Supreme Court of Canada **Indexed as: R. v. Abdullahi** **2023 SCC 19** --- ## Parties **Ahmed Abdullahi** — Appellant **v.** **His Majesty The King** — Respondent **and** **Criminal Lawyers' Association of Ontario** — Intervener --- ## Court Information **Appeal Heard:** January 11, 2023

Judgment Rendered: July 14, 2023 Docket: 40049 on appeal from the court of appeal for ontario Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ. Reasons for Judgment: (paras. 1 to 97) Rowe J. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O'Bonsawin JJ. concurring) Dissenting Reasons: (paras. 98 to 150) Côté J. > Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports. * Brown J. did not participate in the final disposition of the judgment. --- ## Counsel Alexander Ostroff, for the appellant. Katie Doherty, for the respondent. Colleen McKeown and Emily Lam, for the intervener. --- ## Headnotes Criminal law — Appeals — Charge to jury — Appellate review of jury instructions for legal error — Functional approach — Accused convicted by jury of participation in activities of criminal organization — Accused arguing on appeal that trial judge erred in law in jury instructions on required element of offence — Whether trial judge's instructions properly equipped jury to decide case. Criminal law — Participation in activities of criminal organization — Elements of offence — Existence of criminal organization — Definition of criminal organization — Accused convicted by jury of participation in activities of criminal organization — Accused arguing on appeal that trial judge erred in law in jury instructions on existence of criminal organization by failing to explain that criminal organization must have structure and continuity — Whether trial judge's instructions properly equipped jury to decide if criminal organization existed — Criminal Code, R.S.C. 1985, c. C‑46, ss. 467.1(1), 467.11. --- ## Summary An investigation into the trafficking of illegal firearms in Ontario culminated with the arrest of several persons, including the accused. A jury found him guilty of various firearms offences, and of one count of participation in the activities of a criminal organization for the purpose of trafficking weapons contrary to s. 467.11 of the Criminal Code. The accused appealed his convictions. With respect to the criminal organization count, he argued that the trial judge erred in law in his instruction to the jury on the first required element of that offence — the existence of a "criminal organization" — by failing to explain that a criminal organization must have structure and continuity, as set out in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211. The majority of the Court of Appeal dismissed the appeal and concluded that, viewing the jury charge in light of the evidence, the closing arguments of counsel and the lack of objection by defence counsel, the jury was properly equipped with respect to the requirement of structure and continuity, and therefore there was no error of law in the jury instructions. The dissenting judge was of the view that the charge did not properly equip the jury to deal with this element of the offence and would have ordered a new trial on that count. Held (Côté J. dissenting): The appeal should be allowed, the conviction for participation in the activities of a criminal organization set aside and a new trial ordered on that count. Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.: The trial judge erred in law in his instructions to the jury on the criminal organization count by failing to explain that a criminal organization is one that by virtue of its structure and continuity poses an enhanced threat to society. Without an explanation of this requirement in the judge's instructions, the jury was not sufficiently instructed on the legal standard to apply to the evidence in concluding that a criminal organization existed. When reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court's task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. Furthermore, the circumstances of the trial cannot replace the judge's duty to ensure the jury is properly equipped. However, they do inform what the jury needed to understand to decide the case. Appellate courts should carefully consider how those circumstances are relevant to the central inquiry on appellate review: whether the judge's instructions properly equipped the jury to decide the case. Evidence at trial can inform the sufficiency of certain instructions, but it does not inform the sufficiency of every instruction — the existence of evidence relevant to a given issue cannot replace an accurate and sufficient instruction on the law. Similarly, the closing arguments of counsel can inform the sufficiency of the judge's instructions and can be relevant to whether a contingent instruction was required. They can also fill gaps in the judge's review of the evidence, but they cannot replace an accurate and sufficient instruction on the law. As for the silence of counsel, it can be a relevant consideration, but it is not determinative, and the responsibility of the charge lies with the trial judge, not counsel. In order to obtain a conviction for a criminal organization offence, the Crown must first prove the existence of a criminal organization. "Criminal organization" is defined, in s. 467.1(1) of the Criminal Code. The Court in Venneri interpreted Parliament's direction in s. 467.1(1) that a criminal organization be "organized" in some fashion as requiring the group to have some form of structure and degree of continuity, before the exceptional regime of the organized crime provisions of the Criminal Code is engaged. The purpose of the Criminal Code's criminal organization regime, which has exceptional procedural and substantive consequences, is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity. Criminal organizations can take forms that do not fit stereotypical models of organized crime but nonetheless can pose the type of enhanced threat to society contemplated by Parliament. The definition of a criminal organization must therefore be applied flexibly. However, flexibility in the acceptable forms of structure and degree of continuity does not mean that structure and continuity are optional. Further, the flexibility with which the definition of a criminal organization is applied must not become an invitation for irrelevant considerations or improper reasoning. While characteristics such as ethnicity, cultural background, neighbourhood, religion, language or dialect may indicate a common social or cultural identity among persons who commit offences, they are irrelevant in identifying the existence of a criminal organization. Just as the definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not to identify a criminal organization merely because the group appears to satisfy some stereotypical model. The trier of fact's focus when tasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possesses the distinguishing qualities of a criminal organization, i.e., structure and continuity. In the instant case, the trial judge's instructions did not sufficiently equip the jury to determine whether a criminal organization existed. An instruction on this required element was mandatory. The judge merely recited the definition in s. 467.1(1) of the Criminal Code. This would not have equipped the jury with an understanding that a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity, as such a requirement is not apparent from the bare text of the definition. The majority of the Court of Appeal's reliance on portions of the evidence at trial, closing arguments of counsel and the lack of objection from defence counsel as indicating that the instructions were sufficient was misplaced. The majority's focus strayed from the ultimate function of jury instructions and the central inquiry on appellate review — whether the jury was properly equipped to decide the case. At the end of the day, the jury was left insufficiently equipped to decide a required element of the offence. Per Côté J. (dissenting): The appeal should be dismissed. Examined as a whole and in context, the trial judge's charge properly equipped the jury to decide the count of participation in the activities of a criminal organization according to the law and the evidence. The jury knew it had to decide whether the accused was a member of a group that (1) was organized; (2) existed for some period of time; and (3) went beyond one formed randomly for the immediate commission of a single offence. While the judge's charge was not perfect, it would not have made any difference if he had used the precise words "structure" and "continuity" in explaining the definition of a criminal organization. An accused is entitled to a jury that is properly — and not necessarily perfectly — instructed. This functional approach to appellate review of jury instructions requires consideration of the impugned portion of the charge in context and in the circumstances of the trial as a whole. Further guidance on this established framework is unnecessary. The majority's rigid characterization of errors in jury instructions as those related to "accuracy" or "sufficiency", and within the latter category, instructions which are "mandatory" or "contingent" is unhelpful. In all cases, the relevant question is simply whether the charge properly equipped the jury to decide the case according to the law and the evidence. Furthermore, the submissions of counsel should not be limited to filling gaps in the judge's review of the evidence. Counsel's submissions cannot serve to correct a misstatement or legal error made by a trial judge, but it may be possible for the submissions of counsel to help fill an alleged gap in the judge's charge. As always, this must be assessed in the context of the trial as a whole. "Criminal organization" is defined in s. 467.1(1) of the Criminal Code. By insisting