R. v. Largie, 2010 ONCA 548

Her Majesty the Queen v. Largie et al. [Indexed as: R. v. Largie]

101 O.R. (3d) 561

2010 ONCA 548

Court of Appeal for Ontario,

Feldman, Blair and Watt JJ.A.

August 11, 2010

Charter of Rights and Freedoms -- Search or seizure -- Interception of private communications -- "Consent interceptions" -- Informant consenting to police interception of communications with accused -- Communications intercepted pursuant to authorization under s. 184.2 -- Accused arguing provision unconstitutional in absence of prerequisite proving investigative necessity -- Provision constitutionally valid as satisfying minimum constitutional requirements of s. 8 of the Charter -- Criminal Code, R.S.C. 1985, c. C-46, s. 184.2.

Criminal law -- Interception of private communications -- Admissibility of character evidence contained in intercepted communications -- G and K charged jointly with second degree murder -- Trial judge not erring in declining to exclude part of intercepted conversation between informant and K that took part in G's absence in which G portrayed as person with homicidal tendencies -- Trial judge had discretion to exclude evidence only if prejudicial effect in connection with G outweighing probative value of challenged evidence to K -- K arguing that evidence supported his position that G unexpectedly shot victim and that K not aiding or abetting shooting -- Trial judge not erring in concluding that limiting instructions mid-trial and during charge to jury sufficient to minimize prejudice to G -- Trial judge instructing jury that K's remarks in that part of conversation were only admissible against K and that they could not be used in determining G's guilt or innocence.

Criminal law -- Trial -- Charge to jury -- Position of defence -- Charge not unbalanced because substantially more time spent outlining position of Crown -- Accused conceding that charge outlining essence of defence in simple terms -- No requirement that trial judge repeat each argument of defence counsel -- Appeal from conviction dismissed.

Criminal law -- Trial -- Charge to jury -- Alternative basis of liability -- Crown's theory that G was shooter -- G testifying that "Gangsta Lee" was shooter acknowledging that being substantial evidence to support verdict that G was party to killing even if not shooter -- Judge instructing jury on regarding G's liability as principal and as party to murder -- G not objecting to party instruction -- G's evidence providing air of reality to party liability and trial judge not erring in leaving alternative basis of liability -- Appeal from conviction dismissed.

G and K were jointly charged with second degree murder. It was the Crown's theory that they accompanied "Gangsta Lee" when he set out to get revenge for an act of disrespect. The Crown's position was that G was a front-seat passenger in L's car, that he got out of the car, confronted a group of youths and shot the victim. The Crown took the position that K was a rear-seat passenger and either asked the victim what time it was, or was the fourth man, whose presence intimidated the youths. An important element of the prosecution's case was the admission of private communications between the accused and an informant, whose actions made him a state agent, intercepted with the consent of the [page562] informant and authorization granted under s. 184.2 of the Criminal Code. K took the position that G unexpectedly shot the victim and that K did not aid or abet in the killing. G testified that he was present when "Gangsta Lee" shot victim in retaliation for the earlier act of "disrespect". G was convict ed of second degree murder, and K was convicted of manslaughter. They appealed. Among other grounds of appeal, they challenged the constitutionality of s. 184.2.

Held, the appeals should be dismissed.

G and K argued that s. 184.2 violated s. 8 of the Charter and that the communications intercepted should be excluded as the section did not require the state to demonstrate that investigative necessity as a precondition to granting the authorization. Only one of the many provisions in the Criminal Code authorizing searches or interceptions of communications requires that investigative necessity be shown before the search or interception can be authorized. Section 184.2 satisfies the minimal standard required by s. 8 of the Charter and is not unconstitutional despite the absence of a requirement of investigative necessity as a precondition to its use.

The trial judge did not err in declining to exclude part of an intercepted communication between the agent and K, in G's absence, that portrayed G as a person with homicidal tendencies. K wanted this evidence admitted as he argued that it supported his position that he wasn't expecting G to shoot the victim and that K did nothing to aid or abet in the killing. The Crown argued that K's statements supported the position that he knew that G was known to use a gun and that therefore the killing was not a surprise to K, as he claimed. The trial judge could only have excluded the evidence in this joint trial if he concluded that the prejudice to G caused by its admission outweighed its probative value to K. The trial judge appropriately minimized the prejudice to G by giving a mid-trial limiting instruction that K's remarks in that part of the conversation were only admissible against K and that they could not be used in determining G's guilt or innocence, and repeating this instruction in the charge to the jury .

In giving the jury a limiting instruction about the use of evidence of discreditable conduct, the trial judge did not err in particularizing the items of evidence that were subject to the limitations on use. G did not complain about the substance of the instruction. Defence counsel for G at trial was offered an opportunity to assist in the composition of a more suitable description of the evidence to which the limiting instruction was to apply and declined to do so. Failure to respond to an express invitation to assist the trial judge may be taken as indicative of the seriousness of what is later said to be an error and may be a factor in appellate review.

G objected to the charge to the jury on the basis that the trial judge spent about twice as long outlining the position of the Crown as he did on G's position. As the burden of proof falls on the Crown, outlining the Crown's position will often take more time, particularly where, as here, the accused's position is that he was simply a bystander when someone else committed the offence. The accused's counsel acknowledged that the trial judge had captured the essence of the defence and outlined it in simple terms. A functional review of a jury charge depends on whether the position is put fairly, not how many words it takes to do so. In this case, the charge was evenly balanced and fair.

APPEAL by the accused from convictions entered by Trafford J. of the Superior Court of Justice, sitting with a jury, on January 27, 2005.

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(2d) 314 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 8, 24(2) Criminal Code, R.S.C. 1970, c. C-34, Part IV.1, 178.11(2)(a), 178.13(1)(a), (b) Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1)(b), (c), Part VI [as am.], 183 [as am.], 184.2, (2), (3), (c), (4), 185 [as am.], (1) [as am.], (e), (h), (1.1) [as am.], 186 [as am.], (1), (a), (b), (1.1) [as am.], (4), 186.1 [as am.], 552 [as am.]

Brian Snell, for appellant Gavra Largie. Michael Lacy and Joshua Frost, for appellant Karl Largie. John McInnes and Chikeziri Igwe, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: -- It began with disrespect, continued with a desire for revenge and ended with a bullet to the brain of a stranger. Months later, arrests followed. Two brothers, Gavra and Karl Largie, were charged with second degree murder. After a joint trial, Gavra was convicted of second degree murder and Karl of manslaughter. Both have appealed. Neither succeeds. The Background Facts

[2] An appreciation of the grounds of appeal requires no forced march through the evidentiary thicket revealed at trial. Additional detail can await discussion of specific grounds of appeal, and will intrude only to the extent necessary to their understanding. [page565]

The beginning

[3] Late in the evening of December 14, 2001, Gangsta Lee [See Note 1 below] went to a party in the Malvern area of Scarborough. Gangsta Lee is from Flemingdon Park, a "Flemmo Park boy". At the party, some youths from Regent Park"Park youths""rushed" Gangsta Lee. As far as Gangsta Lee was concerned, the conduct of these "Regent Park boys" showed disrespect and warranted retaliatory measures.

The posse forms

[4] Gangsta Lee mustered his nephew and both Gavra and Karl Largie to pursue his retaliatory objectives. All of them got into Lee's car and headed toward Regent Park.

The wait

[5] Lee drove his car to the vicinity of Dundas and Sumach Streets, where he parked to await the appearance of some neighbourhood youths. Lee and his recruits did not have to wait long. Within minutes, three or four youths from Regent Park came into view. These young men, who included the Ahmed brothers, Mohamoud and Ali, were walking along the street after concluding a drug purchase nearby.

The ruse

[6] At Lee's suggestion, one of the rear-seat passengers asked the pedestrians "what time is it?". Despite an answer, the "time asker" repeated his question. Except for Lee, the occupants of the car got out and approached the youths on the street. One of the men, who later became the shooter, directed the driver of the car, Lee, to turn the vehicle around. Lee complied.

The shooting

[7] One of the occupants of the vehicle was armed with a metal pipe with which he struck Mohamoud Ahmed on the back. Another man from the car stood back a short distance, to ensure that none of the targeted group escaped.

