term of imprisonment of 5.5 years.
The Arguments on Appeal
In this court, the appellant Sheldon Evans says that, without the benefit of R. v. Summers, which was released after the sentencing in this case, the trial judge erred by awarding him inadequate credit for time spent in pre-sentence custody. For offences committed prior to the coming into force of the Truth in Sentencing Act, S.C. 2009, c. 29 ("TISA"), on February 22, 2010, the credit should have been based on the usual ratio of 2:1, and thereafter, 1.5:1. In the end, the imposed sentence of 13 years should have been reduced by 70 months, not 48 months as awarded by the trial judge, leaving a net sentence of seven years and two months.
The appellant Shane Evans also alleges that the trial judge erred when he assigned only 54 months credit for 42 months of pre-sentence custody. At minimum, Shane Evans says, the time should have been credited on a 1.5:1 basis, resulting in a credit of 63 months. However, because some of the offences of which he was found guilty either pre-dated or straddled the coming into force of the TISA, Shane Evans submits he should receive credit calculated on a 2:1 basis.
In addition, Shane Evans contends, the trial judge erred in considering the appropriate sentencing range for the count of trafficking in a controlled substance for the benefit of a criminal organization to be four to six years. This range exceeded the range established in the case law. The trial judge's reasoning was further contaminated by his consideration of an irrelevant factor — i.e., that drug trafficking was the primary source of the appellant's livelihood, and his making of certain unsupported or erroneous findings of fact — i.e., the monopolistic nature of the 5PG's trafficking business and Shane Evans' involvement in a $11,250 drug deal, with respect to which the jury found him not guilty.
The appellant Orrett Francis invokes the principle of parity in support of his submission that his sentence should be reduced to one of time served. He was not convicted of any firearms offences or of a breach of probation. His record was markedly less serious than that of the other appellants, and his only prior period of incarceration was for one day. He has served almost four years in custody for these offences and should have his sentence reduced to time served. He does not allege any error with respect to the trial judge's calculation of credit for time spent in pre-sentence custody or on onerous bail conditions.
The appellant Rashard Green points to three errors he says the trial judge made in concluding that a net sentence of 9.5 years was fit in his case.
The first error relates to the sentence imposed on the conviction for trafficking in a controlled substance for the benefit of a criminal organization, where the trial judge imposed a sentence in excess of that proposed by counsel in joint submission.
Second, the appellant Green says, the trial judge failed to assign adequate weight to his relative youth and the fact that he had not served a custodial sentence longer than 30 days (plus two months' credit for pre-sentence custody) on any prior occasion.
Finally, the appellant Green joins the appellants Sheldon and Shane Evans in their submission that the trial judge gave too little credit for time spent in pre-sentence custody. Instead of 48 months of credit for 42 months of actual pre-sentence custody, the trial judge should have assigned a credit of 74 months (44 months' credit for pre-TISA offences, 30 months' credit for post-TISA offences), thus reducing the net sentence imposed of 5.5 years by 26 months.
The respondent submits that the sentences imposed by the trial judge are fit and do not warrant appellate intervention. The trial judge, the respondent says, properly exercised his discretion in determining the ranges of sentence applicable to the various offences of which the appellants were convicted and locating the individual sentences appropriately within each range. Even though the trial judge did not have the benefit of the reasons of the Supreme Court of Canada in Summers, he properly exercised his discretion in apportioning credit for pre-sentence custody. At bottom, any errors that may have occurred had no impact on the net sentence imposed on any appellant, thus no case has been made out for appellate intervention.
The respondent contends that whether the awards of credit for pre-sentence custody are governed by the principles at work before or after the TISA came into force is of no great moment. Neither enhanced rate is guaranteed. Prior to the TISA, whether credit was awarded and, if so, the rate at which it was calculated were matters left to the sound discretion of the sentencing judge. Likewise, after the TISA came into force, the enhanced rate of 1.5:1 generally prevailed, but could be defeated by evidence of institutional misconduct and dim prospects for parole.
