Court of Appeal for Ontario

Date: 20240708 Docket: C69267 & C69288

van Rensburg, Sossin and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Thulani Chizanga and Shamar Meredith Appellants

Counsel: Maija Martin and David Reeve, for the appellant Thulani Chizanga (C69267) Nathan Gorham and Breana Vandebeek, for the appellant Shamar Meredith (C69288) Jamie Klukach and Avene Derwa, for the respondent

Heard: January 16 and 17, 2024

On appeal from the convictions entered on October 17, 2019 by Justice David E. Harris of the Superior Court of Justice, sitting with a jury.

On appeal from the sentence imposed on July 30, 2020 by Justice David E. Harris of the Superior Court of Justice, with reasons reported at 2020 ONSC 4647 (C69288).

Table of Contents

Sossin and Monahan JJ.A.: 2 OVERVIEW .. 2 ISSUES . 5 ANALYSIS . 6 (1) The trial judge correctly admitted the prior discreditable conduct evidence and properly instructed the jury as to its use . 6 (2) The trial judge did not err in his charge on the joint enterprise mode of liability for murder 36 (3) The trial judge did not err in instructing the jury regarding the post-offence demeanour evidence . 43 (4) The trial judge did not err in failing to instruct the jury that defence theories do not need to be based on evidence . 46 (5) The trial judge did not err in the sentence imposed . 48 DISPOSITION . 55 van Rensburg J.A. (Dissenting): 56 (1) The Assessment of the Probative Value of the Video on the Issue of Joint Enterprise to Kill 57 (a) Probative Value: Legal Principles . 57 (b) Application of the Principles to this Case . 63 (2) The Admission of the Video After the Appellants Proposed to Make Formal Admissions at Trial 66 (3) The Trial Judge’s Instructions to the Jury About Uses of the Video . 71 The Effect of the Video . 75 Conclusion . 77

Sossin and Monahan JJ.A.:

Overview

1The victim, Mr. Kamar McIntosh, was shot multiple times in the washroom area of a Popeyes restaurant in Mississauga. There were 27 entry and exit wounds; 15 of them were in the torso area. The gun used in the shooting was never recovered. About 15 minutes after arriving to the restaurant, the appellant, Thulani Chizanga went into the washroom and remained there until after the killing. The other appellant, Shamar Meredith, moved to the washroom area about a minute before Mr. McIntosh entered the restaurant and went directly to the washroom area. About 30 seconds later, shots fired in rapid succession were heard from the washroom area. Video footage from the restaurant established that the appellants were in the washroom area of the restaurant at the time of the shooting. Mr. Meredith eventually admitted to being responsible for the shooting of Mr. McIntosh, with a gun that he claimed went off accidentally following a scuffle between them.

2The appellants were charged with first degree murder based on planning and deliberation. It was the Crown’s theory that their conduct before, during, and after the murder evinced a plan to kill the deceased.

3The Crown’s firearms expert testified that one of the bullets discharged at the scene was fired from a different gun than the rest. This evidence was strongly challenged in cross-examination. It was the Crown’s theory that Mr. Chizanga also had a gun and fired at the deceased. If the jury found reasonable doubt about this, the Crown’s position was that Mr. Chizanga was guilty as a joint principal because he acted in partnership with Mr. Meredith in executing their plan to kill Mr. McIntosh; or guilty for assisting Mr. Meredith, knowing that he intended to murder Mr. McIntosh.

4Prior to the trial, the Crown brought a motion to have a video admitted as prior discreditable conduct evidence. The video footage showed the appellants and a third person in a Super 8 Motel in the evening of the day before the homicide (the “Super 8 Video” or the “Video”). Mr. Chizanga is visible knocking on a motel room door while Mr. Meredith and the third man stand off to the sides. Mr. Meredith is seen holding a black, assault-type firearm with a long barrel after pulling the weapon out of his pantleg. No-one answers the door and after about two minutes Mr. Meredith tucks the firearm back into his pants and the three men exit via the stairwell.

5Mr. Meredith ultimately was prepared to admit that the weapon in the Super 8 Video was the same as the one in the footage from the Popeyes and that he knew Mr. Chizanga. Mr. Chizanga was prepared to admit that he knew Mr. Meredith and that he knew that he was armed the day of the shooting at the Popeyes and that he was prepared to use the weapon that day.

6The trial judge ruled that the Super 8 Video was admissible. After the written ruling was released and before the Video was played for the jury, the appellants brought a motion to have the trial judge reconsider his decision on the prior discreditable conduct motion, which was dismissed.

7Neither Mr. Chizanga nor Mr. Meredith testified. Both brought applications for directed verdicts with respect to the charge of first degree murder, which were dismissed. Mr. Meredith admitted that he shot Mr. McIntosh, and was guilty of manslaughter, but argued that he did not have an intention to kill and was not part of a plan to kill Mr. McIntosh. He asserted that the firearm had discharged accidentally during a scuffle with the victim. Mr. Chizanga argued that he was not guilty as he did not shoot Mr. McIntosh and was not otherwise part of a joint enterprise to kill him and that he had done nothing to aid Mr. Meredith in the killing.

8After their convictions for second degree murder, both appellants were given mandatory life sentences. Mr. Meredith was given 16 years’ parole ineligibility. Mr. Chizanga was given 12 years’ parole ineligibility.

9The admission of the Super 8 Video forms a significant part of these appeals. The remaining grounds for the conviction appeals relate to the trial judge’s jury instructions. Additionally, Mr. Meredith appeals his sentence as it relates to the period of parole ineligibility. Mr. Chizanga has abandoned his appeal against sentence by way of notice.

Issues

10The appellants raise the following grounds of appeal:

(1) With respect to the conviction appeals, both appellants argue that the trial judge erred in admitting the Super 8 Video as evidence of prior discreditable conduct and/or failed to properly instruct the jury on the permissible use of such evidence;

(2) Mr. Chizanga argues that the trial judge erred in his jury charge on the joint enterprise/co-principal mode of liability for murder;

(3) Mr. Chizanga argues that the trial judge erred in his jury charge on post-offence conduct;

(4) Mr. Chizanga argues that the trial judge erred in his jury charge by failing to instruct the jury that defence theories do not need to be based on evidence; and

(5) Mr. Meredith argues that the trial judge erred in imposing a sentence on him with 16 years of parole ineligibility, by:

a. relying on the Super 8 Video as part of a prolonged period of criminal conduct;

b. failing to consider mitigating factors;

c. finding planning and deliberation constituted aggravating factors notwithstanding that the jury had acquitted Mr. Meredith of first degree murder; and

d. improperly referencing broader issues of gun violence.

Analysis

(1) The trial judge correctly admitted the prior discreditable conduct evidence and properly instructed the jury as to its use

11This initial section of our reasons, explaining why we would dismiss the appellants’ ground of appeal relating to the admission of the Super 8 Video, is divided into four parts.

12In the first part, we set out the relevant legal framework governing the admission of evidence of prior disreputable conduct. It is well established that while such evidence is presumptively inadmissible due to the risk of moral and reasoning prejudice, it may be admitted where the probative value of the evidence in relation to live issues at trial outweighs its prejudicial effect. We also note that, absent legal error or misapprehension of the evidence, the trial judge’s assessment of the probative value and prejudicial effect of such evidence is entitled to deference on appeal.

13In the second part, we describe the trial judge’s rulings in which he admitted the Super 8 Video on the basis that its probative value outweighed its prejudicial effect. We also describe the manner in which the trial judge instructed the jury as to the permitted and prohibited uses of the Video in their deliberations.

14In the third part, we find that the trial judge applied the correct legal test in deciding to admit the Super 8 Video, and that his assessment of the probative value and prejudicial effect of the Video was reasonable. We therefore dismiss the appellant’s objections to the admission of the Video.

15In the fourth part, we explain why in our view the trial judge correctly instructed the jury on the permitted and prohibited uses of the Super 8 Video.

16Our conclusion, therefore, is that this initial ground of appeal should be dismissed.

(a) Governing legal principles

(i) The Handy framework for the admission of prior discreditable conduct

17While the admissibility of prior discreditable conduct has been judicially considered on countless occasions, the governing legal framework remains that set out by the Supreme Court of Canada over two decades ago in the seminal case of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

18Handy affirms the long-established rule that evidence of the accused’s prior discreditable conduct is presumptively inadmissible. The policy basis for this general exclusionary rule is that the potential prejudicial effect of such propensity evidence may overwhelm its probative value. The danger is that the trier of fact will convict the accused simply because they believe them to be a person of “bad character” who would likely have committed the offences in question. This impermissible chain of reasoning would undermine the presumption of innocence, which requires that a person may only be convicted where the Crown has proven the specific allegations of misconduct beyond a reasonable doubt. As Doherty J.A. put it succinctly in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 100.

19Yet as Handy also affirms, this general exclusionary rule is not absolute. Depending on the purposes for which the evidence is proffered and the strength of the inferences that can be drawn from it, the probative value of the evidence may exceed any prejudicial effect it may have. In these circumstances, “propensity evidence” is nevertheless properly admitted because it goes beyond showing a mere general disposition of the accused and is more probative than prejudicial in relation to a live issue at trial: Handy, at para. 71.

20Handy, at para. 57, further rejected a “categories” approach to the admission of evidence of prior discreditable conduct, under which different legal tests would apply to different categories or types of such evidence. To the contrary, Handy establishes that the admissibility of evidence of prior discreditable conduct must always be determined on the basis of whether the probative value of the evidence outweighs its prejudicial effect.

(ii) Assessing the “probative value” of prior discreditable conduct evidence

21Under the Handy framework, the “probative value” of evidence of prior discreditable conduct requires a consideration of whether the fact that the accused acted in a discreditable way on one or more occasions (“Prior Discreditable Conduct”) makes it more or less likely that the accused acted in a particular way on a different occasion (“Live Conduct”), where the proof of the Live Conduct is a material issue at trial. [1] The Prior Discreditable Conduct is probative of the Live Conduct if it renders it more or less probable that the Live Conduct is true than would be the case without evidence of the Prior Discreditable Conduct.

22This understanding of probative value makes plain that the probative value of the Prior Discreditable Conduct cannot be analysed in the abstract. Rather, probative value arises from the relationship between the Prior Discreditable Conduct and Live Conduct. Probative value becomes more cogent where there is a close connection or “nexus” between the Prior Discreditable Conduct and Live Conduct since, in these circumstances, proof of the Prior Discreditable Conduct makes it more likely that the Live Conduct is also true. Conversely, where that connection or nexus is general or tenuous the probative value of the Prior Discreditable Conduct is diminished, since proof of that Prior Discreditable Conduct may tell us little or nothing about whether the Live Conduct occurred.

23The probative value of the Prior Discreditable Conduct further depends upon the degree to which the Live Conduct is a disputed issue at trial. Those disputed issues are derived from the facts alleged by the Crown and the defences advanced or reasonably anticipated. Where the existence of the Live Conduct is a minor feature of the Crown’s case or is a matter that has been conceded by the accused, the probative value of the Prior Discreditable Conduct will be weak or non-existent even if the Prior Discreditable Conduct tends to conclusively establish the Live Conduct: Handy, at para. 74. For this reason, Handy emphasizes the importance of identifying the live issues at trial and of explaining how the evidence which the Crown seeks to admit assists in resolving those live issues.

24Evidence of Prior Discreditable Conduct need not prove conclusively, or even make it more probable than not, that the Live Conduct also occurred. The Prior Discreditable Conduct is probative of the Live Conduct as long as it makes it more or less likely that the Live Conduct occurred: Handy, at paras. 94-97; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 205.