[8] One of the men from the car pulled out a 9-mm semi- automatic handgun from the waistband of his pants. This man struck Mohamoud Ahmed on the head with the butt of the gun, [page566] then fired a single shot from close range at Mohamoud's head. The bullet struck Mohamoud's head behind his right ear.

[9] Gangsta Lee and his recruits, including the appellants, drove away immediately after the shooting.

[10] Mohamoud Ahmed died from the gunshot wound.

The positions of the parties at trial

[11] At trial, the prosecutor contended that Gavra Largie was the person who shot the deceased to death. Gavra was the front- seat passenger in Lee's car and directed Lee to turn the car around when he (Gavra) got out of the vehicle to confront the youths.

[12] The prosecutor took the position that Karl Largie aided or abetted his brother in the intentional killing of the deceased. Karl was a rear-seat passenger, either the person who twice asked the time ("the time asker") or the fourth man whose presence intimidated the youths. Karl was neither the "pipe wielder" nor the shooter.

[13] According to Gavra Largie, he was present at, but only a witness to, the shooting. Gangsta Lee was the shooter. The shooting and the blow with the pipe that preceded it came as a surprise to Gavra Largie, who had feigned agreement with Lee for the singular purpose of getting a ride home. At Lee's direction, Gavra was the "time asker".

[14] Karl Largie also admitted that he was present at the time of the shooting but denied aiding or abetting the shooter. The killing, indeed infliction of any bodily harm, was unanticipated. Karl Largie did not ask the time nor wield the pipe; rather, he got out of the car and stood on the street away from the others, simply out of curiosity. The Grounds of Appeal

[15] The principal ground of appeal is common to both appellants. Each appellant advances additional grounds.

The common ground

[16] An important element of the prosecution's case at the appellants' trial was evidence of private communications intercepted with the consent of a participant, John Doe, and in accordance with an authorization granted under s. 184.2 of the Criminal Code, R.S.C. 1985, c. C-46. The appellants say that the statutory requirements for an authorization to be given under s. 184.2 are constitutionally impotent for failure to require a demonstration of investigative necessity as a condition precedent to issuance of an authorization. But even if the enabling [page567] legislation passes constitutional muster, the appellants contend, the authorization in this case was improvidently given because the issuing judge did not properly fulfill her role as an independent arbiter; rather, she simply rubber-stamped the application. In the event of either constitutional fault, the appellants argue that the trial judge should have excluded the intercepted private communications as evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The grounds of appeal of Gavra Largie

[17] Gavra Largie advances a further ground of appeal in connection with the intercepted private communications that were admitted as evidence. He says that the trial judge should have excluded a portion of a conversation that took place in his absence between John Doe and Karl Largie. This passage, inadmissible against Gavra, portrayed him as a person with homicidal tendencies, thus inviting a finding of guilt based on a prohibited chain of reasoning that could not be stifled by appropriate limiting instructions.

[18] The remaining grounds of appeal advanced by Gavra Largie all have to do with the trial judge's final instructions to the jury. The claims of error include submissions that (i) the trial judge erred in the manner in which he instructed the jury about its use of the evidence of Gavra Largie's extrinsic misconduct; (ii) the trial judge's final instructions were unbalanced in that more time was devoted to a discussion of the position of the prosecutor than was accorded to the position of Gavra Largie and the evidence supportive of it; and (iii) the trial judge was wrong in leaving the liability of Gavra Largie to be determined on the basis that he was either the principal or an aider or abettor of the principal in the offence charged.

The grounds of appeal of Karl Largie

[19] Karl Largie also complains about the basis upon which the trial judge left his liability to the jury. His complaint has two aspects. The first is that the trial judge left his liability as an aider or abettor on the basis that Karl Largie was the "time asker" in the absence of any evidence apt to convey an air of reality to this basis of accessoryship. And second, even if there were an evidentiary basis for the "time asker" ground of accessoryship, the submission of this alternative to the jury occurred [page568] so late in the day that it caused Karl Largie irreparable prejudice in his defence. Analysis

The common grounds

The first ground: The constitutional validity of s. 184.2

The background

[20] No one recognized any of the gang of four involved in the shooting, or the driver of the car. During the first six weeks of the investigation that followed, police received little information from the community. No solid leads. No suspects.

[21] However, in early February 2002, a man charged with an unrelated robbery approached police. He offered to provide police with some information about a Regent Park homicide. The quid pro quo was some assistance on his outstanding robbery charge.

[22] The informant told police that Gavra and Karl Largie approached him in mid-January 2002 and told him about the Regent Park shooting. Gavra Largie told the informant that he and Karl were with Garfield Francis (also known as Gangsta Lee) and two other persons looking for a man who had disrespected Karl Largie at a Malvern area party. The men drove to Regent Park in Gangsta Lee's silver-coloured car. The group located the person they believed had disrespected Karl Largie and approached him on foot. The man was on a cellphone. Karl Largie froze. Gavra Largie pulled a gun from his waistband and shot the man. As it turned out, the victim was not the person who had disrespected Karl Largie, but was part of the group involved in the incident. The assailants fled in the car in which they had arrived.

[23] Several weeks later, police interviewed the informant in accordance with the principles described in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22. The informant, John Doe, agreed to act as a police agent in the investigation that followed.

[24] On June 17, 2002, the lead investigator applied to a judge of the Ontario Court of Justice for an authorization under s. 184.2 of the Criminal Code. Marshall J. granted the authorization in the terms requested. The material filed in support of the application included the affidavit of the lead investigator and several appendices: (i) the consent of the informant to the interception of the intended private communications with the named targets; [page569] (ii) the Canadian Police Information Centre ("CPIC") printouts of the criminal records and related antecedents of the informant, the appellants and Garfield Francis; (iii) the Occurrence Report of a complaint of robbery made by the deceased on December 21, 2000; and (iv) a transcript of the B. (K.G.) statement of the informant.

The decision of the trial judge

[25] The appellants challenged the constitutional validity of s. 184.2 of the Criminal Code at trial. Then, as now, the nucleus of their attack was and remains the absence of any requirement of investigative necessity as a condition precedent of the exercise of the authority to grant an authorization for participant surveillance. The inclusion of such a requirement, the appellants said then and repeat now, is a constitutional prerequisite. Its absence renders s. 184.2 a constitutional fatality.

[26] The trial judge disagreed. He concluded that the minimum constitutional standard required for Part VI interceptional authority is probable cause. While investigative necessity is a statutory increment for which s. 186(1)(b) provides in the case of conventional authorizations, it is not a constitutional requirement for any and all forms of electronic surveillance.

[27] The trial judge also concluded that the discretionary nature of the authority to grant authorizations under s. 184.2 required the authorizing judge to consider all constitutionally recognized values implicated by the circumstances of the application. Among the circumstances to be considered was "investigative necessity" as defined in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65.

The positions of the parties

[28] At bottom, the appellants say that, to be constitutionally sound, any authority that permits interception of private communications requires proof of probable cause and investigative necessity as conditions precedent to the issuance of an authorization. The absence from s. 184.2 of any requirement of investigative necessity is a fatal constitutional flaw.

[29] The appellants acknowledge that no binding or persuasive authority expressly supports their position. A careful review of critical passages in several existing authorities, the appellants say, nourishes their claim, at least by necessary implication.

[30] According to the appellants, the constitutionality of Part VI of the Criminal Code -- invasion of privacy -- depends upon [page570] the inclusion in the Part of numerous safeguards against unwarranted state intrusion. Among these safeguards is the interposition, between the investigators and the investigated, of a neutral third-party guardian of constitutional values whose task it is to ensure that the right to privacy yields to law enforcement only to the extent demonstrably justified. Whether the investigative method involves third-party or participant surveillance, the enabling authority can only be justified upon a demonstration of probable cause and investigative necessity. The latter is, at once, a statutory requirement under s. 186(1)(b) and a constitutional prerequisite under s. 8 of the Charter.

[31] The respondent is contrary-minded and submits that investigative necessity has not been recognized as a constitutional prerequisite in the context of wiretapping, or for that matter, in any general or specific search or seizure authority. Even if investigative necessity were considered a constitutional requirement for third-party electronic surveillance, such as wiretapping, it does not follow that it occupies a similar place for participant surveillance. After all, Mr. McInnes says, participant surveillance is target- specific, more akin to a conventional search, and significantly less intrusive than its distant cousin, wiretapping.