As for the appellant Sheldon Evans, the respondent argues, he received a substantial benefit from the application of the totality principle. His crimes, sentenced individually, warranted a total sentence of 18 years, not the 13 years the trial judge imposed because of the totality principle. He was convicted of 11 offences, including two criminal organization offences, as well as offences involving firearms and ammunition and conspiracy to commit aggravated assault. His 14 prior convictions, including five for breach of recognizance, made him unlikely to obtain early release and justified a lower amount of credit for pre-sentence custody. Regardless, because the 13-year sentence was the lowest sentence the trial judge felt able to impose, the respondent argues that any increase in credit would have to be offset by a commensurate increase in sentence.
The respondent submits that no case has been made out to vary the sentence imposed on the appellant Shane Evans. Another beneficiary of the totality principle, Shane Evans also received an appropriate degree of enhanced credit for pre-sentence custody. His lengthy criminal record rendered him an unlikely candidate for early parole. The trial judge did not err in determining the applicable sentencing range and was entitled to infer Evans' ongoing involvement in the commercially-motivated trafficking as a relevant factor on sentence.
The respondent argues that the sentence imposed on the appellant Orrett Francis is fit. The parity argument, which forms the core of Francis' submissions, rests on his mitigating personal circumstances and relatively minor criminal record. But there are countervailing factors, the most prominent of which are the extent of Francis' trafficking activities and his position as a critical wholesale supplier of drugs to the 5PG to facilitate their trafficking business. As a mid-level cocaine trafficker, the sentence imposed was fit.
In connection with Rashard Green, the respondent contends that the sentence imposed, a net term of 5.5 years, is fit. While the trial judge exceeded the two years the Crown sought in respect of Green's conviction of the criminal organization offence, the trial judge did not exceed the Crown's global sentencing position, which was ten years. The trial judge also gave adequate weight to Green's youth. Finally, the credit assigned to Green for his time in pre-sentence custody was justified because Green was unlikely to receive early parole. He had previously been convicted of 11 offences against the administration of justice, five offences of violence, two drug offences and a breach of a conditional supervision order. One of the offences of which he was convicted at trial involved possession of a loaded and racked prohibited firearm, stored near a sleeping infant, when Green was bound by two firearms prohibitions. He also incurred institutional offences while detained in custody awaiting trial.
The Governing Principles
The principles whose application control the outcome of this appeal include some that define the scope of appellate review in sentencing cases, others that focus on specific claims of error, and still others that explain how credit is to be awarded for pre-sentence custody and how that credit relates to the ultimate determination of a fit sentence.
On appeals from sentence, s. 687(1) of the Criminal Code directs us to "consider the fitness of the sentence appealed against", but tells us nothing about the standard of review we are to apply or the principles that are to guide us in our considerations.
Our inquiry into fitness under s. 687(1) must focus on the fundamental principle of proportionality in s. 718.1 of the Criminal Code. That principle requires that every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender who committed it. A sentence is demonstrably unfit if it constitutes an unreasonable departure from the fundamental principle of proportionality. We determine proportionality both on an individual basis, by looking at the individual offender and his or her offence or offences, and also by comparison with sentences imposed on similar offenders for similar offences committed in similar circumstances. To be proportionate, a sentence must reconcile both individualization and parity of sentences: R. v. Lacasse, at paras. 12, 53.
Any determination of the fitness of a sentence also requires that the objectives of sentencing in s. 718 and the other sentencing principles set out in s. 718.2 be taken into account: Lacasse, at para. 54.
Several authorities teach intermediate appellate courts that they are not to intervene lightly when considering the fitness of a sentence. Trial judges have a broad discretion to impose the sentence they consider appropriate within the limits the law imposes upon them. The sentences they impose are entitled to considerable deference from appellate courts: Lacasse, at paras. 39, 41; R. v. M. (L.), at paras. 14-15; R. v. Proulx, at paras. 123, 125.
An error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify appellate intervention, but only where it appears from the trial judge's decision that the error had an impact on the sentence imposed: Lacasse, at paras. 43-44.