that criminal groups be "organized", Parliament has made plain that "some form" of structure and degree of continuity are required. As explained in Venneri, Parliament sought to identify groups that pose an elevated threat to society due to the ongoing and organized association of their members. What is relevant is the substance of this requirement, not the precise form or exact words used. In the instant case, there is no dispute that the trial judge accurately set out the statutory definition of a criminal organization. By instructing the jury that the group had to be "organized", the trial judge made plain that some form of structure and degree of continuity were required. Jurors do not check their common sense at the door of the deliberation room. The jury would have understood "organized" to necessarily connote some form of structure and co‑ordination. This is further evident or obvious when reviewing the context in which the judge's instructions were given: the trial judge elaborated on the legal elements of a criminal organization, including that the formation must not be random or for the purpose of committing an offence; the charge summarized the defence's position on the lack of an "organizational structure"; the judge emphasized that the accused was required to be a member of the alleged organization for some period of time; the parties agreed that a criminal organization required "cohesiveness and continuity" (as put by the Crown) or "structure and continuity" (as put by the defence); counsel for the accused did not object to the draft charge; and the jury asked three supplemental questions, but did not ask for clarification on the count of participation in the activities of a criminal organization. While certain legal requirements are not obvious or plain from the statutory text, the point of law at issue in this case was obvious or plain to the jury, in the context of the entire charge and the trial as a whole. A failure to say all that could have been said does not amount to legal error. The jury understood that the group had to be organized, that membership had to be for some period of time, and that the legal requirements of the offence were not met if the group was formed randomly for the immediate commission of a single offence. A group could not meet these requirements — as the jury must have found in order to convict — but nonetheless lack some form of structure and degree of continuity. --- ## Cases Cited ### By Rowe J. Considered: R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157; referred to: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280; R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. White, [1998] 2 S.C.R. 72; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Khill, 2021 SCC 37; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Cooper, [1993] 1 S.C.R. 146; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Morin, [1988] 2 S.C.R. 345; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; R. v. Goforth, 2022 SCC 25; R. v. Athwal, 2017 ONCA 222; R. v. Subramaniam, 2022 BCCA 141, 413 C.C.C. (3d) 56; R. v. Bryce (2001), 140 O.A.C. 126; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. Maxwell (1975), 26 C.C.C. (2d) 322; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. R.V., 2021 SCC 10; R. v. Rose, [1998] 3 S.C.R. 262; R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R. 179; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267; R. v. Gray, 2012 ABCA 51, 522 A.R. 374; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344; R. v. Williams, [1998] 1 S.C.R. 1128. ### By Côté J. (dissenting) R. v. Goforth, 2022 SCC 25; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Niemi, 2017 ONCA 720, 355 C.C.C. (3d) 344; R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157; R. v. Maxwell (1975), 26 C.C.C. (2d) 322; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Cooper, [1993] 1 S.C.R. 146. --- ## Statutes and Regulations Cited *Criminal Code*, R.S.C. 1985, c. C‑46, ss. 2 "criminal organization offence", 82(2), 92(1), 99(1), 185(1.1), 186(1.1), 186.1, 231(6.1), 239(1)(a), 244(2)(a), 244.2(3)(a), 279(1.1)(a), 279.1(2)(a), 344(1)(a), 346(1.1)(a), 354(1), 465(1)(c), 467.1(1) "criminal organization", 467.11 to 467.13, 467.14, 492.1(6)(a), (b), 492.2(5)(a), (b), 515(6)(a)(ii), 650.1, 686(1)(a), (b)(iii), 718.2(a)(iv), 742.1(d), 743.6(1.1). --- ## Authors Cited Granger, Christopher. The Criminal Jury Trial in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1996. --- ## Appeal APPEAL from a judgment of the Ontario Court of Appeal (Brown, Trotter and Paciocco JJ.A.), 2021 ONCA 82, 399 C.C.C. (3d) 397, [2021] O.J. No. 601 (QL), 2021 CarswellOnt 1438 (WL), affirming the conviction of the accused for participation in the activities of a criminal organization. Appeal allowed, Côté J. dissenting. --- ## Reasons for Judgment The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ. was delivered by Rowe J. — ### I. Trial [ 1 ] This appeal presents an opportunity to provide guidance on two issues: (1) the approach to appellate review for legal error in jury instructions and (2) the definition of a "criminal organization" under the Criminal Code, R.S.C. 1985, c. C-46. [ 2 ] A jury found the appellant, Ahmed Abdullahi, guilty of various offences relating to the possession of and conspiracy to transfer illegal firearms. The jury also found the appellant guilty of one count of participation in the activities of a criminal organization for the purpose of trafficking weapons, contrary to s. 467.11 of the Criminal Code. Only the conviction on the criminal organization count is at issue before this Court. [ 3 ] The Court of Appeal for Ontario unanimously dismissed an appeal from other convictions but divided on the criminal organization count. On that count, the appellant argued that the trial judge erred in law in his instructions to the jury on the first required element of the offence — the existence of a "criminal organization" — by failing to explain that a criminal organization must have structure and continuity, as set out by this Court in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211. The majority of the Court of Appeal concluded that, viewing the charge in light of the evidence, the closing arguments of counsel, and the lack of objection by defence counsel, the jury was properly equipped with respect to the requirement of structure and continuity, and so there was no error of law in the jury instructions. The dissenting judge was of the view that the charge did not properly equip the jury to deal with this element of the offence. On this basis, the appellant asks this Court to allow the appeal and to order a new trial on the criminal organization count. [ 4 ] This Court has indicated that appellate courts should adopt a "functional approach" to the review of jury instructions for legal error. This respects the jury's role as the trier of fact while enabling effective review of the trial judge's duty to ensure the jury understands the law that it is to apply. The approach supports the function of jury instructions: to equip the jury properly to decide the case according to the law and the evidence. The meaning of "properly" equipping a jury is therefore essential to understanding the appellate court's task of identifying legal error in jury instructions. Such errors have been described using a variety of terms in the jurisprudence, notably "misdirection" and "non-direction". In these reasons, I will explain why it is helpful to understand the concept of "misdirection" in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, it is helpful to understand the concept of "non-direction" in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. These concepts direct the appellate court's focus to the function of the instructions and the overall understanding of a given issue in the mind of the jury. Thus, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed to decide the case. [ 5 ] Applying the foregoing, I conclude that the trial judge erred in law in his instructions to the jury by failing to explain that a criminal organization is one that by virtue of its structure and continuity poses an enhanced threat to society. This requirement distinguishes criminal organizations from other groups of offenders who act in concert; it also helps guard against improper reasoning, notably reliance on stereotypes, as a basis for identifying a criminal organization. Without an explanation of this requirement in the judge's instructions, the jury was not sufficiently instructed on the legal standard to apply to the evidence in concluding that a criminal organization existed. The evidence at trial, the closing arguments of counsel for the parties, and the lack of objection to the charge by defence counsel could not make up for this error by the trial judge. [ 6 ] I would therefore allow the appeal, set aside the appellant's conviction for participation in the activities of a criminal organization, and order a new trial on that count. --- ### I. Trial [ 7 ] In March 2013, the Toronto Police Service ("TPS"), along with the Ontario Provincial Police, began investigation "Project Traveller" into the trafficking of illegal firearms. The TPS obtained a court order authorizing wiretap intercepts of phone conversations. The languages in the calls were English, Jamaican Patois, and Somali. These wiretaps led to further police surveillance and search warrants. [ 8 ] The charges against the appellant revolved around an incident on March 31, 2013. Based on wiretap information, police believed the appellant and his associates were transporting five illegal firearms from Windsor to Toronto in a rental vehicle. Police followed what they believed was the vehicle and, when it began driving erratically, pursued it to an apartment complex on Dixon Road in Toronto. There, they found the vehicle abandoned in the parking garage. A grocery bag was