Ahmed Abdullahi Appellant v. His Majesty The King, 2023 SCC 19

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 singleoffence. A group could not meet these requirements — as the jury must have found in order to convict — but nonetheless lack someform 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, 2015ONCA 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, (SCC),[1988] 1 S.C.R. 670; R. v. White, (SCC), [1998] 2 S.C.R. 72; R. v. Jacquard, (SCC), [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, (SCC), [1998] 2 S.C.R.109; R. v. Cooper, (SCC), [1993] 1 S.C.R. 146; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Calnen, 2019SCC 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, (SCC), [1995] 4 S.C.R. 253; R. v. Hebert, (SCC), [1996] 2 S.C.R. 272; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Morin, (SCC), [1988] 2 S.C.R. 345; Boucher v. The Queen, (SCC),[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), (ON CA), 140 O.A.C. 126; R. v. Naglik, (SCC), [1993] 3 S.C.R. 122; R. v. Bevan, (SCC), [1993] 2 S.C.R. 599; R. v. Cinous, 2002 SCC 29,[2002] 2 S.C.R. 3; R. v.

Aalders, (SCC), [1993] 2 S.C.R. 482; R. v. Maxwell (1975), (ON CA), 26C.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, (SCC), [1998] 3S.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, (SCC), [1981] 1 S.C.R. 336; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423; R. v. G.D.B., 2000SCC 22, [2000] 1 S.C.R. 520; R. v.

Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Arcangioli, (SCC), [1994] 1S.C.R. 129; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344; R. v. Williams, (SCC), [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, (SCC), [1997] 1 S.C.R. 314; R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211; R. v. Barton, 2019SCC 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), (ON CA), 26 C.C.C.(2d) 322; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Cooper, (SCC), [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 theactivities 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 forlegal 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 andconspiracy to transfer illegal firearms.

The jury also found the appellant guilty of one count of participation in the activities of a criminalorganization for the purpose of trafficking weapons, contrary to s. 467.11 of the Criminal Code. Only the conviction on the criminalorganization count is at issue before this Court. [3] The Court of Appeal for Ontario unanimously dismissed an appeal from other convictions but divided on thecriminal 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 thedivision 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 whenreaching its verdict. The judge regulates and orders the proceedings, including any legal rulings needed during the trial, and instructs thejury as to the law. Counsel for the Crown and the defence place evidence before the jury, argue what facts the jury should find based onthe 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, (SCC), [1988] 1 S.C.R. 670, at p. 692). Since the determination of guilt orinnocence is the responsibility of the jury (R. v. White, (SCC), [1998] 2 S.C.R. 72, at para. 27), appellate courts shouldexercise restraint and not routinely interfere with jury verdicts absent an error of law.

However, appellate courts need also to be mindfulthat the trial judge bears the responsibility to instruct the jury on the law (R. v. Jacquard, (SCC), [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; forexample, a Vetrovec caution may be required “to bring home to lay jurors the accumulated wisdom of the law’s experience withunsavoury 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. 44and 55-56).

The trial judge needs to ensure that the jury understands its task and is properly equipped to make its decision. The appellatecourt ensures that the trial judge has fulfilled their role to properly instruct the jury (Jacquard, at paras. 14, 32 and 62; R. v. Ménard, (SCC), [1998] 2 S.C.R. 109, at para. 27; R. v. Cooper, (SCC), [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 theoperation of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

The approach described in these reasons is used todetermine whether there is an error of law in a judge’s instructions to the jury. The curative proviso, on the other hand, is to beconsidered only where an error of law has already been identified; it deals with whether such an error can be “cured” such that it is notwarranted for the appellate court to set aside the verdict and order a new trial. Although certain considerations can inform whether anerror has occurred as well as whether it can be “cured”, the two analyses need to remain conceptually distinct.

An accused mustdemonstrate the existence of a legal error. Once that burden has been met, the Crown, if it seeks to rely on the proviso, bears the burdento establish one of the requirements of the proviso: that (1) the error of law is “harmless”, or (2) despite a potentially prejudicial error oflaw, there is an “overwhelming” case against the accused (R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25). The curativeproviso imposes a heavy burden on the Crown.

The accused has the “right to the verdict of a properly instructed jury, and appellatecourts 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 — eachcase depends on the nature of the alleged errors. Rather, this Court has provided guidance to appellate courts to adopt a “functionalapproach” 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, notperfectly, 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 ofthe charge that matters, not adherence to a prescribed formula or particular sequence (Daley, at paras. 30 and 53; Calnen, at para. 8). Thecharge 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] 3S.C.R. 26, at para. 32).

The overriding question is whether the jury understood or was “properly equipped” with the law to apply to theevidence (Calnen, at para. 9; Jacquard, at para. 14). Each of the foregoing captures an aspect of a functional approach. How appellatecourts 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 equipthe jury to decide the case.

