Her Majesty the Queen v. Mills; Her Majesty the Queen v. Williams

[Indexed as: R. v. Mills]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, Miller and Fairburn JJ.A.

November 29, 2019

151 O.R. (3d) 138 | 2019 ONCA 940

Case Summary

Criminal law — Bias — Reasonable apprehension of bias — Trial judge in murder trial reprimanding defence counsel and intervening in cross-examination — Court of Appeal not condoning trial judge's tone and language used in addressing counsel, but behaviour when viewed in context of trying to maintain trial fairness demonstrating no bias or reasonable apprehension of bias.

Criminal law — Charge to jury — Murder — Reasonable doubt — Two accused charged with murder for what was alleged to be a shooting involving gang activity in Toronto — Eyewitness to shooting identifying shooter in music video and again in police photo line-up — Witness misidentifying tattoo on shooter's neck — Trial judge providing fair and balanced instruction to jury on frailties of eyewitness identification and pointing out that misidentification could be sufficient to establish reasonable doubt.

Criminal law — Evidence — Prejudice to accused — Two accused charged with murder for what was alleged to be a shooting involving gang activity in Toronto — Trial judge admitting rap lyrics seized from apartment occupied by accused — Trial judge aware of need to consider artistic nature of lyrics as legitimate musical endeavour — Trial judge not erring in finding probative value of lyrics outweighed prejudicial effect.

Criminal law — Evidence — Expert evidence — Admissibility — Bias — Two accused charged with murder for what was alleged to be a shooting involving gang activity in Toronto — Trial judge admitting expert opinion evidence on street gangs from member of Toronto Police Service — Trial judge erring in not considering bias as part of admissibility ruling, but error not affecting admission of evidence — Trial judge's findings of lack of bias open to him and entitled to deference.

Criminal law — Evidence — Identification — Eyewitness — Charge to jury — Eyewitness to shooting identifying shooter in music video and again in police photo line-up — Witness misidentifying tattoo on shooter's neck — Trial judge providing fair and balanced instruction to jury on frailties of eyewitness identification.

Criminal law — Sentencing — Murder — Parole ineligibility — Accused sentenced to life with no parole for 25 years for first-degree murder — Co-accused sentenced to life with no parole for 15 years for second-degree murder — Trial judge erring by treating crime motivated by membership in a rival gang as aggravating factor — Error not affecting sentence as other aggravating factors properly taken into account.

Overview

The appellants, M and W, were alleged to have confronted two men about their presence in an area of Toronto purportedly controlled by a street gang. One of the men, wearing the colours of a rival gang, started to run away, was chased down, and was shot multiple times. The other man ran to the victim's home, found no one home, and went to the home of a neighbour to try to get in touch with the victim's family. After he made some calls, the neighbour showed him YouTube videos from which he identified the shooter. Three days later at the police station, he identified M as the shooter from a photo line-up. He described the shooter as having a tattoo with letters on the right side of his neck, which M did have, but the witness misidentified the letters. M was indicted on a charge of first-degree murder based on the theory that the murder was committed for the benefit of, at the direction of or in association with a criminal organization. W was indicted on a charge of second-degree murder based on the theory that he aided or abetted M in the murder. At trial, the Crown introduced as evidence documents containing handwritten rap lyrics, and elicited expert opinion evidence on street gangs from a Toronto Police Service officer. A portion of the officer's cross-examination at trial could not be transcribed due to a problem with the recording. The jury returned verdicts of guilty as charged. M received an automatic life sentence with no parole for 25 years. W received an automatic life sentence with no parole for 15 years, although the jury recommended no parole for ten years. M appealed his conviction. W appealed his conviction and sentence.

Held, the appeals should be dismissed.