25In some cases, the existence of Prior Discreditable Conduct may itself be in dispute, or the evidence relating to it may be unclear or doubtful. In such a case, the court must necessarily consider the strength of the evidence relating to the Prior Discreditable Conduct and consider whether such frailties reduce or eliminate its probative value: Handy, at paras. 133-35; R. v. C. (Z.W.), 2021 ONCA 116, 155 O.R. (3d) 129, at para. 98.

26Handy helpfully set out a non-exhaustive list of factors relevant in determining the degree of connection or nexus between the Prior Discreditable Conduct and the Live Conduct. These factors include: the proximity in time between the Prior Discreditable Conduct and the Live Conduct; any similarities in detail between them; the number of times that each occurred and the circumstances surrounding those occurrence(s); and any distinctive features unifying the different events.

(iii) Identifying the “prejudicial effect” of evidence of Prior Discreditable Conduct

27Assuming the evidence has sufficient probative value to potentially warrant its admission, its prejudicial effect must then be assessed. “Prejudicial effect” is not simply an increase in the likelihood of conviction since (presumably) any evidence that the Crown seeks to adduce is intended to increase the likelihood that the Crown will prove its case. Rather, “prejudicial effect” in this context involves particular forms of prejudice, namely, “moral prejudice” or “reasoning prejudice”, either of which give rise to a risk of an unfocussed trial and a wrongful conviction”: Handy, at para. 139 (emphasis in original).

28Moral prejudice arises when the trier of fact infers guilt on the basis of the “bad character” of the accused and convicts them not because the Crown has necessarily proven its case but merely because the accused has committed bad acts in the past. The risk of such impermissible inferences overwhelming the reasoning of the trier of fact is particularly acute where the Prior Discreditable Conduct evidence paints the accused as a person with a general disposition to commit crimes: Handy, at para. 85. The risk of impermissible reasoning is also heightened where the Prior Discreditable Conduct evidence is inflammatory or repugnant, thereby potentially leading the trier of fact to convict the accused merely to punish them for such Prior Discreditable Conduct.

29“Reasoning prejudice” arises where the Prior Discreditable Conduct evidence distracts the trier of fact from the real issues in the case: Handy, at para. 100. Such prejudice could occur where, as discussed above, the Prior Discreditable Conduct evidence is disputed or unclear. In these circumstances, the trier of fact may improperly focus their attention on the sufficiency of proof of the Prior Discreditable Conduct, rather than on whether the Crown has proven the particular allegations in the indictment before the court beyond a reasonable doubt.

(iv) Weighing “probative value” versus “prejudicial effect”

30Finally, the probative value of the Prior Discreditable Conduct evidence must be weighed against any likely moral or reasoning prejudice that would result if the evidence were admitted, to determine whether its probative value outweighs its prejudicial effect. There is no simple formula or algorithm that can be employed to make this determination, nor can it be reduced to a mere accounting exercise. Rather, it involves an assessment of the degree to which the Prior Discreditable Conduct evidence will either properly assist or inappropriately prejudice the trier of fact in their findings, considered in light of the positions of the parties and circumstances of the case as a whole and through the lens of logic and human experience: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at paras. 172-73, leave to appeal denied, [2018] S.C.C.A. No. 50.

(v) The necessity of proper jury instructions on the permitted and prohibited uses of evidence of Prior Discreditable Conduct

31Because of the dangerous potential of Prior Discreditable Conduct evidence, if such evidence is admitted the trial judge is required to instruct the jury on its use. That instruction should: (i) identify the evidence of Prior Discreditable Conduct; (ii) define the permitted use of the evidence; and (iii) caution the jury regarding its prohibited use: C. (Z.W.), at para. 109.

(vi) Standard of review

32While the admissibility of evidence of Prior Discreditable Conduct involves the determination of a legal issue, it necessarily requires the exercise of judicial discretion. The trial judge is required to engage deeply with the evidence in order to determine the probative value and prejudicial effect of the Prior Discreditable Conduct evidence, and then determine whether the probative value sufficiently outweighs the prejudicial effect such that the evidence should be admitted. Thus, provided the trial judge applies the correct legal principles and they have not misapprehended the evidence, appellate courts will defer to the trial judge’s assessment of where the balance falls between probative value and prejudicial effect, unless the result of the analysis is unreasonable: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 58. This deferential standard is appropriate given the “judge’s advantage of being able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

33Where evidence of Prior Discreditable Conduct is admitted, appellate review of jury instructions on such evidence must take a functional approach by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole: R. v. Lozada, 2024 SCC 18, at para. 14. The ultimate question is whether the instructions adequately equip the jury to decide the case before them: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-22.

(b) The trial judge’s admissibility rulings and associated jury instructions

34As noted above, the trial judge twice addressed the admissibility of the Super 8 Video, once before and once during the trial.

(i) The trial judge’s initial admissibility ruling

35In his initial admissibility ruling, the trial judge noted that evidence of prior discreditable conduct is presumptively inadmissible. Citing Handy, the trial judge observed that the evidence could be admitted only if the Crown demonstrates that its probative value outweighs its prejudicial effect. The trial judge further indicated that in measuring probative value, it is vital to identify the live issues at trial, and to assess the degree to which the evidence of prior discreditable conduct is relevant to those issues.

36Although no evidence had yet been led, the Crown’s theory of the case was fairly clear. The Crown’s position was that the accused lay in wait at the Popeyes for the victim and that this was indicative of a planned and deliberate first degree murder. The Crown also alleged that the firearm that was seen in the Super 8 Video was used in the murder at Popeyes.

37The trial judge suggested that the available defences, although not yet known, were limited. He indicated that accident, a lack of intention, or at least the absence of premeditation may be raised. The trial judge also reasoned that Mr. Chizanga might argue that he was not wielding a firearm and did not foresee that Mr. Meredith would shoot the victim. A further possibility, although one described by the trial judge as exceedingly remote, was a plea of self-defence.

38Defence counsel indicated that they were prepared to make certain concessions in an effort to rebut the Crown’s argument that the Super 8 Video had significant probative value. Both appellants admitted that they knew each other and had been associates in the past. Mr. Chizanga also admitted that he knew that Mr. Meredith was armed at the Popeyes restaurant.

39Even taking into account these concessions, the trial judge found that the Super 8 Video had substantial probative value. In particular, he found that it rendered it more likely that in the minutes before the victim arrived at the Popeyes, Meredith was concealing the long barrel firearm down his pants in the same way as demonstrated in the Video, which was taken the day before. In his view, possession, concealment, and previous handling of what was likely the homicide weapon just 17 hours prior to the shooting in Popeyes is “bound almost by default to be pertinent to the intention to kill and planning and deliberation.” The concessions that had been advanced by defence counsel were not “clear or conclusive enough to deflate the bolstering inferences which might be drawn from the Super 8 video.”

40In the trial judge’s view, the Super 8 Video had substantial probative value beyond its tendency to lead to the conclusion that the accused were guilty merely because of a disposition to commit certain types of wrongful acts. He summarized his findings on the probative value of the Video as follows:

By its very nature, the Super 8 video leads to a focused and contained connection with the events at the Popeyes the next day. It is principally physical acts which are the focal point of the Super 8 video: the concealing and wielding of a gun that may well be the gun used in the homicide. In this sense, the intrinsic value of the evidence is not entangled with forbidden bad character reasoning or general disposition inferences. It is an act to act connection, not one that implicates character directly. [Emphasis added.]

41At the same time, the trial judge was very much alive to the prejudicial effect of the Super 8 Video, noting that it portrayed the two accused as criminals willing to use a frightening looking firearm to commit a serious criminal offence the day before the alleged murder. The trial judge expressed his concern that an inference of general disposition or “bad personhood” derived from criminal acts is “pernicious and is destructive of an accused’s fair trial rights.”

42That said, the trial judge was of the view that, to a substantial degree, the moral prejudice arising from the Super 8 Video was “swallowed up by the evidence of the Popeyes homicide.” While the Video shows Mr. Meredith possessing and concealing a firearm, there was circumstantial evidence that he possessed and concealed the same firearm on the day of the homicide. Similarly, while the Video shows Mr. Meredith and Mr. Chizanga together at the motel the day before, the video from the Popeyes restaurant shows that they were together in the restaurant, including in the bathroom at the time of the shooting. In the trial judge’s view, the evidence from the Super 8 Video was largely “co-extensive” with the evidence of what occurred in the Popeyes restaurant such that “[t]he prejudice of the Super 8 Motel video does not extend much beyond the evidence with respect to the homicide itself.” Moreover, the conduct depicted in the Video was not as serious as that alleged in the indictment, which the trial judge regarded as a relevant consideration in assessing the risk of moral prejudice. Nor was there any meaningful risk of reasoning prejudice since there were no substantial credibility or reliability issues arising in relation to the Super 8 Video.

43In balancing probative value versus prejudicial effect, the trial judge noted that mid-trial and final limiting instructions would go a long way to neutralizing any potential prejudice. In his view, with the proper limiting directions, there was no “substantial risk” that the jury would improperly conclude that because the accused were guilty of misconduct with a firearm the day before, they had a disposition to commit a murder the next day. He found that the probative value of the evidence outweighed its prejudicial effect and ruled it to be admissible.

(ii) The trial judge’s second admissibility ruling

44After the bulk of the Crown’s case had been adduced, but before the Super 8 Video was played for the jury, defence counsel applied to reopen and reconsider its admissibility. The basis for the reopening request was that the accused were prepared to make certain additional admissions of fact that would arguably obviate the need for the Video to be played. Specifically, Mr. Meredith indicated a willingness to admit that he possessed the same firearm at the Super 8 motel and at the Popeyes the next day, and that he concealed it down his pants in both instances. Mr. Chizanga was prepared to concede that he knew Mr. Meredith had the weapon and was prepared to use it.

45In dismissing the defence application, the trial judge indicated that he did not intend to repeat the analysis set out in his initial ruling and that both sets of reasons should be read together. The trial judge further explained that he had provided counsel with the draft of the jury charge, which encapsulated his view of the probative value of the Super 8 Video.

46In his view, the Video could be used to:

• Show Mr. Meredith’s familiarity with the firearm, which was relevant to an assessment of whether the shooting might have been accidental;
• Show partnership by Mr. Chizanga and Mr. Meredith at the Super 8 motel and, therefore, in the Popeyes killing;
• Show whether Mr. Chizanga knew what type of weapon Mr. Meredith was concealing;
• Rebut evidence of innocent association at the Popeyes and to demonstrate joint enterprise between the two men to kill the victim at the Popeyes; and
• Contradict the suggestion by the appellants that they would not plan a killing in a public place.

47In the trial judge’s view, the probative value of the Super 8 Video could only be fully appreciated by the jury if they actually viewed the Video. The Video depicted Mr. Meredith’s handling and aptitude with the firearm, which was relevant in assessing whether the shooting was accidental. Similarly, the Video depicted Mr. Chizanga acting together with Mr. Meredith in relation to the latter’s use of the firearm, a circumstance which had not been conceded by Mr. Chizanga and which was probative on the issue of whether Mr. Chizanga had acted together with Mr. Meredith in the Popeyes restaurant. The trial judge concluded his analysis of the probative value of the Super 8 Video as follows:

Based on these observations, the probative value of the video extended well beyond that of the concessions offered. Furthermore, there is general value in the visual depictions of what really happened versus a cold written account. As the idiom goes, a picture can be worth a thousand words. The impact on a jury member of the video would likely be deeper and allow a fuller appreciation of the Super 8 motel incident and its significance to the killing the next day at the Popeyes. [Emphasis added.]