[32] According to the respondent, the decision in R. v. Duarte (1990), 1990 150 (SCC), 71 O.R. (2d) 575n, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2 simply required that participant surveillance be authorized by a judicial authority in advance of interceptional activity. The decision said nothing about the conditions precedent to be met to obtain that authorization, much less that investigative necessity was a sine qua non.

[33] Mr. McInnes reminds us that attempts to draft investigative necessity as a constitutional prerequisite into other search contexts, where it is not statutorily required, have fallen on barren ground. What will be required, if anything, beyond the constitutional minimum of Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36 depends on context, including the nature of the intrusion and other circumstances. The focused nature of participant surveillance does not require a preliminary demonstration of investigative necessity, even if it is viewed as a constitutional requirement for third party surveillance.

The statutory provisions

[34] A convenient beginning is a side-by-side comparison of the legislation that permits court-ordered participant and third-party electronic surveillance. [page571]

[QL:GRAPHIC NAME="101OR3d561-1.jpg"/] [page572]

[QL:GRAPHIC NAME="101OR3d561-2.jpg"/] [page573]

[QL:GRAPHIC NAME="101OR3d561-3.jpg"/] [page574]

[QL:GRAPHIC NAME="101OR3d561-4.jpg"/]

[35] Section 184.2 represents Parliament's response to Duarte that held that the interception of private communications by a state agency with the consent of a participant, but without prior judicial authorization, infringed s. 8 of the Charter and was not saved by s. 1.

[36] Section 184.2 follows the familiar pattern established by ss. 185 and 186 for conventional authorizations that permit [page575] third party surveillance. The procedure, which is ex parte, begins with a written application made by a person with statutory status to apply. The application is made to a judge, either a provincial court judge or a judge of the superior court of criminal jurisdiction. [See Note 2 below] The written application must be accompanied by an affidavit of the applicant or another peace or public officer compliant with s. 184.2(2). The affidavit furnishes the evidentiary predicate upon which the judge must decide whether the authorization should be granted. Section 184.2(3) describes the findings required as conditions precedent to the exercise of the statutory discretion to grant the authorization. The contents of the authorization must comply with s. 184.2(4).

[37] Some discrepancies exist between the participant and third party surveillance schemes. Of importance here is the absence from s. 184.2 of any requirement that the affidavit disclose and the judge find investigative necessity. Section 184.2 contains no equivalent of either s. 185(1)(h) or s. 186(1)(b).

[38] A further disparity appears in a comparison of ss. 184.2(3)(c) and 185(1)(e). Section 184.2(3)(c) requires that the judge find, based on the supportive affidavit, [See Note 3 below] that there are "reasonable grounds to believe that information concerning the offence . . . will be obtained through the interception sought" (emphasis added). Although s. 186 requires no such discrete finding, s. 185(1)(e) requires that the affidavit specify "the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence" (emphasis added).

The governing principles

[39] The interception of private communications by agents of the state with the consent of a participant constitutes a search or seizure. It follows that the statutory scheme put in place by s. 184.2 is subject to the requirements of s. 8 of the Charter: Duarte, at pp. 42, 57 and 60 S.C.R.; R. v. Finlay and Grellette (1985), 1985 117 (ON CA), 52 O.R. (2d) 632, [1985] O.J. No. 2680 (C.A.), at p. 645 O.R.

[40] A statutory provision authorizing electronic surveillance by a state agency must conform with the minimum constitutional requirements that s. 8 of the Charter demands, a standard [page576] described in Hunter as "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search": Hunter, at p. 168 S.C.R.; R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at pp. 1443-44 S.C.R. The intrusive nature of electronic surveillance, especially wiretapping, does not leave open the prospect of any lesser minimum requirements: Garofoli, at p. 1444 S.C.R.

[41] The provisions of s. 186(1)(a), which require that the authorizing judge be satisfied that to grant the authorization would be in the best interests of the administration of justice, are identical to the constitutional requirement set by Hunter: Duarte, at p. 45 S.C.R.; Garofoli, at p. 1482 S.C.R.

[42] In Finlay and Grellette, the appellants challenged the constitutional validity of [then] Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34, the predecessor to current Part VI. The basis of the challenge was threefold, including a submission that the standard for granting a conventional authorization, the current s. 186(1), fell below what the Constitution requires. The court upheld the validity of the Part examining the full panoply of safeguards sprinkled throughout the legislation. Without express reference to the investigative necessity requirement of s. 186(1)(b), the court was satisfied that the provisions of former s. 178.13(1)(a) were constitutionally sound.

[43] In Duarte, the Supreme Court of Canada considered a challenge to the provisions of former s. 178.11(2)(a) that rendered lawful the interception of private communications with the consent of a participant, but without any requirement of prior judicial authorization. The court concluded that the former s. 178.11(2)(a) did not infringe s. 8, but that the interception of private communications by an agency of the state with the consent of a participant without prior judicial authorization did infringe the rights and freedoms guaranteed by s. 8: Duarte, at p. 60 S.C.R.

[44] For constitutional purposes, the Duarte court equated participant surveillance with third party surveillance by state agent: Duarte, at pp. 46-47 S.C.R. It followed that prior authorization by a detached judicial officer was required to render constitutional participant surveillance by a state agent. What was required to meet the standards imposed by s. 8 was establishing to the satisfaction of a detached judicial officer, in advance of interception, that an offence has been or was being committed and that interception of private communications "stands to afford evidence of the offence": Duarte, at pp. 45-46 S.C.R. [page577]

[45] In Garofoli, the Supreme Court of Canada considered the minimum statutory constitutional requirements for judicially authorized third-party electronic surveillance. The court concluded that the statutory requirements of former s. 178.13(1)(a), now s. 186(1)(a), were identical to the constitutional requirements of Hunter: Garofoli, at p. 1445 S.C.R. The court added that to obtain an authorization for third-party electronic surveillance, a state agent must also satisfy the statutory requirements of s. 178.13(1)(b), now s. 186(1)(b).

[46] In Araujo, the Supreme Court of Canada was required to determine whether the facts disclosed in the affidavit filed in support of an application for conventional authorization sponsoring third-party surveillance met the standard required by s. 186(1)(b) of the Criminal Code. The court reaffirmed the equivalence of s. 186(1)(a) with the minimum constitutional standard imposed under Hunter. Nowhere does the court characterize investigative necessity as a constitutional requirement, or as anything other than a statutory precondition to the exercise of the discretion to grant a conventional authorization permitting state-conducted third party surveillance.

The principles applied

[47] Hunter teaches that the state's interest in detecting and preventing crime begins to prevail over an individual's interest in being left alone at the point at which credibly based probability replaces suspicion. The minimum standard consistent with s. 8 of the Charter for authorizing search and seizure is reasonable and probable grounds, established on oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search: Hunter, at pp. 167-68 S.C.R.

[48] We learn from Duarte that participant surveillance requires judicial authorization to meet the constitutional standard of s. 8 of the Charter. The consent of a participant, without more, is constitutionally inadequate when the interceptional activity is that of a state agent: Duarte, at p. 47 S.C.R.

[49] Section 186(1)(a) of the Criminal Code coincides with the minimum constitutional requirement dictated by Hunter. The statutory language "it would be in the best interests of the administration of justice to do so [to grant the authorization]" is the equivalent of "reasonable and probable grounds to believe that an offence has been, or is being, committed and that the authorization sought will afford evidence of that offence": Duarte, at p. 45 S.C.R.; Garofoli, at p. 1444 S.C.R.

[50] The appellants' constitutional challenge founders on several grounds. [page578]

[51] Apart from s. 186(1)(b), the appellants can point to no statutory search or seizure authority that imposes investigative necessity as a prerequisite to issuance of a warrant, authorization or other search authority. And no appellate court has held, either expressly or by necessary implication, that investigative necessity is a constitutional necessity.

[52] In at least two other instances, arguments that advanced a requirement of investigative necessity as a constitutional prerequisite to the exercise of a statutory power of search or seizure that itself contained no such requirement have foundered.

[53] In R. v. B. (S.A.), 2003 SCC 60, [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, the appellants contended that the DNA warrant provisions were constitutionally infirm because the enabling legislation did not limit their availability to a last resort investigative technique. The court acknowledged that Parliament could have included such an investigative necessity provision, but there was no reason to require that it do so as a condition of constitutional compliance: B. (S.A.), at paras. 53-54; see, also, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 50 (SCC), [1991] 3 S.C.R. 459, [1991] S.C.J. No. 88.

