Court of Appeal for Ontario

Date: September 5, 2025

Dockets: C68640, C68787 & C68690

Judges: Fairburn A.C.J.O., Gomery and Wilson JJ.A.

Parties

Docket C68640

Between

His Majesty the King

Respondent

and

Abdullahi Mohamed

Appellant

Docket C68787

And Between

His Majesty the King

Respondent

and

Trevaughan Miller

Appellant

Docket C68690

And Between

His Majesty the King

Respondent

and

Abdirahman Islow

Appellant

Counsel

Anil Kapoor and Alexa Ferguson, for the appellant Abdullahi Mohamed

Erin Dann and Paul Socka, for the appellant Trevaughan Miller

Maija Martin and Stephanie Brown, for the appellant Abdirahman Islow

Andreea Baiasu and Rebecca De Filippis, for the respondent

Hearing

Heard: October 28-29, 2024

On appeal from: the convictions entered on March 13, 2020 by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a jury.

Opinion of the Court

Fairburn A.C.J.O.:

A. Overview

[1] Abdullahi Mohamed, Trevaughan Miller and Abdirahman Islow (the "appellants") were convicted of first-degree murder in the 2018 shooting death of Nnamdi Ogba.

[2] The appellants raise seven grounds of appeal:

1. the jury was erroneously instructed on various modes of participation, specifically, aiding (s. 21(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46) and liability through pursuit of a common unlawful purpose (s. 21(2) of the Criminal Code);

2. the expert gang evidence should not have qualified for admission;

3. the jury was erroneously instructed on the use of after-the-fact conduct evidence;

4. the videos located on Mr. Islow's phone, depicting him with firearms, should have been excluded or the jury at least cautioned against their improper use;

5. the jury was erroneously instructed on the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742;

6. the jury should have been given an instruction on the effect of the Crown's breach of the rule in Browne v. Dunn, [1893] 6 R. 67 (H.L.); and

7. there was a miscarriage of justice arising from the compilation of the jury roll.

[3] In my view, the first ground of appeal has substantial merit: the errors in the instructions regarding modes of participation are insurmountable and the verdicts must be set aside and a new trial ordered. In the hope of providing some assistance for purposes of the new trial, I will also address the other grounds of appeal, none of which would have resulted in a new trial.

B. Background

(1) Undisputed Facts

[4] The fatal shooting took place on the evening of Friday, March 16, 2018.

[5] There was closed-circuit television ("CCTV") footage of what transpired in the lead-up to, during, and following the shooting.

[6] The footage shows the three appellants taking a cab to an apartment building parking lot where they got into a stolen Nissan Rogue with stolen licence plates. They are later shown arriving at Scarlettwood Court in that stolen car. Mr. Islow, the driver, remains in the car, while Mr. Mohamed and Mr. Miller get out and walk toward the apartment complex. Mr. Islow positions the car in a way that allows for an easy exit.

[7] Mr. Miller and Mr. Mohamed are then shown walking through the parking lot at around the same time that Mr. Ogba is shown leaving one of the apartment buildings. Mr. Ogba, who lived in Brampton and worked as an engineer, had been visiting a friend from his soccer team who lived in the Scarlettwood Court area.

[8] The video footage shows Mr. Miller and Mr. Mohamed approaching Mr. Ogba from behind. There are several flashes of light in quick succession, and Mr. Miller and Mr. Mohamed then turn and run back to the vehicle where Mr. Islow is waiting. Mr. Miller and Mr. Mohamed enter the vehicle and Mr. Islow drives away.

[9] It is not contested that this footage depicts the shooting of Mr. Ogba. He was left to die in the parking lot, struck by five of the nine bullets that were shot. His death resulted from a bullet to the heart.

[10] CCTV footage from after the shooting shows the appellants together in an elevator. Mr. Islow can be seen showing Mr. Mohamed and Mr. Miller something on his phone, rubbing them on the head, and offering them something that looks like a pill.

[11] A search of Mr. Islow's phone revealed that, at around the same time as these actions, the phone was accessing information released by the police about a shooting that had just taken place in the Scarlett Road area of Toronto. His phone also accessed a news article about the shooting. A few hours later, his phone was used to conduct a Google search using the phrases "without vital signs" and "what happens when you die". The next morning, Mr. Mohamed's phone also accessed news articles about the shooting.

(2) Crown Theory/Evidence

[12] The Crown's position at trial was that the shooting resulted from an ongoing rivalry between two gangs: C3 and the Scarlettwood Crips. The Crown theorized that the appellants were members of C3 and that they went to the Scarlettwood Crips' territory intending to shoot someone in the area to send a message to the rival gang.

[13] There was evidence pointing toward a planned and deliberate first-degree murder. It included the use of a stolen motor vehicle with stolen licence plates, the positioning of the getaway car to make a fast exit, a shooting done without hesitation and for no apparent cause, the fast and unhesitating departure from the scene, and after-the-fact conduct.

[14] The evidence pointing toward a planned and deliberate first-degree murder also included expert evidence. Over the objections of the defence, Detective Constable ("DC") Katafigiotis was qualified as an expert witness at trial, his area of expertise being street gangs in Toronto. He testified about the existence of C3, C3's rivalry with the Scarlettwood Crips, and the use of social media by gangs to identify members and convey threats to rival gangs. He referred to a shooting incident in 2015 at Scarlettwood Court (the "Teape Incident"), where a member of C3 was shot and badly beaten. DC Katafigiotis also explained that gang members sometimes go into a rival gang's territory to shoot a random person as a display of power.

[15] In granting the Crown's application to admit the evidence of DC Katafigiotis, the trial judge also admitted videos and photographs obtained from Mr. Islow's and Mr. Mohamed's cellphones, including videos of Mr. Islow and Mr. Mohamed together, videos of Mr. Miller, and images of firearms.

[16] A second expert, Sui-Gin Judy Chin, was permitted to testify regarding the firearms that may have been used in the shooting. She examined cartridge casings and bullet fragments that were recovered from the scene and the deceased's body. She testified that she input the characteristics of those cartridges into an FBI database, which generated a list of firearms that could have fired those cartridges. Ms. Chin testified that one of the two firearms depicted in the videos from Mr. Islow's phone appeared to be one of the firearms on this list, although she could not definitively identify it.

[17] I will return to this evidence later when addressing the admissibility issues involving the expert opinion evidence and the videos and images found on Mr. Islow's phone.

(3) Defence Theory/Evidence

[18] Mr. Mohamed was the only accused to testify. He admitted that he was guilty of manslaughter.

[19] He testified that on March 16, 2018, he was with Mr. Islow and a mutual friend named "Nused". Mr. Miller arrived sometime after Mr. Mohamed and Mr. Islow had consumed drugs.

[20] Mr. Mohamed testified that both he and Nused were dealing crack cocaine at the time. Nused purportedly told Mr. Mohamed that he knew someone who wanted to buy some crack cocaine that day. Neither Nused nor Mr. Mohamed had any to sell, but Mr. Miller told Mr. Mohamed that he had a friend named "BG" who had some crack to sell. Mr. Miller said he had access to a car that they could use to go to the Scarlettwood Court area to get the drugs. Mr. Islow wanted to tag along and agreed to drive.

[21] Mr. Mohamed testified that he, Mr. Miller, and Mr. Islow travelled to Scarlettwood Court to pick up the drugs. There were no discussions about shooting anyone on the way to the drug deal. As he and Mr. Miller were walking to meet BG, Mr. Mohamed saw someone he recognized as "Biggs" who owed him money. He explained that on a previous occasion, he had given some crack on "consignment" to Biggs, but Biggs had never paid him. Therefore, when he saw Biggs, he thought "perfect, this is my chance to get my money." He wanted Biggs to take him seriously, so he started walking behind the man he believed to be Biggs and then "let off one shot" from his gun, which he described as an intentionally "high and wide" shot.

[22] According to Mr. Mohamed, the person he thought was Biggs then turned around and said, "Hey, hold on." It was at that moment that Mr. Mohamed realized that the man he was trying to scare was not Biggs. He had mistaken Mr. Ogba, a complete stranger, for Biggs. Before he could see or do anything, Mr. Mohamed "heard more shots" and so he panicked, turned around and ran back to the car. Once he and Mr. Miller were back at the car, Mr. Mohamed told Mr. Islow to drive. When he asked Mr. Miller "what the fuck, what happened", Mr. Miller replied that after Mr. Mohamed took a shot, he just "panicked and he started shooting".

[23] Why did Mr. Mohamed have a gun? Because, he said, he kept one on him for "protection" when engaging in drug transactions. He had been "robbed" at knifepoint previously by customers who used crack cocaine. He admitted that the business of crack cocaine was a "dangerous one" and so he was armed the majority of the time. He also admitted that he was "fascinated by guns."

(4) The March 2020 Verdicts

[24] The trial started in and continued throughout February of 2020. Verdicts were returned, with all appellants found guilty of first-degree murder on March 13, 2020.

[25] I wish to acknowledge the difficult task the trial judge faced at the time that he was charging this jury. Not only were the issues complex but the commencement of jury deliberations coincided with the onset of the COVID-19 pandemic in Ontario. The jury only started to deliberate on March 10, as worry about public health and safety was increasing and the world was starting to shut down. In fact, only a few days later, on March 15, 2020, the Superior Court announced that it was suspending all regular court operations on March 17, 2020 until further notice. In that context, there was a very real urgency to conclude the trial.

[26] It is entirely possible that with a little more time to reflect and without these pressures at work, the errors I am about to address would not have been made. With that said, and despite the obvious hard work that went into this charge and this trial by all of the justice participants involved, I have concluded that mistakes were made that simply cannot result in anything but a new trial.

C. Discussion

(1) Instructions re: Modes of Participation Were Deficient

(a) Overview

[27] As set out above, the jury was presented with two contrasting theories about what gave rise to the shooting.

[28] According to the Crown, all three appellants were confederates in a planned and deliberate killing; they jointly planned to go into enemy gang territory and kill someone. The plan involved Mr. Islow as the getaway driver, and Mr. Mohamed and Mr. Miller, who were armed with .45 calibre semi-automatic handguns, as the shooters. Each had the requisite intention for a planned and deliberate murder.

[29] The defence theory was different. The three appellants, all of whom leaned on the testimony of Mr. Mohamed, said that they were in the Scarlettwood Court area to do a drug deal with BG. The misidentification and shooting of Mr. Ogba was an intervening event that had nothing to do with the drug deal and the killing was unintentional. Mr. Mohamed conceded that he was guilty of manslaughter and, by the end of the trial, Mr. Miller all but conceded that, as the second shooter, he was also guilty of manslaughter. Mr. Islow said that as the driver for the drug deal, he was guilty of nothing.