48Finally, the trial judge indicated that in assessing the prejudicial effect of the Super 8 Video, it was necessary to consider whether showing the Video would be more prejudicial than providing a written description incorporating the proposed concessions. The trial judge was of the view that the reasoning and moral prejudice were not all that much different between a written description and the Video itself. For the appellants to have succeeded on their application to reconsider, it was “their burden to show that there would be a significant disparity in the relative prejudicial effect” between the Video and a written description. The trial judge concluded that the extra probative value from viewing the Video fully justified any additional prejudicial effect. Accordingly, the application to reopen and reverse the discreditable conduct ruling was dismissed.

(iii) The trial judge’s instructions to the jury on the prohibited and permitted uses of the Super 8 Video

49After the jury was shown the Super 8 Video, the trial judge provided a brief mid-trial instruction. He advised the jury that the only purpose in showing the Video was to assist them in determining the circumstances surrounding the shooting in the washroom area of the Popeyes restaurant. He also cautioned the jury that they should not spend any time trying to guess what the appellants and the third man were doing in the hallway of the Super 8 motel on April 26, 2017, since those circumstances had nothing whatsoever to do with what happened the next day at the Popeyes. He also directed them that they could not use the Super 8 Video to find that because of whatever criminality was apparent on the Video, the appellants were more likely to be guilty of the homicide charges against them.

50In his final instructions to the jury, after describing the events shown on the Super 8 Video, the trial judge repeated his earlier direction that they should not speculate as to why Mr. Meredith and Mr. Chizanga, along with the third unknown male, were knocking on the door of the motel room:

As I said last week, please do not spend any time trying to guess what the two defendants and the third man were doing there in the hallway of the Super 8 Motel on April 26, 2017. What I can tell you is that there was an issue with the occupant of the room they were knocking on. Do not speculate about that. The issue with the occupant of the room had nothing whatsoever to do with Mr. McIntosh or what happened the next day at the Popeyes. [Emphasis added.]

51The trial judge then instructed the jury that they could not use the fact that the two accused appeared to be engaged in some sort of criminal activity in the Super 8 motel in order to find them guilty of murdering Mr. McIntosh:

We cannot use the Super 8 video for us to find that from whatever criminality is apparent on it, the defendants are more likely to be guilty of the homicide charges against them. We cannot use the video for this purpose. The law prohibits that type of use and has for many years. Second, as I am sure you would not do, you cannot use the Super 8 video to punish the accused for past misconduct. Our law prohibits that use for obvious reasons…. The ultimate issues to be decided by you have to do with the events in the Popeyes. That is the basis of the allegations in the indictment before you. That is what this trial is all about. [Emphasis added.]

52While the jury was not to use the fact that the Super 8 Video depicted the accused engaged in criminal activity in order to find them guilty of murder, the trial judge also told them that it was permissible to use the Video for certain limited purposes. In particular, the Video could be used to assist the jury in their deliberations on certain issues in dispute in relation to what happened the next day at the Popeyes restaurant. One such issue was whether Mr. Meredith fired the gun intentionally or whether it discharged accidentally:

The Super 8 Motel video shows Mr. Meredith in possession of the firearm down his pants…. [P]ossession of the gun the day before, as I have said, may assist you with Mr. Meredith’s experience and skill with the gun. This may play some part in addressing whether it misfired or was fired multiple times in error… Of course, just because he was armed with a concealed weapon the day before at the Super 8 does not mean that he was armed with the same weapon the day after at the Popeyes. It is up to you.

53With respect to Mr. Chizanga, the trial judge indicated that the Super 8 Video could be used to assess whether he was acting jointly with Mr. Meredith at the Popeyes restaurant:

[The Video] could also go to the meaning and significance of the accused’s association in the Popeyes. They were together the day before and the firearm was concealed and then brought out and ready for use. The two were up to no good and had an issue with the occupant of the motel room. Again, the issue with the occupant had nothing to do with Mr. McIntosh or what happened the next day, so do not wonder about that. Can you infer with the help of the Super 8 video that the next day at the Popeyes there was also an association that had as its joint purpose to conceal possession and use of a firearm? Does it help on the question of whether Mr. Meredith and Mr. Chizanga were working as a team for a common criminal object or end? There is no doubt that the criminal purpose in the Super 8 Motel was completely different than what the Crown alleges was the joint purpose in the Popeyes, but there was the same gun and Mr. Chizanga and Mr. Meredith were both involved in a criminal object as depicted in the Super 8 video. Those are questions for you and you can consider the Super 8 video on them. [Emphasis added.]

54The trial judge then repeated his earlier instruction that there were significant differences between the circumstances shown in the Super 8 Video and the events that took place at the Popeyes restaurant. These differences might affect the extent to which the jury might want to rely upon the Super 8 Video in deciding what happened at the Popeyes restaurant:

You may find that the Super 8 Motel video has nothing whatsoever to do with what happened the next day at the Popeyes. There is no doubt that the two contexts are completely different. What happened one day may well have nothing to do with what happened the next day. What a person was doing on one occasion may not be helpful in trying to figure out what they were doing on another occasion. You may not feel that the Super 8 video provides any help to you but only confuses and complicates things. If so, do not linger, move on from it. Do not let it distract you.

(c) In his two admissibility rulings, the trial judge applied the correct legal test, did not misapprehend the evidence, and his decision to admit the Super 8 Video was reasonable

55In our view, the trial judge applied the correct legal test in both of his rulings on the admissibility of the Super 8 Video. In particular, he correctly proceeded on the basis that evidence of prior discreditable conduct was presumptively inadmissible and could only be admitted where the probative value of the evidence outweighed its prejudicial effect.

56As required, his analysis of the probative value of the Video focused on the purposes for introducing it and its connection to the live issues at trial. In his view, the Video was being adduced not merely to show that the appellants had a “general disposition” to commit crimes but, rather, to bolster the Crown’s circumstantial evidence and rebut the defences that had been advanced. He found that the Video was probative on a number of material issues, including whether the homicide had been planned and deliberate, whether the firearm might have discharged accidentally, and whether the appellants were engaged in a joint enterprise at the Popeyes.

57The appellants argue that the trial judge erred because he invited the jury to use the Video to engage in “propensity reasoning”. The trial judge told the jury that they could use the conduct depicted on the Video in order to assist them in resolving certain disputed issues as to what occurred the next day at the Popeyes restaurant. The appellants say that this is reasoning by propensity which, they claim, is prohibited by Handy. The appellants further argue that this invitation to reason by propensity is inconsistent with the trial judge’s earlier instruction to the jury that they could not use the Video to find that “from whatever criminality is apparent on it, the defendants are more likely to be guilty of the homicide charges against them.”

58There is no doubt that the jury was being invited to make certain findings regarding the appellants’ actions at the Popeyes restaurant based on their conduct at the Super 8 motel, and that this is a form of propensity reasoning. But the simple answer to the appellants’ objection in this regard is that Handy does not absolutely or necessarily prohibit propensity reasoning. Rather, as we explained in some detail in our earlier discussion of the applicable governing principles, what Handy decides is simply that the admission of prior discreditable conduct evidence, even though it might give rise to reasoning by propensity, is nevertheless permitted where the probative value of such evidence exceeds its prejudicial effect. Such may be the case where the evidence is admitted, not merely to show the general bad character of the accused but in order to assist the trier of fact in resolving certain live issues in dispute.

59This was precisely the basis upon which the trial judge decided to admit the Super 8 Video. He acknowledged that admitting the Video gave rise to a risk of moral and/or reasoning prejudice, since the jury might infer that the accused were guilty of homicide simply because they had engaged in some form of criminal activity the day before at the Super 8 motel. Notwithstanding that risk of prejudice, the trial judge admitted the Video because it had substantial probative value in relation to certain live issues at trial, and that probative value substantially outweighed its potential prejudicial effect. In short, the trial judge clearly understood the Handy framework and correctly applied it in admitting the Super 8 Video.

60We consider in more detail below the alleged contradiction in the trial judge’s jury instructions on the use of the Super 8 Video. For the moment, we would simply observe that in our view the trial judge’s jury instructions on the use of the Super 8 Video were internally consistent, and he correctly explained both the permissible and impermissible use is of the Video in accordance with the Handy framework.

61Mr. Chizanga advanced a second objection to the admission and/or use of the Super 8 Video, arguing that the Video should not have been used in order to determine whether he could be found guilty of murder on the basis of the joint enterprise/co-principal mode of liability. Mr. Chizanga pointed out that the Super 8 Video did not show the participants jointly engaged in a homicide. Therefore, he argued, the Video could not be legally probative of whether he was jointly participating with Mr. Meredith in a homicide at the Popeyes the next day.

62Our colleague advances a similar objection to the admission of the Video, arguing that the question is not whether there was a nexus or connection between the two events to support an inference that the appellants were working together, but “whether they were working together at the Popeyes for the purpose of killing Mr. McIntosh.” Our colleague suggests that the trial judge did not consider whether there was such a connection, nor could such a connection possibly arise because the circumstances surrounding the appellants’ conduct at the Super 8 motel were materially different from those at the Popeyes.

63Respectfully, we do not agree. The trial judge was well aware of the significant differences between the events at the Super 8 motel and the Popeyes, as he emphasized those differences in his rulings admitting the Video as well as in his instructions to the jury. He understood that the criminal purpose being pursued at the Super 8 motel did not involve a homicide. Yet the trial judge nevertheless decided to admit the Video, in part because he regarded it as probative on the issue of Mr. Chizanga’s liability for murder on the joint enterprise/co-principal mode of liability.

64In our view, he did not err in doing so. In order to understand why, it is necessary to recall a key defence advanced by Mr. Chizanga at trial. Mr. Chizanga argued that, even if Mr. Meredith had murdered Mr. McIntosh at the Popeyes, he took no part in the killing: he just happened to have the misfortune to be present in the washroom when Mr. Meredith killed Mr. McIntosh. [2] In this context, the relevant question becomes: assuming the jury finds that Mr. Meredith murdered Mr. McIntosh in the washroom of the Popeyes, would the Video assist them in then determining whether he acted alone, as opposed to whether Mr. Chizanga participated or assisted in the murder in some way?

65Once this critical assumption comes into play, namely, that the jury finds that Mr. Meredith did in fact murder Mr. McIntosh, then the probative value of the events at the Super 8 motel in relation to Mr. Chizanga comes clearly into view. As the trial judge pointed out, the Super 8 Video shows Mr. Chizanga and Mr. Meredith acting together to achieve some (albeit unknown) criminal purpose. The Video also shows that whatever that criminal purpose might have been, it involved the use by Mr. Meredith of a long-barreled firearm similar to the one that was used to kill Mr. McIntosh the next day. Moreover, the events on the Video took place just 17 hours prior to the shooting of Mr. McIntosh. It was also admitted that Mr. Chizanga was present in the washroom when Mr. McIntosh was killed the next day. In light of these connections or nexus between the events in question, it was open to the trial judge to conclude that the fact that Mr. Chizanga was working together with Mr. Meredith at the Super 8 motel made it more likely that he was also working together with him at the Popeyes. Thus, if Mr. Meredith murdered Mr. McIntosh at the Popeyes, the events at the Super 8 motel tend to make it more likely that Mr. Chizanga was also involved in that murder. Another way of expressing this conclusion is that it defies coincidence that Mr. Chizanga just happened to be present when Mr. Meredith murdered Mr. McIntosh in the washroom at the Popeyes but took no part in the murder, given his active participation along with Mr. Meredith in the events shown on the Super 8 Video from the day before.