[54] Further, to require investigative necessity as a constitutional imperative in participant surveillance by state agents would essentially confine s. 184.2 to investigations of anticipated offences or offences falling outside the definition of "offence" in s. 183. A constitutional requirement of investigative necessity, coupled with requirements of s. 184.2(3), would essentially duplicate what s. 186(1) requires.

[55] Like s. 186(1), the language of s. 184.2(3) is permissive, not mandatory. The judge to whom the application for authorization is made is vested with a discretion to grant the authorization. The enabling authority does not issue as of right. In reaching his or her conclusion, a judge under s. 184.2 must consider whether the search proposed is reasonable in light of the myriad factors at work in the specific case. In this respect, the authorizing judge might have in mind that it is often necessary for investigators to accumulate evidence supportive of the account provided by a source whose credibility and reliability may be suspect.

[56] It is also worthy of reminder that although it is subject to a requirement of prior judicial authorization, participant surveillance differs in scope from third-party surveillance. Participant surveillance is generally more focused than third-party surveillance, targeting specific conversations with specific individuals. Capture of third-party communicants is less likely. And the consenting party may also direct the conversations, thus reducing the risk of intrusion into the target's privacy. [page579]

[57] A final point. At least two provincial appellate courts have upheld the validity of Criminal Code electronic surveillance provisions that contain no reference to investigative necessity, or expressly eliminate investigative necessity as a condition precedent. The relevant provisions include s. 184.2(2) (R. v. Bordage, 2000 6273 (QC CA), [2000] J.Q. no 2045, 146 C.C.C. (3d) 549 (C.A.), at paras. 36 and 37) and ss. 185(1.1), 186(1.1) and 186.1 (R. v. Doiron, 2007 NBCA 41, [2007] N.B.J. No. 189, 315 N.B.R. (2d) 205 (C.A.), at paras. 43-46).

[58] This ground of appeal fails. The enabling authority, s. 184.2 of the Criminal Code, is constitutional.

The alternative ground: The flawed authorization process

[59] The appellants advance an alternative argument in the event that s. 184.2 is constitutionally sound. They say that the authorizing judge gave inadequate attention to the application for authorization, thus failing in her duty as guardian of the Constitution and granting a search and seizure authority that was unreasonable, thus unconstitutional.

The background facts

[60] The trial record is largely unrevealing about what occurred on the hearing of the application before the authorizing judge.

[61] The affidavit that accompanied the application for authorization was 60 pages long. It also included several appendices: (i) the consent of the informant to interception of anticipated private communications between the informant and the named targets; (ii) CPIC printouts of criminal records and other law enforcement information about the informant, Gavra and Karl Largie and the person known as Gangsta Lee; (iii) an Occurrence Report relating to a robbery complaint made by the deceased on December 21, 2000; and (iv) a transcript of the B. (K.G.) statement of the informant on March 21, 2002. The affidavit and appendices were 240 pages long.

[62] The application and supportive affidavit were in the authorizing judge's hands for about one hour before she issued the authorization. No evidence was given about what was said or done on the return of the application when the affiant/ applicant appeared before the authorizing judge. [page580]

The ruling of the trial judge

[63] The appellants' claim at trial alleged a denial of natural justice or, at least, a reasonable apprehension of bias on the part of the authorizing judge. The trial judge, despite criticism of the organization, undue factual complexity and absence of cross-references in the affidavit, concluded:

Thus, while I am suspicious that the matter may not have been considered in a full, fair and impartial manner, the record before me does not lead to the conclusion advocated by the defence. Clearly, Marshall J. did give one hour's worth of consideration to the application. In all of these circumstances, the defence has not proven a denial of natural justice, a reasonable apprehension of bias or a breach of the principles of fundamental justice.

[64] The trial judge then proceeded to conduct a review of the authorization in accordance with the principles expressed in Garofoli and in Araujo. He concluded, on the basis of the information contained in the supportive affidavit and appendices, as amplified on the review, that there was reliable evidence, that might reasonably be believed, on the basis of which the authorizing judge could have been satisfied of the requirements of s. 184.2(3) and of the investigative necessity requirement in s. 186(1)(b). He dismissed the application.

The governing principles

[65] The appellants' complaint is not with the standard of review applied by the trial judge in determining whether the authorization was improvidently given. The repetition of those principles here would be superfluous. The bite of the appellants' criticism resides in the application of those principles to the circumstances of this case. That grievance may be swiftly dispatched.

The principles applied

[66] The trial judge declined to make the factual findings that were essential to the success of this claim of error. It was open for him to conclude as he did. After all, it was for the appellants to provide the evidentiary wherewithal for the factual findings they sought. Their case, reduced to its bare bones, was that the authorizing judge spent too little time reviewing the material to satisfy her constitutional obligations. The record is naked of any evidence to rebut the presumption that the authorizing judge discharged her statutory and constitutional obligations.

[67] A further observation is apt. The appellants have not challenged the trial judge's conclusion, in his unerring application of the test on authorization review, that the affidavit [page581] contained reliable evidence, that might reasonably be believed, on the basis of which the authorization could have issued. In the face of such a finding, which sustains the constitutionality of the enabling authority, the appellants' claims lack foundation.

[68] This ground of appeal fails.

The grounds of appeal of Gavra Largie

[69] Gavra Largie raises four discrete grounds of appeal against his conviction of second degree murder. One relates to the failure of the trial judge to redact from recordings made during the participant surveillance a passage inadmissible against Gavra and reflective of bad character. The remaining grounds have to do with alleged deficiencies in the judge's final instructions to the jury. Each deserves separate consideration.

The first ground: Failure to edit participant surveillance recordings

The background

[70] On August 9, 2002, the appellants and John Doe watched a videotape of a televised re-enactment of the shooting of the deceased. The appellants were unaware that the information on which the re-enactment was based had been provided to police by John Doe. The appellants were equally unaware that police had provided Doe with a copy of the video in the hope that a viewing of it with the appellants would produce admissions to confirm the details of the shooting provided by Doe.

[71] Gavra Largie became alarmed that the name "G", a name by which he was known, had been mentioned in the police video about the shooting. He began to formulate a plan to flee to Barrie and stay there for a while. During the discussion, John Doe showed Gavra Largie a handgun. Gavra repeatedly asked to see and hold the gun. He was convinced that someone had "ratted" him out for the shooting, was determined to find out the identity of that person and talked about "merking" the traitor. Gavra Largie proposed use of John Doe's gun to silence the tattle-tale, but Doe declined to provide it: the gun was "too hot" according to Doe.

[72] The portion of the discussion to which Gavra Largie now takes objection occurred after Gavra Largie got out of the car in which the men had been talking. Karl Largie and John Doe remained. The conversation continued: KL: You were dumb for showing my brother the burner yo. JD: I know but. [page582] KL: Your fucking dumb! JD: Now, now he knows . . . (talkover) KL: Now all he wants to do is go merk people. JD: Now he knows it's not a joke. KL: Now he just wants to go merk people!

The pretrial motion to edit

[73] After the trial judge had rejected the appellants' challenge to the constitutionality of the participant surveillance, counsel were given the opportunity to make submissions about editing the recording to redact from the recording and its transcript any passages that were more prejudicial than probative.

[74] The prosecutor and counsel for Karl Largie wanted the passage excerpted in para. 81 to be left for the jury to consider with appropriate limiting instructions. The prosecutor argued that the evidence was properly admissible against Karl Largie, the speaker, to rebut his claim of innocent presence at the scene of the shooting and lack of foresight of Gavra's use of the gun. Trial counsel for Karl Largie also resisted editing of this passage, because it supported his defence of unforeseen use of the weapon by his brother. Counsel for Gavra Largie objected. In his submission, the evidence, which was not admissible against Gavra, was gravely prejudicial and the prejudice could not be eliminated or minimized by apt mid-trial and final instructions.

[75] In his compendious ruling on the admissibility of evidence obtained by participant surveillance, the trial judge did not mention or make any finding in connection with this conversation, but invited counsel to request further explanation if any were required. Trial counsel for Gavra Largie did not renew his request nor reiterate any objection when the evidence was adduced before the jury.