The trial judge did not err in admitting the expert opinion evidence. The judge did commit an error in principle by observing that bias of an expert witness goes to weight rather than admissibility and therefore not addressing the issue of bias on his admissibility ruling. Notwithstanding that error, the evidence was properly admitted. The officer had significant expertise in relation to Toronto street gangs. The fact that he was from the same police service that investigated the matter did not, on its own, suggest bias. He was not involved in the homicide investigation and had no past involvement with either of the appellants. The trial judge made factual findings about a lack of bias, findings which were available to him and which were accorded deference. The appellants were unable to show that the missing transcript would have demonstrated bias or that they were otherwise irreparably prejudiced by it. The record confirmed that the officer was impartial, independent and unbiased. In response to a question from M's counsel, the officer opined that the appellants were members of an identified group, but not much turned on that evidence as by the end of trial the question was not so much whether the appellants were members, but whether that group was a street gang, a legitimate rap group, or both.

The trial judge did not err in admitting rap lyrics seized from an apartment alleged to have been inhabited by the appellants at the time of the murder. The judge was aware of the need to turn his mind to the artistic nature of the lyrics when determining their admissibility and understood that artistic expressions do not necessarily represent the truth. With that in mind, he determined that the probative value of the lyrics was high and outweighed their prejudicial effect. He strongly and unequivocally instructed the jury, both mid-trial and in his charge, to consider whether the lyrics were nothing more than a legitimate musical endeavour. The appellants' counsel were provided a clear opportunity to cut down on the sheer quantity of lyrics placed before the court but ultimately they declined on the basis that the lyrics represented nothing more than the writings of aspiring young artists.

The trial judge did not incorrectly instruct the jury on the frailties of the eyewitness identification. With the witness having gone to the neighbour's home immediately after the shooting, there was a risk that his recollection of the shooter was tainted by the music videos he watched with the neighbour. The judge adequately instructed the jury about that potential tainting. His instruction did not have the effect of suggesting to the jury that the eyewitness evidence was or could be made more reliable by what occurred at the neighbour's home. With respect to the misidentification of the tattoo, the judge told the jury that even one significant difference between the man described and the accused could be sufficient to raise a reasonable doubt. The charge was fair and balanced.

The trial judge's behaviour during the trial did not give rise to a reasonable apprehension of bias, nor did it demonstrate actual bias. The appellants objected to the judge's behaviour regarding reprimands of defence counsel for real or perceived errors, interventions during cross-examination, and certain statements in the charge to the jury. While the judge's tone and language in addressing counsel displayed frustration and were not to be condoned, they were made in the context of trying to maintain the fairness of the trial. The interventions were not of the sort that would lower the estimation of counsel or her client in the eyes of the jury. There was one correcting instruction in the jury charge which was not objectionable. As such, the behaviour complained of did not reveal bias or give rise to a reasonable apprehension of bias.

The judge erred by considering a crime to be motivated by membership in a rival street gang to be an aggravating factor in sentencing. However, that error did not have an impact on the sentence. The rest of the judge's analysis of aggravating factors addressed the applicable factor of committing crimes for the benefit of a criminal organization. The judge considered the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence, and the jury recommendation. W failed to identify any reason to interfere with the sentence imposed.

Background

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

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

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

Analysis

A. The Admission of the Expert Opinion Evidence

Overview

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

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

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

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

In order to understand the evidence elicited in support of that theory, such as the YouTube rap videos, handwritten documents containing rap lyrics, and graffiti in public places, the jurors required the assistance of an expert witness to explain matters that lay beyond their ken. For instance, the jury needed to understand that street gangs exist, that they are territorial in nature, that they mark their territory in different ways, that they associate with different colours (red being the colour of the Blood Nation and blue being the colour of the Crip Nation), and that they use different hand signals to demonstrate their gang membership.

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

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

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

The Expert Evidence Ruling

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

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

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

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

(i) the phenomenon of the street gang;

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

(iii) the symbols and graffiti commonly used by gangs;

(iv) the concept of a street gang having a core territory;

(v) the use of graffiti by gangs to denote their territory;

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

(vii) typical gang responses to perceived infringement of territoriality; and

(viii) the existence of such gangs in Toronto.