A sentencing judge's choice of a sentencing range or of a category within that range is a matter that falls within his or her discretion. As a result, those choices do not themselves constitute reviewable errors. It also follows that an appellate court cannot intervene simply because it would have put the sentence in a different range or in a different category within the same range. Intervention is limited to cases in which the sentence imposed is demonstrably unfit, that is to say, an unreasonable departure from the fundamental principle of proportionality: Lacasse, at paras. 51, 53, 60.
To determine a fit sentence in any case where the sentence determination involves the exercise of discretion, a trial judge is required to consider and assign weight to various sentencing objectives, principles and aggravating and mitigating factors. There are no one-size-fits-all sentences. Determining the weight to be given to aggravating and mitigating circumstances lies at the core of the trial judge's discretion. The assignment of weight to these factors is not itself an error that opens the gate for appellate intervention unless the weighing is unreasonable: Lacasse, at para. 78.
The final area of principle with which we are concerned here involves the place of pre-sentence custody in the sentencing decision.
Subsection 719(3) assigns a place in the sentencing decision for time spent in custody by an offender prior to sentencing. The language of the section is permissive, not presumptive or mandatory, and is limited in two respects. There must be a nexus between the time spent in custody and the offence on which the sentence is being imposed: the time spent must be "as a result of the offence" for which the offender is being sentenced. The second limitation has to do with the rate at which the credit is to be awarded: "one day for each day spent in custody".
On February 22, 2010, the TISA came into effect. In addition to amending s. 719(3) to cap the credit for pre-sentence custody at a rate of 1:1, the TISA added s. 719(3.1), which allowed credit at an enhanced rate of 1.5:1, "if the circumstances justify it" and the reason for detention did not come within the disqualifier contained in the subsection. This disqualifier has since been removed: see An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29, s. 66.
Prior to the enactment and proclamation of the TISA, trial judges routinely exercised their discretion under the former s. 719(3) to give offenders credit for time spent in custody prior to sentencing calculated at a rate of greater than one day of credit for every day in custody. The ratio was often two days' credit for each day of custody, but could be greater or lesser depending on the circumstances of that custody. The award of credit and the ratio applied were left to the discretion of the presiding judge, not pre-determined by a rigid formula much less by a statutory ceiling: R. v. Clarke, at para. 5; R. v. Wust, at para. 45; Summers, at paras. 20-22, 30; R. v. Passera, at para. 32.
By its terms, the TISA, including its limitations on the ratio of credit for time spent in pre-sentence custody as a result of the offence for which the offender was being sentenced, applied to persons charged with offences after February 22, 2010, the date the TISA came into force: Clarke, at para. 18. Later, this court clarified that persons charged after the TISA came into effect, but whose offences were committed prior to that date, were not bound by the TISA rate; rather, they had their credit for pre-disposition custody calculated at the former rate, usually 2:1: R. v. S. (R.), at paras. 32, 35-36, 51.
As was the case prior to the TISA, credit for pre-sentence custody is not as of right. Section 719(3) of the Criminal Code authorizes but does not require a sentencing court, in determining the sentence to be imposed on an offender for an offence, to take into account any time the offender has spent in custody as a result of that offence. As a matter of principle, it falls to the offender seeking to invoke the discretion conferred by s. 719(3) to demonstrate that credit for pre-sentence custody should be awarded. That said, in reality, there is little controversy in most cases that credit should be assigned.
For the first time under the TISA, s. 719(3) capped the credit at a maximum of one day for each day spent in custody. The legislation also created an exception to this general rule in s. 719(3.1), which permitted the credit for time spent in pre-sentence custody to be awarded at a maximum of one and one-half days for each day spent in custody prior to sentence. The enhanced credit may be awarded "if the circumstances justify it". As the party who seeks to obtain the benefit of this enhanced credit, the onus of showing that "the circumstances justify it" also settles upon the offender.
Section 719(3.1) does not require that the circumstances mustered in support of a claim for enhanced credit be exceptional: Summers, at para. 40. The circumstances may include those that result from operation of law, as for example, lost eligibility for early release and parole: Summers, at paras. 40-41.