[30] It is against those competing theories that the jury was instructed on three modes of participation: principals pursuant to s. 21(1)(a), aiders pursuant to s. 21(1)(b), and pursuit of a common unlawful purpose pursuant to s. 21(2) of the Criminal Code.

[31] Pointing to both the original charge and the additional instructions provided in response to a question from the jury, the appellants contend that the jury was erroneously instructed on both common unlawful purpose (s. 21(2)) and aiding (s. 21(1)(b)).

[32] As I will explain, there is much to what the appellants suggest. First, however, I will set the stage by reviewing the various modes of participation under s. 21 of the Criminal Code, with particular focus on s. 21(2).

(b) Section 21 and Modes of Participation

[33] As detailed below, the jury was instructed that there were "different ways of committing first-degree murder (or one of the lesser offences)", namely second-degree murder and manslaughter: (i) as principals or joint principals (s. 21(1)(a)); (ii) as aiders (s. 21(1)(b)); or (iii) as participants in a common unlawful purpose (s. 21(2) of the Criminal Code).

[34] Principals and co-principals are sometimes referred to as primary actors, whereas aiders and abettors, as well as those who are captured by way of a common unlawful purpose, are sometimes referred to as secondary actors.

[35] Although the actus reus and mens rea for each route to liability are different, whatever the route, the law treats each person found guilty, whether as a primary or secondary actor, as parties to the offence and, as such, equally guilty of that offence. Therefore, as Charron J. put it, "[t]he person who provides the gun … may be found guilty of the same offence as the person who pulls the trigger:" R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13. See also: R. v. Maciel, 2007 ONCA 196, at para. 85; R. v. Cowan, 2021 SCC 45, [2021] 3 S.C.R. 323, at para. 29.

[36] As a refresher, s. 21(1) of the Criminal Code specifies three different types of party liability:

Parties to offence

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[37] I will refer to s. 21(1)(a) liability as "principal" or "co-principal" liability. These are individuals who actually commit the offence, in the sense that they commit all of the elements of the offence, accompanied by the required mens rea for a principal offender. Where two or more persons actually commit the offence, they are considered co-principals: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 19, at para. 53.

[38] I will refer to s. 21(1)(b) liability as "aiding." Aiders are those individuals who do something for the purpose of aiding the principal or co-principals in the commission of the offence. To fall within this category, one must possess the required mens rea for an aider when providing that assistance: Pickton, at para. 53. I will return to aiding in more detail below.

[39] There is no need to address abetting under s. 21(1)(c) as there was no reference to it in this case.

[40] Turning to s. 21(2), which is a key issue in this case, it reads as follows:

Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[41] Section 21(2) operates differently than s. 21(1). Whereas s. 21(1) captures those who participate in, aid in or abet a specific crime, s. 21(2) is much broader in scope. It extends liability to those individuals who are not principals, aiders or abettors to offences. It applies to situations where the accused has agreed with at least one other to commit an offence and, while carrying out that agreed-upon unlawful purpose, at least one or more of the participants to the original agreement (but not the accused) commits a different offence. Section 21(2) will apply if the accused knew (or, in the case of offences not requiring specific intent, ought to have known) that one of the participants to the agreed-upon unlawful purpose would likely commit the incidental offence while pursuing the common unlawful purpose. Therefore, s. 21(2) extends responsibility for incidental offences – offences other than the offence the accused originally agreed to participate in – provided that the incidental offence is committed "in carrying out" the originally-agreed-upon unlawful purpose and the accused had the requisite degree of mens rea: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at paras. 50-52; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 25, 40-42.

[42] Accordingly, s. 21(2) liability breaks down nicely into three elements, categorized as: (1) agreement (the original unlawful purpose); (2) offence (the offence committed that is incidental to the originally-agreed-upon unlawful purpose); and (3) knowledge (subjective or objective foresight of the incidental offence).

[43] To establish agreement, the Crown must prove that there was a common intention between at least two people to jointly carry out a common unlawful purpose: R. v. Gong, 2023 ONCA 230, 425 C.C.C. (3d) 122, at para. 32. Of course, the common unlawful purpose must constitute a criminal offence: Cadeddu, at para. 56. Therefore, it is the act of agreeing upon the commission of a criminal offence.

[44] To establish the offence, the Crown must prove that at least one of the individuals (not the accused) who was part of the original agreement committed a different offence while carrying out the original agreement: Gong, at para. 32; Cadeddu, at paras. 59-60. This is often referred to as the "incidental offence", and it must be different from the agreed-upon offence: Simon, at para. 42. Although not the offence intended by the parties, the incidental offence must be related to the original unlawful purpose in that it was committed in the course of carrying out the initial agreement: Cadeddu, at paras. 59-60; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 41.

[45] As for knowledge – the mens rea component of s. 21(2) – the accused must have the requisite state of mind with respect to the incidental offence. In the context of s. 21(2), that state of mind demands proof of foresight of the probability – meaning likelihood – of the incidental offence being a consequence of carrying out the original common unlawful purpose. Although s. 21(2) provides both a subjective and objective basis – "knew or ought to have known" – for establishing the requisite foresight, where subjective knowledge is the only legally- and constitutionally-sufficient basis upon which to establish mens rea (e.g., in the case of murder), only subjective knowledge of the likelihood of the commission of the incidental offence will do: R. v. Jackson, [1993] 4 S.C.R 573, at p. 583; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 63.

[46] Therefore, when it comes to murder, the Crown must prove that the accused knew that it was likely that one of the participants in the original agreement would commit a murder while carrying out the original unlawful purpose. While the incidental offence of murder need not occur in an expected way, the likelihood of a murder being committed by one of the participants in the course of carrying out the original agreement must be subjectively foreseen by the accused. In other words, the accused must know it is likely that one of his co-participants in the original agreement will, with the requisite intention for murder, kill someone while carrying out the originally-agreed-upon unlawful purpose: R. v. Logan, [1990] 2 S.C.R. 731, at pp. 747-748.

[47] For purposes of first-degree murder, it is difficult to see how s. 21(2) could be used as a route to liability where the allegation rests solely upon planning and deliberation pursuant to s. 231(2) of the Criminal Code. Although this court has left open the question as to whether s. 21(2) is an available route to a planned and deliberate first-degree murder, I confess to having some difficulty with the idea: R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 248.

[48] It is hard to imagine a scenario where an accused who knows that a co-participant to their agreement is likely to commit an intentional, planned and deliberate killing while carrying out the agreement is not, at a minimum, an aider. Indeed, the very notion of planning an incidental crime would seem to belie the very reason that s. 21(2) exists, which is to widen the circle of culpability for unplanned crimes that arise as an incidental consequence of carrying out the agreed-upon unlawful purpose.

[49] That said, it would not be appropriate to definitively rule on this point in the absence of full argument, especially since the Crown concedes that s. 21(2) did not furnish a path to first-degree murder here and instead argues that s. 21(2) was not left for the jury to consider as a path to first-degree murder. As a result, I need not conclusively resolve the issue here and leave it for another day.

[50] Finally, to be guilty of manslaughter pursuant to s. 21(2), the Crown must prove that "a reasonable person in all the circumstances would have foreseen that a probable consequence [likelihood] of carrying out the original common purpose was perpetration of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory": Patel, at para. 42. See also: Jackson, at pp. 586-587; Gong, at paras. 33 and 41.

[51] I now turn to the jury instructions given.

(c) Jury Instructions

(i) The Original Charge

[52] At about the half-way mark in the original charge, the trial judge instructed the jury on "Modes of Participation." I underline the parts of this instruction that are relevant to the issues on appeal:

5. Modes of Participation

[113] Under our law, a person may participate in an offence and be guilty of it in different ways.

[114] A person may commit an offence by personally doing everything necessary to commit the offence, either alone or along with somebody else who participates in the same way.

[115] A person may commit an offence by helping another person to commit that offence. This help may be by doing something, for the purpose of helping the other person to commit the offence.

[116] A person may also commit an offence by being involved with others in a common unlawful purpose. If anyone of the group commits an offence that is different than what they agreed on in the first place, in carrying out their original common unlawful purpose, any other member of the group who knew that the offence would likely be committed by somebody in the group in carrying out their original purpose is guilty of the offence the other person actually commits.

[117] To prove that Mr. Mohamed, Mr. Islow, or Mr. Miller committed first-degree murder or one of the lesser offences that I will tell you about, Crown counsel is entitled to rely on different ways of committing the offence. Proof of any way will do. Proof of every or more than one way is not required.

[118] When there is evidence, as there is in this case, that might permit you to find that Mr. Mohamed, Mr. Islow, or Mr. Miller committed first-degree murder (or one of the lesser offences that I will instruct you about) in more than one way, you do not all have to agree that guilt has been proven in the same way in order to find any of them guilty. As long as everyone agrees that Mr. Mohamed, Mr. Islow, or Mr. Miller, committed first-degree murder (or one of the lesser offences that I will tell you about) in one way or the other, then he must be found guilty of that offence. Likewise, if you find any of Mr. Mohamed, Mr. Islow, or Mr. Miller not guilty of first-degree murder (or one of the lesser offences I will instruct you about), then it matters not how you arrive at that verdict so long as you are all agreed on that verdict.

[119] Later in these instructions I will describe for you in greater detail the different ways of committing first-degree murder (or one of the lesser offences that I will tell you about) that you will have to consider in deciding this case for each one of Mr. Mohamed, Mr. Islow, and Mr. Miller. [Emphasis added.]

[53] Following the instructions on modes of participation, the trial judge provided instructions on the requirements for separate verdicts for each appellant. He then moved on to providing general instructions on manslaughter and murder, engaging with the classic ladder approach. Applying this approach, the presumption of innocence was described as "ground level". Manslaughter was described as the first rung of the ladder, where the Crown had proven beyond a reasonable doubt that the appellants caused Mr. Ogba's death by means of an unlawful act. The second rung was described as second-degree murder, where the Crown had proven beyond a reasonable doubt that at the time of causing the death by an unlawful act, the appellants had the state of mind required for murder. And the top rung was described as first-degree murder, where the Crown had proven beyond a reasonable doubt that the appellants committed a planned and deliberate murder.

[54] The trial judge then worked his way through the essential elements of first-degree murder.