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

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

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

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

The Appellants' Position That Detective Backus Was Biased

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

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

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

The Erroneous Conclusion About the Role of Bias at the Admissibility Stage

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

Expert evidence is presumptively inadmissible. As noted in R. v. Johnson, the expert opinion rule will sometimes exclude relevant and material evidence because "we leave it to the trier of fact, not witnesses, to form opinions, to draw inferences and to reach conclusions". There are some issues, though, upon which special knowledge, skill or expertise is required in order to draw reliable inferences from the facts. In those situations, qualified experts may be permitted to assist the trier of fact in understanding those facts.

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

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

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

(c) unbiased, in the sense that they do not "unfairly favour one party's position over another".

The "acid test" is "whether the expert's opinion would not change regardless of which party retained him or her".

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

At the first stage, the court considers: (i) logical relevance; (ii) necessity; (iii) the absence of an exclusionary rule; and (iv) the need for a properly qualified expert.

An assessment of whether the witness is a properly qualified expert must take into account the proposed witness' ability to understand and to fulfill an expert's duty to the court to provide impartial, independent and unbiased evidence. This is not a high threshold. Once the expert testifies to this effect, the burden shifts to the party opposing the admission of the evidence to show a "realistic concern" as to why the expert might not comply with that duty. If that realistic concern is shown, the burden shifts back to the party proffering the evidence to demonstrate on a balance of probabilities why the expert is a properly qualified expert. Expert evidence should only be excluded in "rare" and "very clear cases", where the proposed expert is found to be unable or unwilling to provide "fair, objective and non-partisan evidence".

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

At the second stage of the admissibility analysis, the court exercises a residual discretion to exclude the evidence as part of what is often referred to as its gatekeeping function. This calls on the court to consider whether the benefits of admitting the expert evidence outweigh the potential risks.

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

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

Detective Backus Was Not Biased

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

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

(a) Detective Backus had significant expertise in relation to Toronto street gangs;

(b) the fact that Detective Backus is a Toronto Police Service ("TPS") police officer does not suggest bias;

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

(d) Detective Backus did not display any bias; and

(e) there is no prejudice arising from the missing transcript.

Detective Backus Was an Expert in Toronto Street Gangs

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

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

We do not agree.

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

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

The fact is that sometimes police officers obtain expertise on certain matters through practical experience gathered in the course of their duties over many years. For instance, expert evidence from police officers is sometimes elicited in drug importation cases to demonstrate, among other things, distribution routes, means of transportation, and methods of concealment.

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

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

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

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

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

The Fact That Detective Backus Is a TPS Police Officer Does Not Suggest Bias

Although the appellants accept that a police officer sufficiently "detached" from the TPS could have offered an expert opinion in this case, they argue that Detective Backus' employment with the TPS and the fact that he "investigated" his opinion precluded him from testifying. The appellants rely upon R. v. McManus in support of that proposition.

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

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

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

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

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

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

The Trial Judge Made Findings of Fact About a Lack of Bias to Which We Defer

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

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

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

Detective Backus Did Not Display Bias

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

Confirmation bias is defined as an "unconscious tendency of those who desire a particular outcome to search for things that support that outcome and to ignore or reinterpret contradictory information". We see nothing in the record to support the claim that Detective Backus fell victim to confirmation bias.

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

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

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

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

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

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

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

There Is No Prejudice Arising from the Missing Transcript

The parties agree that about 92 minutes of the audiotaped recording of Detective Backus' cross-examination before the jury is "faulty" and incapable of reproduction. This constitutes about the final ten minutes of the cross-examination conducted by counsel to one appellant. The balance of the missing transcript relates to the cross-examination conducted by counsel to the other appellant.

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

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

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

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

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

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

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

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

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

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

Conclusion on Expert Opinion Evidence

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

The Ultimate Issue

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

Even where an expert's evidence is necessary, it requires heightened scrutiny as it approaches the ultimate issue. In R. v. Singh, this court noted among other concerns that it was improper for an expert to opine on an accused's alleged association with a criminal organization. In their written arguments, and despite the pre-trial ruling that precluded Detective Backus from doing so, the appellants argue that Detective Backus was improperly permitted to opine on that precise topic.