66Nor was there any legal error in the trial judge’s assessment of the prejudicial effect of the Video. The trial judge acknowledged that the moral and reasoning prejudice associated with the Super 8 Video was not minimal. But, he concluded, any such prejudice could be minimized through a limiting jury instruction.

67The appellants argue that the trial judge erred in his comment (in his reasons on the application to reopen) that it was “their burden to show that there would be a significant disparity in the relative prejudicial effect” between the Video and a written description. They argue that this was an improper reversal of the legal burden, and that the trial judge was requiring the defence to demonstrate a “heightened degree of prejudice” after they had made factual concessions intended to eliminate the need for the jury to view the Video.

68We do not agree. When the relevant paragraph is read as a whole, it is clear that the trial judge was merely pointing out that the proposed factual concessions offered by the appellants affected not just the potential probative value of the Super 8 Video but also the analysis of its prejudicial effect. The proposed factual concessions were an acknowledgement by the appellants of prior discreditable conduct on their part. Thus, in assessing the prejudicial effect of the Video, it was now necessary to consider the relative prejudicial effect of showing the Video as compared with a written description of the appellants’ conduct in the Super 8 motel. In the trial judge’s view, there was not much difference, at least in terms of reasoning and moral prejudice, from a written statement incorporating the proposed defence concessions and viewing the Video itself.

69Thus, when read in context, the trial judge’s impugned comment did not suggest that he had reversed the burden of proof. Rather, he was merely explaining why the defence concessions did not persuade him that the Video should not be admitted because of its prejudicial effect. We see no legal error in his analysis in this regard, since both probative value and prejudicial effect must be considered in light of the evolving circumstances of the trial. Moreover, throughout both of his admissibility rulings the trial judge was clear that the evidence of prior discreditable conduct was only admissible if the Crown could show that the probative value of the evidence exceeded its prejudicial effect.

70The appellants also argue that the trial judge failed to explore whether there were alternative ways to place this evidence before the jury that did not involve them viewing the Super 8 Video. Again, we do not agree. In fact, the entire application to revisit the admissibility of the Video was focused on whether there were alternatives to showing the Video to the jury. Counsel on appeal could not suggest any other alternatives that the trial judge ought to have considered that might have been a sufficient and less prejudicial way of presenting this evidence to the jury. In any event, the trial judge was of the view that the jury could only fully appreciate the significance of the Super 8 motel incident for the killing at the Popeyes restaurant by viewing the Video. The trial judge was deeply engaged with the evidence and this was a finding that was clearly open to him to make.

71We therefore conclude that the trial judge applied the correct legal test in determining the admissibility of the Super 8 Video. We also find that he did not misapprehend the relevant evidence. The issue, therefore, becomes whether his decision to admit the Video was unreasonable.

72The appellants dispute the trial judge’s assessment of the probative value of the Video, arguing that their concessions drained any probative value that it might initially have had.

73The trial judge carefully considered these concessions and found that they did not drain the Super 8 Video of its probative value. In our view, his finding in this regard was reasonable. We note, for example, that although Mr. Chizanga acknowledged that he knew Mr. Meredith had a firearm and was prepared to use it and that he had associated with him in the past, he did not concede that he had participated in joint criminal activity involving the same firearm at the Super 8 motel the day before the shooting. The trial judge further found that viewing a long-barreled firearm similar to the one used in the killing of Mr. McIntosh, as well as the manner in which Mr. Meredith handled the firearm, would assist the jury in determining whether Mr. Meredith had fired the gun accidentally, or whether he had done so with the intention of killing Mr. McIntosh. These findings were reasonable and are therefore entitled to deference and we see no basis for appellate intervention.

74The appellants also argue that the trial judge failed to appreciate the prejudicial effect of the Super 8 Video. But these submissions are in substance an invitation for this court to substitute our own assessment of probative value and prejudicial effect in place of that undertaken by the trial judge.

75We decline the appellants’ invitation. For the reasons explained earlier, the trial judge is in the best position to determine whether the probative value of the Video exceeded its prejudicial effect, and his findings are therefore entitled to deference. He engaged in a careful and considered analysis that was well supported in the record and was reasonable. We see no basis to intervene.

(d) The trial judge correctly instructed the jury as to the permitted and prohibited uses of the Super 8 Video

76As noted above, having admitted the Video, the trial judge was required to instruct the jury on both its permitted and prohibited uses.

77In our view, his instructions satisfied his obligations in this regard. As the passages from the jury instructions set out above demonstrate, the trial judge advised the jury that they could not use the Video in order to find the accused guilty simply because they had engaged in some form of criminal activity at the Super 8 motel. He then advised them that it was nevertheless open to them use the Video to assist them in resolving certain key issues in dispute. These issues included, in particular, whether Mr. Meredith had fired the firearm accidentally, and whether Mr. Meredith and Mr. Chizanga had been engaged in a joint enterprise. At the same time, he noted that they may find that the Video had “nothing whatsoever to do with what happened the next day at the Popeyes.”

78As discussed above, the appellants argue that the trial judge’s instructions on the use of the Super 8 Video were confusing and internally contradictory. They object to the fact that the trial judge admonished the jury not to use the Video in order to find the accused guilty of murder but then invited them to do precisely that by using the Video to resolve certain disputed issues at trial.

79Far from being contradictory, the trial judge’s instructions were a straightforward application of the Handy framework. As we have emphasized throughout these reasons, Handy permits the admission of evidence of prior discreditable conduct where the probative value of such evidence in relation to live issues at trial outweighs its prejudicial effect. But the trial judge must clearly instruct the jury that they are only to use such prejudicial evidence for specified and limited purposes, and that they cannot use it to find the accused guilty simply because they have engaged in criminal activity in the past. This is precisely what the trial judge did in his instructions on the permitted and prohibited uses of the Super 8 Video. His instructions in this regard were consistent and correct.

80The appellants also argue that the trial judge erred in his statement that they were “up to no good” when they knocked on the door of the motel room the day before the shooting. The appellants submit that this “up to no good” statement impugned their character and invited the jury to engage in exactly the kind of prejudicial and inappropriate reasoning that they ought to have been steered away from.

81We do not agree. First the trial judge’s statement that the appellants were “up to no good” at the Super 8 motel was merely a statement of the obvious. In fact, the appellants admit that they were engaged in some form of criminal activity at the Super 8 motel and seek to rely on that fact in arguing that the admission of the Video was prejudicial. Moreover, the “up to no good” comment must be read in the context of the trial judge’s entire jury instructions. While the trial judge indicated that it was open to the jury to make findings as to what happened at the Popeyes based on the appellants’ conduct at the Super 8 motel, he repeatedly emphasized that they might decide not to do so because the circumstances on the two occasions were quite different. In other words, we find his instructions on the use of the Super 8 Video to be careful and balanced.

82We conclude that not only did the trial judge not err in admitting the Super 8 Video, but he also properly instructed the jury on its permitted and prohibited uses. Accordingly, we would reject the appellants’ ground of appeal relating to the Super 8 Video.

(2) The trial judge did not err in his charge on the joint enterprise mode of liability for murder

83Mr. Chizanga takes issue with the trial judge’s charge both on the actus reus and the mens rea of the joint enterprise mode of liability for murder. We shall address each in turn.

(a) The trial judge properly charged the jury on the actus reus for murder by joint enterprise

84Mr. Chizanga argues that the trial judge, in his charge to the jury, misstated the actus reus for co-principals involved in a joint enterprise to kill when he instructed that, if there was a joint enterprise, what each of the appellants did as part of that joint enterprise did not matter and they were both “equally guilty no matter what they did.”

85According to Mr. Chizanga, the existence of an agreement between Mr. Chizanga and Mr. Meredith to attack Mr. McIntosh and Mr. Chizanga’s presence on scene were not sufficient bases on which to convict Mr. Chizanga of second degree murder. Mr. Chizanga submits that it was necessary for the trial judge in his charge to clarify for the jury that Mr. Chizanga had to participate in some way in the murder itself to be liable in the joint enterprise, and he failed to do so.

86Mr. Chizanga also contends that the trial judge erred in conflating the co-principal joint enterprise mode of participation under s. 21(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, with the common intention mode of liability under s. 21(2). The latter was not relied on by the Crown. This, Mr. Chizanga argues, resulted in an erroneous instruction that the appellant was not required to commit the actus reus for murder to be found guilty of it.

87We see no error in the trial judge’s charge on the actus reus of murder based on joint enterprise.

88Liability under s. 21(1)(a) occurs when “two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission”: R. v. Strathdee, 2021 SCC 40, 463 D.L.R. (4th) 189, at para. 4. Under this section, it is open to a jury to convict an accused as a co-principal even if the extent of their individual participation in the violence is unclear. However, where the prosecution seeks to rely on a joint enterprise between co-principals as the basis for liability, the jury must be instructed that they must be convinced beyond a reasonable doubt that the parties were part of a joint endeavour, that they participated in the killing in some way, and that they meant for the deceased to be killed or suffer bodily harm that they knew was likely to kill the deceased: see R. v. Johnson, 2022 ONCA 534, 162 O.R. (3d) 92, at para. 66, aff’d 2023 SCC 24, 432 C.C.C. (3d) 139; R. v. Kennedy, 2016 ONCA 879, 345 C.C.C. (3d) 530, at para. 23; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 181; and R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63.

89The trial judge’s charge on this issue stated:

If you conclude as the Crown urges you beyond a reasonable doubt that this was a joint enterprise between Mr. Chizanga and Mr. Meredith to kill Mr. McIntosh, then what each did towards that end does not matter. They are equally guilty no matter what they did. You do not need to determine who did what. That holds for manslaughter, murder and first degree murder. Where a criminal offence is committed by two or more persons each may play a different part. If they are acting together as part of a joint plan or agreement to commit the offence, each may be found guilty of it. [Emphasis added.]

90Mr. Chizanga asserts that it was inaccurate to say that the appellants could be co-principals regardless of their actions under s. 21(1)(a). While a co-principal to a joint enterprise is not required to commit all of the acts making up the actus reus, they are required to contribute by acting in some way. Mere presence on scene is not enough. This requirement for action distinguishes a substantive offence from a conspiracy to commit an offence – for which it is sufficient to establish an agreement, an intention to agree, and an intention to put the plan in motion without the need for steps to further the conspiracy.

91In our view, while the trial judge’s reference that, “they are equally guilty no matter what they did” could be confusing in isolation, the instructions, read as a whole, were clear that Mr. Chizanga had to “do something” to be a joint principal. The passage quoted above makes clear that only by Mr. Chizanga and Mr. Meredith acting together, in furtherance of a joint plan, could guilt under s. 21(1)(a) follow. While the trial judge emphasized it did not matter what act each did as part of that joint plan, the trial judge was clear they each had to do something towards that end (i.e., the killing of Mr. McIntosh).

