R. v. Atkins

Citation: 2017 ONCA 650 | 137 O.R. (3d) 1

Court: Court of Appeal for Ontario

Judges: LaForme, Watt and Trotter JJ.A.

Date: August 11, 2017

Case Summary

Three appellants were convicted of first degree murder, attempted murder, and committing those offences for the benefit of a criminal organization arising from a drive-by shooting in Toronto. The Crown's case relied heavily on testimony from two gang members who testified the appellants confessed to the shooting. The appellants challenged numerous aspects of the trial including jury selection procedures, joinder of counts, admission of bad character evidence, ballistics evidence, jury instructions on Vetrovec witnesses, and alleged Charter violations. The Court of Appeal dismissed the appeals of Atkins and Riley but allowed Wisdom's appeal, finding the trial judge erred in admitting evidence of an attempted theft four months after the shooting, which had minimal probative value but significant prejudicial effect.

Overview

The Incident

Around 5:00 p.m. on March 3, 2004, Brenton Charlton, 31, and Leonard Bell, 43, were sitting in a blue Chrysler Neon, stopped on a red light at a busy intersection in Toronto. A dark SUV pulled up alongside them. Its occupants opened fire on Charlton and Bell, hitting both men multiple times. Charlton died at the scene; Bell survived.

As a result, the appellants, Tyshan Riley, Philip Atkins and Jason Wisdom, stood trial for first degree murder, attempted murder and committing those two offences for the benefit of a criminal organization. A jury convicted all three men on all counts.

Crown's Theory

The Crown's theory at trial was that the Charlton and Bell shooting was a case of mistaken identity in a conflict between rival gangs in Scarborough. The appellants were members of the Galloway Boyz ("G-Way"). G-Way had a "beef" with the Malvern Crew. G-Way members wished to avenge the killing of their former leader, Norris Allen, for which they believed the Malvern Crew was responsible. A sub-group of G-Way, called the "throw-backs", was established to conduct armed "rides" into Malvern territory to hunt for targets. The Crown's theory was that the appellants set out on one such "ride" on March 3, 2004. Charlton and Bell in fact had nothing to do with Malvern or G-Way, but their blue Neon looked similar to a vehicle used by Alton Reid, known as "Ras-P", a known Malvern Crew member. Hence the shooting.

Trial Evidence

The trial was lengthy, complex and hard fought. The core of the Crown's case was evidence from two G-Way members, Roland Ellis and Marlon Wilson, that each of the appellants confessed their involvement in the shooting in the hours immediately following it. A considerable amount of circumstantial evidence also supported the Crown's theory, particularly against Atkins and Riley, including ballistics and DNA evidence. For its part, the defence took aim at serious concerns with Ellis' and Wilson's credibility and at the frailties in the circumstantial evidence said to corroborate their testimony. In addition, Wisdom testified in his defence and called alibi evidence.

Issues on Appeal

The appellants raised numerous issues they said undermined the fairness of the trial and the soundness of their convictions. They contended the court that tried them was improperly constituted because of errors in the jury selection process. They took issue with decisions the trial judge made regarding the severance of counts; the admissibility of bad character evidence; the admissibility and treatment of ballistics evidence; the instructions to the jury relating to Vetrovec witnesses; the instructions on post-offence conduct; and the jury charge as a whole. Riley and Atkins also raised a ground of appeal alleging a breach of their s. 8 Canadian Charter of Rights and Freedoms rights against unreasonable search and seizure.

Decision

Riley and Atkins' appeals are dismissed. Wisdom's appeal is allowed, his conviction is quashed, and a new trial is ordered.

Detailed Analysis

1. Jury Selection Issues

Background

On at least six separate occasions before the formal jury selection process began, counsel and the trial judge discussed various facets of the jury selection process.

Challenge for Cause

About five weeks before jury selection began, trial counsel for the appellants applied to challenge prospective jurors for cause. Counsel contended that a realistic potential for juror partiality existed on three bases:

• race
• pre-trial publicity
• gang membership

The trial Crown conceded that the appellants were entitled to challenge prospective jurors on the grounds of racial bias and pre-trial publicity, but resisted a challenge for cause based on gang membership.

The trial judge permitted the challenge for cause to proceed on each ground advanced by the appellants. Counsel on all sides and the trial judge bent to the task of formulating appropriate questions to be asked of each prospective juror by defence counsel.

Division of the Panel

About two weeks later, the parties discussed the logistics of organizing the jury panel. The trial judge explained how the jury panel would be divided into groups of 25 prospective jurors. Each group would be assigned a date and time to return to the courtroom for selection. Each prospective juror would be brought into the courtroom alone and asked the questions about which the parties agreed on the challenge for cause.

Selection of Triers: The "New" Procedure

The same day as the discussion about division of the jury panel, the trial judge alerted counsel to the (then) recent amendments to s. 640 of the Criminal Code. The judge expressed concern about the prospect of a "rogue trier" under the new static triers procedure and proposed choosing the triers from the first group of prospective jurors, which he would increase to 27 from 25. He invited counsel to comment on what he had said about jury selection. No one said anything.

None of the parties' counsel mentioned the long-standing rotating triers procedure or objected to the use of static triers.

Application Under s. 640(2.1)

About a week later, after brief mention of the challenge for cause questions and provision of the jury panel lists to counsel, the trial judge returned to the challenge for cause procedure. After pointing out the rotating triers procedure and reading part of s. 640(2.1), the trial judge invited someone to make an application under that section.

Trial counsel for Riley applied under s. 640(2.1), stating that the triers be excluded for that process. The trial judge was satisfied that it was necessary to preserve the impartiality of the jurors and made the order.

No one mentioned, much less suggested, the use of rotating triers, or the prospect of their use with the exclusion of prospective jurors from the courtroom during selection in accordance with the well-established procedure followed prior to the amendments to s. 640.

"Vetting" the Triers

A further week later, the trial judge returned to the prospect of a "rogue" trier and its impact on the selection process. He proposed a "vetting" procedure to minimize the risk. The trial judge would ask prospective triers a form of the race question without swearing them, just to explain to them that because they were going to be deciding the challenge, it was important to know that they did not harbour racial attitudes.

In the discussions that followed, defence counsel considered that it "made sense" to vet the prospective triers.

The trial judge explained what he considered an appropriate procedure for "vetting" the triers of the challenge for cause. Each potential trier would be brought into the courtroom alone. They would not be sworn or affirmed, but asked to answer the question honestly. Counsel would not be asked to use a peremptory challenge if not satisfied with the suitability of the jury panel member to serve as a trier.

The trial judge would ask each a modified version of the racial bias question that would be put to prospective jurors on the challenge for cause. Trial counsel for Riley asked the trial judge to put the other questions about gang membership and pre-trial publicity that were to be asked of each prospective juror to the prospective triers. The trial judge agreed to do so.

The trial Crown was uneasy with the proposed "vetting" procedure. He said that the Criminal Code did not permit it or authorize a judge to act as a trier, rather than a pair of actual or prospective jurors. The trial Crown cautioned the trial judge about the effect of errors in the jury selection process. The trial judge acknowledged that he was playing "with a tiny bit of fire" and took a few days to consider what he had proposed.

A few days later, the trial judge ruled that he was satisfied that he was entitled to ask some questions of the triers in order to determine whether or not they were people that he chose to appoint as triers. He had looked at the cases and was satisfied that he was entitled to do it, and he thought it was appropriate in this system where the triers were going to be with them through the entire challenge.

Selecting the Triers

The trial judge selected the triers of the challenge for cause from among the prospective jurors. Each was questioned separately. The wording of the questions varied. None were asked to take an oath or make a solemn affirmation, but the trial judge asked each to answer his questions honestly. Once, the trial judge invited submissions from counsel. On another occasion, counsel made submissions without an invitation from the trial judge. For the remaining candidates, counsel did not ask to make submissions or complain that they were not invited to do so by the trial judge.

The trial judge questioned seven prospective jurors to determine their suitability to act as triers of the challenge for cause. He excused five and accepted the remaining two who became the triers of the challenge for cause.

The parties did not complain about the selection process.

Court of Appeal Analysis

The Static Triers Issue

The appellants argued that the trial judge erred in holding that he no longer had a discretion to exclude prospective jurors but have the truth of the challenge for cause determined by rotating triers. They contended that the trial judge erred in holding that the prospective jurors could only be excluded where the truth of the challenge for cause was tried by static triers.

The Court of Appeal held that the trial judge was wrong to conclude that the enactment of subsections (2.1) and (2.2) meant that the only basis upon which he could accede to the appellants' request to exclude jurors from the courtroom as the challenge for cause process spooled out was by an application and order under s. 640(2.1).