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

Even so, counsel to one appellant pursued that type of questioning with both the eyewitness and Detective Backus. Counsel specifically suggested to the eyewitness that he knew that the victim belonged to a gang. Counsel also put the same proposition to Detective Backus: "And today you're aware and it's your opinion that Mitchell Celise was a member of the Eglinton West Crips?" Having been asked the question by the defence, Detective Backus answered the question.

Moreover, counsel to one appellant asked Detective Backus about the membership of the MOB Klick: "And the members of that group [MOB Klick] are who?" Among others, Detective Backus said the appellants.

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

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

B. The Admission of Rap Lyrics

Overview

Rap videos and rap lyrics were admitted into evidence at this trial. Regarding the videos, the trial Crown initially asked to have ten out of 76 available YouTube videos admitted into evidence. The trial judge ultimately permitted the admission of only six: "Bloodz", "Cocaine Alumni", "Hood Life", "Thug Mentality", "You Don't Really Want It", and "Chiibz Freestyle". In each of these, at least one of the appellants appeared. On consent, the Crown also played a video named "Eglinton N Northcliff", which was alleged to demonstrate that the EWC was a street gang and the geographical area in which it operated.

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

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

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

The YouTube Videos and Rap Lyrics

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

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

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

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

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

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

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

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

The videos also contained references such as:

• "RIP Bubba" (the trial Crown alleged that the victim's murder was motivated by a desire to seek revenge for Bubba's murder);

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

• "You know Ginga I'm bangin' blood" (Ginga was alleged to be a name for one appellant);

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

• "Don't fuck with them niggas from Vaughan and Oakwood"; and

• "Rest in piss you know what I'm saying, all you crab niggas" (Detective Backus testified that "crab" is a reference to a member of the Crips).

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

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

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

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

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

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

• one appellant's connection to the voice on a YouTube rap video titled "Chiibz Freestyle" where only a picture of him was shown (the lyrics were found in handwriting at the apartment and were alleged to have been written by the other appellant);

• the appellants' connections to one another;

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

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

• the appellants' desire to avenge the death of Bubba.

The Two Admissibility Rulings

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

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

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

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

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

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

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

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

Objections on Appeal

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

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

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

Analysis

The Alleged Skeete Error

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

The appellants argue that, by so fundamentally failing to grapple with the fact that rap music is an art form, the trial judge overemphasized the probative value to be assigned the evidence. They rely on R. v. Skeete in support of the proposition that the trial judge was duty-bound to take the artistic expression involved in the rap lyrics into account:

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

In Skeete, Watt J.A. cited to State v. Skinner in support of the proposition that, because rap lyrics are also a form of artistic expression, it may not be reasonable to infer that, simply because an author has written about a certain topic, he or she actually holds or acts in accordance with those views. As the court noted in Skinner:

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

In terms of their prejudicial impact, the appellants also point to the fact that rap lyrics are "strongly linked to Black culture" and, as such, there is a danger in allowing their admission because they can "trigger and inflame stereotypical assumptions that triers of fact bring with them to court about race and crime".

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

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

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

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

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

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

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

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

Even so, in the end, the trial judge determined that, taken together, the probative value of the handwritten lyrics was high and outweighed any prejudicial effect arising from them. Unlike Skeete where it was a single sentence that held probative value in a single rap song, in this case, as previously reviewed, the probity of the documents was multi-fold. They showed connections between people, revealed aliases used, allowed for handwriting analysis to connect one appellant to other incriminating documents, and demonstrated what the Crown alleged to be the true nature of the MOB Klick, the appellants' connections to it, their general dislike of the Crips, and their desire to avenge Bubba's murder. As the trial judge found, the volume of the material could establish "the profound and all-consuming nature" of the hatred toward the Crips.