92Subsequently, the trial judge returned to this basis for conviction in his charge and stated:

Moving on to party liability for Mr. Chizanga, remember my motive presentation instructions above. First, joint principals intention in common. The second shooter theory if found true beyond a reasonable doubt could evidence an intention in common with the main shooter. If you find beyond a reasonable doubt that Mr. Chizanga was a second shooter, can you conclude beyond a reasonable doubt that he had the mental element for murder, intention or recklessness as I have defined them above. If you are not convinced by the second gun evidence, you would look at the other evidence that the Crown says proves joint enterprise to kill Mr. McIntosh beyond a reasonable doubt. Partnership with Mr. Meredith in a criminal enterprise with a long-barreled gun in a Super 8 video with the qualification I put on that earlier, the limiting instruction I put on that earlier, presence and waiting at the Popeyes with Mr. Meredith, hiding in the washroom pending Mr. McIntosh’s arrival, fleeing immediately after the shooting and then reconvening in Mr. Khan’s taxicab. I will be providing you a bit later with a special instruction about these last two aspects, events that occurred after the fact. [Emphasis added.]

93Mr. Chizanga argues that the trial judge’s use of the term “joint principals’ intention in common” was confusing and suggested a liability route pursuant to s. 21(2). He emphasizes that the Crown did not rely on intention in common under s. 21(2) as a mode of liability for the appellant. Intention in common is a mode of liability under s. 21(2) that requires the accused to have the intention to carry out a common unlawful purpose separate from the offence charged, knowing that the offence charged would be a probable consequence of carrying out the common purpose. Unlike co-principal liability, s. 21(2) extends liability for an accused to offences committed by others. The trial judge’s error in conflating these two modes of liability was pointed out by Mr. Chizanga’s trial counsel in the pre-charge conference but left in place notwithstanding trial counsel raising this concern.

94The respondent argues that the phrase “joint principals’ intention in common” was neither confusing nor a path to liability under s. 21(2), but rather a short-hand description of the Crown’s position that Mr. Chizanga acted jointly with Mr. Meredith in a plan to kill the victim. The respondent also suggests that it may have been a reminder to the jury that both parties had to have the requisite mens rea for murder to be convicted under the joint enterprise mode of liability. Immediately after using this phrase in the passage quoted above, the trial judge explained that if the jury was “not convinced by the second gun evidence,” they must “look at the other evidence that the Crown says proves joint enterprise to kill Mr. McIntosh.”

95Whether shorthand or simply an errant phrase, we do not see how the jury could be confused as to what the Crown had to establish for the jury to have no reasonable doubt as to the joint enterprise mode of liability. While the term “intention in common” appears in s. 21(2), the context of the charge makes clear that this is not how the trial judge was using the phrase, nor is there any basis for the jury to confuse the section of the Criminal Code on which they received instruction with a section of the Criminal Code that was not argued before them and on which they received no instruction. We see no error in the trial judge’s charge on the actus reus of s. 21(1)(a) dealing with the joint enterprise mode of liability for murder.

(b) The trial judge properly charged the jury on the mens rea for murder by joint enterprise

96Mr. Chizanga argues that at no point in the charge did the trial judge relate the mens rea for murder to the joint enterprise mode of participation. The trial judge referred to the mental state required for murder if the jury believed that Mr. Chizanga was the second shooter, or that he aided Mr. Meredith in killing Mr. McIntosh, but only discussed the actus reus for the joint enterprise mode of liability without mention of the proper mens rea. Therefore, according to Mr. Chizanga, there is a real danger that he was convicted of second degree murder as part of a joint enterprise absent the jury finding that he had subjective foresight of death.

97The respondent, as noted above, argues that the trial judge’s reference to “joint principals’ intention in common” signalled to the jury that both Mr. Chizanga and Mr. Meredith had to have the mens rea for murder in order to be found guilty of murder under the joint enterprise mode of liability. Elsewhere in the charge, the trial judge referred to liability as a co-principal for manslaughter and instructed the jury, “… If you find that there was a reasonable doubt about whether Mr. Chizanga knew that Mr. McIntosh would be shot, thinking only that he would be assaulted, and his joint purpose or his aiding was for this limited purpose, he would, if this was proved beyond a reasonable doubt, be guilty of manslaughter, not of murder.”

98The respondent submits that these instructions left no room for misunderstanding about what Mr. Chizanga’s intent had to be for him to be found guilty of murder and that the jury could not have missed the essential requirement that Mr. Chizanga’s guilt for murder turned on whether he participated in a joint enterprise or plan with Mr. Meredith to kill the deceased and that their shared intention was to kill him.

99In our view, the instructions, read as a whole, did not leave room for the jury to misunderstand what Mr. Chizanga’s intent had to be to be found guilty of murder.

100The jury asked the following question during its deliberation: “If we conclude they are acting according to joint principles [sic] are both to be given the same verdict?” The trial judge answered “yes.” Trial counsel for Mr. Chizanga submitted at the time that more guidance was required in the answer, as it should have been made clear to the jury in response to the question that to convict both Mr. Meredith and Mr. Chizanga, the jury would have to find that they were acting jointly for the purpose of killing Mr. McIntosh, not just in general.

101We see no error in the trial judge’s simple answer to this question in the affirmative, given the rest of his charge on this mode of liability.

102For these reasons, we would reject this ground of appeal.

(3) The trial judge did not err in instructing the jury regarding the post-offence demeanour evidence

103In closing submissions, the Crown relied on Mr. Chizanga’s conduct in the cab as he and Mr. Meredith left the scene of the crime. The Crown characterized Mr. Chizanga’s demeanour as one which had no “look of distress” while the gun was passed around in the vehicle. The Crown used this characterization to support the theory that the murder was planned and deliberate.

104In his charge to the jury, the trial judge summarized the Crown’s position and gave a general instruction on after-the-fact conduct evidence in reference to the flight from the scene but did not give any specific instruction with respect to Mr. Chizanga’s demeanour in the cab. Mr. Chizanga contends that demeanour evidence, as a subset of after-the-fact conduct evidence, requires a special caution where it can give rise to multiple inferences. According to Mr. Chizanga, the jury should have been instructed on how to consider what inference, if any, to draw from the evidence of his demeanour.

105According to the respondent, the instructions on after-the-fact conduct were sufficient and a specific instruction on Mr. Chizanga’s demeanor was not required. Read as a whole, the instructions directed the jury on how to properly evaluate all the after-the-fact conduct evidence and was not underinclusive. The respondent rejects the suggestion that, as a result of this omission, the jury was invited to infer guilt on the basis that Mr. Chizanga appeared calm in the cab.

106Evidence of after-the-conduct includes evidence of what an accused said and did after the offence was allegedly committed. Because it takes in a vast array of circumstances, the legal treatment of after-the-fact conduct generally is highly context and fact-specific: see R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J. (dissenting, but not on this point).

107In this case, the trial judge instructed the jury that after-the-fact evidence was a form of circumstantial evidence. The trial judge’s general instructions on circumstantial evidence made clear that inferences proving an essential element of the offence should be the only reasonable inference that such evidence permits. Specifically, with respect to after-the-fact evidence, the trial judge cautioned the jury to “be careful” with such evidence because “it is easy to misinterpret and misuse.” The trial judge instructed the jury to consider alternative explanations for the appellants’ after-the-fact conduct.

108Further, with respect to witnesses and credibility, the trial judge instructed the jury on the frailties of demeanour evidence and cautioned that such evidence should be approached cautiously and did not constitute firm ground on which to make a decision in a criminal case.

109We see no error in the trial judge’s charge with respect to after-the-fact conduct generally, or in the decision not to refer to Mr. Chizanga’s demeanour in the cab, specifically. While demeanour evidence can certainly justify a specific caution in a jury charge, the decision as to whether to provide such a caution is case-specific and depends on context and the importance of the evidence. Finally, while not in itself determinative, we note the Crown’s reference to Mr. Chizanga’s demeanour in the cab did not elicit an objection from trial counsel at the time, nor did Mr. Chizanga’s trial counsel specifically seek reference to this demeanour evidence in the charge. Instead, trial counsel’s closing provided a different perspective on this evidence for the jury.

110We would reject this ground of appeal.

(4) The trial judge did not err in failing to instruct the jury that defence theories do not need to be based on evidence

111With respect to jury instructions on circumstantial evidence, trial judges are required to convey that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits and that, in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 28, 36.

112Mr. Chizanga asserts that the trial judge erred in not adverting to the second half of the circumstantial evidence equation set out in Villaroman – that theories inconsistent with guilt need not be based on evidence. In failing to articulate this, Mr. Chizanga submits that the jury may have rejected a defence theory (such as Mr. Chizanga being in the washroom but not a participant) on the basis that the defence did not call any evidence on this. This would, in effect, Mr. Chizanga argues, reverse the burden of proof and require him to establish his innocence. Consequently, Mr. Chizanga contends that the instruction on circumstantial evidence should have also included a specific instruction that inferences consistent with innocence need not arise from proven facts.

113The trial judge instructed the jury that:

When circumstantial evidence is the exclusive means to prove an element of the offence, intent for murder, for example, do not draw the inference too readily. An inference to prove an essential element of the offence should be the only reasonable inference that such evidence permits. You should ask yourself whether there are other reasonable inferences available. If so, the inference urged by the Crown is not the only reasonable inference and proof by the prosecution would fall short.

114The respondent submits that the instructions on circumstantial evidence were addressed at the pre-charge conference and that the Villaroman instruction was requested by Mr. Chizanga’s counsel. The respondent highlights that the trial judge noted he had already included such an instruction but agreed to include it again, and that experienced trial counsel read the revised draft before it was delivered and voiced no objections when it was delivered. The respondent argues that the instruction did not pose a risk that the jury would have understood it to mean that there was an evidentiary burden on the appellants.

115We do not agree that the trial judge’s charge could have led the jury to convict Mr. Chizanga on the basis that he did not prove his innocence. The trial judge, at several key junctures in the charge, clearly instructed the jury that there was no onus on the accused to prove anything and that a reasonable doubt could arise from the evidence or the lack of evidence, and specifically that, “[i]t is not the accused’s job to prove that they are innocent or anything else for that matter.”

116In our view, this ground of appeal fails.

(5) The trial judge did not err in the sentence imposed

117Mr. Meredith was sentenced to life in prison without parole eligibility for 16 years. He argues the following errors arise from the trial judge’s reasons and that, as a result, leave to appeal his sentence should be granted and the period of parole ineligibility should be reduced: first, that the trial judge committed an error elaborated on in R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 43-55, that a factor considered in sentencing lacked sufficient nexus or “connexity” to the offence; second, that the trial judge failed to properly consider mitigating factors in the sentencing analysis; third, that the trial judge improperly considered planning and deliberation as an aggravating factor in the sentencing analysis; and fourth and finally, that the trial judge erred in the emphasis he placed on general statistical evidence of gun violence in society. Each of these alleged errors is addressed below.

(a) The trial judge did not commit a Larche error

118Section 725(1) of the Criminal Code provides certain circumstances in which evidence of untried offences can be considered by a sentencing judge as aggravating factors pursuant to s. 718.2(a). Under s. 725(1)(c), a sentencing judge may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. In Larche, the Supreme Court set out the test for when a trial judge may resort to s. 725(1)(c) where an accused does not consent. A trial judge can rely on s. 725(1)(c) where: 1) the facts of the untried conduct could constitute a separate charge; 2) the facts have been proven beyond a reasonable doubt; 3) the facts are related to the offence before the court (i.e., there is a sufficient nexus or connexity); and 4) there is no unfairness to the accused.