found in the front passenger seat containing three illegal firearms. The other two firearms were never recovered. [ 9 ] In the following days, the wiretaps captured discussions alluding to the police pursuit. One individual referred to himself as Ahmed Abdullahi; his voice was heard in other calls, where he was referred to as "H" and "HNI". Discussions between other individuals referred to "HNIC". [ 10 ] Project Traveller culminated in June 2013 with the arrest of several persons, including the appellant. He was charged with five counts of possession of an unauthorized firearm (s. 92(1) of the Criminal Code), one count of possession of property obtained by crime in respect of one of the five firearms (s. 354(1)), one count of conspiracy to commit weapons trafficking (ss. 99(1) and 465(1)(c)), and one count of participation in the activities of a criminal organization for the purpose of weapons trafficking (s. 467.11). [ 11 ] The appellant was tried jointly with a co-accused before a judge and jury. The primary issue was identity — namely, whether the appellant was one of those heard in the intercepts, and whether the appellant was in the rental vehicle on March 31, 2013. Circumstantial evidence identifying the appellant included forensic evidence and the wiretap intercepts. One task for the jury was to identify who was speaking or referred to in the intercepts. The Crown alleged that the appellant was the person referred to as "H""HNI", or "HNIC". [ 12 ] In order to obtain a conviction on the count of participation in the activities of a criminal organization, the Crown first had to prove that a "criminal organization" existed. Section 467.1(1) of the Criminal Code defines a "criminal organization" as follows: > criminal organization means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence. [ 13 ] The Crown alleged that the individuals heard in the intercepts, including the appellant, were members of an "urban street gang" whose "turf" was an area of apartment buildings on Dixon Road. In closing argument, the Crown pointed to the group's organized strategies to conceal their criminal activity, which reflected "a cohesiveness that is characteristic of urban street gangs" and "a continuous enterprise" (A.R., vol. XXXI, at pp. 94-95). The Crown suggested, for example, that the group had lookouts near apartment buildings, escape routes to avoid arrest, places to conceal contraband, and assigned roles; the co-accused, for example, was alleged to be a "courier". The Crown also alleged that the members of the group hid their criminal activities by speaking Somali and by using gang terminology. [ 14 ] In support of its view that the group had the characteristics of an "urban street gang", the Crown called Detective Constable Steven Kerr of the TPS, whom the judge qualified to give expert opinion evidence on "the nature, culture, customs, characteristics, identifiers, including geographical areas and symbols, terminology, including street and gang language and coded language and behaviour and activities of street gangs in Toronto" (A.R., vol. XXVI, at p. 3). Detective Kerr explained that members of street gangs often speak in slang and in "coded" or "covert" language. He sought to explain terms used by gangs, such as "hood""crew""homies""my boy""fam", and "bless". His evidence also compared Toronto street gangs with the Bloods and the Crips, notorious American street gangs. He was shown photographs of the appellant and identified him as exhibiting a "Blood[s] hand sign" while wearing red clothing, which could be "indicia" of a Bloods-like gang. [ 15 ] On cross-examination, Detective Kerr acknowledged that individuals will often mimic gang culture for social — but not criminal — reasons. He agreed that the terms he described are also regularly used by people who are not members of a gang and that wearing red does not necessarily indicate Bloods association. He also agreed that the alleged Bloods hand sign could be interpreted as simply an "A-Okay" sign. [ 16 ] The defence did not present evidence. In closing argument, defence counsel told the jury that the offence requires a criminal organization to have "some form of structure and a degree of continuity to the group" (A.R., vol. XXXII, at p. 18). Defence counsel argued that no organizational structure was discussed in the intercepts and that the evidence was instead consistent with people from the same neighbourhood and cultural background who "formed randomly" for the immediate commission of a single offence. [ 17 ] After closing arguments, the judge held a pre-charge conference. The defence repeated its argument that the alleged criminal organization lacked structure and continuity, citing this Court's decision in Venneri. The judge provided counsel with a draft of his final jury instructions. Changes were discussed and made, but defence counsel raised no concern regarding the judge's explanation of what constitutes a criminal organization within the meaning of the offence. [ 18 ] In his charge to the jury, the judge referred to the evidence and to the parties' positions on the criminal organization count; this included a summary of Detective Kerr's evidence on "urban street gangs" in Toronto. The judge dealt with the required elements of the offence toward the end of his charge. He told the jury that there are three required elements: (1) the existence of a criminal organization; (2) knowing participation in or contribution to any activity of the criminal organization by the accused; and (3) the intention of the accused to enhance the ability of the criminal organization to facilitate or commit an indictable offence. On the first element, the judge explained: > The first element is the existence of a criminal organization. A criminal organization is

(a) a group, however organized, that is composed of three or more persons in or outside Canada; and that

(b) has, as one of its main purposes or activities, the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit including a financial benefit by the group or any one of the persons who constitute the group.

It is necessary to elaborate upon each of the components of that definition. A requirement of a group of three or more persons is not met if the group of three or more persons was formed randomly for the immediate commission of a single offence. The formation must not be random. The formation must not be for the purpose of committing an offence.

(A.R., vol. I, at pp. 203-4) [ 19 ] The balance of the judge's charge on the elements of the criminal organization offence related to the second and third elements: whether the accused participated in the activities of the organization and the purpose of that participation. [ 20 ] Defence counsel raised no objection to the charge. The jury's deliberations continued to the next day. The jury asked and received answers to several questions unrelated to the criminal organization count. In the evening, the jury returned its verdicts: the appellant was found guilty of all charges. The jury also found his co-accused guilty of several charges, including participation in the activities of a criminal organization. [ 21 ] In its sentencing submissions, the Crown argued that the designation "HNIC" was an abbreviation of "Head N-word in Charge" (A.R., vol. XXXV, at p. 27) and that the appellant was the leader of the criminal organization. The judge treated this as an aggravating factor in his reasons for sentence (2015 ONSC 4163). --- ### II. Court of Appeal for Ontario, 2021 ONCA 82, 399 C.C.C. (3d) 397 [ 22 ] The appellant appealed his convictions on three grounds. The Court of Appeal unanimously dismissed two of the three but divided on the third — that relating to the count of participation in the activities of a criminal organization. On that ground, the appellant argued that the trial judge failed to instruct the jury adequately as to the definition of a "criminal organization"; on this basis, the appellant sought a new trial regarding that offence. The majority did not give effect to this ground of appeal. Justice Paciocco, in dissent, would have allowed the appeal on this ground and ordered a new trial on that count. [ 23 ] The majority began its review of the trial judge's instructions on the criminal organization count by setting out "[t]he basic principles governing appellate review of a trial judge's jury instructions" (para. 61), as summarized in R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39, including that the alleged error must be examined in the context of the entire charge and of the trial as a whole. The majority also reviewed this Court's decision in Venneri, as well as the Court of Appeal's decisions in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, and R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641, as to the meaning of a "criminal organization". The majority considered that the existence of a criminal organization must be assessed on a "flexible basis" and that "[w]hile the group . . . must have some form of structure and degree of continuity, 'even a minimal amount may suffice'" (paras. 