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

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

We do not agree that the trial judge committed a Skeete error.

The Alleged Candir Error

The appellants' second objection arises from what they describe as a "Candir error": R. v. Candir. In Candir, Watt J.A. addressed the fact that trial judges may exclude probative evidence where its impact on the trial process "exceeds its value to the correct disposal of the litigation at hand". He referred to this exclusionary rule as one driven by concerns over the "forensic piling on of evidence by the acre", something that can unnecessarily lengthen a trial and distract the trier of fact. As Watt J.A. said, "[c]umulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal".

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

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

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

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

As we see it, though, the difficulty with this submission on appeal is that it fails to accord with the position taken by the appellants at trial, one that ultimately resulted in a defence rejection of the Crown's agreement to remove some of the documents from the record. We must take that position into account on appeal.

The Defence Position at Trial

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

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

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

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

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

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

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

The trial judge continued to encourage counsel to "give a long hard look" at the documents so that there could be a "meaningful discussion document by document concerning what should or shouldn't remain". He expressed his concern that leaving the matter to the end of trial could "be chaotic".

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

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

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

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

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

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

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

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

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

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

Was There a "Forensic Piling On"?

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

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

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

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

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

Charge to the Jury

Moreover, as previously mentioned, the appellants take no issue with the jury instructions in this case. While the lyrics held significant potential for prejudice, the trial judge's instructions -- both mid-trial and during his charge to the jury -- were strong and unequivocal. He provided clear, sharp and forceful instructions about the prohibited uses of the documents and videos. His instructions were a "prophylactic against any incidental prejudice".

As there is no objection to these instructions, we will not set them out in full. Just one quotation from the jury charge will suffice to make the point:

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

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

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

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

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

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

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

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

In our view, the trial judge's mid-trial instructions and charge went a considerable distance toward limiting the prejudice that could arise from the evidence admitted.

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

C. The Eyewitness Identification

Overview

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

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

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

The appellants argue that these two errors were rendered more significant by other inconsistencies in the eyewitness' testimony, such as whether or not he knew the victim's nickname was "S.K.", his inaccurate description of the shooter's neck tattoo, the timing of his visit to the neighbour's home, and whether or not he was at the victim's house the night before the shooting.

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

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

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

The Eyewitness' Evidence Identifying One Appellant as the Shooter

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

The two men eventually came right up to the victim and the eyewitness. The eyewitness testified that the big guy was right in front of him, and the little guy was to his right. The big guy started to ask the eyewitness questions about why his friend, the victim, was wearing blue and where they were from. The big guy said, "It's red around here, right, and you can get yourself hurt. You're not supposed to be wearing blue."

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

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

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

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

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

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

THE COURT: Pictures. Okay.

THE CROWN: What form were these pictures in?

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

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

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

MR. FLAVIUS: That's the person that did the shooting.

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

Then, the eyewitness was asked about how the neighbour responded to his identification of the shooter:

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

THE CROWN: After that, what did you do? You've identified someone on the film. What happens after that?

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

After viewing the films, the eyewitness stayed at the neighbour's house until the victim's relatives came home, at which point he went to the victim's house.

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

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

In cross-examination by counsel to one appellant, the eyewitness made the following additions and clarifications to the testimony he gave in-chief about his interaction with the neighbour:

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

A. Yes.

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

THE COURT: Sorry? Put that question again.

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

R. Yes. I point out to her myself the person. She didn't point out to me.

S. Well, you'll agree with me, sir, that she was, first of all, the person who was in control of the computer; correct?

A. Yes.

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

A. Yes.

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

A. Yes.

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

A. She told me that she's going to look and she's going to show me some videos and pictures to see if that's the person maybe she's thinking that did [it], so I just show her. Like she didn't point anything out to me. I point out to her on my own.

B. Right, but as much as that's what you suggest, you'll readily acknowledge that she gave you the name of someone. She didn't just show you some unidentified photos or videos. She gave you the name of the person, correct?