119In Larche, Fish J. commented that in determining whether there is a sufficient nexus between the untried conduct and the offence, courts should give appropriate weight to their proximity in time and to their “probative worth as evidence of system or of an unbroken pattern of criminal conduct”: at para. 55. Mr. Meredith argues that this third requirement of connexity was not met in this case by the conduct shown in the Super 8 Video, and therefore the trial judge erred in considering this conduct as part of the sentencing analysis.

120In this case, the trial judge linked the pattern of criminal conduct to the discreditable conduct Video evidence from the Super 8 motel:

This is clearly not a situation like the first classification carved out by Justice Fish—a single transaction. On no reasonable interpretation could the two events be called a single transaction. This is a category [dependent] on a strict temporal continuity. The live issue to be determined here is whether it fits the second example from the last sentence of paragraph 55 quoted above: a more than merely temporal connection but one based on “proximity in time,” [“]probative worth as evidence of system” or “an unbroken pattern of criminal conduct.” I believe it does.

The language of probative worth, evidence of system and unbroken pattern used by Justice Fish was not meant to be read like legislation or to establish a strict inflexible standard. The language is reminiscent of that used to measure the worth of similar fact evidence or discreditable conduct evidence. The pertinent cases in those areas frequently use this type of language: see e.g. R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481, at paras. 90, 128; Boardman v. Director of Public Prosecutions (1974) 60 Cr. App. R. 165 (H.L.), at p. 182 per Lord Hailsham; R. v. F. (D.S.), [1999] O.J. No. 688, 132 C.C.C. (3d) 97 (C.A.), at para. 25. While Justice Fish’s language is more associated with similar fact evidence than the discreditable conduct evidence admitted in this case, I do not believe Justice Fish intended to make a distinction between the two. After all, the difference between similar act evidence and discreditable conduct evidence is minimal; they are simply minor variations on the same theme of how to generate probative value: R. v. Taillefer, 2014 ONSC 794, [2014] O.J. No. 661, at para. 32.

121Mr. Meredith argues that it was an error for the trial judge to rely on the Super 8 Video as an aggravating factor in this fashion, and that the trial judge misinterpreted and misapplied the connexity category from Larche and erred in finding, as Mr. Meredith states, that the conduct the day before was “part of a prolonged period of conduct closely related” to the killing of Mr. McIntosh.

122According to the respondent, the trial judge did not err in relying on the appellant’s conduct at the Super 8 motel. He properly found that there was sufficient connexity between the events on April 26 and those on April 27. Connexity is case specific and the trial judge properly applied Larche. Even without resort to s. 725(1)(c), the trial judge was entitled to consider Mr. Meredith’s conduct at the Super 8 motel as background character evidence.

123In our view, the trial judge’s finding that the Video showed Mr. Meredith engaged in conduct closely related to the killing of Mr. McIntosh is entitled to deference. Given that the Video depicted events within 24 hours of the killing, involving the same parties and the same weapon, this finding was open to the trial judge, and we see no basis to interfere with this determination.

(b) The trial judge did not improperly consider the mitigating factors

124At sentencing, Mr. Meredith’s counsel stressed his young age (18 years old) at the time of the killing, his pursuit of education, his difficult homelife, and the loss of familial influences at a young age, and that he had the support of his family. The trial judge addressed these factors in the following terms:

The only measurable mitigating factors are Mr. Meredith’s relative youth and a difficult upbringing as recounted by counsel in submissions. Youth is mitigating because a young adult’s moral culpability is lower and their rehabilitation potential is higher. Neither of these principles redound enormously to Mr. Meredith’s benefit. Rehabilitation is always a possibility but for Mr. Meredith, a man capable of slaughtering another man in cold blood, it is not easy to be optimistic.

125The respondent submits that the trial judge took the mitigating factors into account in fashioning a fit sentence and specifically noted them. It is not the proper function of an appellate court to reweigh the mitigating factors. According to the respondent, it was open to the judge to find that Mr. Meredith had minimal rehabilitative potential despite his youth. There was ample evidence for the judge to categorize the killing as a “slaughter” and it was not an error for him to do so.

126We agree. The treatment of mitigating factors is highly discretionary, and it is clear the trial judge was alive to Mr. Meredith’s youth and personal circumstances.

(c) The trial judge did not err in finding that planning and deliberation was an aggravating factor

127Mr. Meredith emphasizes that there was a lack of evidence connecting the appellants to the victim in this case, and there was insufficient evidence of planning and deliberation involved in the killing of the victim to find it aggravating. There was no evidence of what kind of crime, for example, was “being planned and deliberated.” To use planning and deliberation as an aggravating factor, it must be proven beyond a reasonable doubt and in this case, in light of the jury’s decision not to convict the appellants for first degree murder, it was not.

128The respondent’s position is that the trial judge did not err in finding that there were elements of planning and that this was an aggravating factor on sentence. There was compelling evidence of planning. The trial judge appropriately considered the planned nature of the murder to be aggravating.

129In our view, it was open to the trial judge to consider a degree of planning to be aggravating.

130We therefore would reject this ground of appeal.

(d) The trial judge’s remarks on gun violence did not detract from the principles of sentencing

131The trial judge addressed the broader societal context of gun violence at the start of his reasons. He stated:

The ease of killing with a gun, as the last decades in North American have sadly shown, is an exigent danger to us all. It is difficult to understand how such a grave threat to our well-being can be allowed to continue. We have become numb to the terrible consequences. Inundation of information about mass shootings and the almost daily prevalence of horrifying news about gun deaths dulls our senses. Description of the details of individual cases is an important antidote to wake us from our complacency.

132Subsequently, the trial judge referred to this case as “a poster child for the evil of military assault type weapons” and observed that the original sentencing hearing in this case took place on the 30th anniversary of the École Polytechnique massacre in Montreal, also carried out with a semi-automatic military-style long firearm.

133The trial judge also opined on the need for greater firearm regulation, adding, “[f]rom the perspective of our criminal law and our communities, firearm control and regulation is imperative to reduce the carnage. In Canada we do not have the obstacle posed in the United States by the interpretation of the Second Amendment by the United States Supreme [Court] in District of Columbia et al. v. Heller, 554 U.S. 570 (2008).”

134Mr. Meredith asserts that the trial judge erred in aggravating the sentence based on the social ills of gun violence. According to Mr. Meredith, the trial judge’s comments bordered on “sermonizing” and detracted from proportionality as a fundamental principle of sentencing.

135The respondent contends that the trial judge’s comments on firearms were not inappropriate and did not result in a disproportionate sentence. The respondent highlights that Mr. Meredith’s use of the firearm in this case was particularly aggravating in the circumstances and it was appropriate for the trial judge to highlight this factor.

136In our view, the trial judge’s comments on gun violence did not constitute an error in principle or result in an unfit sentence. The aggravating aspects of the gun violence in the trial judge’s reasons relate directly to the conduct of Mr. Meredith and Mr. Chizanga, and to their moral culpability for the brazen and public nature of the killing of Mr. McIntosh. There is no basis in these comments to conclude that the trial judge was attempting to punish Mr. Meredith merely because of the prevalence of gun violence in society generally.

137We would reject this ground of appeal.

Disposition

138For the above reasons, we would dismiss the conviction appeals for Mr. Chizanga and Mr. Meredith. We would grant leave for Mr. Meredith to appeal his sentence but dismiss the sentence appeal. Mr. Chizanga’s sentence appeal would be dismissed as abandoned.

“L. Sossin J.A.”

“P.J. Monahan J.A.”

van Rensburg J.A. (Dissenting):

139I have reviewed my colleagues’ reasons proposing to dismiss the conviction appeals of both appellants and the sentence appeal of Mr. Meredith. While I agree with their conclusions and reasoning in respect of the other issues on appeal, I respectfully disagree with their resolution of the first issue, respecting the admission in evidence at trial of the Super 8 Video (the “Video”). As I will explain, I would allow the conviction appeals of both appellants and direct a new trial on the charge of second degree murder.

140It is well-established that discreditable conduct evidence, including similar fact evidence, is presumptively inadmissible because of its significant potential for prejudice to the accused’s fair trial rights: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 137-39; R. v. Amin, 2024 ONCA 237, 435 C.C.C. (3d) 528, at paras. 1, 27. Given that discreditable conduct evidence can play a decisive role at trial, decisions to admit such evidence are not infrequently challenged on appeal. This is one such case.

141I am mindful of the standard of review of a trial judge’s decision to admit discreditable conduct evidence at trial. As my colleagues note, in the absence of a legal error or a misapprehension of evidence, the trial judge’s assessment of the balance between probative value and prejudicial effect is entitled to deference.

142In my respectful view, in deciding to admit the Video, the trial judge erred in law (1) in concluding that the Video was probative of whether the appellants were engaged in a joint enterprise to kill Mr. McIntosh, and admitting the Video for this purpose; (2) in admitting the Video for any purpose after the appellants offered to make certain admissions under s. 655 of the Criminal Code; and (3) in his instructions to the jury about the permitted and prohibited uses of the Video, which were internally inconsistent, specifically instructed the jury to use the Video for an improper purpose, and did not alleviate the significant prejudice to the appellants that resulted from the admission of this evidence. I now address each of these points in turn.

(1) The Assessment of the Probative Value of the Video on the Issue of Joint Enterprise to Kill

(a) Probative Value: Legal Principles

143While my colleagues have set out the relevant principles from Handy and other relevant authorities with respect to the admissibility of discreditable conduct evidence, my focus is on the assessment of the probative value of the Video, in particular in relation to the issue of whether the appellants were engaged in a joint enterprise to kill the victim. As such, I will begin with a review of the applicable principles for determining the probative value of discreditable conduct evidence.

144The probative value of discreditable conduct evidence is not simply its relevance to a particular issue at trial, but also its strength and cogency in relation to that issue. When the prosecution proposes to lead evidence of an accused’s discreditable conduct other than the conduct charged, Crown counsel must identify the specific use or uses to which the evidence is directed, and the judge must determine the admissibility of the evidence in relation to such specific use or uses: Handy, at para. 74; R. v. Johnson, 2010 ONCA 646, 267 O.A.C. 201, at para. 92. Probative value does not exist nor can it be assessed in the abstract; rather, it has to do with the ability of the evidence to advance or refute a live issue ripe for determination by the trier of fact: Handy, at para. 73.

145Evidence of discreditable conduct is a form of circumstantial evidence. “[A]s with any circumstantial evidence, its usefulness rests entirely on the validity of the inferences it is said to support with respect to the matters in issue”: Handy, at para. 26. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence: Handy, at para. 42. “The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 99. The evaluation of the probative potential of the evidence looks first at the issue to which the evidence is directed, and second, at the reasoning process that gives the evidence relevance and probative value in respect of that issue: R. v. James (2006), 84 O.R. (3d) 227, at para. 36.

146Where, as here, the Crown proposes to use discreditable conduct evidence for a number of purposes, it is essential that its admissibility for each particular purpose be considered separately. This is to ensure not only that the evidence has probative value in respect of specific issues, but also that the prejudicial effect of the jury considering the evidence for an improper purpose is weighed in the balance, and that appropriate directions about the use of the evidence and cautions against its misuse are provided to the jury. “[I]t is only through an accurate and full preliminary assessment of probative value that prejudice can be kept within manageable bounds”: Handy, at para. 106. Accordingly, the specific use of the evidence in relation to a particular issue, and the reasoning that will make the evidence probative to that issue, must be carefully considered.