However, the Court of Appeal declined to give effect to this claim of error for several reasons:

1. There was a clear and unqualified invocation by trial counsel for Riley of the provisions of s. 640(2.1) to achieve exclusion of jurors during the challenge for cause process. The application attracted no demur from trial counsel for Atkins or Wisdom.

2. Counsel were clearly aware the result of an order under s. 640(2.1) was that the same two triers would decide the truth of every challenge for cause. None expressed the slightest concern about this method of adjudication.

3. What trial counsel sought, first and foremost, was the exclusion of prospective (unsworn) jurors during the challenge for cause process. Their concern was that the presence of prospective (unsworn) jurors in the courtroom during the challenge for cause process risked compromise of their impartiality. Despite familiarity with the previous practice of discretionary exclusion and rotating triers, none of the experienced counsel mentioned, much less suggested or sought, trial of the challenge by rotating triers with the panel excluded. No one objected to static triers. The only reasonable inference in the circumstances was that what mattered most to counsel was that the prospective (unsworn) jurors be excluded, not the manner in which the triers of the challenge were selected.

4. Trial counsel could have been under no illusions about the manner in which the triers of the challenge for cause would be selected or how they would carry out their task. Section 640(2.1) and (2.2) say so in unequivocal terms. Section 640(2) puts paid to any role for rotating triers. The inference was irresistible that trial counsel were well aware of the manner in which triers of the challenge for cause would be selected and carry out their tasks.

The Court of Appeal did not give effect to this ground of appeal.

The "Vetting" Issue

The appellants advanced two main arguments. They said that the trial judge had no jurisdiction to create a vetting procedure for prospective triers of the challenge for cause. And, in the alternative, they contended that the trial judge was inconsistent in his application of the procedure.

The Court of Appeal held that neither the process of pre-screening, the questions asked of prospective triers, nor the procedure followed on the inquiry constituted legal error or caused a miscarriage of justice.

The Court of Appeal found that:

1. The trial judge has the authority to control the jury selection process, to make effective use of court resources, and to ensure fairness to all parties. As part of that task, the trial judge is required to appoint or select two persons to act as triers of the challenge for cause.

2. The trial judge had no means of knowing anything about the persons he had selected as triers, yet he was required to assign to them a very important task—to determine whether prospective jurors, if selected by the parties, would be impartial in reaching their verdict.

3. Any injunction against any and all pre-screening of prospective triers is at odds with common sense. It cannot be seriously contended that caveat emptor applies to the selection of triers. To foreclose entirely pre-screening scrutiny would require a trial judge and the parties to accept as triers those who may be unsuited to the task.

4. The inherent authority of the presiding judge to control the jury selection process extends to pre-screening or pre-vetting jury panel members for manifest bias or personal hardship. There is no reason in principle not to recognize an analogous or equivalent pre-screening authority for a judge tasked with the responsibility of selecting triers whose role it will be to determine whether prospective jurors, if selected by the parties, will approach their task impartially.

5. In appropriate cases, the presiding judge should invite submissions from counsel about the need for and subject matter of any inquiries that might be made of the prospective triers. Any questions asked of the prospective triers must be relevant to the suitability of the prospective trier to discharge his or her responsibility as a trier of the challenge in accordance with the presiding judge's instructions on that issue.

6. The failure to require that the prospective jurors be sworn or affirmed, nor the variations in the inquiries, mandated appellate intervention. Pre-screening of panel members does not involve administration of an oath or its equivalent. Neither is there an obligation on the trial judge to use the same language for each prospective juror who is subject to the pre-screening procedure. Substance prevails, not form.

This ground of appeal failed.

2. Joinder and Severance Issues

All three appellants faced three charges at trial. Count 1 was first degree murder (of Brenton Charlton). Count 2 was attempted murder (of Leonard Bell). Count 3 was committing counts 1 and 2 for the benefit of, in association with or at the direction of a criminal organization (G-Way).

The appellants submitted the trial judge erred by refusing to grant two applications to sever count 3 from counts 1 and 2, and to thus have count 3 tried separately. The first application came before trial, the second in the middle of the trial. The appellants argued the presence of count 3 allowed the Crown to adduce highly prejudicial gang-related evidence that otherwise would not have been admissible on counts 1 and 2.

The Court of Appeal disagreed. The trial judge made no error in exercising his discretion not to sever the counts.

Initial Severance Motion

Initially, the indictment charged six offences. Everyone agreed counts 1 and 2 had to be tried together, but trial counsel for the appellants brought a motion to sever counts 3-6 before trial. Count 3 was committing the murder and attempted murder offences for the benefit of a criminal organization. Count 4 alleged the appellants participated in the activities of a criminal organization from March 3, 2004 to October 1, 2004. Counts 5 and 6 were firearms possession charges applying solely to Riley and Atkins.

The trial judge granted severance of counts 4-6, but not count 3. He held that permitting joinder of count 4 with the murder counts risked "diverting the attention of the jury into an inquiry into wholly different crimes", straying too far from the rule against joinder of counts in murder cases. However, he refused to sever count 3, holding that there was a "very strong factual nexus" between counts 1 and 2, on the one hand, and count 3, on the other. While some gang-related evidence would likely be adduced to prove count 3, the scope of the inquiry would be narrower than under count 4, which covered a broader period of time and potentially totally unrelated offences. By contrast, the evidence relevant to count 3 would also be relevant to counts 1 and 2 with respect to narrative, motive and planning and deliberation.

The trial judge severed counts 5 and 6 pursuant to s. 591(3) of the Criminal Code due to the possibility of prejudice to the appellants should the counts be joined with counts 1 and 2.

The Court of Appeal saw no error in the trial judge's disposition of the initial severance motion. His reasons displayed a careful balancing of the potential prejudice to the accused of trying the counts together against countervailing considerations.

The bottom line was that the Crown's theory of the case was that the shooting was a case of mistaken identity in a war between rival gangs. The appellants were alleged to have, on the date in question, engaged in a "ride" into Malvern territory to seek out and shoot at targets to avenge the death of G-Way's slain leader, Norris Allen. Proving the existence and purposes of G-Way as a criminal organization, the appellants' membership in it, and the context of the ongoing dispute with the Malvern Crew over the death of Norris Allen, was integral to the Crown's case on counts 1 and 2. Consequently, the trial judge made no error in finding the balance of factors militated against severance of count 3.

Additionally, the Court of Appeal did not agree with the appellants' submission that the trial judge erred by commenting, in his initial severance ruling, on the admissibility of bad character evidence in respect of counts 1 and 2. The trial judge did not purport to finally determine the admissibility of that evidence in his severance ruling. Rather, he made a preliminary assessment of whether the bad character evidence would likely be admitted in respect of counts 1 and 2 irrespective of whether count 3 was severed. He was entitled to make such an assessment in order to determine whether there would likely be extensive overlapping evidence between counts 1 and 2, on the one hand, and count 3, on the other.

Mid-Trial Severance Motion

During the trial, defence counsel for Wisdom sought once again to sever count 3. Counsel was motivated to do so by the admission of bad character or discreditable conduct evidence about the accused, namely, evidence that Wisdom participated in a botched theft of a Money Mart some months after the shooting. Counsel argued that, just as had been predicted, the presence of count 3 had resulted in the jury hearing highly prejudicial gang-related evidence that would otherwise have been inadmissible on counts 1 and 2.

The trial judge dismissed the renewed severance motion. The core of his reasoning was that the gang-related evidence he admitted in connection with count 3 was also properly admissible in connection with counts 1 and 2.

To the extent the trial judge erred in his legal analysis on the renewed severance motion, his error related to his assessment of the probative value and prejudicial effect of the "Money Mart" evidence, not to the propriety of severance. Even taking that error into account, the rationale articulated for denying severance of count 3 before trial still applied. There was still ample justification to permit counts 1 and 2 to be tried with count 3.

The Court of Appeal rejected this ground of appeal.

3. Discreditable Conduct Issues

Overview

The appellants took issue with the trial judge's decision to admit certain "bad character" or "discreditable conduct" evidence.

Before trial, the trial judge heard an application to address defence requests for the exclusion of evidence. The defence raised hundreds of objections to the admission of anticipated Crown evidence. To manage this high volume of objections, the trial judge decided to follow a procedure in which he would rule on the admissibility of several broad categories of evidence, following which the parties could reconsider and attempt to settle the outstanding objections.

One important category of evidence at issue on the application was the evidence of "prior discreditable conduct" or "bad character" of the accused.