[55] As he worked his way through the first, third and fourth essential elements of first-degree murder (namely, whether the appellants caused Mr. Ogba's death, whether they had the state of mind for murder, and whether they planned and deliberated upon his killing), the trial judge reminded the jury on three occasions that they should bear in mind his earlier instructions that there was more than one way that the essential elements could be proven beyond a reasonable doubt, depending upon the mode of participation. The repeated instructions follow:

[Instruction under Causation]

[172] In determining whether [the appellants] caused Mr. Ogba's death, you should bear in mind my earlier instructions that there is more than one way for a person to commit a crime.

[Instruction under State of Mind for Murder]

[192] I will repeat to you that in determining whether [the appellants] had the state of mind to commit murder, you should bear in mind my earlier instructions that there is more than one way for a person to commit a crime.

[Instruction under Planning and Deliberation]

[215] I will repeat that in determining whether [the appellants] had the state of mind to commit murder, you should bear in mind my earlier instructions that there is more than one way for a person to commit a crime.

[56] Notably, despite telling the jury at para. 119 (see Modes of Participation above) that "[l]ater in these instructions" he would "describe for [the jury] in greater detail the different ways of committing first-degree murder (or one of the lesser offences"), those later instructions never came. Therefore, the jury never received more detailed instructions on how to approach liability as an aider or as a participant in a common unlawful purpose, and they were left to deliberate only with what was originally provided to them in para. 115 on aiding and para. 116 on common unlawful purpose.

(ii) Response to the Jury's Question

[57] It is clear that the jury needed further instructions, at least relating to liability while engaged in a common unlawful purpose, because they asked for those instructions. On the second day of deliberations, they asked the following question:

We would like some more clarity about 5 – Modes of Participation, in particular #116, including in regards to the definitions of Manslaughter, Second Degree Murder and First Degree Murder. Please use analogies as part of your explanation.

[58] The reference to "#116" is a direct reference to the trial judge's original instruction regarding liability by way of common unlawful purpose pursuant to s. 21(2). Recall that, in that paragraph, the trial judge instructed the jury:

If anyone of the group commits an offence that is different than what they agreed on in the first place, in carrying out their original common unlawful purpose, any other member of the group who knew that the offence would likely be committed by somebody in the group in carrying out their original purpose is guilty of the offence the other person actually commits.

[59] The trial judge provided the parties with a potential response to the jury's question. This inspired lengthy and wide-ranging discussions between the court and counsel as the jury awaited their answer. Multiple changes were requested by multiple defence counsel.

[60] At least two defence counsel made the point that the instruction had to be clear that s. 21(2) could not be used to arrive at a verdict of guilty to first-degree murder. If the murder was planned and deliberate, it would preclude liability under s. 21(2) of the Criminal Code because liability pursuant to that provision stems from a crime committed while carrying out the group's original common unlawful purpose. To this end, Mr. Mohamed's counsel took the position that the jury should be specifically instructed that "first degree murder is off the table" for purposes of s. 21(2) liability.

[61] Mr. Islow's counsel made the point that, even if Mr. Islow could have seen a shooting as a likely event transpiring during a drug deal – an inference he said was not available – he argued that there was no evidence to support the suggestion that Mr. Islow would have forseen an intentional murder as a likely offence incidental to carrying out the drug deal. Therefore, it was Mr. Islow's position that, at most, the jury could return a verdict of manslaughter under s. 21(2).

[62] It was the trial Crown who noticed that the original charge was missing instructions regarding how to approach the various modes of participation. As he said in an exchange focused upon how to answer the jury's question, the jury was clearly "struggling with … how does party liability work." It was the trial Crown who suggested that, although late in the day, the trial judge should essentially start over and provide the jury with a more complete answer on all possible modes of participation, including how to approach liability as an aider and as a participant to a common unlawful purpose. The Crown went so far as to suggest that, in answer to the jury's question, the trial judge provide the specimen instructions on aiding and common unlawful purpose in David Watt, Watt's Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at p. 414 (Final 101-B Aiding) and p. 421 (Final 101-D Common Purpose).

[63] The trial judge took some time to complete his answer and then had the jury returned to the courtroom. His response to their question was lengthy. I only highlight the salient parts that pertain to the objections raised on appeal.

[64] The trial judge started by reminding the jury what they had been told numerous times already:

In this case, there is more than one way for Crown counsel to prove the guilt of [the appellants] of the crime charged. [Emphasis added.]

[65] Recall that the crime charged was first-degree murder and that the jury had been left with three ways for the Crown to prove guilt: as principals, aiders and participants in a common unlawful purpose.

[66] This was followed by a classic Thatcher instruction, telling the jury that they need not all agree on which mode of participation an accused was guilty under, provided that they were unanimous that one of the required ways had been proven beyond a reasonable doubt: R. v. Thatcher, [1987] 1 S.C.R. 652.

[67] The trial judge then provided a brief overview of joint principal liability, using the classic example of A and B who together attack C and intend to kill him:

Each contributed to C's death. Each intended to kill him. Each has committed murder. If the killing was planned and deliberate, then A and B are guilty of first-degree murder. Otherwise, they are guilty of second-degree murder.

[68] What would normally follow the joint principal instruction in a case where aiding is a mode of participation would be an instruction on how to approach aiding pursuant to s. 21(1)(b) of the Criminal Code. Notably, contrary to the Crown's request, the jury received no further instruction on aiding. Accordingly, the trial judge moved directly from explaining joint principal liability to liability arising from pursuit of a common unlawful purpose.

[69] In explaining common unlawful purpose, the trial judge started by telling the jury that if they found that the appellants went to Scarlettwood Court to do a drug deal, then "different considerations" would "ensue".

[70] He explained that a person who agrees with another or others to do something unlawful may be found guilty of another crime committed by one of the others while carrying out the original agreement. He further explained that establishing guilt in this way required the jury to consider three elements, which he described as "agreement, offence, and knowledge."

[71] As for agreement, the trial judge said that it required the Crown to prove beyond a reasonable doubt that the appellants agreed to "do a drug deal and help each other to do so."

[72] The trial judge then instructed the jury on the second element involving the "offence". He told the jury that this required proof that one of those who were part of the original agreement to do a drug deal "shot Mr. Ogba in carrying out the original agreement." As the trial judge said, "[t]he shooting must occur in the course of carrying out the original agreement or plan" and it had to constitute a crime "other than the one that those involved agreed on in the first place."

[73] The trial judge then addressed the third component, that being knowledge or state of mind. He instructed the jury that they had to be satisfied, beyond a reasonable doubt, that the appellants knew that "one of the participants in the original agreement would probably shoot someone in carrying out their original agreement" and that "probably" did not simply mean possibly, but meant "likely".

[74] Up to this point, the trial judge stuck closely to the specimen charge on common unlawful purpose: Watt's Manual of Criminal Jury Instructions, at p. 421 (Final 101-D Common Purpose). The trial judge then followed up with an example, which lies at the heart of one of the disputes on appeal, specifically, whether the jury would have thought that s. 21(2) was available as a route to first-degree murder:

A simple illustration may help you to understand how this basis of proving a person's guilt works if you find that [the appellants] went to Scarlettwood Court for the purposes of doing a drug deal. It does not apply if you find that [the appellants] went to Scarlettwood Court with the intention of shooting someone.

This is the example. A and B agree to steal from a store. A's role is to enter the store and to steal things. B is to drive the getaway car. A and B drive to the store. A enters. B stays in the car outside. The motor of the car is running. In the course of the theft, A picks up an ashtray and beats the manager of the store to death. A runs out of the store. A and B drive away. Both are later charged with second degree murder.

A and B agreed to commit theft and to help each other do so. In carrying out their original agreement or plan, A has committed an offence. He or she unlawfully killed the manager. A is the person who unlawfully killed the manager. A's crime will be second degree murder if Crown counsel can prove beyond a reasonable doubt that A meant to kill the manager or meant to cause him or her bodily harm that A knew would likely kill him and didn't care whether the manager died or not. A would not be guilty of first degree murder because the murder was not planned and deliberate.

For B to be guilty of second degree murder in these circumstances, Crown counsel will have to prove beyond a reasonable doubt that B actually knew that it was likely that A, in carrying out their original agreement or plan to steal from the store, would intentionally kill the manager or intentionally cause the manager bodily harm that A knew would likely kill him and did not care whether the manager died or not.

B will be guilty of manslaughter if Crown counsel can prove beyond a reasonable doubt that B actually knew that, or was reckless about, in carrying out their original agreement to plan to rob the manager, A would probably cause bodily harm of some kind either to the manager, by intentionally applying force to him or her in some manner or other. [Emphasis added.]

[75] This example was followed by a reminder to the jury that "all" of the trial judge's former instructions "still apply."

[76] The jury deliberated for another two days and then returned verdicts of first-degree murder against all the accused.

(d) Deficiencies in the Charge re: Modes of Participation

(i) Not Clear That s. 21(2) Was Not a Path to Liability for First-Degree Murder

[77] The appellants maintain that the trial judge left the jury with the erroneous impression that they could find them guilty of first-degree murder by way of s. 21(2), common unlawful purpose.

[78] Although the Crown agrees that there was no path to liability for first-degree murder pursuant to s. 21(2), the Crown contends that a contextual reading of the original jury instructions, combined with the answer to the jury's question, made clear to the jury that there was no route to first-degree murder by way of s. 21(2).

[79] More specifically, Crown counsel says that the example provided as part of the answer to the jury question confined liability to a verdict of manslaughter or second-degree murder. Nowhere did the trial judge suggest that A or B in the example given (A being the man who used the ashtray to kill the store owner and B being the driver of the getaway vehicle) would be guilty of first-degree murder. To the contrary, the jury was specifically told that even if A had the intention to kill the store manager, "A would not be guilty of first degree murder because the murder was not planned and deliberate." As for B, the jury was told that if B "knew that it was likely that A, in carrying out their original agreement or plan to steal from the store" would kill the manager with the intention for murder, then B would be guilty of second-degree murder. Therefore, says the Crown, at no point did the trial judge suggest to the jury that either A or B would be guilty of first-degree murder.

[80] Respectfully, I am not as optimistic as the Crown that the jury would have understood that first-degree murder was off the table under s. 21(2). In my view, even reading the charge together with the answer given to the jury's question, it cannot be safely said that the jury would not have been, at a minimum, confused about whether s. 21(2) was an available route to first-degree murder. I say this for several reasons.

[81] First, embedded in the jury's question was the fact that the jury had no understanding, at least at the time that they posed the question, that liability for first-degree murder was not available pursuant to s. 21(2). The jury's question, quite perceptively, asked for "more clarity about" the modes of participation and, specifically, about "#116" (which was the common unlawful purpose paragraph), "including in regards to the definitions of … First Degree Murder." This shows that at the point that the question was posed, the jury did not understand that s. 21(2) was not available as a route to first-degree murder.