69-70, citing Beauchamp, at para. 155). The majority concluded that the trial judge's instructions on the definition of a criminal organization"assessed in the context of the trial as a whole" (para. 72), did not constitute an error of law. [ 24 ] The majority referred to three circumstances from the "trial as a whole" in support of this conclusion. First, there was Detective Kerr's evidence on "urban street gangs" in Toronto and the designations "H""HNI", and "HNIC", which "referred to the appellant as standing at the head of the gang's hierarchy as the 'head', 'head n**' or 'head n** in Canada'" (para. 74). Second, there were closing arguments by counsel. The Crown told the jury that the intercepts revealed the alleged gang's hierarchy and territory and "a cohesiveness that is characteristic of urban street gangs". Defence counsel referred the jury to the need for structure and continuity and argued that the group was formed randomly for a single criminal offence. Thus, the closing arguments by counsel both indicated that a criminal organization required structure or cohesiveness and continuity. Third, defence counsel did not object to the judge's instructions. The majority concluded that, while defence counsel's failure to object is not determinative, the lack of objection indicated the adequacy of the trial judge's instructions on the definition of a criminal organization, given the evidence and closing submissions by both Crown and defence counsel. [ 25 ] Justice Paciocco, dissenting, took the view that although the existence of a criminal organization is to be assessed flexibly and that a low level of organization suffices, nonetheless the group must have structure and continuity. These were important issues in this case, yet the trial judge failed to explain this to the jury and instead merely repeated the definition set out in the Criminal Code, without reference to what was set out in Venneri. [ 26 ] Justice Paciocco considered that the three circumstances from the "trial as a whole" relied on by the majority did not make up for the judge's failure to instruct the jury on the requirement for structure and continuity. The existence of evidence relating to structure and continuity would not itself inform the jury that this is a requirement in order to convict. Defence counsel's closing arguments, in illustrating that structure and continuity were live issues, underlined the need for the judge to instruct the jury on these matters. In Justice Paciocco's view, only in rare circumstances, if ever, can counsel's words make up for a trial judge's failure to provide a needed instruction. Although defence counsel ought to have objected to the charge, there was no indication that the failure to object was tactical; the only reasonable inference was that defence counsel failed to notice the problem. In the end, the appellant was entitled to a properly instructed jury and did not have one. --- ### III. Issue [ 27 ] The issue in this appeal is whether the trial judge erred in law in his instructions to the jury on the count of participation in the activities of a criminal organization, such that a new trial should be ordered on that count. --- ### IV. Analysis [ 28 ] Both the majority and the dissenting judge at the Court of Appeal sought to give effect to this Court's guidance as to the proper approach to reviewing jury instructions for legal error. They also referred to the legal requirements for the definition of a criminal organization, as set out by this Court in Venneri. However, while referring to the same authorities, they came to markedly different conclusions. This points to the value of reviewing and reiterating this Court's guidance on how an appellate court should review jury instructions for legal error, as well as what this Court set out in Venneri regarding structure and continuity under s. 467.1(1) of the Criminal Code. [ 29 ] I will begin my analysis by discussing the legal framework for appellate review of jury instructions. The appellate court's task needs to be directed to whether the instructions properly equipped the jury to decide the case. I will explain why it is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed to decide the case, as well as how the circumstances of the trial can inform the analysis. I will then turn to the definition of a criminal organization. Finally, I will consider whether the judge's instructions in this case properly equipped the jury to decide the count of participation in the activities of a criminal organization. #### A. Legal Framework for Appellate Review of Jury Instructions ##### (1) The Role of Appellate Courts in Reviewing Jury Instructions [ 30 ] On a conviction appeal, an appellate court may allow an appeal pursuant to s. 686(1)(a) of the Criminal Code where it identifies any error of law, unreasonable verdict, or miscarriage of justice. These reasons focus on the first basis for appellate intervention, as challenges to a judge's instructions to the jury are analyzed as an error of law (R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 21). [ 31 ] When reviewing a trial judge's instructions to the jury for legal error, appellate courts need to be mindful of the division of duties in a jury trial. The jury is the sole trier of fact. But a jury is not presumed to know the law that it must apply when reaching its verdict. The judge regulates and orders the proceedings, including any legal rulings needed during the trial, and instructs the jury as to the law. Counsel for the Crown and the defence place evidence before the jury, argue what facts the jury should find based on the evidence, and advocate for a given verdict (see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 27-28; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 30). [ 32 ] Appellate courts need to respect the role of jurors as triers of fact (see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 ("White 2011"), at para. 56; R. v. Corbett, [1988] 1 S.C.R. 670, at p. 692). Since the determination of guilt or innocence is the responsibility of the jury (R. v. White, [1998] 2 S.C.R. 72, at para. 27), appellate courts should exercise restraint and not routinely interfere with jury verdicts absent an error of law. However, appellate courts need also to be mindful that the trial judge bears the responsibility to instruct the jury on the law (R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 37; R. v. Khill, 2021 SCC 37, at para. 144). In addition, juries do not have the benefit of judicial experience on certain issues; for example, a Vetrovec caution may be required "to bring home to lay jurors the accumulated wisdom of the law's experience with unsavoury witnesses" (R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 4; see also Rodgerson, at para. 34; White 2011, at paras. 44 and 55-56). The trial judge needs to ensure that the jury understands its task and is properly equipped to make its decision. The appellate court ensures that the trial judge has fulfilled their role to properly instruct the jury (Jacquard, at paras. 14, 32 and 62; R. v. Ménard, [1998] 2 S.C.R. 109, at para. 27; R. v. Cooper, [1993] 1 S.C.R. 146, at p. 163). [ 33 ] Finally, the appellate court's role in reviewing the jury instructions for legal error needs to be distinguished from the operation of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. The approach described in these reasons is used to determine whether there is an error of law in a judge's instructions to the jury. The curative proviso, on the other hand, is to be considered only where an error of law has already been identified; it deals with whether such an error can be "cured" such that it is not warranted for the appellate court to set aside the verdict and order a new trial. Although certain considerations can inform whether an error has occurred as well as whether it can be "cured", the two analyses need to remain conceptually distinct. An accused must demonstrate the existence of a legal error. Once that burden has been met, the Crown, if it seeks to rely on the proviso, bears the burden to establish one of the requirements of the proviso: that (1) the error of law is "harmless", or (2) despite a potentially prejudicial error of law, there is an "overwhelming" case against the accused (R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25). The curative proviso imposes a heavy burden on the Crown. The accused has the "right to the verdict of a properly instructed jury, and appellate courts must exercise prudence so as not to trespass on that fundamental right" (para. 23). ##### (2) A Functional Approach to Appellate Review of Jury Instructions [ 34 ] It is not possible to set out an exhaustive step-by-step framework for appellate review of jury instructions — each case depends on the nature of the alleged errors. Rather, this Court has provided guidance to appellate courts to adopt a "functional approach" when reviewing instructions for legal error. [ 35 ] Let me reiterate principles underlying this functional approach. The accused is entitled to a jury that is properly, not perfectly, instructed (Jacquard, at paras. 2 and 62; Daley, at para. 31; Araya, at para. 39; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 9). The charge must be read as a whole (Cooper, at p. 163; Daley, at paras. 31 and 53; Calnen, at para. 8). It is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence (Daley, at paras. 