The subsequent discussions

[76] Nothing more was said about the excerpted passage until the pre-charge conference. Counsel for Gavra Largie at trial, apparently under the impression that the trial judge had in fact ruled the passage admissible, sought a limiting instruction. Counsel wanted the jury instructed that the evidence was inadmissible against Gavra Largie, but, despite its inadmissibility, it could induce the forbidden chain of reasoning from propensity to guilt and, in any event, could support the retrospectant inference that Karl Largie sought to have drawn from it regarding his mental state eight months earlier. [page583]

[77] The trial judge invited counsel for Gavra Largie to suggest a "more benign phraseology" than the trial judge had proposed to include in his final instructions. Counsel (not Mr. Snell) declined to assist.

[78] Counsel for Karl Largie and the prosecutor offered different interpretations of the evidentiary value of Karl Largie's remarks in determining his state of mind at the time of the shooting eight months earlier. Neither invited the jury to engage in propensity reasoning or to use Karl's utterances in any way in determining the case against Gavra.

The jury instructions

[79] During the trial and in final instructions, the trial judge repeatedly instructed the jury about evidence of limited admissibility -- that evidence was admissible in connection with the case for and against one accused but not the other, or for one purpose but not another. Jurors were told of: (i) the impermissible use of evidence of bad character; (ii) the impermissible use of incriminating statements made by one accused in the absence of the other; and (iii) the need to consider the case in relation to each accused separately.

[80] In addition to repeated general instructions about evidence of limited admissibility, the trial judge made specific reference to the evidence of which Gavra Largie complains. Typical of his instructions on this issue is the following passage:

These remarks by Karl Largie, as I have just excerpted them, in the absence of Gavra Largie, are only admissible against Karl Largie to prove that Karl Largie knew in August 2002 of Gavra Largie's willingness to use a gun in August 2002, once Gavra Largie had possession of it. If you interpret these remarks of Karl Largie as advocated by the Crown Attorney, you may use that knowledge of Karl Largie in August 2002 in deciding whether the Crown has proven beyond a reasonable doubt that Karl Largie intentionally and knowingly and purposely assisted Gavra Largie in killing Mohamoud Ahmed on December 15, 2001 . . . If you do not interpret these remarks of Karl Largie as advocated by the Crown Attorney, or if you are not satisfied that Karl Largie knew Gavra Largie had a gun on December 15, 2001, disregard these remarks in the rest of your deliberations about the guilt or innocence of Karl Largie. Moreover, these remarks of Karl Largie are not admissible against Gavra Largie, ho wever you interpret them. You may not use them in determining the guilt or innocence of Gavra Largie. (Emphasis added) [page584]

[81] The trial judge provided counsel with copies of his proposed final instructions in advance of their delivery. After the charge had been completed, counsel for Gavra Largie acknowledged that the instructions had made it clear that Karl Largie's statements were only admissible against Karl Largie. In the end, counsel complained that the repetition of the admittedly proper limiting instructions undermined the fairness of Gavra Largie's trial and warranted a mistrial. The trial judge dismissed the mistrial application.

The governing principles

[82] This ground of appeal has to do with the reception into evidence of part of a discussion among the appellants and John Doe after they had viewed a police re-enactment video of the shooting of the deceased. The speakers in the passage to which objection is taken are Karl Largie and John Doe. Gavra Largie, whose conduct is the subject of comment, was absent. It is common ground that the trier of fact could not consider this evidence in determining whether the prosecution had proven Gavra Largie's guilt beyond a reasonable doubt.

[83] The receivability of this evidence requires recourse to basic principles of relevance, materiality and admissibility. Relevance and materiality relate to the potential or tendency of this evidence to prove what it is offered to prove, and the relationship between what it is offered to prove and the issues in the case. Admissibility has to do with the ability of the evidence to comply with the rules that regulate the reception of evidence that is relevant and material. The rules of admissibility are rooted in the soil of policy. No single organizing or justificatory principle underlies every rule.

[84] It is a commonplace of criminal trials that an item of evidence may be admissible for one purpose, but not for another. This principle of limited admissibility applies equally to the trial of individual and several accused.

[85] In a joint trial, a statement made by one of several accused, not in furtherance of any common design and not adopted by any other accused, is admissible only in relation to its maker, even if it mentions something said or done by another accused: R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (C.A.), at para. 117. In some instances, what is said by the maker about a co-accused may be so prejudicial to that co-accused so as to require a separate trial for the accused against whom the statement is not admissible: R. v. Guimond, 1979 204 (SCC), [1979] 1 S.C.R. 960, [1979] S.C.J. No. 16, at p. 981 S.C.R.; [page585] R. v. C. (B.) (1993), 1993 8564 (ON CA), 12 O.R. (3d) 608, [1993] O.J. No. 654 (C.A.), at p. 614 O.R., leave to appeal to S.C.C. refused (1993), 15 O.R. (3d) xvi, [1993] 3 S.C.R. viii, [1993] S.C.C.A. No. 228.

[86] An admissibility rule frequently in play in cases involving evidence of limited admissibility applies a cost benefit analysis to evidence that is otherwise relevant, material and compliant with the rules of admissibility. Under this rule, a trial judge has a discretion to exclude evidence on the basis that its prejudicial effect exceeds its probative value: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at p. 21 S.C.R. A trial judge may also exclude otherwise relevant, material and admissible evidence in order to prevent an unfair trial: R. v. Buric (1997), 1997 380 (SCC), 32 O.R. (3d) 320, [1997] 1 S.C.R. 535, [1997] S.C.J. No. 38, affg (1996), 1996 1525 (ON CA), 28 O.R. (3d) 737, [1996] O.J. No. 1657 (C.A.).

[87] The discretion to exclude relevant, material and otherwise admissible evidence may take on a somewhat different dimension in a joint trial. Evidence received as an admission by one accused, and admissible in relation to him or her, may contain prejudicial information about another accused in connection with whom the evidence is inadmissible. The probative value of the evidence relates to the party making the admission. But the prejudicial effect of the evidence has to do with an accused against whom the evidence is not admissible.

[88] Each accused who participates in a joint trial is entitled to the constitutional protections inherent in the right to a fair trial. Among those protections is the right to be shielded from evidence that unfairly prejudices that accused: Suzack, at para. 111. But joint trials are different than trials involving a single accused. And the right of every accused to a fair trial does not mean that those tried jointly are entitled to an exact copy of the trial they would receive if they were to be tried alone: Suzack, at para. 111.

[89] To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance: Suzack, at para. 114. Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions: Suzack, at para. 128; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, at pp. 692-93 S.C.R.

[90] A determination of where the balance falls as between probative value and prejudicial effect involves the exercise of judicial discretion. These assessments are notoriously fact- specific and entitled to substantial deference, absent any errors [page586] in principle: R. v. Higginbottom, 2001 3989 (ON CA), [2001] O.J. No. 2742, 156 C.C.C. (3d) 178 (C.A.), at para. 9.

The principles applied

[91] To determine whether this complaint should prevail, it is helpful to return to the context in which the words were spoken and the reliance the parties placed upon the evidence.

[92] The case for the prosecution was that Gavra Largie was the shooter, a fact established chiefly by Gavra Largie's admissions recorded during participant surveillance and overheard after arrest in jail cell conversations. The prosecutor's position was that the admissions were truthful and demonstrated Gavra Largie's participation in the killing.

[93] Gavra Largie had his own explanation for these admissions. What he said was not true; instead, his statements were a pack of lies uttered to puff up his reputation and persuade Gangsta Lee to let him back into the lucrative drug trade. According to Gavra Largie, he was present at the shooting. He saw it happen. But Gangsta Lee was the shooter. The shooting took Gavra Largie by surprise.

[94] Karl Largie, who the prosecutor alleged was an aider or abettor, also admitted being present at the time of the shooting. However, he too was taken by surprise and did not aid or abet anyone shooting the deceased.

[95] Trial counsel for Karl Largie sought the admission of this evidence at trial. He explained that Karl Largie's state of mind at the time of the shooting was critical to a determination of his potential liability as an aider or abettor. This evidence tended to show that Gavra Largie was a loose cannon, who tended to act precipitously and unpredictably. Thus, what happened could not have been within the reasonable contemplation of his brother, Karl.