[82] Second, I am not satisfied that the answer to the jury's question cleared matters up much. Bearing in mind the question the jury posed, which reflected their misunderstanding on this very point, this jury needed to be told in no uncertain terms that a verdict of first-degree murder was not available under this mode of participation. Unfortunately, that was not done.

[83] Third, the message to the jury was further muddied by the reminder they were given that there was "more than one way for Crown counsel to prove the guilt of the [appellants] of the crime charged," that being first-degree murder. Then, in the hypothetical example given to the jury, A and B were only "charged with second degree murder." This could have left the jury to their own devices when applying the instruction to someone charged with first-degree murder.

[84] Finally, the reminder to the jury at the very end of the answer to the jury's question that "all" of the original "instructions still appl[ied]" is also concerning. Those original instructions included the fact that all three modes of participation were available, and that the jury need only agree that the appellants "committed first-degree murder…in one way or the other".

[85] For those reasons, I am not confident that this jury would have understood that they were precluded from arriving at a verdict of first-degree murder pursuant to s. 21(2). And, as I will explain, there is also another difficulty with the instructions on s. 21(2).

(ii) No Air of Reality to s. 21(2) Liability

[86] The appellants maintain that there was no air of reality to s. 21(2) liability because there was no evidence to support either the second or third elements of this mode of participation, namely the commission of the incidental offence in carrying out the agreed upon unlawful purpose and knowledge about the likelihood of that incidental offence occurring in that context.

[87] According to the appellants, liability under s. 21(2) was not possible on the Crown's theory because, on that theory, there was no "incidental offence". According to the Crown, this was a planned and deliberate murder rooted in gang rivalry; the appellants always intended to go and kill someone on the Scarlettwood Crips territory and Mr. Ogba just happened to be that someone. The killing was not incidental to the original common unlawful purpose – rather, the Crown theory was that a planned and deliberate murder was the original common unlawful purpose. This made the appellants principals and/or aiders, with Mr. Mohamed and Mr. Miller being likely co-principals and Mr. Islow, as the driver, being an aider.

[88] The appellants argue that it was only the defence evidence, specifically Mr. Mohamed's evidence, that could possibly have provided a path into s. 21(2), but the evidence fell short of furnishing an air of reality to this mode of participation.

[89] In their submission, the necessary first prong of s. 21(2), the agreement to pursue a common unlawful purpose, arose only from Mr. Mohamed's testimony, where he testified that the appellants went to Scarlettwood Court to do a drug deal with BG. However, he testified that the shooting had nothing to do with the drug deal. Rather, it was a case of mistaken identity: en route to the drug deal, he mistook Mr. Ogba for Biggs who owed him money. He shot his gun to scare Biggs, which, again, had nothing to do with the agreement to do a drug deal with BG.

[90] Thus, from the defence perspective, the shooting was not an incidental offence committed "in carrying out" the drug deal (the common unlawful purpose). Rather, it was a spur-of-the-moment thing, arising from an instantaneous misidentification of someone whom the appellants just happened to encounter while they were en route to do a drug deal.

[91] Not only do the appellants characterize the shooting as an intervening act unrelated to the original unlawful purpose, but they also argue that there was no evidence to support the knowledge component. It was not reasonably foreseeable, the appellants argue, that one of them would encounter a passerby, mistake them for someone else, and intentionally kill them while carrying out that drug deal.

[92] The Crown pushes back on these points, arguing that the appellants' submission is erroneously premised on a wholesale acceptance of Mr. Mohamed's testimony. As Crown counsel correctly notes, the jury did not have to accept all of Mr. Mohamed's evidence. It would have been open to the jury to accept Mr. Mohamed's evidence that the men went to Scarlettwood Court to do a drug deal rather than to kill someone, but to reject the remainder of his account as to how and why the shooting unfolded as it did.

[93] The Crown emphasizes that the foreseen risk of harm here did not need to be of the specific dangerous act that actually occurred and constituted the unplanned offence: Gong, at para. 42. According to the Crown, the jury had sufficient evidence, including the evidence that the appellants took loaded firearms with them, upon which they could have found that the appellants knew that when they went to perform the drug deal, that this was an inherently dangerous act that could result in a shooting and death.

[94] The cumulative effect of the evidence, says the Crown, provided an air of reality to s. 21(2) liability for manslaughter as well as second-degree murder. Given that Mr. Mohamed and Mr. Miller took loaded firearms with them to the drug deal, it was open to the jury to find that the appellants could foresee not merely that somebody would be shot and suffer bodily harm in the course of the drug transaction, but that the shooter would intend to cause harm that they knew was likely lethal and did not care whether the victim died or not.

[95] Despite the capable submissions of Crown counsel, I am not persuaded that there was an air of reality to s. 21(2) liability in this case.

[96] An air of reality for a mode of participation arises where there is some evidence that, if believed, could reasonably support an inference of guilt on that theory of liability: R. v. Grandine, 2022 ONCA 368, 414 C.C.C. (3d) 207, at para. 35; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 150. An instruction on a theory of liability that does not have an air of reality will constitute a reversible error: R. v. Ranger, 67 O.R. (3d) 1, at para. 132; Patel, at para. 43; Grandine, at para. 35. Decisions on whether there is an air of reality are reviewable on a standard of correctness: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.

[97] Here, there was evidence upon which a properly instructed jury could have reasonably concluded that the appellants had engaged in an agreement to do a drug deal. That was the common unlawful purpose. That, however, is where the evidence supporting s. 21(2) liability ended. There was no evidence to support that a killing was committed "in carrying out" that unlawful purpose, nor evidence to support that the appellants knew that one of the participants to the original agreement to do the drug deal would likely commit a murder in carrying out the original purpose.

[98] Recall that for the offence component of s. 21(2) liability to be made out, the incidental offence – the second-degree murder or lesser offence of manslaughter – had to be committed by one of the participants to the original agreement in the course of "carrying out" the common unlawful purpose: Cadeddu, at paras. 59-60. This is what makes the offence incidental to the subject of the original agreement.

[99] Here, even if the jury accepted beyond a reasonable doubt that the appellants had agreed to go to Scarlettwood Court to do a drug deal (which I note, parenthetically, was anything but the Crown's theory), there was no evidence to support the suggestion that the incidental offence of murder or manslaughter was committed in carrying out that original unlawful purpose. Quite to the contrary, whether the jury accepted it or not, the only evidence was that there was a "supervening causative event wholly outside the agreed plan": Patel, at para. 41, citing V. Gordon Rose, Parties to an Offence (Toronto: Carswell, 1982), at p. 72.

[100] Mr. Mohamed was the only witness to provide specifics about what happened at the scene. His testimony could only be described as injecting a supervening event that was unrelated to the drug deal: the mistaken sighting of Biggs and the attempt to scare him.

[101] I agree with the Crown that the jury could have accepted Mr. Mohamed's evidence that the appellants went to Scarlettwood Court to do a drug deal but then rejected his evidence about the cause of the shooting being mistaken identity. But if the jury rejected that evidence, there was simply nothing to support the necessary link between the alleged drug deal (original unlawful purpose) and the shooting. In short, there was no evidence that the shooting of Mr. Ogba occurred "in carrying out" a crack cocaine deal. There was only evidence of a seemingly random killing en route to what may have been a drug deal. Quite simply, the shooting of Mr. Ogba was not incidental to that deal.

[102] The knowledge component of s. 21(2) is also problematic in this case. To be guilty of murder by way of s. 21(2), the appellants had to subjectively know that one of the participants to the agreed-upon drug deal would kill someone with the intention for murder while carrying out the drug deal. Here, the taking of the loaded firearms to the intended drug deal would not have furnished subjective knowledge that one of the participants would likely commit an intentional killing while at that drug deal. Nor do I see other evidence to support that proposition. While the evidence may possibly have supported an inference that a reasonable person in these circumstances would foresee the likelihood of an inherently dangerous act that would create a risk of bodily harm that was neither trivial nor transitory being perpetrated during the drug deal, that would only support a conviction for manslaughter. There is insufficient evidence to support subjective knowledge that a participant to the agreement to do a drug deal would kill someone with the intention for murder.

[103] In the end, there was simply no air of reality to s. 21(2) for the purposes of either manslaughter or murder. There was no evidence to support the idea that the offence was incidental to the original lawful purpose, nor could the knowledge component be established for anything higher than manslaughter.

(iii) Section 21(1)(b) Aiding Instruction Was Insufficient

[104] Recall that a very short, two-sentence instruction on aiding was provided in the original charge. For ease of reference, I repeat it here:

[115] A person may commit an offence by helping another person to commit that offence. This help may be by doing something, for the purpose of helping the other person to commit the offence.

[105] Although the jury was told that they would receive detailed instructions on the different routes of liability later in the charge, those instructions never came.

[106] The appellants argue that the jury was given no guidance on what the Crown had to prove to establish liability as an aider pursuant to s. 21(1)(b). If the Crown alleges first-degree murder through aiding, the appellants argue, the charge "must leave the jury with a clear understanding of what the prosecution has to prove to establish the person's guilt as an aider…of first degree murder:" Phillips, at para. 201. They say that such an instruction was critical in this case, where the evidence made clear that only one of the three accused physically caused the death of the victim.

[107] In contrast, the Crown maintains that an extensive instruction on s. 21(1)(b) liability was unnecessary since the Crown's case did not turn on the contention that any particular accused was a principal (shooter) or aider (driver), but on the contention that the shooting was committed pursuant to a plan to kill someone and that each accused was privy to that plan and participated in its execution. Although, technically speaking, each accused's particular role in executing the planned murder rendered them a principal or an aider, labelling their individual liability in these terms was immaterial in the context of this case.

[108] Respectfully, I do not accept the Crown's position on this issue.

[109] Admittedly, it is sometimes difficult to know the line between a principal and an aider.

[110] Principal liability is established where the Crown proves that an accused committed the requisite act along with the requisite intention. In a co-principal scenario, an accused does not need to commit the entire criminal offence provided that the co-principals together commit the offence and share the requisite intention.

[111] In this case, on Mr. Mohamed's evidence and the supportive video evidence, both Mr. Mohamed and Mr. Miller were shooters. Although one of the bullets ultimately caused Mr. Ogba's death, as joint shooters in this alleged joint enterprise, both Mr. Mohamed and Mr. Miller were captured as joint principals.