A. The name of the person.

Q. Yes.

A. Yeah, she start mentioning -- when she show the photos and stuff, then she start mentioning names and all this kind of thing. I don't know that guy from nowhere, so I wouldn't know his name, right.

Q. But she knew the name?

A. Yeah.

Q. And she told you the name?

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

The eyewitness also explained in cross-examination that the videos and photos that the neighbour showed him included individuals other than one appellant, and that the neighbour showed him several videos, but he only saw the shooter in one:

[The neighbour] wasn't just showing me like one picture of your client. She was just showing me photos. She was telling me if you see the person, just show me, so she was just showing me photos and videos so then I picked out for my own self, so it wasn't like she brought him out and like, look, that's the guy. She wasn't picking the guy for me.

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

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

The Impugned Jury Charge on Eyewitness Identification Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the issue of weight, the trial judge stated:

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

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

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

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

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

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

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

(i) that he was not wearing a blue baseball cap;

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

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

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

Counsel to Mr. Mills asks you to note that Mr. Flavius could not explain why he texted [the neighbour] at 3:44 p.m. if, as he says, he was at her home at about that time. Counsel to Mr. Mills points out that you know very little about what went on with [the neighbour] when Mr. Flavius looked at the videos. You do not know what photographs Mr. Flavius looked at before he picked out Mr. Mills from the video because Mr. Flavius cannot tell you.

In light of the fact that someone identified herself to P/C Melo as [the neighbour] at the crime scene at about the time that Mr. Flavius says that he went to Mr. Celise's home, and found nobody home, and then went next door to [the neighbour's] home, counsel to Mr. Mills asks you to consider whether the meeting Mr. Flavius describes with [the neighbour] ever took place.

Counsel to Mr. Mills suggests that Mr. Flavius was trying to distance himself from [the neighbour].

Counsel to Mr. Mills suggests that Mr. Flavius' evidence is tainted in ways that we know and ways that we do not know. He points to Patsy Warren telling the police in August that she thought the man on her steps had a tattoo on his neck, as an example of how even an honest witness can be tainted by things that the witness sees and hears between the time an incident occurs and the time the witness is asked to identify someone involved in that incident.

Counsel to Mr. Mills says that Mr. Flavius' untrustworthiness was demonstrated "time and again."

Counsel to Mr. Mills suggests that Mr. Flavius lied in the course of the preliminary inquiry about how many times he was at Mr. Celise's house. Counsel to Mr. Mills suggests that he demonstrated that Mr. Flavius' answer at the preliminary inquiry (that he did not say that he was at Mr. Celise's house on the night of May 2, 2010, because he was not asked) was false. He suggests that Mr. Flavius lied to you.

Counsel to Mr. Mills places particular emphasis on Mr. Flavius' text message that reads "the same boys shot S.K." when he said that he did not know that Mr. Celise was known as S.K. He asks rhetorically: How would the recipient of the message know that Mr. Celise was called S.K., if Mr. Flavius did not know until minutes before he sent the text message? Nor could Mr. Flavius explain why he referred to the "same boys", counsel to Mr. Mills points out.

Analysis

Dangers of Eyewitness Identification Evidence

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

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

The dangers of eyewitness identification evidence have been emphasized by this court in many cases as well, most recently in R. v. Phillips, R. v. Lewis, R. v. Biddle, and R. v. Bao.

Instructing a Jury With Respect to Eyewitness Identification Evidence

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

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

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

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

Other cases from this court and the Supreme Court have recognized that showing a witness one photograph of the accused as the suspect, particularly when that is done by a police officer, is prejudicial because it suggests the identity of the perpetrator to the witness, and, as stated by this court many years ago in R. v. Goldhar, "there is always the risk that thereafter the person who has seen the photograph will have stamped upon his memory the face he has seen in the photograph, rather than the face he saw on the occasion of the crime".