The trial judge properly held such evidence presumptively inadmissible, but ordered certain bad character evidence was admissible for various purposes. One was to prove that the appellants committed murder and attempted murder for the benefit of the Galloway gang. Therefore, the Crown could adduce evidence of (i) the existence, purpose and activities of the Galloway gang; and (ii) the appellants' involvement in drug trafficking, gun trafficking and robbery offences as members of the gang.

The trial judge imposed limits on what evidence the Crown could call on these subjects. He held evidence of prior offences must in some way be associated with the gang. Further, he imposed a "temporal" restriction on the proof of offences. Offences committed before the Charlton and Bell offences would be sufficiently probative only where they occurred "reasonably proximate to the time of the shooting". Offences committed after the shooting would be generally inadmissible unless they were of "exceptional probative value".

The trial judge admitted some types of "bad character", but excluded others.

The appellants took aim at three different types of "bad character" evidence the trial judge admitted: the "call down" evidence, the "drug toss" evidence, and the "Money Mart" evidence. The Court of Appeal agreed with the appellant Wisdom's submissions regarding the admission of one category of "bad character" evidence (the "Money Mart" evidence), but not with the balance of the appellants' complaints.

General Principles

In a criminal trial, the Crown may adduce evidence of an accused person's "bad character" if that evidence is relevant to an issue at trial (apart from the accused's mere propensity to commit the offence in question) and the probative value of such evidence outweighs its prejudicial effect.

Significant deference is owed to a trial judge's assessment of probative value and prejudicial effect. An appellate court should only interfere if the trial judge's analysis is unreasonable, or is undermined by a legal error or misapprehension of material evidence.

The "Call Down" Evidence

The first category of "bad character" evidence the appellants challenged was the admissibility of the so-called "call down" or call #818 evidence. The Court of Appeal did not accept their challenge to this evidence. The trial judge made no error in admitting the evidence, nor in permitting its use at trial.

Background

Several weeks after the Charlton and Bell shooting, another shooting occurred in the Malvern area under similar but not identical circumstances. Two young men, Kofi Patrong and Chris Hyatt, were shot but survived. Like Charlton and Bell, Hyatt and Patrong were not gang members.

Hyatt and Patrong gave a description to police of the vehicle they saw drive away after the shooting. The same day, Riley, Atkins and Marlon Wilson were apprehended following a high-risk takedown of a vehicle matching that description. Riley was charged with attempted murder and all three men were charged with weapons offences.

While in custody, Wilson, who has a lengthy criminal record, gave a videotaped statement denying involvement and implicating Riley and Atkins in the Hyatt and Patrong shooting. He gave subsequent interviews in which he explained Riley's and Atkins' involvement in the conflict between G-Way and the Malvern Crew.

Riley and Atkins eventually became aware of Wilson's statements because of a mistake in the Crown's disclosure in the Hyatt and Patrong case. Riley made calls to others outside of jail in order to arrange for Wilson to be prevented, through threats of violence, from testifying at the trial for the Hyatt and Patrong case. Unbeknownst to them, their private communications were being intercepted pursuant to a judicial authorization.

Ultimately, the intercepts revealed that Riley and his associates arranged for a "call down": Wilson was called to meet with Riley in the jail. The purpose was to intimidate him and persuade him to change his story.

The police played recordings of these intercepts to Wilson while he was still in custody. After hearing them, he made a statement implicating Riley and Atkins in the Charlton and Bell shooting. At the preliminary inquiry, Wilson testified that the "call down" described in the intercepted calls did in fact happen, and that upon being confronted by Riley, he agreed to change his story.

Trial Judge's Initial Ruling

The Crown sought to admit the intercepted calls in which Riley and his associates discussed the "call down" of Marlon Wilson. They said the calls were admissible as part of the explanation of Wilson's co-operation with police and to explain any changes in Wilson's information, and as evidence of how G-Way worked.

Specifically, the Crown sought to adduce a recording of call #818, which involved Riley, Atkins and Wilson. Wilson was asked to change his story implicating Riley and Atkins in the Hyatt and Patrong shooting. Wilson told Riley he would.

The trial judge agreed this evidence had some relevance, but ultimately held that, "for the most part, the prejudicial effect . . . outweighs its probative value". The intercepts involved considerable discussion about violence towards Wilson, and about a number of crimes for which Riley and Atkins had been convicted, though the trial judge observed that these sections could be edited out.

However, the trial judge did permit Wilson to testify that as a result of a confrontation with Riley in jail, Wilson became aware Riley knew he was informing, and that he agreed to change his story in response to his interaction with Riley.

The trial judge held the intercepts could not be played. However, he observed that it was possible he could revisit this ruling later as events developed at trial, including if "counsel suggest[s] that there was no such meeting with Riley".

Wilson's Evidence at Trial and the Trial Judge's Response

Wilson appeared at trial and initially refused to answer any questions. He returned days later, but testified that his entire testimony at the preliminary hearing was a lie. In particular, he repudiated his prior testimony implicating Riley and Atkins in the Charlton and Bell shooting. He also denied that the "call down" conversation at the jail had ever occurred.

As a result, pursuant to s. 9(1) of the Canada Evidence Act, the trial judge declared Wilson a hostile witness and permitted the Crown to cross-examine him at large.

The trial judge also reconsidered his initial ruling—that the intercepts could not be played—and permitted the jury to hear the recording of call #818. Since Wilson now denied that he became aware that Riley knew he was informing against him in another matter, that Riley was displeased about it, and that he told Riley he would change his story, the trial judge held call #818 could now be used for the "very limited purpose" of challenging Wilson on this issue.

The call was edited extensively to remove prejudicial and irrelevant information such as reference to the Hyatt and Patrong shooting.

Analysis

The appellants took the position that call #818 should not have been admitted because its prejudicial effect outweighed its probative value. In particular, they submitted that the admission of the evidence put them in a "Catch-22". That call related only to the Hyatt and Patrong shooting. On the one hand, by explaining this to the jury, the appellants would make the jury aware of the other charges Riley and Atkins faced, risking moral and reasoning prejudice. But without any explanation of the call, the jury could only have concluded, erroneously, the "call down" was about the Charlton and Bell shooting.

The Court of Appeal did not agree. It saw no basis to interfere with the trial judge's decision.

The trial judge fully appreciated the potential prejudice flowing from the call. For that reason, he did not admit it until it was clearly necessary to challenge Wilson's changed evidence on a critical point. Even then, the call was edited to remove instances of Riley directing, pressuring and threatening Wilson in respect of his evidence. The trial judge struck a reasonable balance in doing so.

Further, the "Catch-22" the appellants described did not really materialize. In closing submissions, defence and Crown counsel pointed out to the jury that call #818 did not relate to the Charlton and Bell shooting. Counsel for Riley pointed out to the jury that call #818 took place some months before Wilson's first statement to the police about the Charlton and Bell shooting, and therefore could not have related to that shooting. Counsel never had to tell the jury about the Hyatt and Patrong shooting to make this point.

The most likely interpretation that the jury would make of the redacted recording was that it (i) supported the assertions that Wilson and Riley were members of the same gang; (ii) that Riley held a senior position in the gang; and (iii) that Wilson's inconsistent evidence likely reflected Wilson's wavering between protecting himself by co-operating with the police and protecting himself by maintaining good relations with Riley and Atkins. In sum, the jury would not infer from this recording that Riley and Atkins were guilty of the Charlton and Bell shooting.

Consequently, the Court of Appeal rejected this ground of appeal.

The "Drug Toss" Evidence

The second category of "bad character" evidence the appellants challenged was the so-called "drug toss" evidence. Again, the Court of Appeal did not give effect to this challenge.

Background

The Crown's case against the appellants rested heavily on the testimony of two G-Way members, Roland Ellis and Marlon Wilson, who testified, amongst other things, that the appellants confessed their involvement in the Charlton and Bell shooting to them in the hours after it occurred. The "drug toss" evidence related to Ellis' relationship with Riley.

While the investigation of the Charlton and Bell shooting was underway, Riley was in detention in relation to the Hyatt and Patrong shooting. A justice had authorized interception of Riley's private communications while in jail. Through this surveillance, the police discovered that Ellis had, on one occasion, delivered drugs to Riley in jail by tossing contraband over the jail's fence. When Riley asked him to do so a second time, Ellis refused, claiming that he had not received the promised compensation for the first delivery. According to Ellis, Riley then threatened his life. On another occasion, intercepts showed Riley discussing killing Ellis because Ellis had refused to assume criminal responsibility for some drug charges against Riley (these charges were not related to the convictions on appeal).