As a general rule, the loss of early release affords a sufficient basis to award enhanced credit at the rate of 1.5:1. This is so, even if the conditions of pre-sentence custody are not particularly harsh and parole is unlikely. The fact of pre-sentence custody, on its own, will usually be sufficient to support an inference that the offender has lost eligibility for early release or parole, thus justifying enhanced credit: Summers, at paras. 71, 79.
A final point concerns the obligation of the sentencing judge to give reasons for any credit granted for pre-sentence custody. Section 719(3.2) of the Criminal Code imposes this requirement. It is not particularly onerous. But it occupies a prominent place in explaining the nature of the sentencing process and the reasons for giving, and, I would add, refusing credit, to the public: Summers, at para. 74.
The Principles Applied
As I will explain, I would give effect to one claim of error based on the amount of credit awarded for pre-sentence custody, but would not otherwise interfere with the sentences imposed. Preliminary to consideration of the pre-sentence custody credit issue, I should explain why I am satisfied that the sentences imposed do not otherwise reflect error warranting our intervention.
In considering the fitness of a sentence under s. 687(1) of the Criminal Code, it is critical not to lose sight of the basis upon which an appellate court can intervene on review of a sentence imposed at trial. We are only entitled to do so when an error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor had an impact on the sentence imposed. It is not enough that, individually or collectively, we would choose a different sentencing range, or locate the sentence at a different point in the range chosen by the sentencing judge. We may intervene only if the sentences imposed are demonstrably unfit, in other words, that they amount to an unreasonable departure from the fundamental principle of proportionality.
In determining the principal sentence he considered apt for each of the appellants, the trial judge considered the predominant sentencing principles at work to be those of denunciation and deterrence. In cases such as this, which involve that toxic mix of guns, gang involvement, intimidation of perceived adversaries and commercial trafficking in drugs, those principles occupy places of prominence. The trial judge was also mindful of the role of rehabilitation, where reasonable prospects emerged from the evidence adduced at trial or on sentence, as well the fundamental principle of proportionality and the related principle of parity.
The trial judge devoted a portion of his lengthy reasons for sentence to a determination of the range of sentence applicable to the various categories of offences with which he was concerned:
(i) criminal organization drug offences;
(ii) street-level drug offences;
(iii) wholesale drug offences;
(iv) firearms and firearms-related offences; and
(v) offences involving violations of court orders.
After identifying the range of sentence applicable to the several categories of offences, the trial judge then considered each appellant separately; determined the principal sentence he would impose; apportioned it among the counts of which each appellant was convicted; decided how much credit would be awarded for pre-sentence custody; and then imposed the net or effective sentence.
Three appellants allege discrete errors by the trial judge in determining the range of sentence applicable in their cases, or the place within the range the trial judge assigned for their involvement. I would reject these claims of error.
The appellant Shane Evans says that the trial judge erred in making three findings of fact that he considered relevant to the sentence he would impose:
(i) that drug trafficking was Shane Evans' sole livelihood;
(ii) that the 5PG had a monopoly on drug trafficking in their area; and
(iii) that Shane Evans was involved in an ounce-level cocaine deal for $11,250.
Although the specific $11,250 deal mentioned by the trial judge formed the basis of a count on the indictment of which Shane Evans was acquitted, the evidence at trial fully supported the conclusion that he was involved in other multi-ounce cocaine deals. There was no suggestion that he was an addict trafficker or that he held any form of gainful employment. On this evidence, it was open to the trial judge to conclude that Shane Evans' sole livelihood was as a drug trafficker.
The evidence adduced at trial and the verdicts rendered by the jury amply support the conclusion that the 5PG was a criminal organization that operated in a defined geographical area, which it marked out in various ways. There was evidence that gangs were protective of their territory and took any steps necessary to preserve it, and their lucrative illicit trade in street drugs within that territory, from intervention by others. That the 5PG were, or operated like, a monopoly within their area was a reasonable inference available on all the evidence.