147It is a feature of much discreditable conduct evidence that it relies on propensity reasoning – that because the accused behaved in a certain way on another occasion, they are more likely to have engaged in the same type of behaviour in relation to the offence charged. The question is whether the discreditable conduct on a different occasion is sufficiently connected to the issue in respect of which its admission is sought to make the inferences to be drawn from propensity reasoning sufficiently cogent to warrant the admissibility of the evidence and the use of that reasoning: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 112.

148In Batte, Doherty J.A. explained how propensity reasoning involves two inferences, and the importance of assessing the strength of the dual inferences in determining whether the evidence is probative. He stated, at paras. 97 and 98:

Propensity reasoning involves two inferences. First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue. Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning to infer that an accused committed the act alleged. Viewed in this way, the evidence of the accused’s discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion.

Despite its relevance, evidence that depends on propensity reasoning for its admissibility is usually excluded because its potential prejudicial effect outweighs its probative value. Often the evidence has little probative value because either or both of the necessary inferences needed to give the evidence probative force are tenuous. For example, the inference that an accused has a certain disposition based on evidence of a single discreditable act could be so tenuous as to have virtually no probative value. Similarly, where discreditable evidence is probative of a disposition, the inference that an accused acted in accordance with that disposition on the occasion in question will often be a very weak one. For example, evidence that an accused repeatedly abused “A” would not, standing alone, support the inference that he was disposed to abuse “B” on the occasion alleged in the indictment. [Citations omitted; emphasis added.]

149Doherty J.A. went on to caution that, “[o]ften, evidence which can support propensity reasoning will have a much greater potential to improperly prejudice the jury against the accused” and that “[t]he risk that the jury will be led astray by evidence of discreditable conduct usually overcomes the probative force of that evidence where the probative force rests entirely on propensity reasoning: Batte, at para. 99.

150In Handy, in a trial for sexual assault, the complainant testified that the accused proceeded with sexual intercourse despite her protest. The Crown sought to introduce evidence from the accused’s ex-wife about a number of allegedly similar incidents that occurred during their abusive relationship. Writing for a unanimous Supreme Court, Binnie J. noted, at para. 26, that the ex-wife’s evidence related to incidents that were removed in time, place and circumstances from the charge, and as such it was only circumstantial evidence of the matters the jury had to decide. “[A]s with any circumstantial evidence, its usefulness rest[ed] entirely on the validity of the inferences it [was] said to support with respect to the matters in issue”. The argument for admitting the evidence was that the jury might infer first that the accused was a person who derived pleasure from sex that is painful to his partner and will not take no for an answer, and second, that his character or propensity thus established gives rise to the second inference, that he proceeded wilfully in this case knowing the complainant did not consent.

151Binnie J. characterized the questions before the Court as whether the double inferences were properly raised on the facts of the case, and if so, whether they added such probative strength in the circumstances that the ex-wife’s evidence ought to be admitted despite the potential prejudice: Handy, at para. 29. He concluded that, while the evidence was capable of raising an inference that the accused derived pleasure from sex that was painful and would not take no for an answer, the second inference, that the accused proceeded in the case at bar knowing that the complainant did not consent, was more problematic. Binnie J. held that the trial judge erred in his assessment of the probative value of the evidence by paying insufficient attention to the dissimilarities between the alleged similar acts and the offence charged.

152It is important in the assessment of probative value to consider not only the acts themselves, but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence, and whether those similarities give the evidence probative value: R. v. B. (L.) (1997), 35 O.R. (3d) 35 (C.A.), at p. 54. Some of the other factors to consider are the proximity in time of the other acts to the alleged offence, the circumstances surrounding the other acts and the offence, any distinctive features of the other acts and the offence, and any intervening events: R. v. K. (C.P.) (2002), 62 O.R. (3d) 487, at para. 30.

(b) Application of the Principles to this Case

153The Crown identified a number of potential uses for the Video as evidence at the appellants’ trial, including to demonstrate joint enterprise between the two men to kill the victim at the Popeyes. The appellants opposed the introduction of the Video, and, among the arguments they raised at both the Crown’s motion to admit the Video and the subsequent defence application to re-open the ruling, was that the jury should not be able use the Video for this purpose. Defence counsel argued that this would be pure propensity reasoning when the earlier incident was an unrelated act, and asked, “how does it speak to [their] intention the next day?”

154In his written reasons on the Crown’s motion, the trial judge identified a number of purposes for which the Crown proposed to use the Video as evidence at the appellants’ trial, including: (1) to identify the weapon used in the shooting; (2) to explain how the firearm was concealed; (3) to negate innocent association between the appellants; and (4) to demonstrate a joint intention to use the firearm and a joint intention to kill Mr. McIntosh. The trial judge addressed the probative value of the evidence on the first three issues, but not on the fourth. In other words, the trial judge did not explain how the Video could be probative, as the Crown submitted, of the appellants’ joint intention to use the firearm and their joint intention to kill the victim at the Popeyes.

155When the appellants brought their application to re-open the ruling on the basis that they were prepared to make certain admissions (the effect of which I will address separately below), their counsel reiterated their concern about the proposed use of the Video on the issue of whether the appellants were engaged in a joint enterprise to kill. By that point, counsel had a copy of the draft jury charge. As the trial judge confirmed in his written reasons on the defence application (at para. 3), his draft jury charge proposed a number of uses for the Video (summarized at para. 46 of my colleagues’ reasons), including to show partnership by Mr. Chizanga with Mr. Meredith at the Super 8 motel and therefore in the Popeyes killing, and to demonstrate joint enterprise between the two men to kill Mr. McIntosh. The trial judge adjourned for further argument on this point the following day, and ultimately dismissed the application with a bottom-line ruling.

156In his written reasons on the defence application, the trial judge again did not address how the Video would be probative of the appellants’ joint enterprise to kill at the Popeyes. Instead, he emphasized the advantages of showing the Video over providing the jury with a written account.

157In my view, at both stages the trial judge erred by failing to properly assess the probative value of the Video, in particular as it related to the Crown’s proposed use of the Video as evidence that the appellants were engaged in a joint enterprise to kill the victim. This particular use of the Video required the jury to engage in propensity reasoning – that because the appellants acted in a particular manner at the Super 8 motel the day before, they were more likely to have been acting in the same way at the Popeyes. In order to be probative of the specific issue – whether the appellants were engaged in a joint enterprise to kill – the evidence would have to support two inferences: first, that the appellants had a propensity to commit criminal acts together with a gun; and second, that because of this propensity, they were engaged in a joint enterprise to kill Mr. McIntosh the following day at the Popeyes. Without any context for what was going on the previous day (and the jury was cautioned not to speculate about that), and based on a single incident, even the first inference, that the appellants had a propensity to commit criminal acts together with a gun, was not particularly strong. The second necessary inference, that, based on their general propensity to commit criminal acts together with a gun, the appellants were engaged in a joint enterprise to kill, was simply not available as a matter of common sense and experience.

158In order for the conduct depicted in the Video to have been probative of the appellants’ joint enterprise and intention to kill the following day at the Popeyes, there must have been a sufficient nexus or connection between the two events to support the dual inferences: Handy, at para. 76; Batte, at para. 106.

159The question is not whether there was a nexus or connection between the two events to support an inference that the appellants were working together, but whether they were working together at the Popeyes for the purpose of killing Mr. McIntosh. That is, did the Video show “a strong disposition [for the appellants] to do the very thing alleged in the very circumstances alleged”?: Batte, at para. 106.

160The trial judge did not assess whether there was such a connection, nor, in my respectful view, could he have found a sufficient connection in this case. The circumstances surrounding the appellants’ conduct at the Super 8 motel were materially different from those at the Popeyes. As the trial judge acknowledged in his reasons for the second ruling, “the context and the potential offence committed [at the Super 8 motel] was very different”. And in his charge the trial judge reminded the jury that the contexts of the two incidents “were completely different” and he instructed the jury not to speculate about what the appellants were doing in the Video, but that they were “up to no good”. In short, the differences between the two incidents were substantial enough that they could not have supported the necessary dual inferences for the Video to have probative value on the issue of whether the appellants were engaged in a joint enterprise to kill Mr. McIntosh.

(2) The Admission of the Video After the Appellants Proposed to Make Formal Admissions at Trial

161The trial judge’s second error was in admitting the Video after the appellants confirmed that they were prepared to make formal admissions under s. 655 of the Criminal Code that would have addressed all of the proper uses of the Video.

162Evidence loses its probative value when an issue has ceased to be in dispute, such as when a fact is admitted by the accused. The evidence is then irrelevant and must be excluded: Handy, at para. 74. Handy also requires the trial judge, in assessing prejudice, to consider “whether the Crown can prove its point with less prejudicial evidence”: at para. 83.

163In this case, the appellants’ application to re-open the ruling was brought on the basis that they were prepared to admit certain facts in an attempt to obviate the need for the Video to be played for the jury. These facts included: (1) that Mr. Meredith was armed at the Popeyes; (2) that he was concealing a firearm at the Popeyes; (3) that he previously possessed the same firearm on April 26, 2017 at a Super 8 motel when he was with Mr. Chizanga; (4) that the firearm was concealed prior to the shooting of Mr. McIntosh; and (5) that Mr. Chizanga knew Mr. Meredith had the weapon at the Popeyes and was prepared to use it.

164In my view, the proposed admissions covered the ground of any proper uses that could have been made of the Video, and avoided much of the prejudice that playing the Video would entail. The proposed admissions (with appropriate instructions about their use and misuse) would have ensured that the evidence about the appellants’ activities with the gun the previous day played a carefully circumscribed role in the determination of the appellants’ guilt, but not, as here, a dominant and unfocused role. As the trial judge acknowledged in his written reasons for the first ruling, the prejudicial effect on both accused of showing the Video was “not minimal”, the main problem being that “it stigmatize[d] [them] as criminals willing to use a frightening looking firearm to commit a serious criminal offence the day before the alleged murder”, with the result that “[t]he jury, theoretically, could downgrade the presumption of innocence and the right to a fair trial, reasoning that such bad criminals do not deserve the full protection of the law”: at para. 43.

165In his reasons for dismissing the defence application to re-open his ruling, the trial judge concluded that the Video was admissible in part because he was of the view that the proposed admissions did not cover all of the potential uses of the Video – namely, (1) to show Mr. Meredith’s familiarity with the firearm; (2) to establish Mr. Chizanga’s association with Mr. Meredith and knowledge of the weapon being concealed; (3) to demonstrate a joint enterprise between the appellants to kill Mr. McIntosh, and (4) to contradict the suggestion that the appellants would not plan a killing in a public place. My colleagues agree with the trial judge that, in these respects, the proposed admissions did not drain the Video of its probative value.

166I respectfully disagree. In my view, the proposed admissions were coextensive with any proper uses to which the Video could have been put by the jury. Contrary to the trial judge’s suggestion in his charge, the Video does not show Mr. Meredith’s experience or skill with the firearm, but only shows him holding and then concealing it. His possession and concealment of the gun were covered by the proposed admissions. Similarly, the proposed admissions entirely covered the issue of whether Mr. Chizanga associated with Mr. Meredith and knew of the weapon being concealed. And, as I have explained, it was not open to the trial judge to admit the Video on the issue of joint enterprise to kill given the fundamentally different nature of the Super 8 incident. For the same reason, it would not have been permissible for the jury to infer from the Video that the appellants were more likely to have planned a killing in a public place. Indeed, as the trial judge acknowledged, “the context and the potential offence committed [at the Super 8 motel] was very different” from that at the Popeyes.