At trial, the Crown took the position that the evidence of (i) the two drug tosses; (ii) Ellis' refusal to do the second drug toss; and (iii) his refusal to take responsibility for the drug charges; followed by (iv) the threats Riley made against Ellis were "essential to an understanding of the breakdown in the relationship between Ellis and Riley, and the decision made by Ellis to cooperate with the police and ultimately to testify for the Crown".

The trial judge agreed, finding that the "very high" probative value of this evidence outweighed its prejudicial effect. Further, he noted the evidence "cuts two ways". He stated that in addition to explaining Ellis' co-operation, it "also demonstrates an animus on his part towards Riley, which may undermine his credibility". He observed that he found it "hard to imagine how the accused could cross-examine Ellis without touching on some of the evidence that they challenge".

Analysis

On appeal, the appellant Riley argued that the trial judge should have excluded this evidence because it was not relevant to avenging Allen's death, nor was it factually or legally connected to the Charlton and Bell shooting.

The Court of Appeal disagreed. Riley's argument on this point cast relevance too narrowly. The trial judge acknowledged that this evidence did not "directly relate to the elements of the offence", but nonetheless found its probative value to be "very high". The Court of Appeal could see no error in that assessment.

Ellis was a gang witness, testifying against members of his own gang, whose motivations were central to the trial. The "drug toss" and related evidence were critical in explaining how he came to be a witness, without which the jury would have had difficulty understanding his involvement. And the trial judge properly took into account, in assessing the prejudicial impact of this evidence, that it could also be used to assist the defence.

The Court of Appeal therefore did not accept this ground of appeal.

The "Money Mart" Evidence

The third category of "bad character" evidence challenged was evidence of an attempted theft/robbery at a "Money Mart" store in which Wisdom participated four months after the Charlton and Bell shooting.

By and large the Court of Appeal agreed with Wisdom's position on this issue. For the reasons that follow, the court concluded that this evidence should not have been admitted and a new trial must be ordered for Wisdom.

However, the Court of Appeal did not agree with the appellant Riley that the admission of the "Money Mart" evidence also occasioned prejudice to him and Atkins; the trial judge's error in admitting the "Money Mart" evidence did not justify ordering a new trial for either of them.

Background

The trial judge held the Crown could adduce evidence of an attempt to steal $100,000 from a Money Mart in Pickering on July 9, 2004, some four months after the Charlton and Bell shooting, while Riley and Atkins were in jail in connection with the Hyatt and Patrong shooting. The girlfriend of a Galloway member had arranged an "inside" job with an employee at the Money Mart. Four Galloway members, including the appellant Wisdom, were in on it. But wiretap intercepts tipped the police off. They read most of the text messages and listened in on most of the calls in which the scheme was discussed. In the end, the police were there to stop it before it happened.

The trial judge held evidence of this incident was of "great probative value" on the criminal organization count because it was a "microcosm of how the criminal organization works". It demonstrated the organized nature of the gang, and how its members could mobilize quickly to take advantage of an opportunity to commit a crime. As for the prejudice to Wisdom, the trial judge held it was not "terribly discreditable", and it was "not likely that the jury would infer from his participation in a botched robbery that he committed a murder". The trial judge's "biggest concern" was that the evidence would be time consuming and a distraction—but not excessively so.

Consequently, the trial judge held the Crown could adduce evidence of the Money Mart incident and Wisdom's involvement in it.

The Money Mart evidence came in through the testimony of Roland Ellis, as well as through police testimony and wiretap recordings. Wisdom also testified and generally confirmed the account of the Money Mart incident the other evidence established.

On July 9, 2004, Sheldon Nugent, a G-Way member, heard from his girlfriend, Megan Brinton, about an opportunity extended to her by a Money Mart employee named Merissa. Merissa offered to facilitate the theft of $100,000 in the Money Mart safe after the store closed. On intercepted calls between 12:30 p.m. and 4:00 p.m., Nugent and Brinton discussed the offer. In addition to the practical details, they also discussed an offer from Merissa (in exchange for a larger share of the proceeds) to take a "shot in the foot" or to have a gun held to her head during the crime in order to make it appear more genuine on security footage.

That evening, Nugent met with several G-Way members, including the appellant Wisdom and Roland Ellis. Nugent is said to have described the plan. Ellis testified that Nugent described it as a "grime" (street parlance for a robbery). Wisdom testified Nugent told them it would be a simple "pick up" of "easy money". Ultimately, Wisdom was included in the group participating in the Money Mart theft—Ellis was not.

The Money Mart was set to close around 9:00 p.m. The G-Way members, including the appellant Wisdom, arrived in a car together around 8:50 p.m. and stopped in a laneway behind the store. After some observation of the Money Mart and communication between Nugent, Brinton and Merissa, the G-Way members exited their car and began to move towards the Money Mart.

The police stopped the Money Mart theft before it happened. When they arrested the participants and searched their vehicle, they found no firearms or other weapons.

Analysis

Significant deference is owed to a trial judge's assessment of probative value and prejudicial effect. In the Court of Appeal's respectful view, however, the trial judge's assessment of the Money Mart evidence was flawed. While it had some relevance to the three counts in the indictment, its probative value was significantly outweighed by its prejudicial effect as it relates to Wisdom. The trial judge should not have admitted it.

Probative Value

The Court of Appeal respectfully disagreed with the trial judge's conclusion that the Money Mart evidence had considerable probative value on counts 1 and 2. In the court's view, in respect of those counts alone, it had nothing more than marginal value, consisting as it did of evidence of unrelated criminality that formed no part of the narrative of the Charlton and Bell shooting. It was not capable, even as one of several pieces of circumstantial evidence, of establishing motive to commit counts 1 and 2, nor of proving any other aspect of the Crown's case on those counts.

With respect to count 3, however, the trial judge made no error in finding the Money Mart evidence met the test of threshold relevance. It was capable of establishing Wisdom was a member of the G-Way gang, and it could help establish G-Way's status as a criminal organization. The Crown needed to establish both in order to prove Count 3.

That said, in the Court of Appeal's respectful view, the evidence could go no further than that. It simply did not have the "great probative value" the trial judge accepted it to have. The trial judge appears to have accepted the trial Crown's submission that this incident provided a "microcosm of how the criminal organization works", showing how the members of the gang, including Wisdom, could mount fast-paced, sophisticated operations on very short notice. Respectfully, that submission was without foundation, and the trial judge was led into error in relying on it.

In reality, all that the Money Mart incident showed was this: a small number of young people took advantage of a very straightforward opportunity to steal money. The organizational effort required nothing more than a series of phone calls and text messages. Far from showing a deep level of organization and trust, this evidence primarily demonstrated that Wisdom and his compatriots were quick to take advantage of a perceived opportunity to make easy money through low-level criminal activity. In other words, it primarily proved they were the sort of people willing to commit crimes.

Unlike other discreditable conduct evidence adduced at trial, it said almost nothing about the appellants' involvement in the Charlton and Bell shooting. As the Crown rightly points out, the "drug toss" evidence went to animus and to the narrative explanation of Ellis' participation in the case. The "call down" evidence served a similar function. The Money Mart evidence could do nothing of the sort. Nor could it say anything about the ongoing turf war between G-Way and the Malvern Crew, nor the appellant Wisdom's alleged involvement in that war. It could not be used to ground an inference that Wisdom committed counts 1 and 2 at the direction of or for the benefit of a criminal organization.

As the court had said, at its highest, this was evidence of the existence of the gang and that Wisdom was a member. It could go no further than that. Consequently, in the Court of Appeal's view, it was not reasonable for the trial judge to find the evidence had "great probative value" on count 3, particularly given those facts were admitted by Wisdom in his testimony.

Prejudicial Effect

The trial judge significantly underestimated the evidence's potential prejudicial effect.

In his pre-trial ruling, the trial judge held the evidence was not "terribly discreditable", because it was "not likely that the jury would infer from his participation in a botched robbery that he committed a murder". Before the Court of Appeal, Crown counsel similarly argued the evidence had either "zero" or "very limited" prejudicial effect.

To begin, in the Court of Appeal's view, this reasoning discounts the overall danger of moral prejudice associated with discreditable conduct evidence. The court accepted that this bad character evidence is not as serious as the conduct alleged in the indictment, and therefore less prejudicial than evidence of, for example, another murder (such as the Hyatt and Patrong shooting). But bad character evidence about the accused is presumptively inadmissible precisely because there is always the risk the jury will engage in impermissible propensity reasoning. This evidence showed Wisdom to be a bad person who was willing to commit theft of a large amount of money on short notice. There is serious prejudice associated with that evidence that must be given appropriate weight in the analysis, especially in light of the minimal probative value of the evidence.