[112] Mr. Islow was another matter. He was only the driver, never having emerged from the stolen motor vehicle at the location of the shooting. For the jury, the driver of the vehicle could have easily been seen as an aider to the principals.

[113] While aiding a principal in the commission of a murder makes the aider just as culpable as the principal, the actus reus and mens rea for aiding are different.

[114] For purposes of the actus reus, the aider must do something to assist the principal in the commission of the offence. Performing the role of a getaway driver would clearly meet that requirement.

[115] For purposes of the mens rea, there are two components: intention and knowledge. The aider's intention must be to help the principal commit that offence. As emphasized in Briscoe, at para. 16, intention is not to be confused with desire. Therefore, even if the aider does not want the principal to commit the offence, the aider must intend to assist the principal in its commission. Secondly, the aider must know what offence the principal intends to commit. As a matter of "common sense", this knowledge is a prerequisite to proof of intention: Briscoe, at para. 17; Maciel, at para. 88. In the case of first-degree murder, the Crown must prove that the aider knew the murder was planned and deliberate and intended to assist the perpetrator in carrying it out: Maciel, at para. 89.

[116] I take no issue with the fact that the jury was charged with respect to aiding, at least insofar as Mr. Islow is concerned. The question here, though, is whether the jury was properly equipped to decide the case against Mr. Islow as an aider.

[117] Appellate courts must apply a functional approach when reviewing jury instructions for legal error: R. v. Abdullahi, 2023 SCC 19, 428 CCC (3d) 1, at para. 35. The overriding question is "whether the jury understood or was 'properly equipped' with the law to apply the evidence": Abdullahi, at para. 35. A jury is properly equipped in circumstances where they are accurately and sufficiently instructed. In terms of sufficiency of an instruction, the question is whether any alleged non-direction deprived the jury of a "sufficient understanding of the law to decide the case:" Abdullahi, at paras. 37 and 45. When looking to the sufficiency of an instruction, the question is whether the missing instruction was required and whether the instruction was actually given: Abdullahi, at para. 46.

[118] Recall that, after the question from the jury was received, the trial Crown realized that an aiding instruction had not been provided beyond para. 115 of the original charge and asked for such an instruction to be incorporated into any answer given. On appeal, the Crown argues that this was unnecessary and that the two sentences that briefly adverted to aiding at para. 115 of the original charge were sufficient.

[119] In my view, the jury was not equipped with a sufficient understanding of the law of aiding to properly decide the case against Mr. Islow. Absent from para. 115 of the original charge is any reference to the need for both intention and knowledge as an aider. For the jury to have convicted Mr. Islow as an aider to first-degree murder, they would have had to be satisfied beyond a reasonable doubt that Mr. Islow knew that Mr. Mohamed and/or Mr. Miller were intending to commit a planned and deliberate murder and that Mr. Islow intended to assist them in that planned and deliberate murder.

[120] The danger arising from the less-than-complete instruction given in this case is that the jury could have thought that Mr. Islow could be convicted of first degree murder if he drove the other two to Scarlettwood Court "for the purpose of helping" them commit an offence, whatever that offence was. This fell far short of the legal instruction required to consider whether Mr. Islow should be cloaked in liability for first-degree murder as the driver of the stolen motor vehicle.

[121] Respectfully, unlike the Crown, I do not see R. v. Suzack, 141 C.C.C. (3d) 449, as being of assistance in neutralizing the non-direction in this case. In Suzack, the two appellants attacked the victim and one of them fired the fatal shots. Each appellant advanced a cut-throat defence and testified that the other was the shooter. It is in that context that the trial judge in Suzack instructed the jury that where two or more persons act "in a common participation in the commission of an offence – in this case murder – and they assist one another in the commission of that offence, then they are liable as principals", provided they have the intention for murder, regardless of who "fired the fatal shots": at para. 149. This court accepted that the instruction was wrong, in the sense that the men may have been principals or aiders or even abettors, depending on what they did in the common design. Yet the "error in terminology" had little impact given that the "crucial issue [was] not whether [the trial judge] properly labelled the nature of the appellants' liability, but whether he properly instructed the jury as to the essential elements which the Crown had to prove to establish joint liability for murder": at para. 153. To this end, the court noted that the jury was specifically instructed that those involved in the "common participation … - in this case murder", had to have the intention for murder: at paras. 149, 154. Therefore, the error in semantics mattered not.

[122] The complaint in this case is a very different one than that levied in Suzack. Here, the complaint is not that the trial judge mischaracterized aiders as principals but, rather, that the trial judge specifically left aiding as a separate route to murder, but never provided the jury with an explanation as to what the Crown needed to prove to find one of the accused guilty as an aider.

[123] While the Crown argues that no prejudice inured from the failure to further explain aiding as a mode of participation, that argument is rooted in the Crown theory that the men were acting in concert when they went to Scarlettwood Court and did what they did. Undoubtedly, that was the Crown theory, but that is what it was: a Crown theory.

[124] Against the factual backdrop of this case, one that had Mr. Islow as the driver of the stolen motor vehicle, never getting out of that vehicle, the jury may well have thought of him as an aider. Yet all they knew about approaching this mode of participation was that Mr. Islow had to do "something … for the purpose of helping" one of the others commit an offence. The jury was not equipped to deliberate on this mode of participation as they did not know that an aider had to know that the others intended to commit a planned and deliberate murder and intend to help them in the commission of that planned and deliberate murder.

(e) The Proviso Does Not Apply

[125] Although the Crown asks that this court apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, this is not a case to do so. I do not see this as a true "failure to object" case since much of the s. 21(2) instruction was objected to. For instance, Mr. Mohamed's counsel asked for a clear and unequivocal instruction that this path to liability was not available for first-degree murder. And Mr. Islow's counsel said it was not available for murder, at least as it related to him.

[126] As for the non-direction on aiding, the trial Crown thought it was necessary and asked that the instruction be given, albeit very late in the day.

[127] In any event, this is not a case where a failure to object could be seen as a strategic decision on the part of counsel. Given the nature of the erroneous instructions, going to the very heart of how the jury was to approach their deliberations on first-degree murder, the failure to object does not inform the result on appeal. In my view, there must be a new trial since it is impossible to divine how the jury arrived at the verdicts of first-degree murder.

[128] Given that there must be a new trial, I will comment on the remaining issues, but do so only in an effort to assist the trial court on the path forward.

(2) Expert Evidence Was Admissible

(a) Overview

[129] The appellants argue that the trial judge erroneously admitted expert opinion evidence. This argument is directed at the evidence of DC Katafigiotis, who was qualified as an expert in street gangs.

[130] The appellants advance three main arguments in relation to this evidence, namely that: (1) DC Katafigiotis was unqualified to provide the opinion he advanced; (2) he was biased; and (3) the probative value of the evidence was outstripped by its prejudicial effect, and so should have never been admitted.

[131] As I will explain, I would not give effect to any of these arguments. First, however, I will briefly review the evidence.

(b) DC Katafigiotis' Evidence

[132] The Crown sought to introduce DC Katafigiotis' opinion evidence to assist in proving first-degree murder by providing an evidentiary foundation for motive. The evidence was crucial to understanding the Crown's theory that the appellants planned the shooting because of a gang rivalry between C3 and the Scarlettwood Crips.

[133] The trial judge ruled that DC Katafigiotis could give evidence about the existence and characteristics of street gangs, focusing on the existence of C3 and the Scarlettwood Crips, including the historical rivalry between them. He was permitted to testify about street gangs having a territory in which they operated and their methods of defending that territory, including through violence. As well, he was permitted to testify about street gangs using forms of intimidation and retaliation on rival gang territory and gang symbols and graffiti. Importantly, DC Katafigiotis was not permitted to opine on whether any of the three appellants were gang members. He testified within these parameters.

[134] He confirmed the existence of C3 and explained that it constituted an alliance between three separate gangs, all associated with the letter "C". Together, those three gangs formed the "C3".

[135] DC Katafigiotis testified about the use of social media, including videos, as a form of communication between gang members. The jury was shown various videos, including one taken on C3 territory, beginning with someone saying: "gang, gang, C3, C3, C3". The video image included a masked individual making a "C" symbol with his right thumb and index finger, and his three other fingers pointing up. This same hand symbol appears in multiple videos taken from Mr. Islow's phone, including a video showing a hand making that symbol over multiple other hands holding guns, with someone saying "sticks in, sticks in."

[136] The expert also testified that C3 was known to have a historical rivalry with the Scarlettwood Crips. He testified that from time to time, gangs will enter another gang's territory as a show of strength or power and that this will sometimes result in extreme violence. Specifically, DC Katafigiotis testified:

Sometimes they'd go over there to commit a robbery, an assault on another gang, just to show that, we can come here and do this. We are powerful. We are strong. We are intimidating. We can do this. And sometimes it turns into extreme violence....

[137] As he explained, this kind of behaviour can result in acts of retaliation, including murder. If there is no retaliation, it could show weakness. DC Katafigiotis used the Teape Incident as an example of "[o]ne incident" where there had been such an attack between the Scarlettwood Crips and C3. I will return to this incident shortly.

[138] When asked in-chief about whether a gang would go into a rival street gang's neighbourhood, DC Katafigiotis said that gangs would defend their territory at "all costs." From time to time, gangs will do a "G check" on their own territory, meaning a "gang check" to see who a person is, where they are from, and whether they represent a gang. If the question "is answered wrong … extreme violence will happen."

(c) DC Katafigiotis Was a Qualified Expert on Street Gangs

[139] The appellants maintain that the trial judge erred in finding that DC Katafigiotis had the appropriate qualifications to testify as an expert in street gangs. They point to the fact that he had been involved in only two wiretap projects. They also contend that he had listened to too few wiretap intercepts, played only peripheral roles on gang investigations, had poor results arising from debriefings of arrested gang members or gang-related individuals, had not read or written any scholarly literature on gangs, lacked a systematic methodology when it came to his approach to understanding Toronto street gang culture, and had done little to improve himself since he failed to be declared an expert in R. v. F.O., 2016 ONSC 724, at paras. 16-17.

[140] In my view, the appellants' position on this point must fail.

[141] Absent an error in principle, a material misapprehension of evidence, or an unreasonable conclusion, deference is owed to a trial judge's decision to admit expert opinion evidence: R. v. Mills, 2019 ONCA 940, 151 OR (3d) 138, at para. 47; R. v. Oppong, 2021 ONCA 352, 156 OR (3d) 401, at para. 34.