[96] The prosecutor also relied on this evidence as relevant to a material issue at trial: Karl Largie's state of mind contemporaneous with the shooting. The evidence provided a context for the assessment of Karl's own inculpatory statements on August 9, 2002 and could support an inference of knowledge about Gavra's use of weapons, thus diminishing his (Karl's) claim of surprise.

[97] The admission of Karl Largie was admissible in relation to its maker. It was relevant to a material issue at trial, Karl Largie's state of mind at the time of the shooting. It was not admissible in connection with Gavra Largie.

[98] The trial judge could only have excluded this evidence if he were satisfied that its prejudicial effect in connection with [page587] Gavra Largie outweighed its probative value in relation to Karl Largie. In assessing potential prejudice against Gavra Largie, it is critical to bear in mind that the jury received mid-trial and repeated final instructions about the permitted and prohibited uses of evidence of extrinsic misconduct or general bad character, and evidence of statements made by or attributed to individual accused. The jurors were told of their obligation to consider the case for and against each accused separately, and apparently did so according to their verdicts.

[99] The failure to edit Karl Largie's comments from the participant surveillance recordings reflects no error.

[100] This ground of appeal fails.

The second ground: Instructions on prior discreditable conduct

The background

[101] The trial record is littered with evidence of discreditable conduct and an anti-social lifestyle on the part of both appellants, especially Gavra Largie. That said, much of the evidence was introduced by counsel for the appellants at trial. Karl Largie sought to make use of his brother's unpredictable and aggressive tendencies to buttress his (Karl Largie's) denial of complicity. In some measure, at least, he succeeded.

The alleged error

[102] The error alleged here has to do with the manner in which the trial judge described the evidence of disreputable conduct that was subject to his instructions about permitted and prohibited use. Counsel for Gavra Largie sought an instruction that did not particularize the items of evidence that were subject to the limitations on use. A more general instruction that defined the permitted and prohibited uses, shorn of specifics, was what he sought.

[103] The trial judge listed several themes that were the subject of evidence of disreputable conduct:

-- the prior investigations of Gavra Largie by Detective Cashman when he was at No. 55 Division, or other officers, and the alleged circumstances;

-- the sale and/or use of narcotics by Gavra Largie such as crack cocaine, ecstasy or marijuana;

-- the sale by Gavra Largie of substances falsely represented to be cocaine, such as "vic", as described by Gavra Largie; [page588]

-- the robbery of drug dealers so as to be able to sell drugs, or to settle outstanding accounts;

-- the commission of robberies to fund a criminal lifestyle;

-- the threats to harm, or kill, informants or witnesses on other matters than this homicide;

-- the possession of guns, the commission of assaults or the uttering of threats of bodily harm in order to advance a criminal lifestyle;

-- the attendance at known drug houses, such as Ruthy's;

-- the breach of bail conditions by Gavra Largie;

-- the decision to live a life of crime;

-- the lies routinely relied upon by persons in the criminal subculture to maintain, or advance, their status in that part of the community; and

-- the rumours on the street that Gavra Largie was implicated in another homicide and/or the related opinion of his aunt.

[104] Counsel for the appellant Karl Largie at trial supported the trial judge's determination to describe by theme the evidence of discreditable conduct that was subject to the instruction about limited admissibility.

The jury instructions

[105] Consistent with his several mid-trial instructions on evidence of limited admissibility, the trial judge explained to the jury the use it could make of the evidence of disreputable conduct (narrative in context) and the use it was not permitted to make of the same evidence. He repeatedly warned the jury, in language about which no exception has been or could be taken, that they were not to use this evidence: (i) as proof that Gavra Largie was a person of bad character, thus of a disposition to commit the offence charged; or (ii) as a person deserving of punishment for his prior misconduct by being convicted of the offence charged.

The governing principles

[106] Where evidence of extrinsic misconduct by an accused is admitted in a criminal case, the trial judge is required, in most [page589] cases at least, [See Note 4 below] to provide limiting instructions to the jury. These instructions are to ensure that the jury understand what use they may make of the evidence in deciding the case, as well, if not more importantly, what use the law forbids them to make of it in coming to their conclusion.

[107] In the usual course, instructions about jury use of evidence about limited admissibility, whether given mid-trial or as final instructions, should do three things:

-- identify the evidence to which they relate;

-- explain the permitted use of the evidence; [and]

-- explain the prohibited use of the evidence. R. v. Crawford (1995), 1995 138 (SCC), 22 O.R. (3d) 288, [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, at pp. 883-85 S.C.R.; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, at para. 184; Corbett, at p. 695 S.C.R.

[108] In the composition of these limiting instructions, substance governs, not form. No case holds that a specific word formula or pattern must be followed to identify the items of evidence to which the instructions about limited admissibility apply. The principles applied

[109] I would not accede to this claim of error for several reasons.

[110] First of all, as a matter of general principle, the manner in which a limiting instruction is composed rests largely within the discretion of the trial judge. Substance counts, not form. The tail does not wag the dog.

[111] Second, what is of crucial importance in a limiting instruction is its substance, the very core of the direction that explains to jurors the use they can make of the evidence, and the use that the law forbids them from making of the evidence in reaching their verdict. Gavra Largie raises no complaint about the substance of the instruction on evidence of disreputable conduct. The jury was properly instructed about the permitted, as well as the prohibited use of this evidence.

[112] Third, trial counsel for Gavra Largie was offered the opportunity to assist in the composition of a more suitable description of the evidence to which the limiting instruction was [page590] to apply. Despite his disapproval of the trial judge's proposed approach and language, trial counsel declined to offer any alternative formula.

[113] We expect counsel conducting a case, whether prosecuting or defending, to assist the trial judge by offering constructive submissions about the content of jury instructions, especially but not only final instructions. Failure to assist, by failure to respond to an express invitation, may be indicative of the seriousness of what is later said to be error and a factor in appellate review: R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, [2009] S.C.J. No. 13, at para. 3; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, at para. 58; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at para. 38; R. v. Cudjoe, 2009 ONCA 543, [2009] O.J. No. 2761, 68 C.R. (6th) 86 (C.A.), at para. 155.

[114] And finally, this was a joint trial. In formulating what he would say and how he would say it regarding the evidence of disreputable conduct, the trial judge was not confined to a consideration of the interest of Gavra Largie. Karl Largie and the prosecutor relied on this evidence. Both were content with the approach suggested by the trial judge in pre-charge discussions and followed in his final instructions. The jury were entitled to know the evidence to which the limiting instructions applied. The manner and description chosen fulfilled that obligation in a fair and balanced way.

[115] I would not give effect to this ground of appeal.

The third ground: The unbalanced charge

[116] Gavra Largie also contends that the trial judge's charge was unfair and unbalanced. Reduced to its essentials, the complaint is that the trial judge devoted excessive time to his description of the position of the prosecutor and insufficient time to the position of Gavra Largie. Three times as many pages were lavished on the position of the prosecutor. Further, Gavra Largie says, the trial judge failed to remind the jurors of certain features of the defence case to which counsel had referred in his closing address.

The instructions

[117] In his final instructions, the trial judge explained to the jury what the prosecutor had to prove beyond a reasonable doubt to establish Gavra Largie's guilt, first as the shooter, then as an aider or abettor of Gangsta Lee as the shooter. The trial judge had earlier defined murder and told the jurors about the essential elements of accessoryship by aiding or abetting. The trial judge followed the same pattern for Karl Largie and [page591] related the principle of reasonable doubt to evidence adduced by the defence.

[118] The trial judge returned to the first issue the jurors were required to decide in relation to Gavra Largie. He framed this issue as a question:

Was Gavra Largie the shooter?

[119] He then reviewed the position of the prosecutor on this issue, including a summary of portions of the participant surveillance recording of August 9, 2002, and various items of evidence of post-offence conduct. This review covered 22 pages.

[120] The trial judge turned to the position of Gavra Largie. It was Gavra Largie's position that he was an unwitting witness to an unexpected shooting by Gangsta Lee. His later statements admitting involvement were a pack of lies, offered to impress Gangsta Lee, who he hoped would consider him (Gavra Largie) a worthy ally in the drug trafficking business. The trial judge reviewed those portions of the evidence on which Gavra Largie relied and moved on to the remaining issues before turning to Gavra Largie's liability as an aider or abettor. The review covered 11 pages.