Further, the Money Mart evidence included highly discreditable conduct by others that besmirched Wisdom's character by virtue of his association with them. Wiretap transcripts entered as exhibits at trial reflected conversations between Brinton and Nugent, two of the G-Way members involved in the Money Mart incident. In those calls, they discussed the possibility of having the female "inside" employee at the Money Mart agree to being shot in the foot, or to having a gun held to her head, to make the crime look more genuine. They also discussed "bust[ing] the fucking back door" for the same purpose. Wisdom was not involved in these discussions of potential violence or gun violence specifically. Nor was there evidence that he was even aware of the contents of these conversations. Nonetheless, they went before the jury as discussions of his compatriots in the Money Mart incident, with whom he was associated. This aspect of the evidence heightened the risk of impermissible propensity reasoning by the jury.

Finally, beyond moral prejudice, this evidence created a collateral sideshow to which Wisdom was forced to respond. A significant portion of his testimony, including his cross-examination, was devoted to exploring his understanding of the term "robbery", and whether a "robbery" involved violence or threats of violence. The Crown made much of Wisdom's statement that he did not commit robberies or see robberies committed, given that he admitted the Money Mart incident was a "grime", which in "street" parlance is a robbery. Although Wisdom's evidence regarding Money Mart remained generally consistent—that it was simply an opportunity to "pick up some easy money" and that no violence was used—it is unsurprising Wisdom's credibility was undermined by Wisdom being forced into a semantic debate regarding legal terminology with an experienced Crown prosecutor in cross-examination. This was nothing more than a distraction from the real issue at trial.

The Court of Appeal noted parenthetically that the Money Mart evidence, while strongly prejudicial, was not essential to the Crown's case. Wisdom's membership in the Galloway Boyz was established elsewhere in the evidence. As the court had said, at its highest, this evidence only showed he was a member of G-Way and willing to commit crimes with members of the gang. There were a variety of other sources of evidence the Crown called at trial implicating Wisdom and the other appellants in G-Way's activities. For those reasons, in the Court of Appeal's view, the evidence should not have been admitted.

In coming to this conclusion, the court acknowledged that the trial judge made appropriate and repeated instructions to the jury regarding the limited purposes for which discreditable conduct evidence could be used. The court also acknowledged that defence counsel had ample opportunity in the closing arguments to emphasize the limited value of this evidence, and did so. In the Court of Appeal's view, however, neither of these were sufficient to cure the prejudice flowing from admitting the Money Mart evidence.

The court said this in large measure because the Crown's case against Wisdom, unlike its case against Riley and Atkins, was not strong. The only evidence against him was that of a sole Vetrovec witness, Ellis. Wilson's evidence did not implicate Wisdom, as it did Riley and Atkins. The Crown's case against Wisdom lacked the kind of strong circumstantial evidence that it had against Riley and Atkins (including DNA, ballistics, and post-offence conduct evidence discussed below). Wisdom called alibi evidence and testified in his own defence. In light of these factors, the bad character evidence against him may have been enough to tip the scales in the minds of the jurors. Even if one presumes, as courts ought to, that a jury will be attentive to and abide by the instructions given to it, one cannot escape the possibility that—even unconsciously—the "Money Mart" evidence played a role in the jury's assessment of whether Wisdom was telling the truth when he got in the witness box and testified he was not involved.

With respect to the curative proviso, Crown counsel admitted she could not say excluding this evidence would not have had an impact on the result with respect to Wisdom's conviction. The Court of Appeal agreed. Consequently, the court would decline to apply the proviso with respect to Wisdom's conviction. A new trial must be ordered for him.

Impact on Riley and Atkins

Counsel for Riley submitted that the erroneous admission of the "Money Mart" evidence should also result in a new trial for Riley and Atkins. The Court of Appeal did not agree.

The "Money Mart" incident related solely to Wisdom. Riley and Atkins were not involved (in fact, they were in jail at the time). The Crown did not attempt to use this evidence against them in any significant way. Unlike Wisdom, it is difficult to imagine how the jury could have relied on the "Money Mart" evidence to the detriment of Riley and Atkins, except as evidence that G-Way existed and was a criminal organization, which, as the court had noted, was amply established elsewhere and was not seriously contested. To the extent that Riley and Atkins suffered any remote form of prejudice as a result of bad character evidence being adduced about their co-accused, the court found it would be appropriate to apply the curative proviso.

Given the Court of Appeal's conclusion that the "Money Mart" evidence should not have been admitted, it was unnecessary to consider whether the instructions on the "Money Mart" evidence were flawed.

4. Ballistics Evidence Issues

The appellants' next ground of appeal was that the trial judge erred in admitting evidence from two ballistics experts. They also said he erred in his charge relating to that evidence. The Court of Appeal disagreed.

Background

Marlon Wilson gave evidence that he obtained a Glock .357 in a robbery in February or March 2003 and gave it to Atkins. Intercepts led the police to search the apartment of one of Riley's girlfriends, where they found a Glock .357 with live ammunition in a shoebox. The gun had both Wilson and Atkins' DNA on it and it was wrapped in a plastic bag that had the girlfriend's fingerprint on it. In addition, Ellis said that the gun looked like one Atkins showed him in the hours after the shooting.

At trial, the forensics experts testified that (i) it was possible, but not certain, that the Glock .357 found in the apartment was one of the guns used in the shooting; and (ii) it had traces of Atkins' DNA on it.

Analysis

The appellants contended this evidence was inadmissible for two reasons: it was irrelevant and, alternatively, its prejudicial effect outweighed its probative value. The Court of Appeal did not agree.

The central issue at trial was the identity of the shooters. Expert evidence comparing the bullets recovered from the scene of the shooting to a gun seized from the apartment of one of the accused's girlfriends, with another accused's DNA on it, was relevant to identity as well as means.

The evidence that the police seized a Glock .357 from the apartment of one of Riley's girlfriends, along with the presence of Atkins' DNA on the same gun, would, at the least, support an inference that Riley and Atkins had access to guns, and that a particular gun to which two of the three accused had a connection was, possibly, though not necessarily, used in the shooting. This coincidence properly could serve as circumstantial evidence that Riley and Atkins had access to a necessary tool to commit the offence, and therefore could support findings on means to commit the crime and identity. Consequently, it was clearly relevant and probative. Further, the appellants had not satisfied the Court of Appeal that this evidence's prejudicial effect, if any, was sufficient to justify interfering with its admissibility on appeal. The court was not persuaded that there was a significant risk the jury would misuse this evidence.

The appellants also took issue with the portions of the jury charge relating to the ballistics evidence. They submitted the trial judge went too far in instructing the jury that the ballistics evidence was capable of supporting a conclusion that Riley and Atkins had the means to commit the offences, and in stating that it was "possible" that the .357 Glock was used in the shooting. Again, the Court of Appeal did not agree.

The trial judge's description of the expert evidence in the charge was cautious and true to the experts' testimony. Further, all counsel emphasized the limits of the ballistics evidence in closing submissions. The Court of Appeal did not see any merit in the suggestion that the jurors would have relied on the ballistics evidence for more than it was capable of establishing.

5. Vetrovec Instruction Issues

The appellants took issue with the trial judge's Vetrovec instruction. Numerous errors were alleged. First, the trial judge's instructions ran afoul to the Perciballi rule. Second, the trial judge erred in leaving certain evidence as potential confirmation. Third, the trial judge erred in failing to instruct that the Vetrovec warning did not apply to the exculpatory portions of Wilson's evidence. Finally, it was alleged that the trial judge erred in failing to instruct the jury on the lack of demeanour evidence.

For the reasons that follow, the Court of Appeal concluded the trial judge made no reversible error in his charge.

General Principles

The law requires a clear and sharp warning to the jury regarding the dangers of convicting based on the unconfirmed testimony of an "unsavoury" witness. As the Supreme Court held in R. v. Khela, the Vetrovec caution will generally be adequate if it does the following:

1. identify for the jury the testimonial evidence requiring special scrutiny
2. explain why it is subject to special scrutiny
3. caution the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied the evidence is true
4. explain that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused

Whether an item of evidence is capable of confirming the evidence of another witness, and whether the jury should accept it as doing so, are two different questions. The evidence must confirm "material aspects" of the evidence of the Vetrovec witness: it need not implicate the accused in the commission of the offence, but as a whole, "should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence".

Considerable deference is owed to the trial judge as to how the Vetrovec caution is to be framed. By the same token, the court must read the charge as a whole in assessing the adequacy of the Vetrovec caution.

The Rule in Perciballi

General Principles

The Perciballi rule is that in a joint trial, out-of-court statements made by one co-accused cannot be used as confirmatory evidence of a Vetrovec witness' testimony against the other co-accused. The rule is animated by fairness concerns: the accused cannot cross-examine his or her co-accused on his or her out-of-court statements, which would not usually be admissible were the accused tried separately.