30 and 53; Calnen, at para. 8). The charge must be considered not in isolation but in the context of the trial as a whole (Daley, at para. 58; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32). The overriding question is whether the jury understood or was "properly equipped" with the law to apply to the evidence (Calnen, at para. 9; Jacquard, at para. 14). Each of the foregoing captures an aspect of a functional approach. How appellate courts have given effect to this guidance on occasion has lacked consistency. [ 36 ] The appellate court's task needs to be directed toward the ultimate "function" of jury instructions: to properly equip the jury to decide the case. In other words, when reviewing a charge to a jury for potential legal error, appellate courts need to read the charge as a whole and determine whether the overall effect of the charge properly equipped the jury in the circumstances of the trial to decide the case according to the law and the evidence. [ 37 ] What does it mean for a jury to be "properly" equipped? Many terms have been used in the jurisprudence to describe errors in jury instructions that render a jury improperly equipped, notably "misdirection" and "non-direction". In my view, the concept of "misdirection" is better understood in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, the concept of "non-direction" is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. Thus, it is helpful to view a properly equipped jury as one that is both (a) accurately and (b) sufficiently instructed. This requires the appellate court to have regard both to what was said and what was not said in the judge's instructions. To be clear, the distinction between allegations of inaccuracy and insufficiency are not two separate grounds of review of a jury instruction for legal error, nor do they replace or depart from other terms that have been used in the jurisprudence to describe errors in jury instructions. An alleged error, depending on how it is framed, might raise concerns of both inaccuracy and insufficiency. In the end, these concepts are useful tools through which an appellate court may answer the ultimate question of whether, on a functional reading, the instructions properly equipped the jury to fulfil its role. ###### (a) Whether the Jury Was Accurately Instructed [ 38 ] In some cases, it is alleged that what the judge said in the charge would have equipped the jury with an inaccurate understanding of the law. This would be the case, for example, where a jury instruction suggests that the balance of probabilities is the requisite standard of proof to convict (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 243). This may also be so where the judge instructs the jury that they must be unanimous in their doubt, rather than in the verdict, before they can acquit (R. v. Brydon, [1995] 4 S.C.R. 253, at para. 24). A charge may also be so confusing as to amount to an error of law (R. v. Hebert, [1996] 2 S.C.R. 272, at para. 8; see also Rodgerson, at para. 42). [ 39 ] These sorts of errors have typically been referred to as "misdirection" (see, e.g., Rodgerson, at para. 37; Ménard, at paras. 29-30; R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 9; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 354-55; Boucher v. The Queen, [1955] S.C.R. 16). As I have explained, they are better understood in terms of whether the jury was equipped with an accurate understanding of the law to decide the case. This focuses the inquiry on the overall understanding of a given issue in the mind of the jury. [ 40 ] An instruction is not inaccurate simply because it fails to use certain words or does not copy a strict formula; "it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters" (Daley, at para. 30; see also Khela, at para. 53; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 11; Starr, at para. 233). The question is whether the jury was accurately instructed to decide the case according to the law and the evidence (Jacquard, at para. 32). [ 41 ] The charge must be read as a whole. As this Court has stated"the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury" (Jacquard, at para. 32). A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue (R. v. Goforth, 2022 SCC 25, at paras. 35 and 40; Jaw, at para. 32; Cooper, at pp. 163-64). One misstatement might be compensated for by an accurate statement elsewhere in the charge, provided the jury would have accurately understood the law it must apply (White 2011, at paras. 82 and 84; Ménard, at para. 30; Jacquard, at para. 20). [ 42 ] The organization of the charge and the placement of alleged inaccuracies within it will inform the overall accuracy of the charge (Jaw, at para. 33). For example, a problematic statement at one part of the charge may be less likely to undermine a proper statement of the law in a more material part of it (see, e.g., Khela, at para. 55; R. v. Athwal, 2017 ONCA 222, at paras. 2-3). Conversely, it may be more likely for a jury to have been misled where the judge states the law correctly in a more generic part of the charge but then inaccurately states the same issue in a more material or significant part of the charge (see, e.g., R. v. Subramaniam, 2022 BCCA 141, 413 C.C.C. (3d) 56, at paras. 73-77; R. v. Bryce (2001), 140 O.A.C. 126, at paras. 13-15 and 20). There is a greater risk that the jury has an inaccurate understanding of the law where an inaccurate statement is made in a recharge in response to a question from the jury (Brydon, at para. 19; R. v. Naglik, [1993] 3 S.C.R. 122, at p. 139); this may well compound and thereby make more serious such an error. [ 43 ] At all times, the focus is on whether the jury had an accurate understanding of the law from the charge. ###### (b) Whether the Jury Was Sufficiently Instructed [ 44 ] In some cases, it is alleged that the judge did not say something that needed to have been said in order for the jury to be properly equipped to decide the case. It is thus alleged that the jury was not sufficiently instructed. In some instances, a failure to give an instruction, either with sufficient detail or at all, will be an error of law. [ 45 ] These situations have typically been referred to as "non-direction" (see, e.g., Khill, at para. 145; Lifchus, at para. 9; R. v. Bevan, [1993] 2 S.C.R. 599, at p. 619). As I have explained"non-direction" is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. This directs the appellate court to the function of the instructions. [ 46 ] The sufficiency of an instruction may be understood as involving two related questions: (i) whether an instruction was required and (ii) whether an instruction that was required was given with sufficient detail. (i) Whether an Instruction Was Required [ 47 ] Some instructions must be given in every jury trial. Other instructions are required in certain circumstances, but not in others. When faced with an allegation of insufficient instruction, an appellate court should consider whether the impugned instruction was mandatory or if its requirement was contingent on the circumstances of the case. [ 48 ] Mandatory instructions that must be dealt with in every case include, for example, an explanation of the standard of proof beyond a reasonable doubt (Lifchus, at para. 22). The instructions must also include, inter alia, an explanation of the charges faced by the accused, including the required elements of each offence to be left with the jury; an explanation of the theories of each side; a review of the evidence relating to the law; the possible verdicts open to the jury; and the requirement of unanimity for reaching a verdict (Daley, at para. 29). The omission of a mandatory instruction will necessarily be an error of law. [ 49 ] By contrast, other instructions are contingent, in the sense that their requirement depends on the circumstances of the case. For example, an instruction on prior inconsistent statements is not required in every case, but may be required when such statements are in evidence (see Illes, at para. 1). A Vetrovec caution is not required in every case, but may be required when a witness falls within the category of unsavoury witnesses that requires such a caution (Khela, at paras. 2-3). An instruction on how to avoid improper propensity reasoning is not required in every case, but may be required when evidence is introduced that poses a risk of such reasoning (Calnen, at paras. 1-3). Whether a contingent instruction is required or not "will depend upon the evidence, the issues raised, and the positions of the parties" (Bevan, at p. 618). If a contingent instruction is required in the circumstances but is not given, this may constitute an error of law; if it is not required, there is no error in failing to give it. (ii) Whether an Instruction That Was Required Was Given with Sufficient Detail [ 50 ] Where an instruction is required — whether mandatory or contingent — the instruction must be given with sufficient detail for the jury to undertake its task. The accused is entitled to a jury that is "properly" instructed. An "instruction" that provides no meaningful guidance does not fulfil its function. The question is thus whether the instruction given was sufficiently detailed for the jury to undertake its task. For example, while a judge is not expected to deliver an academic lecture on the concept of reasonable doubt, the judge must explain the concept to give content to the jury's task (Lifchus, at paras. 22 and 38; see also Starr, at paras. 236-37). The judge failed to do so in Lifchus, where he substituted "ordinary everyday language" without providing the substance of the concept, leaving the jury with no meaningful guidance as to what standard they were to apply (Lifchus, at paras. 36-38). Similarly, an instruction to "consider" dangerous offender evidence and an instruction to "attach very little weight" to the evidence did not sufficiently instruct the jury on how it must limit its reliance on that evidence (Mack, at paras. 56-60). [ 51 ] At the same time, there is no prescribed formula or wording that the judge must use. Judges give jury instructions in "everyday language" (Daley, at para. 30; see also Jacquard, at para. 2; Araya, at para. 39). Instructions must be practically understandable to jurors. The substance of the instruction must be provided, but it can be conveyed in different ways. What is required is that the instruction be given with sufficient detail for the jury to properly understand what it must do (Khill, at paras. 