The objections

[121] Trial counsel for Gavra Largie objected to this imbalance in the trial judge's instructions. In particular, counsel pointed out that the trial judge had failed to refer to the defence position on each item of evidence relied upon by the prosecutor and had spent more time and pages (22 versus 11) on the prosecutor's position than on the defence.

[122] During the course of his objections, counsel for the appellant at trial observed:

I think what I am ultimately saying is this, and I don't disagree, I think your Honour really captured the essence of the defence. I think you explained it in simple terms.

The governing principles

[123] The determination of this ground of appeal rests on an application of basic principle to the circumstances of this case.

[124] Except in rare cases where it would be needless to do so, a trial judge is obliged to advise the jury of the defence position, to review the substantial features of the evidence and to relate that evidence to the critical issues in the case so that the jurors will appreciate the value and effect of that evidence: R. v. Azoulay, 1952 4 (SCC), [1952] 2 S.C.R. 495, [1952] S.C.J. No. 39, at pp. 497-98 S.C.R.; [page592] R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, [1999] O.J. No. 346 (C.A.), at p. 385 O.R.; Daley, at para. 54; Cudjoe, at para. 150.

[125] A trial judge is under no obligation to review in final instructions all the evidence upon which an accused relies in support of his or her position: Azoulay, at p. 498 S.C.R.; Daley, at para. 55; Cudjoe, at para. 151. The role of the trial judge is to decant and to simplify: Jacquard, at para. 13. The extent to which a trial judge must review the evidence is a variable, not a constant. It depends on the circumstances of each case. It can nearly always be said that a trial judge could have reviewed the evidence in greater detail. But that is not the test. The standard is adequacy, not perfection.

[126] Appellate courts take a functional approach to claims of inadequacy in jury instructions. We test the instructions against their ability to fulfill their intended purposes, not by reference to their page count or their adherence to or departure from some predetermined formula or pattern: Jacquard, at para. 14; MacKinnon, at pp. 385-86 O.R.; R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, at pp. 163-64 S.C.R.; R. v. John, 1970 199 (SCC), [1971] S.C.R. 781, [1970] S.C.J. No. 100, at pp. 792-93 S.C.R.

[127] A jury charge must also be even-handed, the instructions fair and balanced. No sides should be taken and no editorial comment should intrude: R. v. Baltovich (2004), 2004 45031 (ON CA), 73 O.R. (3d) 481, [2004] O.J. No. 4880 (C.A.), at paras. 117-18.

The principles applied

[128] The predominant issue for the jurors to decide in connection with Gavra Largie was whether the prosecutor had proven beyond a reasonable doubt that Gavra Largie was the shooter. Nobody identified Gavra Largie as the shooter. In fact, Gavra Largie relied upon this lack of identification and the inconsistency of his appearance with the various descriptions provided by the eyewitnesses as consistent with his claim of mere presence. The trial judge adequately apprised the jury of this position.

[129] The argument that the charge was unfair and unbalanced lacks traction. I say so for several reasons.

[130] The adequacy of jury instructions to explain the position of the defence, review the supportive evidence and relate that evidence to the position, so that the jury understands its value and effect, is not measured by a simple comparison of the minutes, number of pages or lines of transcript devoted to the defence as compared to the prosecution. Jury charges are not political broadcasts that require equal time for all participants. [page593] It seems almost inevitable, an incident of or inherent in the assignment of the burden of proof, that the position of the prosecutor may well occupy more space than that of the defence, especially in cases where an accused denies participation.

[131] In this case, the prosecutorial page count is swollen by evidentiary references, a summary of the same evidence upon which Gavra Largie relied to support a contrary finding of fact. The trial judge was not obliged to repeat the same evidence, only to ensure the jury's understanding of how it could produce a contrary factual conclusion.

[132] Third, trial counsel for Gavra Largie acknowledged that the trial judge "really captured the essence of the defence" and had "explained it in simple terms".

[133] Finally, the trial judge was under no obligation to refer to every evidentiary tidbit or to repeat every argument advanced by counsel at trial. Anything omitted did not deprive Gavra Largie of a fair adjudication of his defence. These instructions were fair and balanced, and even-handed in their treatment of a defence that might fairly be categorized as implausible.

[134] This ground of appeal fails.

The fourth ground: The alternative basis of liability

The background

[135] Gavra Largie advances a further argument that was not made at trial. The submission is that the trial judge was wrong in leaving Gavra Largie's liability to the jury on the basis that he aided or abetted Gangsta Lee, who shot the deceased to death.

[136] The principal evidentiary foundation for this alternative basis of liability was Gavra Largie's own testimony that it was Gangsta Lee and not he who shot the deceased. The similarities between Gangsta Lee and the descriptions provided by some eyewitnesses of the shooter could also support such a conclusion, and some of the intercepted private communications could be viewed as revealing a joint venture to kill or harm a "Regent Park boy" to avenge the prior disrespect of Gangsta Lee.

The positions at trial

[137] The prosecutor's position at trial was that Gavra Largie was the shooter and that his crime was second degree murder. Manslaughter was not an available verdict.

[138] Trial counsel for Gavra Largie took the position that Gavra Largie was not the shooter. Gangsta Lee was the killer. Gavra Largie was present, an innocent bystander whose main [page594] interest was getting a ride home. Gavra Largie's counsel conceded, however, that he could not "fend off" an alternative basis of liability, namely, that Gavra Largie was an aider or abettor"with any degree of cogency".

The jury instructions

[139] The trial judge left Gavra Largie's liability as an aider or abettor of Gangsta Lee as a secondary basis upon which jurors could find Gavra Largie guilty of murder or manslaughter. The primary basis upon which Gavra Largie's liability was left to the jury was that he was the shooter. The trial judge opened his discussion of Gavra Largie's liability as an aider or abettor in these terms:

The fourth issue to be determined in the case against Gavra Largie relates to the possibility that some, or all, of you may not be satisfied beyond a reasonable doubt that Gavra Largie was the shooter. For ease of reference, it is helpful to repeat the issue now. The fourth issue is:

Assuming you are not satisfied beyond a reasonable doubt that Gavra Largie was the shooter, has the Crown proven beyond a reasonable doubt that Gavra Largie intentionally assisted, or encouraged, Gangsta Lee, for the purpose of intentionally killing Mohamoud Ahmed?

[140] The trial judge explained the position of the prosecutor and Gavra Largie in connection with this basis of criminal liability both for murder and manslaughter. Neither objected to the substance of any instructions on aiding or abetting.

The governing principles

[141] As a matter of general principle, the submission of an alternative basis of liability is controlled by the air of reality standard. Whether in the trial of a single accused or in a joint trial, the submission of aiding or abetting to the jury as a basis of liability is conditioned upon the trial record containing some evidence upon the basis of which a properly instructed jury, acting reasonably, could convict an accused as an aider or abettor, if they believed the evidence to be true: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, at para. 51. An essential component of this evidentiary foundation is evidence that more than one person was involved in the commission of the offence: R. v. Isaac, 1984 130 (SCC), [1984] 1 S.C.R. 74, [1984] S.C.J. No. 5, at pp. 80-81 S.C.R.; R. v. Sparrow, 1979 2988 (ON CA), [1979] O.J. No. 1233, 51 C.C.C. (2d) 443 (C.A.), at p. 458 C.C.C.

The principles applied

[142] The evidence given at trial disclosed the involvement of several people in the attack on the deceased and his companions. [page595] A driver. A "time asker". A "pipe wielder". A shooter. And another whose presence ensured that the quarry would not easily escape. The group was assembled to exact revenge on a "Regent Park boy", any "Regent Park boy", it would appear, for disrespect shown earlier to Gangsta Lee.

[143] The admissions of Gavra Largie implicated him as the shooter. The testimony of Gavra Largie, on the other hand, assigned responsibility for the shooting to Gangsta Lee. The evidence of a joint venture, fuelled by a desire for revenge, was substantial. Trial counsel for Gavra Largie acknowledged that there was an evidentiary basis upon which Gavra Largie could be found guilty as an aider or abettor of the shooter, Gangsta Lee. He was right in this acknowledgement.

[144] I would reject this ground of appeal.