The Perciballi rule is nuanced and can be difficult to apply. In R. v. Rojas, the Supreme Court noted that notwithstanding the Perciballi rule, it was permissible for "the jury's assessment of the overall credibility of the [Vetrovec] witness to be influenced in some way by the totality of the evidence that they have heard, including evidence relating solely to one co-accused". It can sometimes be difficult to discern the line between impermissible confirmatory use of a co-accused's hearsay statement, on the one hand, and permissible consideration of the totality of the evidence in assessing credibility, on the other.

In Perciballi, Angelo and Antonio were on trial together. DeFrancesca was a Crown Vetrovec witness. Coiro was an ordinary Crown witness. Coiro testified about a statement Angelo made out of court. In that statement, Angelo said that Antonio made a certain phone call. Of course, that statement was admissible against the declarant, Angelo. However, the court held that it could not be used to corroborate the direct evidence of DeFranesca that Antonio made the phone call described in Angelo's out-of-court statement. The trial judge erred in instructing the jury they could use the out-of-court statement of Angelo to corroborate the Vetrovec evidence against Antonio.

By contrast, in Rojas, the defence argument was more indirect. Miguel and Hugo were co-accused. Miranda was a Crown Vetrovec witness. Miranda testified regarding out-of-court statements made by each of Miguel and Hugo. At no point did the trial judge "tell the jury they could use the statements of Hugo to confirm Miranda's evidence on matters involving Miguel, or vice versa". In fact, the trial judge instructed the jury to the contrary. But other pieces of physical evidence were used to corroborate Miranda's hearsay evidence, so the defence argued that his overall credibility was seemingly bolstered by evidence inadmissible against each of them separately. The Supreme Court in Rojas refused to extend the reasoning of Perciballi to such a situation, holding:

It is one thing for a jury to be expressly directed, as was done in Perciballi, to consider an out-of-court statement admissible only as against one accused in reaching its decision concerning the other. Such a direction would result in an impermissible use of the out-of-court statement. It is quite another matter, however, for the jury's assessment of the overall credibility of the witness to be influenced in some way by the totality of the evidence that they have heard, including evidence relating solely to one co-accused. The latter is inevitable, given the intangible nature of any credibility assessment.

In other words, the "underlying logic" in Perciballi cannot be extended to require the jury to artificially compartmentalize its assessment of a Vetrovec witness' credibility. The jury is not required to discount the fact that a witness' overall credibility may have been bolstered by the evidence concerning a co-accused's out-of-court hearsay statements. The issue is whether the jury understood that the hearsay statements were only admissible against the declarant co-accused.

Analysis

The central issue at trial was identity. The Crown's case on identity, as mentioned earlier, largely rested on the evidence of two G-Way insiders—Marlon Wilson (who gave testimony against the appellants at the preliminary inquiry but recanted at trial) and Roland Ellis (who did not recant). The trial judge declared Wilson a hostile witness under s. 9(1) of the Canada Evidence Act and an edited version of his testimony from the preliminary inquiry was admitted at trial for the truth of its contents.

According to the evidence of Wilson and Ellis, while they were each at a gathering at an apartment of a person known as "Smokey" at different times, all three appellants confessed to the shooting of Charlton and Bell within hours of its occurrence. Wilson testified that Riley and Atkins confessed to him about shooting two occupants in a Neon earlier in the day. Ellis said that Wisdom confessed to him about doing the same.

Each of Ellis' and Wilson's descriptions of what happened at Smokey's included that (1) Riley and Atkins were in attendance; (2) the television was on Channel 24; and (3) the news of the shooting evoking a reaction confirmed each other.

The question was not whether this evidence was capable, standing alone, of restoring the jury's faith in each witness' testimony implicating the appellants. Rather, the question was: considered within the whole body of confirmatory evidence for both witnesses, were their descriptions of what happened at Smokey's capable of restoring the jury's faith in each other's evidence?

The trial judge properly charged the jury on the need to consider potential confirmatory evidence, and that confirmatory evidence must be independent and material. He then charged that, by way of example, Ellis' testimony could potentially be confirmed by two pieces of evidence: (1) the "channel 24 evidence", and (2) the ".357 Glock evidence".

One of the appellants' other complaints regarding the Vetrovec charge in this case was that the trial judge overstated or misstated the confirmatory nature of the "Channel 24" evidence. The appellants took issue with specific wording choices the trial judge employed in describing the level of similarity and difference in the evidence of Wilson and Ellis—inconsistencies described as "slightly" different; similarities described as "too great to be the product of coincidence". The Court of Appeal declined to engage in a line-by-line review of the trial judge's diction. Reading the charge as a whole, the court saw no error in how the trial judge described the Channel 24 evidence.

Returning to the Perciballi issue, the appellants submitted the trial judge committed a Perciballi error in pointing to the "Channel 24" and ".357 Glock" evidence as potentially confirmatory. The Court of Appeal did not agree.

There were some similarities between this case and Salah, where the Court of Appeal declined to overturn a conviction on the basis of an alleged Perciballi error.

In Salah, Salah, Parish and McDowell were co-accused in a murder and arson case. McDowell pleaded guilty to manslaughter but not guilty to first degree murder, and called no evidence at trial, doubtless because he had admitted acts amounting at least to manslaughter in a statement to the police. S.C. was a Crown Vetrovec witness. S.C. testified regarding, amongst other things, an out-of-court confession by McDowell. The Crown invited the jury to use McDowell's confession to the police as corroboration of aspects of S.C.'s testimony that incriminated Salah and Parish. The trial judge instructed the jury in accordance with the Crown's invitation. The defence advanced an appeal based in part on the Perciballi rule.

The Court of Appeal held there was no reversible error in the trial judge's charge. The trial judge explicitly charged the jury that hearsay statements of one accused were inadmissible as against a co-accused, and held:

The portions of McDowell's statement referenced in the Crown's jury address related primarily to S.C.'s credibility as it affected McDowell's implication in the offences. The portions of McDowell's statement were not left to the jury as generally confirming S.C.'s evidence. Some portions that might have been taken as referring to all three appellants were minor and would not have affected the verdict in respect of Salah and Parish. In the circumstances, it was unnecessary for the trial judge to expressly direct the jury not to use these portions of Crown's jury address.

As in Salah, in this case the trial judge properly instructed the jury (elsewhere in the charge) that hearsay statements of one co-accused were inadmissible against the other. And the trial judge did not commit the error found by the court in Perciballi—he did not explicitly invite the jury to use the hearsay statements of Riley and Atkins to corroborate some specific aspect of Ellis' testimony against Wisdom.

The trial judge listed the aspects of Ellis' and Wilson's accounts that were confirmatory of each other. He did not include Riley's and Atkins' utterances to Wilson in the list of confirmatory aspects of this evidence. The jury would not have treated those utterances as confirmatory of Ellis' evidence implicating Wisdom and would not have understood the trial judge to mean they could use Riley's or Atkins' utterances to Wilson at Smokey's as confirmatory of Ellis' evidence about Smokey's.

Even if the trial judge's instructions left the jury with uncertainty about how to use Riley and Atkins' out-of-court statements, it would have been resolved by the trial judge's unequivocal instructions that they could not use the out-of-court statements of one co-accused against another.

It was perfectly proper for the jury's overall assessment of Ellis' and Wilson's credibility to be impacted by the totality of the evidence it heard, including evidence relating solely to Riley and Atkins.

Finally, the trial judge made no error in pointing to the ".357 Glock" evidence as potentially confirmatory evidence. As in Rojas, the fact that a Vetrovec witness' credibility may be enhanced when physical evidence corroborates hearsay statements by a co-accused is insufficient to trigger the Perciballi rule.

In the Court of Appeal's view, the trial judge made no error in pointing to the ".357 Glock" and the Channel 24 evidence as potentially confirmatory evidence. The jury would have understood that the hearsay statements were only admissible against the declarant co-accused. The Court of Appeal did not give effect to this ground of appeal.

Alleged Misstatement of Confirmation of "Impala" Evidence

Counsel for Atkins, supported by the other appellants, argued the Vetrovec caution was deficient because the trial judge improperly pointed out potential corroboration on what was referred to as the "Impala" evidence. The Court of Appeal did not agree.

Background

An eyewitness to the Charlton and Bell shooting, Y.B. (whose name is subject to a publication ban), said that she saw a dark SUV pull up next to a smaller blue car at the intersection of Neilson and Finch. She then heard pops, followed by smoke and an alarm coming from the smaller car. She thought that the dark SUV was a Pathfinder.