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

Mr. Flavius' exposure to these photos and videos formed part of the circumstances of the case that the jury had to consider when assessing the reliability of his identification of Mr. Mills. In R. v. Mezzo, Wilson J. stated in a concurring judgment that an improperly conducted police line-up does not necessarily destroy or weaken a witness' initial identification as long as the jury is instructed about the possible effect in a proper charge. It is the trial judge's job to instruct the jury about how to go about assessing to what extent that exposure may have undermined the reliability of the witness' identification. It is an appellate court's job to assess the adequacy of those instructions, without requiring perfection. The Supreme Court recently described the standard of review for jury instructions in Araya, as follows:

When considering an alleged error in a trial judge's jury instructions, "[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole". Further, trial judges are to be afforded some flexibility in crafting the language of jury instructions. While trial judges must seek to ensure that their instructions adequately prepare the jury for deliberation, the standard for jury instructions is not perfection. Appellate review of jury instructions is meant to "ensure that juries are properly -- not perfectly -- instructed". This Court has emphasized that the charge generally should not be "endlessly dissected and subjected to minute scrutiny and criticism". As Bastarache J. has summarized it in R. v. Daley:

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

Appellate courts should not examine minute details of a jury instruction in isolation. "It is the overall effect of the charge that matters".

The Trial Judge's Charge on Eyewitness Identification Evidence Was Adequate

In his charge, the trial judge brought home to the jury the dangers associated with eyewitness identification evidence generally. He instructed the jury to consider the four factors from this court's decision in R. v. Tat when assessing the reliability of the identification: (i) whether the person identified was a stranger or known to the witness (because if the witness recognizes the perpetrator as someone he or she knows, that makes the identification more reliable than trying to remember a stranger); (ii) whether the circumstances of the identification were conducive to an accurate identification -- if it was easy to see the person, how long the encounter was, was it friendly or was there tension or fear; (iii) whether the pre-trial identification process was flawed; and (iv) whether there was other evidence tending to confirm or support the identification.

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

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

The Charge Adequately Dealt With the Risk of Tainting

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

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

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

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

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

• If one appellant was visibly prominent in the videos, then that would be a significant departure from the standards of a proper identification procedure.

• If one appellant were in all of the videos, with different companions in the different videos, then this would fall well short of a proper identification.

• If the content of the videos (e.g., because they were gang-related or expressed hostility to EWC members) or other factors (e.g., the neighbour's "very dangerous" remark) contributed to the eyewitness' belief that he was likely viewing the killer, this would affect the reliability of the later identification.

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

The jury was adequately instructed about the potential tainting effect of what occurred at the neighbour's house. The trial judge expressly warned the jury as follows:

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

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

Second, the trial judge did not misdirect the jury because his instruction did not have the effect of suggesting to the jury that the eyewitness' evidence was or could be made more reliable by what occurred at the neighbour's home. The specific wording from the charge that forms the basis of this submission is the following:

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

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

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

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

Moreover, the jury was entitled to find, on the basis of this evidence together with the other evidence regarding the eyewitness' identification of one appellant, that they were persuaded or satisfied that the YouTube identification did not have the effect of tainting his subsequent identification of one appellant in the police photo line-up.

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

We also reject this submission. The evidentiary basis came from the eyewitness' testimony. The jury heard the eyewitness' evidence and they heard counsel's submissions about his credibility and reliability. It was for the jury to assess his evidence and determine what to make of it.

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

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

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

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

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

It is also significant that the jury charge was vetted with counsel before it was delivered, and no objection was made to the portion, now impugned on appeal, that described how the jury could assess what occurred at the neighbour's. While counsel's position at trial is not determinative on appeal, it is some indication that the charge was not perceived to be unfair on that issue at the time it was delivered. As the Supreme Court recently stated in R. v. Barton, quoting from R. v. Jacquard, trial counsel's failure to object "says something about the overall accuracy of the jury instructions and the seriousness of the alleged misdirection".

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

The Charge Was Not Unbalanced in Its Treatment of the Evidence of the Eyewitness

The appellants submit further that the trial judge erred by telling the jury that the eyewitness' evidence was that he picked out one appellant from the video with no prompting from the neighbour, without referring to his evidence that suggested the opposite. The problem with this submission is two-fold.