The grounds of appeal of Karl Largie

[145] Karl Largie raises a ground of appeal that has to do with the manner in which the trial judge instructed the jury on his liability as an aider or abettor of the shooter in the unlawful killing of the deceased. He submits that the trial judge was wrong to leave the alternative, conjured during the penultimate stages of the trial by the trial judge and eagerly embraced by the prosecutor, that had not been in play as the evidence was elicited. The introduction of this alternative, Mr. Lacy urges, was at once unfair and gravely prejudicial to Karl Largie.

The background

[146] The case for the prosecution was that the killing of the deceased was the result of a joint venture of the several occupants of Gangsta Lee's car to seek revenge for the disrespect shown to Gangsta Lee by a "Regent Park boy" earlier. Each of the occupants of the vehicle had a role.

[147] The prosecutor contended that Karl Largie was a rear- seat passenger in Gangsta Lee's car. He was one of the men who got out of the vehicle shortly before the shooting. It was no part of the prosecutor's case that Karl Largie was the shooter, the "pipe wielder" or the driver of the car.

[148] Karl Largie never denied that he was present when the deceased was shot to death. No evidence implicated him as the shooter. Thus, his liability fell to be assessed by the application of ss. 21(1)(b) and 21(1)(c) of the Criminal Code to the facts as the jury found them to be. Aiding or abetting contains both conduct and fault requirements. It was the prosecutor's obligation to prove that Karl Largie said or did something that helped or encouraged the shooter to commit the offence and that he [page596] provided the help or offered the encouragement with the intention of helping or encouraging the shooter to commit the offence: R. v. Almarales, 2008 ONCA 692, [2008] O.J. No. 3937, 237 C.C.C. (3d) 148 (C.A.).

The positions at trial

[149] An assessment of the merits of this ground of appeal will be informed by a brief recapture of the positions advanced by the various parties at different times during the trial proceedings.

[150] In her opening to the jury, the prosecutor assigned Karl Largie a place in the rear seat of Gangsta Lee's motor vehicle, later a spot on the sidewalk after all the passengers got out of the car. She did not then identify the precise role that Karl Largie played.

[151] Karl Largie sought a directed verdict of acquittal at the end of the prosecutor's case. His counsel described Karl Largie's role as that of the fourth man, a person who was nearby the shooting, but who did not participate in it or in its immediate precursor, the striking of the deceased with a pipe. When asked by the trial judge about a passage in the intercepted conversations when Karl Largie said "it was dirt that made me holler at him", counsel responded that it was impossible to tell what the passage meant.

[152] In her submissions in opposition to the motion for a directed verdict, the prosecutor responded that Karl Largie could have been any one of the rear-seat passengers, including the "time asker" -- an inference that could be drawn from the comment "it was dirt that made me holler at him".

[153] In his closing address, counsel for Karl Largie told the jury that he anticipated that the prosecutor would submit that Karl Largie was the "time asker". He decried the strength of the inference the prosecutor sought to draw from the intercepted comment and characterized reliance on that basis of liability as indicative of a weak prosecution case and a desperate prosecutor. He designated the prosecutor's position as a late day "plan B" devoid of any legitimacy.

[154] The prosecutorial response was that the evidence could support Karl Largie's liability as either the "fourth man" or as the "time asker". But the prosecutor pointed out that she was not pressing the "time asker" position, because in effect, she was confident that Karl Largie's guilt was established irrespective of the particular rule assigned to him.

The charge to the jury

[155] The trial judge submitted two questions to the jurors in connection with Karl Largie's liability. One question dealt with [page597] Karl Largie's liability for second degree murder, the other with his liability for manslaughter. Neither identified a specific role in the relevant events for Karl Largie. In his discussion of the position of the prosecutor, the trial judge referred to Karl Largie as performing either of two roles: the "time asker" or the "fourth man" who intimidated by presence, but did nothing further. Later, the trial judge described the prosecutor's principal submission as the person who intimidated by presence, but otherwise did nothing. The evidentiary references the trial judge included in his discussion of the positions of the parties were all directed at Karl Largie's position as the "fourth man".

The governing principles

[156] The principles that govern the authority of a trial judge to leave an alternative basis of liability to the jury have been discussed already.

[157] In assessing this ground of appeal, it is helpful to bear in mind the effect we assign to the opening address of the prosecutor and the relationship between the position advanced by the prosecutor and the basis upon which jurors determine whether the guilt of an accused has been proven beyond a reasonable doubt.

[158] The opening address of the prosecutor does not amount to provision of particulars that the prosecutor is bound to prove or fail in his or her case: R. v. Govedarov (1974), 1974 33 (ON CA), 3 O.R. (2d) 23, [1974] O.J. No. 1837 (C.A.), at pp. 55-56 O.R.; R. v. Bengert, 1980 321 (BC CA), [1980] B.C.J. No. 721, 53 C.C.C. (2d) 481 (C.A.), at p. 542 C.C.C. A prosecutor's theory of the case is not the same as a particularized indictment. It is the indictment and only the indictment that defines the factual transaction that the prosecution must prove in order to obtain a conviction: R. v. McCune, 1998 15035 (BC CA), [1998] B.C.J. No. 2925, 131 C.C.C. (3d) 152 (C.A.), at para. 37. The prosecutor is bound to prove formal particulars, subject to the surplusage rule, but not particulars of the theory or position advanced to establish liability: R. v. Groot (1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, [1998] O.J. No. 3674 (C.A.), at p. 286 O.R.

[159] A related point concerns what it is that the prosecutor is required to prove in order to establish guilt. The prosecutor must prove beyond a reasonable doubt the essential elements of the offence. Nothing more is required. Nothing less is sufficient. The trier of fact makes this determination based on its factual findings from the evidence adduced at trial. Findings of guilt are rooted in evidence, not in theory.

[160] In reaching their verdict, jurors need not be unanimous about their acceptance of individual items of evidence, the [page598] weight they assign to them or the specific nature of an accused's participation in an offence: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J. No. 22, at p. 694 S.C.R.

[161] A final point. Trial fairness considerations may intervene and foreclose consideration of alternative base of liability inconsistent with the way the parties have conducted their respective cases: R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1, [2003] O.J. No. 3479 (C.A.), at para. 162.

The principles applied

[162] Despite Mr. Lacy's carefully developed submissions, I would not give effect to this ground of appeal.

[163] From the outset of trial proceedings, it was clear that the prosecutor's case against Karl Largie rested on aiding or abetting. Karl Largie was a rear-seat passenger who, together with other rear-seat passengers and the shooter, got out of the vehicle and surrounded the victim. The front-seat passenger was the shooter. Everyone arrived together. Everyone knew of their mission: to avenge the disrespect shown to Gangsta Lee. The back-seat passengers included the "time asker", the "pipe wielder" and the "fourth man". The "time asker" spoke. The others said nothing. The liability of Karl Largie depended on the inferences the trier of fact would draw from what he did or didn't do, said or didn't say.

[164] The prosecutor's reliance on aiding or abetting to establish Karl Largie's liability was a constant throughout the trial. In the absence of firm and consistent evidence of identification, it is understandable that the prosecutor would not rest her case exclusively on one role. She was entitled to do so because the evidence left open both.

[165] Inherent in Karl Largie's complaint, at least as it seems to me, is a flawed perception of the role of the prosecutor's "theory" in proof of guilt. A "theory" is not a particular the prosecutor is bound to establish, or fail in its proof. The prosecutor was required to prove the essential elements of the offence, a determination that was for the jury to make, based upon their application of governing legal principles to the facts as they found them. The evidence must prove guilt, not vindicate a theory.

[166] The reference to the "time asker" as a role played by Karl Largie is portrayed as if it reflected a paradigm shift or abrupt late course correction originated by the trial judge and eagerly grasped by a desperate prosecutor. The trial record does not bear out this characterization. This is not a case, like Ranger, of material prejudice. The supportive evidence was [page599] there. Counsel knew of this alternative and ridiculed it in his final address as a desperate, last-ditch, salvage attempt. There were no surprises.

[167] This ground of appeal fails. Conclusion

[168] For these reasons, I would dismiss both appeals.

Appeals dismissed.

Notes

Note 1: Gangsta Lee is the street name of Garfield Francis.

Note 2: The reference to "a judge as defined in s. 552" is superfluous.

Note 3: There is no corresponding provision in s. 184.2(2) that requires inclusion of information on this issue in the supportive affidavit.

Note 4: Motive may be an exception, at least where the motive arises from extrinsic misconduct.