Wilson gave evidence that, while on the balcony at Smokey's, Riley and Atkins explained that they had been following a man they thought was Ras-P. They followed him until Neilson and Finch, when they got out of the car and shot him. Wilson testified that Riley and Atkins followed their target in two cars, a Pathfinder and an Impala. The Impala was Wilson's vehicle and the Pathfinder was Riley's.

Video from an external security camera at a nearby business showed the victims' blue Neon being followed by two cars—a dark coloured Pathfinder and a light coloured Impala.

The trial judge instructed the jury that the expert identification of an Impala in the security video was capable of confirming Wilson's evidence that he was told an Impala was used in the shooting.

Analysis

The appellants made two complaints about the trial judge's Vetrovec confirmation charge on this evidence. The Court of Appeal agreed with neither.

First, they contended that the "Impala" evidence could not be a point of confirmation for Wilson's evidence because it would have been open to the jury to find Wilson had heard about the Impala from someone other than Riley or Atkins, since the use of this vehicle in the shooting was public knowledge. Respectfully, the Court of Appeal said this submission turns confirmation on its head. The court agreed that it would have been open to the jury to find that Wilson's evidence on the "Impala" could not be relied on because of possible tainting. The court also agreed that Wilson's own evidence was not independent confirmation of his own testimony. But the trial judge did not charge to that effect. The confirmatory evidence in this case was the video footage. That was clearly independent of his testimony and could potentially confirm it.

Second, the appellants submitted that Wilson's evidence about the Impala being used in the shooting was based on inadmissible hearsay rumours from others. They pointed to extracts from Wilson's testimony in which he states, "everyone there knew that they were using the cars because after that, that night I didn't even want to drive my car no more" and submitted this suggests that his knowledge came from unidentified third parties. The Court of Appeal did not accept this submission. The court agreed with the Crown that Wilson's evidence, read in context, suggested Riley and Atkins were the ones who told Wilson that the Impala was used in the shooting.

The Court of Appeal saw no reversible error in the trial judge's charge on this subject.

Application of the Vetrovec Caution to All of Wilson's Evidence

Marlon Wilson gave evidence that was both inculpatory (his preliminary hearing testimony) and exculpatory (his trial evidence).

The appellants said the trial judge erroneously failed to charge the jury that the Vetrovec caution only applied to the inculpatory aspects of Wilson's testimony.

In the Court of Appeal's view, it would have been desirable for the trial judge to more clearly emphasize that the instruction to search for independent confirmation did not apply to the exculpatory portions of Wilson's evidence. That said, the trial judge's charge, read as a whole, would not have given the impression that independent confirmation for Wilson's exculpatory evidence was required. The trial judge repeatedly charged the jury that they were to look for independent confirmation of inculpatory evidence from the Vetrovec witnesses. In the light of the entirely proper language in the charge regarding the criminal burden and standard of proof, the jury would have known to acquit if Wilson's inculpatory evidence, even uncorroborated, left them in a state of reasonable doubt.

Further, the Court of Appeal's jurisprudence makes clear that the trial judge has considerable discretion in crafting an appropriate instruction for Vetrovec witnesses; failure to give a specific "mixed" charge in relation to a "mixed" Vetrovec witness will not always be fatal on appeal.

Consequently, the Court of Appeal did not give effect to this ground of appeal.

Absence of a Charge on Lack of Demeanour Evidence for Wilson's Preliminary Inquiry Testimony

As the court had said, Wilson was declared a hostile witness after recanting his earlier inculpatory testimony against Riley and Atkins. His preliminary inquiry testimony was read in at trial.

The appellants submitted the trial judge should have included in his jury charge a precautionary note emphasizing the importance of the lack of demeanour evidence on Wilson's testimony at the preliminary hearing. The Court of Appeal did not accept this submission.

First, a specific instruction in the charge was not necessary because it would have been clear to the jury that the absence of demeanour evidence was a deficiency of the read-in testimony. The trial judge commented to the jury during the reading in of Wilson's evidence from the preliminary inquiry that "one of the negatives of this process" was that "you're not actually seeing him give the answers". Even more pointedly, counsel for Riley in closing submissions pointed out to the jury that they did not have access to Wilson's "tone of voice" and "facial reactions".

Second, as has been repeatedly recognized by Canadian courts, demeanour evidence is only one aspect of credibility assessment, and is often a poor way to assess a Vetrovec witness' evidence. It was reasonable for the trial judge not to unduly emphasize its absence.

6. Jury Charge on Post-Offence Conduct

The appellants took issue with the trial judge's charge regarding Riley's post-offence conduct. The Court of Appeal saw no error in the trial judge's charge on this subject.

Background

The trial judge instructed the jury on post-offence conduct in relation to Riley only. The subject matter was evidence of Riley's attempts, captured on wiretap interceptions, to ensure that what was ultimately determined to be a Glock .357 firearm was concealed. The trial judge instructed the jury that this was potential circumstantial evidence that may assist in determining whether Riley participated in the shooting. In a re-charge, the trial judge then emphasized that if the jury found that the intercepts showed Riley was concerned about the whereabouts of the Glock .357, the jury must nonetheless go on to consider whether the concern related to the shooting of Charlton and Bell or whether there was an alternative explanation. He canvassed possible alternative explanations, and stated that only if the jury rejected the alternative explanations could they use the post-offence conduct as evidence Riley had participated in the shooting.

Analysis

The appellants' essential complaint regarding the charge on this subject was that the trial judge erred in failing to instruct the jury that, prior to drawing an inference that Riley was acting to conceal his involvement in the shooting, they would first have to be satisfied the firearm in question was used in the shooting. Having failed to give such an instruction, they argued there is a risk the jury impermissibly used the post-offence conduct evidence. The Court of Appeal would not give effect to this ground of appeal.

The charge must be read as a whole. In doing so, it becomes clear the trial judge emphasized the frailties of the ballistics evidence elsewhere in the charge, and made it clear to the jury that the forensic evidence only established that the .357 Glock found in Riley's girlfriend's apartment was possibly used in the shooting, not that it certainly was.

While it might have been preferable for the trial judge to specifically spell out the connection between that instruction and his instructions on how to consider the post-offence conduct, he did not fall into reversible error in failing to do so. As a matter of common sense, it would have been obvious to the jury that the post-offence conduct was only relevant if they were satisfied that the .357 Glock had been used in the shooting.

7. Overall Balance of the Jury Charge

The appellants took issue with the overall balance of the trial judge's charge to the jury.

The appellants submitted that the trial judge's instruction effectively turned the Vetrovec caution on its head. The sole issue at trial, they said, was identification of the shooters and the only evidence that identified the appellants was that of Wilson and Ellis. In their view, the trial judge focused an unreasonable amount of the charge on how the jury might confirm the testimony of Wilson and Ellis, to the detriment of the actual purpose of a Vetrovec warning, which is to warn the jury of the dangers of relying on the evidence of unsavoury witnesses. Further, they submitted the trial judge did not effectively summarize the defence position, failing to point out in the charge evidence favourable to the defence and inconsistencies in the Crown's evidence. The Court of Appeal did not accept this ground of appeal.

The trial judge cannot be expected to review each piece of defence evidence, nor should he have done so in this case. The Supreme Court of Canada has repeatedly emphasized the functional approach to jury charge review. The trial judge's duty is to "decant and simplify", and must not over-charge in an effort to safeguard verdicts from appeal; the standard is adequacy, not perfection.

Here, the trial judge fairly presented the defence case. In this court, the appellants point to various examples of defence-favourable evidence not mentioned during the charge, but those points were heavily canvassed in counsels' closing submissions. These submissions by the appellants would not have been lost on the jury.

The appellants are correct that trial judges should be cautious not to overemphasize corroboration of a Vetrovec witness' evidence at the expense of the purpose of the Vetrovec caution itself. The focus should be on assuring the jury understands that the unsavoury witness should not be easily trusted, rather than on expounding in detail all of the reasons the unsavoury witness should be believed.

In other words, trial judges should not charge in a manner that causes the jury to lose sight of the forest of an unsavoury witness' unreliability for the trees of confirmation.

That being said, the Court of Appeal disagreed that that is what happened in this case. The trial judge properly pointed the jury to examples of evidence potentially capable of corroborating Ellis' and Wilson's testimony. He also devoted considerable time, however, to outlining the numerous factors that made their evidence untrustworthy. The trial judge did not devote an undue portion of the charge to corroboration at the expense of the core purpose of the Vetrovec warning.

In the Court of Appeal's view, the charge was balanced, fair and free of legal error. The court saw no basis for appellate intervention.