[142] In his reasons, the trial judge carefully outlined the law on expert opinion evidence: R. v. Mohamed, Islow, and Miller, 2020 ONSC 5074. He clearly had a good grasp on those principles of law and carefully and methodically applied them.

[143] I would defer to the trial judge's finding that DC Katafigiotis was qualified to proffer the expert opinion evidence he gave. Respectfully, the appellants' position is really an invitation for us to consider the matter afresh. That is not the role of this court.

[144] I do note, however, that many of the appellants' concerns are specifically addressed in the trial judge's reasons and the record. Drawing on those reasons and record, I would simply note the following factors, which pointed in the direction of qualifying the officer to testify within the boundaries of his expertise – boundaries that were carefully delineated by the trial judge and adhered to during evidence.

[145] By the time he testified, DC Katafigiotis had been a police officer for nearly 18 years, and had been involved in many investigations, including street gang investigations. Indeed, during the first decade of his work as a police officer, he worked out of a Toronto Police Services division that furnished a good deal of experience in investigating gang-related crimes.

[146] In the more than five years before trial, the officer had worked exclusively out of the Guns and Gangs Task Force of the Toronto Police Service. Among his many duties while working there, he was responsible for identifying gangs and gang members, understanding gang culture, identifying indicia of gangs, coming to grips with coded gang language, and determining the general infrastructure of gangs, how they operated in the City of Toronto and what "turfs" they controlled. He had conducted over 1,300 debriefs of suspected gang members and prepared reports and provided intelligence information.

[147] Although it is true that he had only worked on two "large" gang projects in his time with Guns and Gangs, they were in play for long periods of time, and he had listened to approximately 10,000 wiretap intercepts on one project alone.

[148] He was a member of the Ontario Gang Investigators Association. He had been actively involved in both attending and presenting at conferences dealing with the relevant subject matter, including lecturing on street gangs and gang characteristics.

[149] Although, some years earlier, DC Katafigiotis was found to be not qualified to give expert evidence in the F.O. case, that did not automatically disqualify him – especially years later – from being qualified as an expert in this matter. That is especially so given his additional work experience with gangs and other learning opportunities that he had undertaken. At the time of the F.O. trial, DC Katafigiotis had been on the Guns and Gangs Task Force for less than two years and had not yet taken part in any wiretap investigations. At this trial, by contrast, DC Katafigiotis had the benefit of an additional four years of specialized experience investigating gangs. As well, he had remedied one of his main failings highlighted in F.O., at para. 18: that he had not familiarized himself with the actual alleged gangs at issue. In this case, he had done that advance work, and he was both familiar with and knowledgeable about C3 and the Scarlettwood Crips.

[150] The fact that DC Katafigiotis had not authored articles or read academic literature about street gangs did not automatically disqualify him from providing an expert opinion in this case. As is clear by now, specialized knowledge can be accumulated in multiple different ways, only one of which is academic study. Expertise can also come from straight-up experience. Here, DC Katafigiotis was drawing upon his years of experience as a police officer who conducted gang investigations, spoke to gang members, listened to intercepted gang communications, went to lectures, gave lectures, and the like: Mills, at paras. 53-59.

[151] The trial judge gave thoughtful, cogent, and error-free reasons on this point. I would not interfere with this discretionary decision.

(d) DC Katafigiotis Was Not Biased

[152] It is rare for an expert's evidence to be excluded on the basis of bias or partiality: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para. 49; Oppong, at para. 64. Once the proposed expert recognizes and accepts their duty to the court, that will generally be sufficient to establish threshold admissibility. The burden then falls to the party opposing admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable or unwilling to comply with the duty of an expert to the court: White Burgess, at paras. 47-48.

[153] The appellants point to DC Katafigiotis' evidence to try and establish, on appeal, that he was, in fact, biased. They argue that his evidence was designed to fit the Crown's theory that this was a gang-related killing. To this end, they emphasize that he could not provide a proper definition of "confirmation bias", which is simply where a witness begins with a theory and then interprets evidence in a way that supports that theory. They suggest that he could not guard against confirmation bias since he could not define it.

[154] The trial judge confronted the suggestion of confirmation bias head on and found "no evidence that he did display confirmation bias."

[155] I agree that there is no evidence to suggest that DC Katafigiotis was biased. He carefully explained his opinions, all of which were rooted in years of experience with the Toronto Police Service as well as his review of other sources. He testified to his understanding about the need to provide fair, objective, and non-partisan evidence. He specifically denied that he was attempting to assist the Crown's case. And he was entirely unconnected to this investigation.

[156] At its core, the appellants' complaint is that the expert was a police officer who must have been tailoring his evidence to help the Crown's case. Yet there is nothing to objectively support that conclusion. Although the expert undoubtedly assisted the jury by providing them with some context for this otherwise seemingly random shooting with no explanation, his evidence was not designed to help the Crown.

[157] The admission of expert evidence hinges on a strict legal test that, among other things, insists that the proposed opinion be logically relevant to a material issue at trial: R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Abbey, 2009 ONCA 624, 97 OR (3d) 330, at para. 80. It will be rare that an expert opinion does not assist one side or the other. That does not mean, however, that the expert opinion is designed for the purpose of helping one side or the other. It is just the reality of evidence. The fact that, in this case, the properly admissible expert opinion provided the Crown with an evidentiary basis to place this otherwise seemingly senseless, random killing in context, did not render the expert inherently biased. If that were so, there would be little room for expert opinion evidence.

(e) Evidence's Probative Value Outweighed Its Prejudicial Effect

[158] The appellants also argue that the prejudicial effect of DC Katafigiotis' evidence outweighed its probative value and, as such, should have been excluded.

[159] This is really a request that this court redo the trial judge's balancing exercise de novo. That is not this court's function. I again note the deferential standard of review to which an appellate court must adhere.

[160] The trial judge understood the law, applied the law correctly, and came to an entirely reasonable decision in weighing the probity of this evidence against its prejudicial effect.

[161] The appellants' primary argument during oral submissions in this court was that the usefulness of the expert evidence rested upon the value of the Teape Incident. They argue that this incident was not admissible, and, in any event, it was at best marginally relevant when weighed against the prejudicial effect of the expert evidence. Accordingly, it should have been excluded.

[162] As I understand it, the appellants' position is that the only probative value of the expert evidence arose from its support for what the appellants describe as the Crown theory that Mr. Ogba was killed in an act of retaliation for the Teape Incident. In other words, the expert evidence furnished the motive at the centre of the Crown theory. However, to convince the jury that this was, in fact, a "revenge killing" the Crown had to establish multiple things that they failed to establish, including that the Teape Incident occurred, that Teape was a member of C3, that the Scarlettwood Crips were responsible for the Teape Incident, that the appellants knew of the Teape Incident and so on. The appellants say that none of that evidence was led and, therefore, the expert evidence lost its probative value.

[163] Respectfully, I see the matter differently.

[164] The expert evidence extended far beyond what the appellants say. Although the Teape Incident was testified to, it formed a small fraction of what DC Katafigiotis addressed in his evidence.

[165] The reference to the Teape Incident arose in answer to a general question. The trial Crown asked the expert to explain the relationship between C3 and the Scarlettwood Crips. The expert answered that there had been a "little bit of a historical rivalry" between the gangs. In answering the question, he mentioned, by way of example, that there had been "[o]ne incident that occurred in 2015", at a barbecue in the Scarlettwood area. He explained that gang members from C3 had entered the area and fired into the crowd of barbecue attendees. When fire was returned from individuals at the barbecue, the shootout instigator (Mr. Teape) was struck in the back with a bullet and collapsed. He was then attacked "pretty violently." In total the Crown asked four questions; that was the extent of the information elicited about the Teape Incident.

[166] The appellants argue in this court that if the Crown could not prove its case on the Teape Incident, which the appellants say the Crown failed to do, then the Crown's whole "case on motive collapses." Yet the Crown never tried to prove the Teape Incident because it was simply one incident referred to by the expert as an example of the historical rivalry between C3 and the Scarlettwood Crips.

[167] One need look no further than the Crown closing to see that the incident was hardly the fulcrum of the Crown's theory:

So Detective Constable Katafigiotis talked about this, that there's a rivalry between these two groups. There was a bad incident that happened a couple of years before, there's bad blood between the two of them and that sometimes these gangs will go into other neighbourhoods and commit acts of extreme violence to show their power, to show that they're the big boy on the block.

Could it be because of this incident that happened before? Could be. Could it have been just to increase their notoriety? Also possible. But he also told you that sometimes innocent people are killed and that there's a value in killing innocent people, and he'd seen it before. So that's a possible explanation to what happened here. You don't all have to believe that, but it's certainly a viable theory as to what went on. Really, the evidence is, though, what you see. Right? The videos that you've seen of these three men acting in concert that resulted in the murder of Nnamdi Ogba. [Emphasis added.]

[168] Therefore, I reject the suggestion that the probative value of the expert evidence was diminished because the Teape Incident was not proven. The probative value of that evidence did not lie in a theory of revenge for a particular incident. Rather, it gave the lay triers of fact a basis to understand the rivalry between C3 and the Scarlettwood Crips and, more generally, the concept of turf and the use of violence in gang culture. That is what the evidence furnished and that is what its probity hinged on.

[169] As for the risk of prejudice, it was low. The trial judge carefully restrained the evidence, it was called within less than two days, and there was no suggestion from the expert that the appellants were part of C3 or that the killing of Mr. Ogba was gang motivated.

[170] The fact that the evidence could be used by the Crown to argue that the appellants were part of C3 was nothing that could not be overcome by properly tailored jury instructions. To this end, the trial judge gave robust instructions on the point, including cautioning the jurors that if they concluded that the appellants were members of a gang or even associated with a gang, they could "only use that evidence to evaluate whether they had a motive to commit the crime charged." Further, they were instructed that "[e]ven if you conclude that any of them had such a motive, you must still not convict any or all of them unless you are satisfied beyond a reasonable doubt of each of the essential elements of the offence."

(f) Conclusion

[171] In my view, this expert evidence was admissible. I defer to the cogent reasons of the trial judge, which concluded that the expert was qualified and unbiased and that the probative value of the evidence outstripped its prejudicial effect.

(3) No Error in Jury Instructions re: After-the-Fact Conduct

(a) Overview

[172] The Crown led video surveillance evidence of the events following the shooting. The most significant videos showed the appellants in a group, displaying emotion that the trial Crown characterized as "celebrating" and "happy" in nature. Video clips from various CCTV cameras show the appellants, in the words of the Crown, "skipping" and "dancing" in the parking lot and apartment hallway following the killing. The trial Crown also maintained that closer-up videos showed Mr. Islow speaking in an animated manner while his two cohorts behaved in a nonchalant way; none of the three appeared shocked.