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

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

The Treatment of Alleged Inconsistencies in the Eyewitness' Evidence Was Fair

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

Conclusion on Eyewitness Identification Evidence

The trial judge understood that the eyewitness' identification of one appellant as the shooter was a key piece of evidence in the case.

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

We are satisfied that no error was made.

D. Reasonable Apprehension of Bias

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

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

The test for establishing a reasonable apprehension of bias was recently summarized by this court in R. v. Ibrahim:

The test for establishing a reasonable apprehension of bias is well known -- would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly.

In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis: "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption."

It is accepted as a general rule that allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so. A timely application has two advantages. First, it can serve to alert the trial judge to the possible need for modification of his or her behaviour and/or for a corrective jury instruction, depending on the circumstances. Second, it creates an evidentiary record and ruling for purposes of appeal, if necessary. Although counsel to the other appellant complained about the trial judge's conduct at certain points in the trial, there was no application for a mistrial in this case, and this issue arises for the first time on appeal. Accordingly, while it is apparent from the transcript that the trial judge's interactions with defence counsel were at times inappropriate, we do not have the benefit of an evidentiary record and ruling arising from a mistrial application.

The question is whether the trial judge's interactions with counsel to the other appellant evidenced actual bias on the part of the trial judge or gave rise to a reasonable apprehension of bias. Stated more specifically, would the cumulative effect of the exchanges, comments, and other behaviour, when examined in the context of the trial as a whole, lead a reasonable observer to conclude that the trial judge was not an adjudicator "disinterested in the outcome, and open to persuasion by the evidence and submissions".

As this court recently emphasized in Ibrahim, the inquiry is contextual:

When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must be viewed in context. It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.

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

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

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

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

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

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

For instance, the appellants point to what can be termed as the "danger bearing" exchange as an example of the trial judge's behaviour that resulted in a reasonable apprehension of bias. The trial judge had ruled that the criminal antecedents of the appellants and their associates were not admissible. Yet, during her cross-examination of Detective Backus, some of counsel's questions went into this general area and, as a result, arguably created a false impression about these individuals' backgrounds. The Crown objected and submitted that counsel's cross-examination had re-opened the issue. Although both defence counsel opposed this submission, counsel to one appellant stated that the Crown's complaint was "to some extent well-founded", and counsel to the other appellant admitted that her question "skirted the line, there's no doubt". In ruling, the trial judge picked up on the theme of skirting the line:

[I]f [counsel] were on the bridge of a ship I wouldn't want to be a passenger. She obviously doesn't know what a danger bearing is. You're a navigator, you create a course, and you stay well clear of the reef and [counsel] if you're not on the reef, you are as close to it as I have ever seen. You had no business going there[.]

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

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

Turning next to the trial judge's interventions in cross-examination, the appellants' argument is not that the other appellant's counsel was impeded in her ability to cross-examine witnesses, but that the interventions demeaned counsel in the eyes of the jury, and by extension, demeaned the other appellant.

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

Third, the appellants argue that the trial judge's jury charge adds to the case that there was a reasonable apprehension of bias or actual bias.

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

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

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

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

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

This ground of appeal fails.

E. Sentence Appeal

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

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

The sentencing judge considered the four factors under s. 745.4 of the Criminal Code relevant to the parole ineligibility period: (i) the character of the offender; (ii) the nature of the offence; (iii) the circumstances surrounding the commission of the offence; and (iv) the jury recommendation.

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

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

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

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

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

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

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

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

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

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

Absent some error in principle that would affect the result, the trial judge's decision on sentence is entitled to deference. The appellant has not identified a basis that would entitle this court to interfere with the sentence imposed. The appeal from sentence is dismissed.

Disposition

For the reasons set out above, the conviction appeals are dismissed. The sentence appeal is also dismissed.

Appeals dismissed.