144-45). ##### (3) How the Circumstances of the Trial Can Inform the Analysis [ 52 ] The charge must be considered in the context of the trial as a whole (Daley, at para. 58; Jaw, at para. 32). This is because a jury charge does not exist in a vacuum, but is given in the context of and based on the evidence at trial and the closing arguments of counsel. The circumstances of the trial inform what the jury needed to understand to decide the case. The instruction must provide the jury with what it needs to understand given those circumstances. [ 53 ] However, the circumstances of the trial cannot replace the judge's duty to ensure the jury is properly equipped. The trial judge has the responsibility to instruct the jury on the law. While the judge's review of evidence and summary of counsel's arguments will inform the jury, their function cannot replace that of the legal instruction itself. In considering whether the jury was properly equipped, appellate courts need to carefully consider how the circumstances of the trial are relevant to the central inquiry: whether the judge's instructions properly equipped the jury to decide the case. [ 54 ] Three kinds of circumstances of the trial are often relevant: (1) evidence at trial; (2) closing arguments of counsel; and (3) the silence of counsel. (1) Evidence at Trial [ 55 ] Evidence at trial may inform the sufficiency of certain instructions. For example, if only a narrow range of verdicts is reasonably available given the evidence at trial, this can inform the sufficiency of any instruction relating to those verdicts (see, e.g., Bevan, at p. 621; Cinous, at paras. 3 and 59; R. v. Aalders, [1993] 2 S.C.R. 482, at p. 506). Similarly, while instructions on how to reason about evidence of prior discreditable conduct are important (see Barton, at paras. 43-44 and 47), if such evidence is weak or equivocal, it may not require as detailed an instruction as where such evidence is powerful and more clearly probative of propensity (Calnen, at paras. 62-71; R. v. Maxwell (1975), 26 C.C.C. (2d) 322, at p. 327 (C.A.)). [ 56 ] Evidence at trial can also be relevant to whether a contingent instruction is required. For example, if a prior inconsistent statement is in evidence, an instruction on how to treat such evidence may be required (Illes, at paras. 1 and 27-28). If no such statement is in evidence, there is no need for such an instruction. [ 57 ] However, the existence of evidence relevant to a given issue cannot replace an accurate and sufficient instruction on the law. The task of the jury is not to determine what rule of law to apply based on the evidence before it; rather, the judge instructs the jury on the law and the jury applies that law to the evidence. Evidence that may satisfy a given legal requirement does not explain what that legal requirement is. Similarly, evidence that goes to both sides of an issue does not inform the jury of what the legal requirement is or how to determine it. (2) Closing Arguments of Counsel [ 58 ] The closing arguments of counsel can also inform the sufficiency of the judge's instructions and can be relevant to whether a contingent instruction was required. For example, closing arguments can fill gaps in the judge's review of the evidence, and the substance of the judge's instructions "should be read in light of the overall context in which they were given", which includes counsel's arguments (Khela, at para. 53; see also Jaw, at para. 40). [ 59 ] However, the closing arguments of counsel cannot replace an accurate and sufficient instruction on the law. The judge is responsible for instructing the jury on the law; counsel argue how the law applies to the evidence. Where both Crown and defence counsel accurately explain the law in their closing arguments, this may be relevant to whether the jury was properly equipped. But the relevant question is always the overall accuracy and sufficiency of the judge's instructions, and an instruction's accuracy and sufficiency cannot be saved by counsel's closing arguments alone (see R.V., at para. 72; Rose, at para. 107; R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R. 179, at para. 23; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145, at para. 63; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at paras. 130-32; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 56; R. v. Gray, 2012 ABCA 51, 522 A.R. 374, at paras. 27-30). (3) Silence of Counsel [ 60 ] The trial judge has the primary responsibility for giving the charge, and it is not the responsibility of counsel to instruct the jury. While a failure by counsel to object to a charge may be considered as "some evidence" that the charge was adequate, it is not determinative of this question. Defence counsel may have refrained from objecting for a variety of reasons, and the court should be careful to avoid penalizing an accused for the choices of their counsel (Thériault v. The Queen, [1981] 1 S.C.R. 336, at p. 340; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 2; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 28; Rodgerson, at paras. 39-40; R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 143). Nor can a failure to object by defence counsel "estop" an accused from raising an error by the trial judge on appeal (Rodgerson, at para. 39). ##### (4) Summary [ 61 ] In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court's task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge's duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case. #### B. Definition of a Criminal Organization [ 62 ] I now turn to the definition of a "criminal organization" in s. 467.1(1) of the Criminal Code and what this Court said in Venneri about that definition. [ 63 ] In Venneri, this Court addressed a central ambiguity in the definition — what it means for a criminal organization to be a "group, however organized". The Court explained that the phrase "however organized" is meant to capture differently structured criminal organizations — not eliminate the requirement for organization entirely. The Court stated that "although criminal organizations may not be 'organized' in the traditional sense . . . they must nonetheless exhibit some form of structure and degree of continuity" (Venneri, at para. 29). While a low threshold is sufficient, there must be some form of structure and some degree of continuity (Venneri, at para. 29). The Court added that "[i]dentifying a group as a criminal organization when it lacks the requisite qualities of structure and continuity 'would cast a net broader than that intended by Parliament'" and subject the group to the exceptional procedural and substantive consequences of the criminal organization regime (Venneri, at paras. 31 and 35). [ 64 ] I now explain why it is important for a trial judge to instruct the jury on the requirement that a criminal organization have structure and continuity, and why it is not enough to simply read the statutory definition aloud. [ 65 ] Parliament enacted the criminal organization regime in Part XII.1 of the Criminal Code to address the serious threat posed by organized crime groups. This regime is exceptional in several ways: it provides harsher penalties (ss. 718.2(a)(iv), 743.6(1.1)), restricts early parole (s. 743.6(1.1)), limits bail for accused charged with criminal organization offences (s. 515(6)(a)(ii)), facilitates wiretap authorizations (ss. 185(1.1), 186(1.1), 186.1, 492.1(6)(a), (b), 492.2(5)(a), (b)), and imposes mandatory minimum sentences for some offences (ss. 82(2), 239(1)(a), 244(2)(a), 244.2(3)(a), 279(1.1)(a), 279.1(2)(a), 344(1)(a), 346(1.1)(a)). Parliament designed the regime to specifically target groups that pose an enhanced threat to society — not all co-offenders and not mere ad hoc groupings. [ 66 ] The purpose of the criminal organization regime is reflected in the definition of "criminal organization". In Venneri, the Court stated: "A criminal organization is a group that has a formal or informal structure but differs from an ad hoc group in that it has some institutional quality, in the form of structure and continuity" (para. 34). Parliament sought to identify groups that pose an enhanced threat to society "due to the ongoing and organized association of their members, including the advantages and resources that this ongoing association allows them to bring to bear in facilitating or committing crimes" (Venneri, at para. 35). [ 67 ] This purpose of the criminal organization regime is therefore to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity. This informs the proper approach to identifying a criminal organization under s. 467.1(1). [ 68 ] There are two reasons why a trial judge should instruct the jury on the requirement for structure and continuity, beyond the bare statutory definition. First, this requirement distinguishes criminal organizations from other groups of offenders who act in concert: it distinguishes criminal organizations from ad hoc groups that come together for one criminal event, conspirators, or persons who aid and abet. But for this requirement, a group of three or more persons who happened to commit the same offence could constitute a "criminal organization", even though the offence was committed by ad hoc co‑offenders. [ 69 ] Second, the structure and continuity requirement helps guard against improper reasoning, namely reliance on stereotypes, as a basis for identifying a criminal organization. As this Court cautioned in Venneri, the definition of a criminal organization must be applied "flexibly" — it must not be limited to stereotypical models of organized crime (Venneri, at paras. 