[173] Phone records showed that, following the shooting, Mr. Islow viewed a tweet from the Toronto Police Service saying: "Shooting: Scarlett Rd and Scarlettwood Ct area … 1 person found unconscious and not breathing … no suspect description at this time". The Crown argued that matching video surveillance clip of the appellants, from the same time, shows no one upset or having expressions of surprise. Instead, Mr. Miller is smiling and Mr. Islow gives him a head rub; shortly after Mr. Islow is dancing. Footage from half an hour later shows Mr. Mohamed laughing at something one of the other appellants said. This is despite the fact that Mr. Mohamed agreed in cross-examination that this was the "worst day of [his] life".

[174] The trial judge instructed the jury that the after-the-fact evidence was relevant to the question of whether each of the appellants had the state of mind required for murder and whether the shooting of Mr. Ogba was planned and deliberate.

[175] Against that backdrop, the appellants claim that the trial judge erred in failing to give a "no probative value" instruction to the jury because the video clips were irrelevant to the appellants' level of culpability. They also submit that the failure to tell the jury to consider alternative explanations for their behaviour and the failure to caution the jury regarding reliance on demeanour evidence further exacerbated this error.

[176] As I will explain, I would not accede to this ground of appeal.

(b) "No Probative Value" Instruction Not Required; Evidence Relevant to Level of Intent

[177] The appellants' primary argument is that there were multiple, equally consistent inferences that could have been drawn from the after-the-fact conduct evidence in this case. This is particularly true given that it was demeanour evidence, which is inherently dangerous to rely upon since there is no one way for a person to behave in the face of a violent crime. Some of the alternate inferences – for instance that the appellants appeared relaxed and animated because they were intoxicated – could point towards a lower mens rea offence, or at least would be neutral on the question of intent. Accordingly, despite not having asked the trial judge to provide a "no probative value" instruction, the appellants now say that he should have instructed the jury that they could not rely on this evidence for an intention to kill or for planning and deliberation.

[178] Mr. Mohamed adds that, in his case, where he had admitted to being guilty of manslaughter, there was nothing probative of his intention and, in any event, the videos do not establish what the Crown claimed at trial. For instance, the videos do not show him happy or animated, he was not celebrating and, even if he was, the celebration may have resulted from the fact that the appellants were relieved when they discovered that they were not suspects in the shooting.

[179] I disagree that a "no probative value" instruction was required.

[180] After-the-fact evidence is just circumstantial evidence from which the jury can draw inferences based on logic, common sense, and human experience: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 22, 31, 43-44. After-the-fact conduct evidence that is rooted in demeanour is relevant, depending on the circumstances, and may, in fact, be used to distinguish levels of culpability. By way of example, this court in R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at para. 130, concluded that the trial judge had not erred when instructing the jury that they could consider that the accused was elated and excited after the shooting as a factor relevant to whether he was a party to a planned and deliberate murder. See also: R. v. Calnen, 2019 SCC 6, [2019] 1 SCR 301, at para. 119; R. v. Short, 2018 ONCA 1, 139 O.R. (3d) 81, at para. 52.

[181] The video footage in this case was compelling after-the-fact evidence of intention. It was open to the Crown, against the factual backdrop of this case, to suggest that the appellants displayed a lack of surprise, shock, or concern. Rather, they appeared happy, and this gave rise to an inference that they were happy because they had made good on what they had intended and planned to do. It was open to the jury to infer that their conduct belied the suggestion that they had tragically killed someone in a case of mistaken identity.

[182] As for Mr. Mohamed, his acknowledgment that he was involved in the shooting and guilty of manslaughter did not take away from the fact that he may well have been guilty of more than that. The Crown was entitled to use this evidence to counter his claim of mistaken identity and that this was the worst day of his life.

[183] Although Mr. Mohamed disputes that the videos show what the Crown suggested they showed, claiming that they are open to interpretation, that was not a question of admissibility but rather a question of fact for the jury to decide.

(c) Adequate Instructions re: Alternative Inferences and Demeanour

[184] The appellants do not challenge the trial judge's instructions on the after-the-fact conduct, which were complete and careful. The trial judge told the jury that it was for them to decide what the videos showed. He instructed them on the permissible and prohibited uses of the evidence. And he alerted them to the need to consider alternative explanations for their conduct. He specifically cautioned them that they should keep in mind that "people sometimes do things for entirely innocent reasons."

[185] Although the appellants do not take issue with these instructions, they maintain that the trial judge should have outlined the available alternative inferences. In fact, the trial judge did that when he stated: "[T]he defence position generally is that the three men were not celebrating but merely looking for information. How to characterize the behaviour [of the appellants] is for you to decide." No objection was raised in relation to these instructions.

[186] The appellants also claim that there should have been an instruction cautioning the jury against specific concerns arising from demeanour evidence.

[187] I disagree that such an instruction was required.

[188] As Crown counsel forcefully argues, the jury was not being asked to simply equate an unusual reaction with an awareness of guilt. Rather, the jury was being asked to engage in a common-sense exercise, one that would give rise to an inference that the appellants' prolonged celebratory behaviour was consistent with a generally happy mood. Such a happy mood was consistent with the Crown theory that this was a planned, deliberate, and intentional murder, and inconsistent with the defence theory that this was an accidental case of mistaken identity.

(4) Admissibility of Evidence and Instruction re: Mr. Islow's Prior Involvement with Firearms

(a) Overview

[189] In addition to the objections with respect to the admission of the expert gang evidence, Mr. Islow argues that the trial judge erred in admitting, as part of the gang expert evidence application, a still image and four videos depicting him with firearms. The date range on that material spanned from about May 2017 to March 2018. Except for one image taken after the shooting, the most recent image was from three months prior to the shooting.

[190] The photo and videos were admitted into evidence through the testimony of three witnesses, including DC Katafigiotis and firearms expert Ms. Chin.

[191] Evidence of an accused's prior disreputable conduct is, of course, presumptively inadmissible and will only be admissible if its probative value exceeds its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36, 55. The trial judge found that the image and videos were nonetheless admissible because firearms of the type captured in the impugned material may have been used in the shooting of Mr. Ogba. Although acknowledging the prejudice that could result, the trial judge found that this prejudice could be properly attenuated in the jury charge.

[192] The appellants disagree. They maintain that the probative value of the material is minimal. Although the guns depicted were of the same type used in the killing of Mr. Ogba, they are said to be so commonly in use – one of the most popular in the world – that it diminished any probative effect that it may otherwise have had. At the same time, the prejudice is said to have been extreme because the jury saw Mr. Islow with firearms, all unconnected to the shooting, over an 11-month period. In sum, the trial judge is said to have miscalculated the right balance in terms of probity and prejudice. His ultimate failure to charge the jury on the prohibited uses of this evidence is said to have compounded the error.

[193] I see no error in the trial judge's approach.

(b) No Error in Admitting the Evidence

[194] In the absence either of a legal error, a misapprehension of material evidence, or a conclusion that is plainly unreasonable, a trial judge's balancing of the probative value of evidence against its prejudicial effect will attract substantial deference on appeal: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 234; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73. In short, this court is not the place to have a de novo hearing as to how the balance should be struck.

[195] I see no legal error or misapprehension of evidence (let alone material evidence) in the trial judge's analysis. Nor was his conclusion plainly unreasonable.

[196] The image and videos were admitted to connect Mr. Islow to the firearms used in the shooting. The trial judge took a careful approach. He excluded numerous videos that also showed Mr. Islow in possession of the same types of firearms, finding that they were far too prejudicial since they depicted him in possession of a "small arsenal", including "a more sophisticated weapon" than what was used to kill Mr. Ogba.

[197] The videos and image constituted circumstantial evidence of Mr. Islow's possession of what could have been the murder weapon and was relevant to whether he was part of a plan to carry out the shooting at Scarlettwood Court. Not only did he have access to firearms, but he had access to the same type of firearms used in the shooting. The images depict two .45 calibre firearms and, according to the firearms expert, two .45 calibre semi-automatic firearms were used in the shooting: R. v. Asante, 2022 ONCA 657, at paras. 26-31; R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, at paras. 149-60, 235.

[198] Although the photo and videos were somewhat dated and a .45 calibre semi-automatic gun is not uncommon, this is a matter that went to weight and not admissibility. Understandably, these weaknesses in the evidence were explored by Mr. Islow's counsel during the cross-examination of the firearms expert. They also formed a central feature of his closing address. The jury was in a good position to determine the weight to be assigned to this probative evidence.

(c) No Error in Not Providing a Limiting Instruction

[199] Mr. Islow also takes issue with the trial judge's failure to provide a limiting instruction about the use that could be made of this material.

[200] I am not persuaded by this argument.

[201] Instead, I accept the respondent's position on appeal that the decision not to provide a specific limiting instruction in relation to this impugned material may have inured to Mr. Islow's benefit. After all, had the jury been instructed on the specific prohibited uses of this evidence, the trial judge would have been obligated to also instruct them on the permissible uses for the evidence. By avoiding the prohibited use instruction, Mr. Islow also avoided the permissible use instruction: R. v. Calnen, 2019 SCC 6, [2019] 1 SCR 301, at paras. 62-63.

[202] It may well have been a tactical decision on Mr. Islow's part to not request the instruction. By avoiding it, all the jury was told about the impugned material was through the lens of what the trial judge said about the firearms expert's evidence. Specifically, he reminded the jury when reviewing Ms. Chin's evidence that she could not say whether any of the guns in the videos were real and could not say whether the guns in the videos were the guns used in the shooting. He also reminded the jury that the expert gave evidence that the one gun in particular is a popular firearm and that there are approximately two million of them in the world. All of that inured to Mr. Islow's benefit.

[203] Even though the trial judge did not provide a specific instruction regarding the firearms image and videos, the jury was given a general caution about how to approach the discreditable nature of the gang evidence, which included the following:

[Y]ou must not use that evidence to help you conclude that they shot Mr. Ogba simply because they are persons of bad character or disposition who likely committed the crime because of that character or disposition. In other words, if you find that the three men are gang members, you must not use that fact to conclude that they are the type of people who commit murder....

[Y]ou must not punish them for being members of a gang by finding them guilty of first-degree murder or one of the lesser offences ….

[204] This jury would have clearly understood that they could not use Mr. Islow's prior firearms possession to infer guilt.