In the result, I am satisfied that the trial judge's erroneous reference to the specific $11,250 cocaine deal in relation to Shane Evans had no impact on his conclusions about the applicable range of sentence for the offences of which Evans was convicted or on his determination of where within that range the sentence to be imposed should be located.
The appellant Green contends that the trial judge did not give adequate effect to his youth when determining the sentence to be imposed.
I would not give effect to this claim of error.
In his reasons for sentence, the trial judge specifically considered the appellant Green's relative youth at the time of sentencing — 26 years of age. But like other mitigating factors on sentence, the nature and extent of mitigation youthful age affords is a variable, not a constant. It varies with the nature of the crime and the circumstances in which the crime was committed. And it must be considered in light of other mitigating and aggravating features, as well as the objectives and principles of sentencing.
The appellant Green had a substantial record consisting of 20 prior convictions, five of which involve offences of violence. He was being sentenced for two criminal organization offences, one of which involved an agreement to traffic 3.5 ounces of marijuana into a jail at the request of a fellow gang member. While bound by two firearms prohibitions, he was found in possession of a loaded firearm. In these circumstances, I am not satisfied that the trial judge erred in the weight he assigned to the appellant Green's relative youth in determining the sentence he imposed.
Nor am I persuaded that the trial judge's imposition of a sentence in excess of that jointly submitted by counsel in relation to the appellant Green on one of the convictions of a criminal organization offence warrants our intervention. While the four-year sentence imposed on this count exceeded the joint recommendation of two years, the total sentence imposed was less than that sought by the Crown.
The appellant Francis argues that in imposing sentence upon him, the trial judge erred in failing to respect the principle of parity, resulting in a sentence that was manifestly unfit. I do not agree.
The principle of parity, expressed statutorily in s. 718.2(b) of the Criminal Code, requires a sentencing court to consider the principle that a sentence imposed on an offender for an offence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Like other sentencing principles, where applicable, the principle of parity requires consideration. However, the principle of parity is not a first among equals. That position is occupied by the fundamental principle of proportionality.
In this case, the parity submission rests for the most part on mitigating circumstances, such as a modest criminal record. But parity involves more than a single comparator; its focus is on similar offences, similar offenders and similar circumstances. In this case, the appellant Francis' role was that of the 5PG's chief supplier of cocaine. He not only supplied but also repeatedly trafficked in powder and crack cocaine. His conduct facilitated and supported the successful and lucrative drug business of the 5PG.
In the result, I am satisfied that the trial judge did not commit any of the individual errors alleged by the appellants.
What remains for determination is the shared submission of the appellants other than Francis that the trial judge erred in failing to award proper credit for pre-sentence custody in determining the net sentences he imposed. These appellants were detained in pre-sentence custody for 42 months. Their arrests and detention occurred after the TISA came into effect on February 22, 2010, although some of the offences of which they were found guilty were committed, in whole or in part, before the TISA came into force.
The trial judge awarded credit for pre-sentence custody to each of these appellants in arriving at the net sentence he imposed, but the rates at which the trial judge awarded credit for pre-sentence custody varied. None included the enhanced rate generally awarded prior to the TISA, nor that statutorily provided by the TISA after it came into force. The reasons are largely unrevealing about the basis upon which the credit was awarded or the distinctions made among the various appellants.
With the benefit of the reasons of the Supreme Court of Canada in Summers, an advantage of which the trial judge was deprived, I am satisfied that the trial judge erred in his decision about credit for pre-sentence custody in two respects:
(i) in his determination of the availability of enhanced credit both before and after the TISA; and
(ii) in his failure to provide reasons for the ratios he applied to determine the credit for pre-sentence custody.
The decision in Summers teaches that for an accused detained in pre-sentence custody, the fact that pre-sentence detention has occurred is generally sufficient to support an inference that the accused has lost eligibility for parole or early release. This inference, in turn, justifies enhanced credit under s. 719(3.1) of the Criminal Code. It follows that, with respect to the offences committed after the TISA came into force, this inference was available here, subject to possible rebuttal by the Crown.
