R. v. Abdullahi

R. v. Abdullahi
Collection
Supreme Court Judgments
Date
2023-07-14
Neutral citation
2023 SCC 19
Case number
40049
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Abdullahi, 2023 SCC 19
Appeal Heard: January 11, 2023 Judgment Rendered: July 14, 2023 Docket: 40049
Between:
Ahmed Abdullahi Appellant
and
His Majesty The King Respondent
- and -
Criminal Lawyers’ Association of Ontario Intervener
Coram: 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.
Ahmed Abdullahi Appellant
v.
His Majesty The King Respondent
and
Criminal Lawyers’ Association of Ontario Intervener
Indexed as: R. v. Abdullahi
2023 SCC 19
File No.: 40049.
2023: January 11; 2023: July 14.
Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for ontario
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 .
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 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.
Alexander Ostroff, for the appellant.
Katie Doherty, for the respondent.
Colleen McKeown and Emily Lam, for the intervener.
The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. was delivered by
Rowe J. —
[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