167The trial judge was also of the view that playing the Video for the jury would be more effective than providing a written description of the proposed admissions. He referred to the “general value in the visual depictions of what really happened versus a cold written account”, saying, “[a]s the idiom goes, a picture can be worth a thousand words. The impact on a jury member of the video would likely be deeper and allow a fuller appreciation of the Super 8 motel incident and its significance to the killing the next day at the Popeyes”. He concluded that the “extra probative value” from the Video fully justified any additional prejudicial effect.

168With respect, this was an error. As in R. v. Proctor (1992), 69 C.C.C. (3d) 436 (Man. C.A.), the admission of the Video when its proper uses were covered by the appellants’ proposed admissions “allow[ed] the Crown to paint the lily, an exercise which cannot be justified where the additional evidence is grossly prejudicial”: at p. 448. See also R. v. Klymson (1994), 91 C.C.C. (3d) 161 (B.C.C.A.), where the British Columbia Court of Appeal concluded that the trial judge erred in admitting similar fact evidence “for the purpose of refuting matters which the defence had specifically stated were not in issue”: at p. 178.

169It was incumbent on the trial judge to determine whether and to what extent the proposed admissions would obviate the need for the Video as evidence in this trial, having regard to the significant prejudice that such evidence would entail and the fact that it was presumptively inadmissible. The question was whether the proposed admissions covered the ground of the proposed uses of the evidence, not whether the Video would have a greater impact on the jury or convey the evidence in a more striking or effective way.

170Apart from the use of the Video in respect of whether the appellants were engaged in a joint enterprise to kill or were more likely to have planned a killing in a public place, which as I have explained could not have been permissible uses, all of the other uses of the Video were effectively covered by the proposed admissions. The proposed admissions, together with appropriate instructions to the jury, would have avoided the necessity for the jury to draw inferences from the appellants’ earlier conduct at the Super 8 motel, and avoided entirely the “additional prejudicial effect” of the Video that was acknowledged by the trial judge.

(3) The Trial Judge’s Instructions to the Jury About Uses of the Video

171My colleagues have concluded that the trial judge’s instructions to the jury were internally coherent, correct and consistent with the Handy framework. I disagree. In my respectful view, neither the mid-trial nor the final instructions provided adequate guidance to the jury to understand the proper and prohibited uses of the Video.

172Before the Video was played, and after receiving a draft mid-trial instruction, defence counsel raised concerns about the trial judge’s articulation of the uses to which the Video could be put by the jury, most notably on the issue of joint enterprise to kill. Despite initially acknowledging that “the permissible use should be flattened out a bit”, the trial judge later clarified that he “should not be taken to be agreeing with the defence on this” and that he was in fact “a bit skeptical”. The revised version of the mid-trial instruction that was ultimately given the next day (which was not approved by counsel) told the jury that the only purpose of the Video was to assist them in determining the circumstances surrounding the shooting of Mr. McIntosh the next day in the men’s washroom area of the Popeyes. The trial judge then instructed the jury to “not spend any time trying to guess what the [appellants] and the third man were doing there in the hallway of the Super 8 Motel”, and he gave the following caution:

What you cannot use the Super 8 video for is to find that from whatever criminality is apparent on that Super 8 Motel video, the defendants are more likely to be guilty of the homicide charges against them. You cannot use the video for this purpose. The law prohibits that type of use and has for many years. Second, as I am sure you would not do, you cannot use the Super 8 video to punish the accused for past misconduct. Our law prohibits that use for obvious reasons. It would violate your oath to let this video affect your objectivity in that way. The ultimate issues to be decided by you have to do with the events in the Popeyes. That is the basis of the allegation in the indictment before you, and that is what this trial is all about. [Emphasis added.]

173Given the trial judge’s overly broad framing of the permissible use (i.e., “determining the circumstances surrounding the shooting of Mr. McIntosh”), it is difficult to see how the jury could have used the Video for that purpose while at the same time avoiding any inference that the appellants’ conduct at the Super 8 motel made it more likely that they acted in concert to kill Mr. McIntosh at the Popeyes the next day. In short, the permissible use articulated by the trial judge overlapped with the prohibited uses. With this apparent contradiction in the mid-trial instruction, it is not surprising that, after delivering it, the trial judge observed “some puzzled faces” in the jury. He told the jury not to worry because there would be “further clarification, reiteration and elaboration” at the end of the trial.

174The final jury charge was delivered eight days later. Unfortunately, in the interim, the jury would have understood from the mid-trial instruction that the Video was somehow relevant to the live issues, but was left without precise and internally consistent direction as to how the Video could and could not be used. This amplified the risk of moral and reasoning prejudice. As Binnie J. noted in Handy, at para. 40, it can be difficult to contain the prejudicial effects of discreditable conduct evidence which, “once dropped like poison in the juror’s ear, ‘swift as quicksilver it courses through the natural gates and alleys of the body’”.

175Although the trial judge’s final instructions to the jury specified the permissible uses of the Video in more detail, they were otherwise essentially an extension of the mid-trial instruction. The trial judge instructed the jury that one permissible use of the Video was to demonstrate Mr. Meredith’s familiarity with the firearm; another was to assist with Mr. Meredith’s experience and skill with the gun, and whether it misfired or was fired multiple times in error; and a third was whether Mr. Chizanga knew that Mr. Meredith was armed, what sort of weapon he was armed with and that he was capable of concealing the gun in his pants. In his instructions on first degree murder, the trial judge turned again to the use of the Video on the meaning and significance of the appellants’ association in the Popeyes. He stated:

They were together the day before and the firearm was concealed and then brought out and ready for use. The two were up to no good and had an issue with the occupant of the motel room....

Can you infer with the help of the Super 8 video that the next day at the Popeyes there was also an association that had as its joint purpose to conceal possession and use of a firearm? Does it help on the question of whether Mr. Meredith and Mr. Chizanga were working as a team for a common criminal object or end? There is no doubt that the criminal purpose in the Super 8 Motel was completely different than what the Crown alleges was the joint purpose in the Popeyes, but there was the same gun and Mr. Chizanga and Mr. Meredith were both involved in a criminal object as depicted in the Super 8 video. Those are questions for you and you can consider the Super 8 video on them. [Emphasis added.]

176He also referenced these uses in his summary of the Crown’s submissions:

The Super 8 video showed Mr. Chizanga and Mr. Meredith jointly engaged in a criminal act. They relied on the use of the assault rifle. They were therefore both relying on the gun to accomplish their criminal ends. They acted in concert, or one aided the other, while relying on the gun. Eighteen hours later, much like the Super 8 Motel, they were jointly undertaking a criminal act at the Popeyes that relied on the use of that gun. Just like the Super 8 incident the gun was possessed for the purpose of conducting a criminal act. Just because Mr. Meredith pulled the trigger of the assault rifle does not relieve Mr. Chizanga of legal responsibility. [Emphasis added.]

177The trial judge then gave substantially the same limiting instruction as he did in his mid-trial instruction. He told the jury that the appellants’ issue with the occupant of the room at the Super 8 motel “ha[d] nothing whatsoever to do with Mr. McIntosh or what happened the next day at the Popeyes” and that “[w]e cannot use the Super 8 video … to find that from whatever criminality is apparent on it, the defendants are more likely to be guilty of the homicide charges against them”.

178Again, it is difficult to see how the jury could have used the Video for the purpose of determining whether the appellants “were working as a team for a common criminal object or end”, while at the same time avoiding any inference that the appellants’ conduct at the Super 8 motel made it more likely that they acted in concert to kill Mr. McIntosh. Because the permissible uses articulated by the trial judge overlapped with the prohibited uses, the instructions had the effect of inviting the jury to infer a joint propensity to kill from unrelated conduct that, at its highest, showed only a joint propensity to commit some other, undefined, offence.

179In my view the trial judge’s instructions about the permitted and prohibited uses of the Video invited the jury to engage in inappropriate reasoning and did not alleviate, but exacerbated, the prejudice to the appellants from the admission of the Video.

The Effect of the Video

180The Video was important evidence in this trial. The trial judge in his initial reasons referred to “the evidentiary vacuum of what occurred in the Popeyes bathroom area”. The mid-trial instruction told the jury that the Video could help them to understand the circumstances the following day at the Popeyes. In his review of the evidence in the jury charge, the trial judge began his “chronology” with the events of the previous day at the Super 8 motel, and in his instructions on Mr. Chizanga’s liability as a joint principal for murder, the trial judge instructed the jury that, if they were not persuaded by the second shooter theory, they should look at the other evidence the Crown says proves joint enterprise to kill beyond a reasonable doubt, including “[p]artnership with Mr. Meredith in a criminal enterprise with a long-barreled gun in [the] Super 8 video”.

181The consequence of the trial judge’s incomplete probative value analysis was that the Video, which provided a compelling picture of the two appellants engaged in an apparent criminal act with a gun, assumed an unwarranted and outsized importance at the trial. It is well-established that video evidence from which the trier of fact may derive their own perceptions can possess unusual force: see e.g., R. v. MacDonald (2000), 49 O.R. (3d) 417, at para. 37. In this case, the impact of the Video was reinforced by narration from a police officer describing the appellants’ activities at the Super 8 motel, and by the testimony of the motel manager recounting his 911 call upon observing the appellants on his surveillance monitor.

182In my view, the errors in permitting the Video to be used to assess whether the appellants were engaged in a joint enterprise to kill the victim, in admitting the Video for any purpose following the appellants’ proposed admissions, and in the jury instructions respecting its permitted and prohibited uses, affected both appellants. Although Mr. Chizanga was arguably prejudiced to a greater degree, because the error went directly to the basis on which he could be considered to be a joint principal in the killing with the shooter, Mr. Meredith, [3] it is impossible to determine the role of the Video in the second degree murder verdict for Mr. Meredith. In any event, the curative proviso under s. 686(1)(b)(ii) of the Criminal Code is available only if it is raised by the Crown, whether explicitly or implicitly: R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, at paras. 104-05. In this case, while the Crown relied on the proviso to support the conviction of Mr. Chizanga in respect of two other alleged errors, the Crown did not explicitly or implicitly raise the proviso with respect to Mr. Meredith or with respect to this alleged error, let alone show how it would apply. Accordingly, the errors I have identified would affect the convictions of both appellants.

Conclusion

183For these reasons, I would allow the conviction appeals and direct a new trial on the charge of second degree murder.

Released: July 8, 2024 “K.M.v.R.”

“K. van Rensburg J.A.”

1We acknowledge that Handy did not employ this "Prior Discreditable Conduct/Live Conduct" terminology in its analysis of the proper methodology for determining the probative value of evidence of prior disreputable conduct. We utilize this terminology in our discussion of the applicable governing principles because we believe it provides a useful shorthand that assists in distilling and clarifying the practical application of the Handy framework.

2Of course, Mr. Meredith denied that had murdered Mr. McIntosh. If the jury had accepted this argument, then neither could Mr. Chizanga be guilty of murder as a co-principal, since Mr. Chizanga’s liability as a co-principal depended on a prior finding that Mr. Meredith murdered Mr. McIntosh.

3The Crown relied on two alternative bases for the joint principal mode of participation: first, that Mr. Chizanga was armed with a second gun that fired a shot; and second, that Mr. Chizanga was engaged in a joint enterprise with Mr. Meredith to kill Mr. McIntosh. The only evidence to support the two-gun theory was that of the Crown’s ballistics expert, who was vigorously cross-examined. As the trial judge noted in his parole ineligibility decision, “the evidence of the second gun [was] too thin to support a beyond a reasonable doubt conclusion”.