28 and 36-41). [ 70 ] While the definition must be applied flexibly, so as not to exclude non-stereotypical criminal organizations, flexibility should not be confused with eliminating the required elements. The trier of fact must determine, on the basis of evidence, whether the particular group in question had some form of structure and degree of continuity sufficient to engage the criminal organization regime. Flexibility in the acceptable forms of structure and degree of continuity does not mean that structure and continuity are optional. [ 71 ] Nor should flexibility in the definition become an invitation for irrelevant considerations or improper reasoning. While characteristics such as ethnicity, cultural background, neighbourhood, religion, language or dialect may indicate a common social or cultural identity among persons who commit offences, they are irrelevant in identifying the existence of a criminal organization. Just as the definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not to identify a criminal organization merely because the group appears to satisfy some stereotypical model. The trier of fact's focus when tasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possesses the distinguishing qualities of a criminal organization, i.e., structure and continuity. [ 72 ] In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court's task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge's duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case. #### C. Application [ 73 ] Having set out the legal framework, I now apply it to this case. I will first consider the nature of the alleged error and then address the majority of the Court of Appeal's reliance on circumstances of the trial. ##### (1) Nature of the Alleged Error [ 74 ] The alleged error is that the trial judge failed to explain to the jury that a criminal organization must have structure and continuity — as required by Venneri. On the analysis set out above, I need to ask: was the instruction on this element of the offence mandatory? And if so, was it given with sufficient detail? [ 75 ] This instruction was mandatory. The existence of a criminal organization is a required element of the offence of participation in the activities of a criminal organization. The judge was thus required to instruct the jury on the legal requirements for a criminal organization to exist. The omission of a mandatory instruction is an error of law. [ 76 ] Was the mandatory instruction given with sufficient detail? No. The judge merely recited the definition in s. 467.1(1) of the Criminal Code. Without further explanation, the jury could not have understood from the judge's charge that a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity. The requirement for structure and continuity is not apparent from the bare text of the definition. The definition refers to a "group, however organized", which might be read as signifying that the nature and degree of organization is irrelevant. Only with the added gloss that "however organized" is intended to capture differently structured criminal organizations rather than eliminating the requirement for organization altogether can the text be understood as requiring structure and continuity. [ 77 ] What the judge told the jury was that "the formation must not be random" and "the formation must not be for the purpose of committing an offence". This instruction on what a criminal organization is not is not an adequate substitute for an explanation of what a criminal organization is. These statements do not equate to an instruction on the requirement for structure and continuity. Without more, a juror could well reason that any deliberate group formed to commit crimes — but not "formed randomly" for one offence — meets the definition, even if that group lacked structure and continuity. [ 78 ] The instruction given was therefore insufficient. There was an error of law. ##### (2) Reliance on Circumstances of the Trial [ 79 ] Having identified the error, I now consider the majority of the Court of Appeal's reliance on circumstances of the trial. As I have explained, circumstances of the trial can inform the sufficiency of certain instructions. However, they cannot replace the judge's duty to provide the jury with an accurate and sufficient instruction on the law. This is the lesson of the majority's approach in this case. [ 80 ] The majority of the Court of Appeal relied on three circumstances of the trial to conclude that no error of law occurred. I have already set out the majority's reasoning. In my view, none of the three circumstances it relied upon can make up for the inadequacy of the trial judge's instruction. Evidence at Trial [ 81 ] The majority's reliance on Detective Kerr's "gang expert" evidence does not make up for the inadequacy of the trial judge's instruction. The majority pointed to the evidence of Detective Kerr, which described the group's gang characteristics and activities, as support for the conclusion that the jury was properly equipped. However, neither this evidence nor any other evidence at trial can replace an accurate and sufficient instruction on the law. Evidence that may satisfy the requirement of structure and continuity does not explain what that legal requirement is. Without an instruction on the legal requirement, the jury was not equipped to assess the evidence against the proper legal standard. [ 82 ] I acknowledge that the majority of the Court of Appeal also pointed to the expert evidence to note concerns arising from stereotyping. As I explained, the structure and continuity requirement also helps guard against improper reasoning, such as reliance on stereotypes. The concern about stereotyping pointed to by the majority of the Court of Appeal — i.e., the gang expert evidence — actually underscores the importance of an adequate instruction by the trial judge. Given that the expert evidence relied on stereotypical characteristics of "urban street gangs" in Toronto, the jury was all the more in need of an instruction that would help guard against reliance on stereotypes in identifying a criminal organization. This is yet another reason why the trial judge's failure to adequately instruct the jury on the legal requirement of structure and continuity was an error of law. Closing Arguments of Counsel [ 83 ] The majority's reliance on closing arguments of counsel, like its reliance on the evidence at trial, misses the mark. Counsel's arguments cannot provide the jury with what the judge's charge failed to provide. While the closing arguments of counsel are relevant to the overall context of the jury charge, they cannot substitute for an instruction from the trial judge. [ 84 ] The arguments of counsel bear on whether an instruction is needed, and what evidence the jury should consider. Defence counsel indeed raised the issue of structure and continuity in their closing argument. But this did not make up for the judge's failure to instruct the jury that a criminal organization must have structure and continuity. The arguments of counsel that structure and continuity were live issues, if anything, underscored the need for the judge to instruct the jury on what this requirement means. The jury was not instructed by the judge that a criminal organization must have structure and continuity. Without this, the jury had no anchor in the judge's instructions to understand what the requirement is. [ 85 ] Nor is Crown counsel's argument that the group had "cohesiveness" and was a "continuous enterprise" sufficient. The jury was not instructed by the judge about what structure and continuity means. Without this, the jury had no legal touchstone for assessing the Crown's argument. Having this touchstone would have helped the jury resist both the temptation of stereotypical reasoning and the failure to appreciate the threshold required for a criminal organization. Silence of Counsel [ 86 ] Finally, I agree with the majority of the Court of Appeal that the silence of defence counsel is not determinative. However, I draw a different inference from that silence than the majority. The majority concluded that the silence of defence counsel indicated that the instructions were adequate. However, as I have stated, the primary responsibility for the charge lies with the trial judge, not counsel. The silence of defence counsel does not validate the adequacy of the judge's instructions; the trial judge is ultimately responsible for ensuring that the jury is properly equipped. In any event, it is reasonable to infer that defence counsel simply failed to notice the problem rather than making a tactical decision to remain silent. ##### (3) Conclusion on Application [ 87 ] At the end of the day, the jury was insufficiently instructed. The trial judge had a mandatory obligation to instruct the jury as to the meaning of "criminal organization" under s. 467.1(1) of the Criminal Code. But the trial judge merely recited the statutory definition, which cannot convey the requirement that a criminal organization must have structure and continuity. Neither the evidence adduced at trial, nor the closing arguments of counsel, nor the silence of defence counsel could make up for this error. The jury was left without sufficient guidance to determine the existence of the most basic element of the offence. [ 88 ] I therefore conclude that the trial judge erred in law in his instructions to the jury. The Court of Appeal's majority relied on circumstances of the trial to save those instructions, but those circumstances cannot replace an accurate and sufficient instruction from the trial judge. The majority's focus strayed from the ultimate function of jury instructions and the central inquiry on appellate review — whether the jury was properly equipped to decide the case. The dissenting judge at the Court of Appeal was correct. [ 89 ] Since the respondent has not argued that the curative proviso under s. 686(1)(b)(iii) applies (and rightly so), the conviction for participation in the activities of a criminal organization must be set aside and a new trial ordered on that count. --- ### V. Conclusion [ 97 ] I would allow the appeal, set aside the appellant's conviction for participation in the activities of a criminal organization, and order a new trial on that count. --- ## Dissenting Reasons The following are the reasons delivered by Côté J. — ### I. Introduction [ 98 ] This appeal provides an opportunity to apply the functional approach to appellate review of jury charges (see, e.g., R. v. Goforth, 2022 SCC 25, at paras. 