The authorities governing the award of credit for pre-sentence custody before the TISA came into force do not follow the inference of entitlement to enhanced credit from the fact of pre-sentence custody approach elucidated in Summers. That said, there seems no reason in principle to apply a different approach to entitlement despite the absence of a fixed rate of enhanced credit. Typically, courts awarded credit prior to the TISA at a rate of two days of credit for each day spent in pre-sentence custody.
The decision in Summers does not condition the inference of loss of eligibility for parole or early release from the fact of pre-sentence custody on the harshness of pre-sentence custody or the unlikelihood of parole. However, the foundational inference is rebuttable. The rate of credit may be reduced where the Crown demonstrates the detention resulted from the offender's bad conduct or where the offender is likely to obtain neither early release nor parole: Summers, at para. 71. The offender's in-custody conduct is relevant in rebuttal of the inference.
In this case, among the appellants who seek a reduction of their sentence based on an error in awarding credit for pre-sentence custody, I am satisfied that the Crown has rebutted the inference of enhanced credit from the fact of pre-sentence custody for the appellants Green and Sheldon Evans, but not in connection with the appellant Shane Evans.
In my respectful view, the appellant Green is unlikely to obtain either early release or parole. His substantial criminal record includes 11 convictions for offences against the administration of justice and a conviction for breach of a conditional sentence order. He was convicted of possession of a loaded and racked prohibited firearm while bound by two separate weapons prohibitions. One of the offences of which he was found guilty involved a plot to traffic 3.5 ounces of marijuana into a jail at the behest of an incarcerated member of the 5PG. His institutional record included creating a disturbance, two incidents of committing or threatening an assault and possession of contraband.
The appellant Sheldon Evans received the lengthiest sentence of all the appellants, a sentence that, but for the principle of totality, would have extended for several years more. While bound by two lifetime weapons prohibitions, he was convicted of possession of a firearm and ammunition, as well as two criminal organization offences. Of greater significance for early release and parole purposes are his five previous convictions for breaches of recognizances. Although his case may fall somewhat closer to the line than that of Green, I am satisfied that the Crown has rebutted the inference supportive of enhanced credit.
The trial judge awarded the appellant Shane Evans enhanced credit for pre-sentence custody, but at a rate of less than one and one-half days credit for each day spent in custody. The appellant's record of 11 previous convictions includes four convictions of failing to comply with a recognizance and two for trafficking in cocaine. He incurred no institutional offences and apparently conducted himself well while in custody.
In my respectful view, the record does not afford a basis upon which to conclude that the Crown has rebutted the inference of enhanced credit arising from the fact of pre-sentence custody. The appellant Shane Evans is entitled to enhanced credit for the 42 months he spent in pre-sentence custody.
Among the six offences of which Shane Evans was convicted, the majority either preceded or straddled the coming into force of the TISA. Specifically, one count entirely preceded the TISA and three straddled the TISA. Importantly, among those three that straddled the TISA was count 1 — trafficking controlled substances for a criminal organization. The trial judge described this offence as the "centrepiece" of the indictment, and it had the longest date range, by far, of all the counts on the indictment before the jury. (The separate fail to comply with probation count also had the same date range.) Count 1's date range also encompassed the date ranges for all the other counts on the indictment. In these circumstances, I would award 2:1 credit for the entire period of time Shane Evans spent in pre-sentence custody. This results in a credit of 84 months, which is to be deducted from his 9.5-year sentence.
As noted, the appellant Francis does not suggest that his sentence should be reduced on the basis of inadequate credit for pre-sentence custody. I have already rejected his other grounds of appeal from the sentence imposed upon him.
Conclusion
For these reasons, I would dismiss all appeals from conviction. I would grant leave to appeal sentence, but dismiss all appeals from sentence except that of the appellant Shane Evans, whose appeal I would allow and whose sentence I would reduce by 84 months to a net sentence of 2.5 years.
Conviction appeal dismissed; sentence appeals of S, G and F dismissed; E's sentence appeal allowed.