8. Additional Grounds of Appeal

The Court of Appeal had not addressed two other portions of the trial judge's charge to the jury, which the appellants took issue with: (1) Wisdom's alibi evidence and (2) the "dread" evidence. Given the Court of Appeal's decision on the "Money Mart" issue, the court found it unnecessary to do so. In any event, having reviewed the parties' submissions, the court agreed with the Crown that (a) those grounds of appeal lack merit; and (b) even if they did not, in respect of these alleged errors this would be an appropriate case for applying the curative proviso.

9. The Charter Ground and Fresh Evidence

Before trial, Riley and Atkins challenged the admissibility of certain pieces of evidence on the basis that they were obtained in a manner that breached their s. 8 Charter rights against unreasonable search and seizure. They renewed that challenge here, seeking to adduce fresh evidence on appeal in support of it.

For the reasons that follow, the Court of Appeal dismissed the application to admit fresh evidence and rejected this ground of appeal.

Background

Shortly after the Charlton and Bell shooting, the police set up an emergency warrantless wiretap on Riley. In a pre-trial application, the appellants successfully established, amongst other things, that the wiretaps were illegally implemented. These intercepted communications were excluded at trial.

At issue here was so-called "derivative" evidence the police obtained, ostensibly as a consequence of the illegal wiretap.

The emergency wiretap was active when the Hyatt and Patrong shooting occurred on April 15, 2004. Conversations captured on the wiretap led the police to track Riley's and Atkins' locations, find them in a silver Audi on April 19, 2004, and arrest them in connection with the Hyatt and Patrong shooting.

Marlon Wilson was also in the vehicle at the time of the arrest. He too was charged in the shooting of Hyatt and Patrong. On that occasion, he implicated Riley and Atkins in the Hyatt and Patrong shooting. Later, on October 27, 2004, he gave statements to the police implicating Riley and Atkins in the Charlton and Bell shooting. As the court had explained, his evidence figured heavily in the Crown's case against Riley and Atkins at the Charlton and Bell trial.

Decision Below

Atkins and Riley sought to exclude Wilson's evidence on a pre-trial application arguing that it was derivative evidence of a breach of their Charter-protected rights. Namely, they argued the illegal wiretaps breached their s. 8 rights, and this breach led to the arrest. The arrest was what led the police to Wilson. As such, Wilson's evidence was "obtained in a manner" that breached their Charter rights and should be excluded.

As the court had said, the trial judge in this case found that the implementation of the emergency wiretap breached the appellants' rights in a serious manner, and excluded them. However, he declined to exclude some of the "derivative" evidence obtained following the wiretap. He found that two groupings of evidence were not "obtained in a manner" that violated s. 8 of Charter and therefore the exclusionary remedy in s. 24(2) of the Charter did not apply: (i) the evidence obtained as a result of the arrests of Atkins, Riley and Wilson in the silver Audi; and (ii) the evidence of Marlon Wilson (in whatever form) at the applicants' trial.

The trial judge held these groups of evidence did not meet the proper standard for temporal or causal connection to demonstrate that the evidence was obtained in a manner that violated the Charter. First, he held that the arrest was inevitable due to the police presence and the surveillance team devoted specifically to finding the Audi involved in the Hyatt and Patrong shootings, and that the illegal wiretap was only an "inconsequential component" of the information that resulted in the arrest. Second, he found that there was a tenuous temporal and causal connection between the Charter breach and Wilson's voluntary decision to give evidence against Riley and Atkins, a decision he made roughly six months after the arrest, after an important intervening event: the "call down".

In the alternative, if this evidence were obtained in a manner that violated the Charter, the trial judge would have admitted the evidence under s. 24(2). He held that if the remoteness of the other evidence from the breach was not sufficient to avoid the classification of some or all of it as evidence obtained in a manner that infringed the Charter, that remoteness would, nonetheless tip the balance in favour of inclusion.

The Decision in the Hyatt and Patrong Voir Dire

Before Nordheimer J. in the Hyatt and Patrong trial, Riley and Atkins brought a very similar Charter application to the one at issue here. There, they sought to exclude a variety of evidence ostensibly "derivative" of the illegally intercepted calls.

In contrast to the trial judge's admissibility ruling in this case, Nordheimer J. found both (i) the evidence obtained as a result of the arrests of Atkins, Riley and Wilson in the silver Audi; and (ii) the evidence of Marlon Wilson, in whatever form at the trial, were obtained in a manner that violated the applicants' rights.

Justice Nordheimer recognized that he came to a different conclusion than the trial judge at the Charlton and Bell trial and noted that he had the benefit of hearing evidence that the trial judge did not. Based on that evidence, Nordheimer J. did not agree it was inevitable that the Audi would be located on April 19, 2004, and that Riley and Atkins would be arrested. The police were only able to find the silver Audi, and arrest the appellants and Wilson, through direct resort to the content of the emergency wires. The arrest flowed directly from the information obtained from the intercepted communications which were a breach of s. 8.

However, Nordheimer J. admitted the "derivative" evidence after balancing the factors set out in R. v. Grant and concluding admission would not bring the administration of justice into disrepute.

Analysis of the Proposed Fresh Evidence

The proposed fresh evidence consists primarily of testimony of police officers obtained during the voir dire on the Hyatt and Patrong s. 8 application. The officers' evidence, the appellants say, demonstrated that they knew they did not have grounds to arrest Riley nor to believe he was the driver of the Audi. They say, also, that the officers' evidence established a complete failure to use the wiretaps for their stated purpose (to monitor Riley's communications out of a desire to prevent further shootings) and shows a pattern of using the emergency wiretaps solely as an evidence-gathering tool against Riley. They submitted the officers' testimony establishes they would not have been able to locate and arrest Riley, or to develop grounds to believe the Audi was used in the Hyatt and Patrong shooting, without the illegal wires.

The test for admission of fresh evidence on appeal is as follows:

1. Is the evidence admissible under the operative rules of evidence?
2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?

Even assuming the appellants' proposed fresh evidence is capable of establishing what they say it establishes, it would not furnish a basis for overturning the trial judge's decision to admit the evidence of Marlon Wilson. Consequently, it does not meet the "cogency" requirement of the Palmer test for admission of fresh evidence on appeal.

The appellants' proposed fresh evidence is directed at demonstrating that the arrest was sufficiently proximate to the s. 8 breaches occasioned by the illegal wiretap. But assuming, without deciding, the appellants are correct, and the proposed fresh evidence establishes the arrest was sufficiently proximate to the s. 8 breaches to trigger s. 24(2), they nevertheless face an insurmountable obstacle.

The appellants' real objective in this appeal is to exclude Marlon Wilson's evidence implicating them in the Charlton and Bell shooting. He decided to give that evidence some six months after the arrest. Perhaps even more importantly, in the intervening period, he was threatened by Riley. The trial judge reviewed these factors and determined that the connection between the arrest and Wilson's evidence was tenuous. None of the appellants' proposed fresh evidence is directed at undermining the trial judge's conclusion on that point. The bare fact that Nordheimer J. reached a different conclusion regarding the "obtained in a manner" analysis is insufficient.

In any event, the trial judge properly applied R. v. Goldhart in concluding that Wilson's subsequent testimony was too remote in time and circumstance from the initial breach, and indeed the arrest, to have been "obtained in a manner" that breached the appellants' s. 8 rights. As he was required to do, the trial judge examined the entire relationship between the Charter breach and the impugned evidence, including the strength of the causal and temporal connection. He also properly considered whether the events were part of a single transaction and concluded they were not.

The strength of the connection is a question of fact. Nothing about the proposed fresh evidence could undermine the trial judge's factual conclusions on this subject.

Consequently, the proposed fresh evidence does not meet the "cogency" requirement of the Palmer test, and the Court of Appeal would decline to admit it.

The Court of Appeal noted, parenthetically, that it also had serious doubts about whether the proposed fresh evidence satisfies the "due diligence" element of the Palmer test. Much of the evidence the appellants propose to adduce as fresh evidence comes from officers who were available but not called to testify on the voir dire in this case. However, the same officers were called on the subsequent Hyatt and Patrong voir dire on the same subject matter. Given this, the court saw considerable merit in the Crown's submission that the decision not to call this evidence at trial was tactical.

In the light of the Court of Appeal's conclusion with respect to the fresh evidence application, the court saw no basis for the appellants' challenge to the trial judge's s. 24(2) ruling, and dismissed Riley's and Atkins' appeals from it.

Conclusion

Riley and Atkins' appeals are dismissed. Wisdom's appeal is allowed, his conviction is quashed, and a new trial is ordered.

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