20‑22; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8‑9; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 32). While my colleague purports to affirm this approach, with respect, he elevates form over substance and renders the contextual assessment more rigid in several ways. [ 99 ] The sole issue in this case is whether the jury understood the legal elements of the definition of "criminal organization" in s. 467.1(1) of the Criminal Code, R.S.C. 1985, c. C‑46. There is no dispute that "some form of structure and degree of continuity" are required (R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, at para. 29). While the trial judge's charge was not perfect, it would not have made any difference if he had used the precise words "structure" and "continuity" in explaining the definition. The jury knew it had to decide whether the appellant was a member of a group that (1) was organized; (2) existed for some period of time; and (3) went beyond one formed randomly for the immediate commission of a single offence. ### II. Legal Principles [ 100 ] I agree with my colleague that appellate courts must adopt a functional approach to the review of jury charges. However, I disagree with several aspects of his formulation of this approach. [ 101 ] First, my colleague introduces a new taxonomy of errors in jury instructions — "accuracy" and "sufficiency" — and describes certain instructions as either "mandatory" or "contingent". These categories are not derived from prior case law of this Court, and they are unhelpful. The relevant question is and has always been simply whether the charge properly equipped the jury to decide the case according to the law and the evidence. In all cases, this requires a functional reading of the charge as a whole and in context. This established framework does not need "refinement" or additional guidance; it simply needs to be applied. [ 102 ] Second, I disagree that the submissions of counsel are relevant only to fill "gaps in the judge's review of the evidence". That is too narrow an approach. While counsel's submissions cannot correct a clear misstatement of law by the trial judge, it may be possible for the submissions of counsel to help fill an alleged gap in the judge's charge, including a gap relating to a legal requirement. This must be assessed in context. [ 103 ] Third, I disagree with my colleague's suggestion that the "silence of counsel" in respect of a draft jury charge is relevant only to provide "some evidence" that the charge was adequate and can otherwise be dismissed as uninformative or even as indicating the opposite. This suggestion is inconsistent with this Court's approach. While the silence of counsel is not determinative, it is a circumstance of the trial that may be very relevant and probative, particularly where counsel raised the specific legal issue and had an opportunity to review and comment on a draft charge. The point is that the relevance of these circumstances should be assessed in context. [ 104 ] Fourth, I disagree with my colleague's conclusion in this case. In my opinion, the trial judge's charge as a whole properly equipped the jury to decide the count of participation in the activities of a criminal organization. ### III. Application [ 105 ] I will now apply the functional approach to the charge in this case. As I will explain, the charge as a whole properly equipped the jury to decide the criminal organization count according to the law and the evidence. [ 106 ] First, the trial judge accurately set out the statutory definition of "criminal organization" in s. 467.1(1) of the Criminal Code. As I will explain, the instruction that the group must be "organized" was sufficient to convey the substance of the Venneri requirements. [ 107 ] Second, the trial judge's instructions conveyed the substance of the legal requirements set out in Venneri. The word "organized" itself conveys "some form" of structure and co‑ordination. Moreover, the trial judge elaborated on the definition to explain that the group must not be "formed randomly" and must not be "for the purpose of committing an offence". This was sufficient to convey the substance of the Venneri requirements of "some form of structure and degree of continuity". [ 108 ] Third, the context of the trial as a whole further confirms that the jury was properly equipped. The trial judge's instructions must be read in light of: the defence's position at trial; the closing arguments of counsel; and the absence of objection to the draft charge by defence counsel. [ 109 ] With respect to the defence's position at trial: defence counsel argued to the jury that the criminal organization offence requires "some form of structure and a degree of continuity to the group" and that the group was "formed randomly" for the immediate commission of a single offence. The judge's charge summarized the defence's position. The jury therefore knew that structure and continuity were at issue in the case. [ 110 ] With respect to the closing arguments of counsel: both Crown and defence counsel addressed the structure and continuity requirements extensively. Crown counsel argued that the evidence showed the group's "cohesiveness" and its ongoing nature as "a continuous enterprise". Defence counsel argued that there was no evidence of organizational structure and that the group was formed randomly. The closing arguments of both counsel gave content and meaning to what the jury needed to decide on this issue. [ 111 ] With respect to the absence of objection to the draft charge: defence counsel was given a draft charge, reviewed it, and raised various concerns — but did not raise any concern about the definition of "criminal organization". My colleague says that we should draw the inference that defence counsel simply failed to notice the problem. In my view, this inference is unreasonable in the circumstances. Defence counsel had specifically argued the issue of structure and continuity at trial and in closing argument, had cited Venneri during the pre-charge conference, and had reviewed the draft charge. The more reasonable inference is that defence counsel was satisfied that the trial judge's instruction on the definition of "criminal organization" was adequate in the circumstances. [ 112 ] Fourth, the jury asked three questions during deliberations, but none related to the criminal organization count. This further suggests that the jury was not confused about its task on that count. [ 113 ] In my view, a jury properly equipped with the charge as a whole, in the context of the trial, would have understood that a criminal organization must have some form of structure and degree of continuity, as required by Venneri. The trial judge used the word "organized" in explaining what a criminal organization is. Jurors do not check their common sense at the door of the deliberation room. The jury would have understood "organized" to necessarily connote some form of structure and co‑ordination: > Qualifying "organized" in s. 467.1 by "however" cannot, as a matter of language or logic, be taken to signify that no element of organization is required at all. "Organized" necessarily connotes some form of structure and co‑ordination, as appears from the definition of "organized" in the Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2:

Formed into a whole with interdependent parts; coordinated so as to form an orderly structure; systematically arranged. [Emphasis added; p. 2023.]

In French, the definitions in Le Grand Robert de la langue française (electronic version) are consistent with this: it defines the noun "organisation" as the [translation] "[a]ction of organizing (something); the result of such an action" and the verb "organiser" as "[t]o give a specific structure or composition, order, or method of functioning or administration to" . . . . [Emphasis in original; para. 30.] [ 117 ] Fish J. further noted that the words "however" and "organized" in the statutory definition are intended to be complementary, not contradictory: > Thus, the phrase "however organized" is meant to capture differently structured criminal organizations. But the group must nonetheless, at least to some degree, be organized. Disregarding the requirement of organization would cast a net broader than that intended by Parliament. [Underlining added; para. 31.] [ 118 ] In my view, the trial judge's instruction that a criminal organization is a "group, however organized" is precisely the statutory language that this Court explained in Venneri conveys a requirement of organization. The jury would have understood this language as requiring some form of structure and degree of continuity. This understanding is reinforced by the judge's explanation that the group's "formation must not be random" — which conveys the idea of continuity — and that its "formation must not be for the purpose of committing an offence" — which conveys the idea of pre-existing structure. [ 119 ] While the trial judge's charge was not perfect, I would not have found an error of law in this case. A failure to say all that could have been said does not amount to legal error. The jury understood that the group had to be organized, that membership had to be for some period of time, and that the legal requirements of the offence were not met if the group was formed randomly for the immediate commission of a single offence. A group could not meet these requirements — as the jury must have found in order to convict — but nonetheless lack some form of structure and degree of continuity. ### IV. Disposition [ 150 ] For the reasons above, I would dismiss the appeal and uphold the appellant's conviction on count 1 for participation in the activities of a criminal organization. I would add that, as a practical matter, it would be a waste of judicial resources to order a new trial, as the accused has been released for time served. --- Appeal allowed, Côté J. dissenting. --- Solicitors for the appellant: Edward H. Royle & Partners, Toronto. Solicitor for the respondent: Ministry of the Attorney General of Ontario, Crown Law Office — Criminal, Toronto. Solicitors for the intervener: Daniel Brown Law, Toronto; Kastner Lam, Toronto. --- * Brown J. did not participate in the final disposition of the judgment.