(5) No W.(D.) Error

[205] The principles set out in W.(D.) provide guidance on applying the concept of reasonable doubt to credibility findings where there is evidence on a vital issue that is inconsistent with the guilt of the accused. What is essential is that the trier of fact understand the relationship between the assessment of credibility and the burden of proof: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. The charge must make clear that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt, even where credibility is in issue, which means that the trier of fact need not believe exculpatory evidence on a vital issue to raise a reasonable doubt.

[206] Mr. Islow raises a concern about the adequacy of the W.(D.) instruction given. He points out that Mr. Mohamed's evidence was entirely exculpatory of him, which, in my view, is a fair characterization. Mr. Islow was in the stolen vehicle when the shooting took place, and Mr. Mohamed testified that when he and Mr. Miller returned to the vehicle after the shooting, Mr. Islow was surprised and asked what had taken place.

[207] It is against that backdrop that Mr. Islow maintains that there was a need for a robust W.(D.) instruction relative to him. He contends that the instruction fell short because it failed to impart to the jury that, even if they did not believe Mr. Mohamed's evidence, they had to acquit Mr. Islow if the evidence left them in a reasonable doubt about his guilt. Mr. Islow's complaint comes down to what we typically think of as the second stage of a W.(D.) instruction, where it is brought home to a jury that even if they do not believe a witness's exculpatory testimony, but it leaves them with a reasonable doubt about the guilt of the accused, they must acquit.

[208] Read as a whole, the jury instructions in this case did the work necessary to impart this concept.

[209] There was no question that Mr. Mohamed's testimony attracted a W.(D.) instruction. That was done and delivered under the heading: "Testimony of Mr. Mohamed." There is no objection on appeal to that instruction. The jury would have understood that if they believed Mr. Mohamed's evidence, they had to acquit Mr. Mohamed of first-degree murder. The jury also would have understood that even if they did not believe Mr. Mohamed's evidence, but it left them with a reasonable doubt about his guilt, they would have to acquit him of first-degree murder. In other words, they received a pitch-perfect instruction on the second stage of W.(D.).

[210] What followed in the immediate wake of the classic W.(D.) instruction was an instruction about the correct approach to Mr. Mohamed's evidence as it related to the other accused: "Testimony of Mr. Mohamed (Joint Trial)."

[211] A draft of this instruction was provided to counsel. Requests for some minor changes were accommodated, and the final product did not attract any objections.

[212] In addition to the perfect W.(D.) instruction given to the jury in relation to Mr. Mohamed, the jury was also repeatedly told that they could accept all, some or none of a witness's evidence and that this applied to Mr. Mohamed's evidence. They were perfectly instructed on reasonable doubt and reminded from time to time that the burden always rested with the Crown, including the burden of proof as it related to each essential element of the offences upon which they were instructed. They were also told, repeatedly, that they needed to consider each accused separately in determining whether the Crown had met its burden.

[213] Focusing on Mr. Islow specifically, the jury was told that if they had a reasonable doubt about his guilt "arising from the credibility of the witnesses", they had to find him not guilty. They were told that they did not have to fully believe or reject a witness's evidence to have a reasonable doubt. And they were specifically cautioned not to consider Mr. Mohamed's evidence only in deciding the case against Mr. Mohamed. Indeed, the trial judge went on and instructed the jury as follows:

[50] [Y]ou may consider the testimony of Mr. Mohamed to help you decide the case of all three persons on trial. You do not consider that testimony only to help you decide Mr. Mohamed's case.

[51] Mr. Mohamed gave evidence that Mr. Islow did not know that Mr. Ogba would be shot. You must consider that evidence when determining whether Mr. Islow is guilty of an offence.

[214] This jury was well instructed on the principles arising from W.(D.). They would have understood that even if they did not believe Mr. Mohamed, but his evidence left them with a reasonable doubt, they had to acquit Mr. Islow. Nothing more was required.

(6) No Browne v. Dunn Error

[215] Mr. Mohamed argues that there were two breaches of the rule in Browne v. Dunn: (i) the failure to ask him about his knowledge of the Teape Incident; and (ii) the failure to ask him about the use of the stolen Nissan Rogue with stolen plates. He argues that because the Crown theory was that the shooting was to avenge the Teape Incident, it heightened the unfairness of failing to ask him about his knowledge of that incident. He claims that the trial judge should have provided the jury with an instruction bringing home the unfairness caused by the Crown's failure to confront him with these two matters, thereby depriving him of the ability to respond.

[216] Respectfully, I disagree.

[217] Much ink has been spilled over the rule in Browne v. Dunn. At its core, this rule really comes down to one of fairness, one that requires a party who intends to contradict an opposing witness to put the alleged contradiction to them. This does not mean that every piece of contradictory evidence must be slogged through during cross-examination. A healthy dose of common sense must be brought to bear in determining what fairness demands. Where the witness's view of the contradictory matter is clear, there is no unfairness in failing to confront the witness with the alleged contradiction, only to have the witness state what has already been made obvious. That is what this case comes down to.

[218] Part of the Crown's theory was that there was a rivalry between the two gangs and, according to the Crown, the Teape Incident may have been a specific incident in the history of that rivalry that provided potential motivation for Mr. Ogba's killing. As the Crown put it in his closing, "Could [Mr. Ogba's killing] be because of this incident that happened before? Could be. Could it have been just to increase their notoriety? Also possible."

[219] Notably, Mr. Mohamed raised no objection related to this issue at trial. As for Mr. Islow, during a pre-charge conference, he raised the fact that the Teape Incident had not been put to Mr. Mohamed and asked for an instruction that there was no evidence that Mr. Mohamed knew of the Teape Incident and that this motive was not put to him in cross-examination.

[220] The trial judge did not accept that position, concluding that although Mr. Mohamed was not specifically asked about the Teape Incident, "it was certainly put to him that he was a member of a gang and this was part of a gang rivalry."

[221] This jury would have understood, by the time that Mr. Mohamed testified, that the Crown theory was that he was part of a gang and that the shooting was a planned act of aggression against the Scarlettwood Crips. Mr. Mohamed, who sat through the trial, knew that this was the Crown's theory. He required no confrontation to know exactly what he was being challenged on.

[222] As for the jury, they would have understood through the cross-examination that the Crown was challenging Mr. Mohamed's credibility and his entire version of events. It was specifically put to him that he was part of the C3 gang and that he, along with the other two appellants, planned to shoot someone at Scarlettwood Court. Given his unequivocal denials about being part of a gang, about the fact that the shooting was planned and that the shooting was gang-related, the Crown was under no obligation to go further and specifically ask about the Teape Incident. Clearly, in circumstances where Mr. Mohamed was denying he was part of a gang, he was denying he was avenging a gang-related incident.

[223] As for the second complaint – that the Crown never challenged Mr. Mohamed on his knowledge of the stolen motor vehicle and plates – no objection was ever raised. The Crown was under no obligation to inquire as to Mr. Mohamed's knowledge of their status. The answers to those questions, had they been posed, would have been obvious.

(7) No Miscarriage of Justice Arising from the Compilation of the Jury

[224] The appellants apply, pursuant to s. 683(1) of the Criminal Code, to have an Agreed Statement of Fact admitted as fresh evidence on appeal. This document details an error in the creation of the jury roll used in the jury selection that took place in this case on February 19, 20 and 21, 2020.

[225] On July 12, 2022, the appellants were informed of the following by the respondent via email:

The source list for the jury roll is typically comprised of Canadian citizens who are residents of Ontario and who are 18 years of age or older by December 31 of the year the list is provided. However, the source list provided to the Jury Sheriff for the purpose of compiling the 2020 jury roll was incomplete and excluded people who turned 18 in the year the source list was provided (which would have made them eligible to serve on a jury the following year).

[226] Although the error was remedied once it came to the attention of the Court Services Division, there were numerous jury trials that took place before the issue was discovered and remedied.

[227] The appellants argue that the exclusion of 18-year-old prospective jurors from the roll in 2020 created an unrepresentative jury, caused them prejudice, and resulted in a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.

[228] The history of this error and its practical implications for the jury rolls in 2020, 2021 and 2022 is explained in some detail in this court's decision in R. v. Madison, 2025 ONCA 42, 175 O.R. (3d) 481, at paras. 19-30. I rely upon the background facts as set out in Madison and do not intend to repeat them here. Relying on Madison, this ground of appeal gains no traction.

[229] As in Madison, there is no evidence of any intentional conduct or malice. This was an innocent administrative error, and, upon discovery, it was immediately disclosed and remedied. The size of the population excluded can only be described as exceedingly small. To this end, for the 2020 jury roll, the source list contained just less than ten million people. Of those, only eight percent were randomly selected to even receive questionnaires to determine if they were otherwise eligible for jury duty. Therefore, the source list error excluded what would have been only 1.5 percent of individuals (out of almost ten million) who would have qualified to even receive an eligibility questionnaire, which inquired into further eligibility requirements.

[230] Like in Madison, the failure to include that small percentage of people in the original group of almost ten million people did not adversely impact the representativeness of the jury. Notwithstanding this administrative error, there was still an opportunity for participation of young adults coming from a broad cross-section of society.

D. Conclusion

[231] I will conclude on a point already made. This was a very difficult trial, involving numerous complexities. Mr. Ogba cannot be forgotten in all of this. Nor can his family and friends, who have undoubtedly suffered tremendously since the night of his senseless death.

[232] While justice does not demand a perfect trial, it does demand a fair trial. As I have attempted to explain, so much of this trial was done right and justice was well-served. Yet on the fundamental point of modes of participation, the jury was not provided with the tools necessary to fairly execute on their task.

[233] During the oral hearing, the court inquired as to whether, depending on what the court decided, the parties would be prepared to agree to substituted verdicts to lesser charges. Understandably, the appellants would only be agreeable to substituted verdicts of manslaughter. Understandably, the Crown is intent on proceeding to trial on first-degree murder.

[234] My hope is that these reasons will at least provide some guidance on a more streamlined path forward.

[235] The appeals are allowed, the convictions are set aside and a new trial is ordered.

Released: September 5, 2025

"J.M.F."

"Fairburn A.C.J.O."

"I agree. S. Gomery J.A."

"I agree. D.A. Wilson J.A."

Footnotes

[1] Teape is the surname of the man who was shot and beaten in this incident. The matter was simply referred to as an incident before the jury and Mr. Teape's name was not used.

[2] Mr. Mohamed agreed that he was guilty of manslaughter, which made sense since he agreed that he at least started the shooting. So, if the jury believed Mr. Mohamed or his evidence left them with a reasonable doubt, they would still have to deliberate on second-degree murder.