In other words, when reviewing a charge to a jury for potential legal error, appellate courts need to read thecharge as a whole and determine whether the overall effect of the charge properly equipped the jury in the circumstances of the trial todecide 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 describeerrors 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 ofthe law to decide the case. Similarly, the concept of “non-direction” is better understood in terms of whether the instructions would haveequipped the jury with a sufficient understanding of the law to decide the case. Thus, it is helpful to view a properly equipped jury as onethat is both (

a) accurately and (

b) sufficiently instructed. This requires the appellate court to have regard both to what was said and whatwas not said in the judge’s instructions. To be clear, the distinction between allegations of inaccuracy and insufficiency are not twoseparate grounds of review of a jury instruction for legal error, nor do they replace or depart from other terms that have been used in thejurisprudence to describe errors in jury instructions. An alleged error, depending on how it is framed, might raise concerns of bothinaccuracy and insufficiency.

In the end, these concepts are useful tools through which an appellate court may answer the ultimatequestion 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 inaccurateunderstanding of the law. This would be the case, for example, where a jury instruction suggests that the balance of probabilities is therequisite 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 judgeinstructs the jury that they must be unanimous in their doubt, rather than in the verdict, before they can acquit (R. v. Brydon, (SCC), [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, (SCC), [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, atparas. 29-30; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at para. 9; R. v. Morin, (SCC), [1988] 2 S.C.R.345, at pp. 354-55; Boucher v. The Queen, (SCC), [1955] S.C.R. 16). As I have explained, they are better understood interms of whether the jury was equipped with an accurate understanding of the law to decide the case.

This focuses the inquiry on theoverall 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 isthe 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 whetherthe 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 jurydoes not equate with the right to a perfectly instructed jury” (Jacquard, at para. 32). A single ambiguous or problematic statement in onepart of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding ofthe relevant legal issue (R. v.

Goforth, 2022 SCC 25, at paras. 35 and 40; Jaw, at para. 32; Cooper, at pp. 163-64). One misstatementmight be compensated for by an accurate statement elsewhere in the charge, provided the jury would have accurately understood the lawit 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 accuracyof the charge (Jaw, at para. 33).

For example, a problematic statement at one part of the charge may be less likely to undermine a properstatement 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 thecharge but then inaccurately states the same issue in a more material or significant part of the charge (see, e.g., R. v. Subramaniam, 2022BCCA 141, 413 C.C.C. (3d) 56, at paras. 73-77; R. v. Bryce (2001), (ON CA), 140 O.A.C. 126, at paras. 13-15and 20).

There is a greater risk that the jury has an inaccurate understanding of the law where an inaccurate statement is made in arecharge in response to a question from the jury (Brydon, at para. 19; R. v. Naglik, (SCC), [1993] 3 S.C.R. 122, atp. 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 tobe properly equipped to decide the case. It is thus alleged that the jury was not sufficiently instructed. In some instances, a failure to givean 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, (SCC), [1993] 2 S.C.R. 599, at p. 619).

As I have explained, “non-direction” is better understood in termsof whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. This directs theappellate court to the function of the instructions. [46] The sufficiency of an instruction may be understood as involving two related questions: (

i) whether an instructionwas 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 notin others. When faced with an allegation of insufficient instruction, an appellate court should consider whether the impugned instructionwas 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 ofproof beyond a reasonable doubt (Lifchus, at para. 22).

The instructions must also include, inter alia, an explanation of the charges facedby the accused, including the required elements of each offence to be left with the jury; an explanation of the theories of each side; areview 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] Contingent instructions are those that may be required in some cases but not others.

They may include, for example,a Vetrovec warning where there is unsupported evidence by unsavoury witnesses (Khela, at para. 11), or a limiting instruction againstgeneral propensity reasoning (Calnen, at para. 5). Defences and included offences are put to the jury only where they bear an air ofreality on the evidence (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 50; R. v. Aalders, (SCC), [1993] 2 S.C.R.482, at pp. 504-5).

The fact that such instructions are not required in every case should not be understood to mean that they are optional.When the circumstances of the case are such that a particular instruction is required, it is an error of law to omit it. (ii) Whether the Instruction Was Given With Sufficient Detail [50] When an instruction is required (whether it is mandatory or contingent), appellate courts need to determine whetherthe instruction was given with sufficient detail to equip the jury to decide the case. [51] For example, an explanation of the standard of proof will require more than simply stating the phrase “beyond areasonable doubt” (Lifchus, at para. 22).

This is mandatory in every case. Or, the evidence may require a specific instruction. Anexample is Rodgerson, where the evidence of concealment and clean-up could be relevant to two issues: the accused’s self-defence claimand his intent to commit murder. The trial judge instructed the jury to consider this post-offence conduct evidence along with all theother evidence at trial. This Court concluded that a more specific instruction was required on the limited use of the evidence for the issueof intent, as the evidence could not be used in the same manner as for the claim of self-defence.

The failure to give this more specific

instruction constituted an error of law (paras. 27-29; see also Khill, at paras. 125-27 and 129-30). The need for this instruction wascontingent on the circumstances of the case. [52] Where a jury is asked to apply provisions that have been interpreted by the courts, it will often be insufficient for ajudge to simply recite the relevant provisions to the jury without explaining the meaning given to them in the jurisprudence (C. Granger,The Criminal Jury Trial in Canada (2nd ed. 1996), at p. 246; see, e.g., R. v. Maxwell (1975), (ON CA), 26 C.C.C.(2d) 322 (Ont. C.A.)).

It is not unusual for courts to read in requirements or qualifications to Criminal Code provisions that are notapparent from the text of the provision. For example, in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, this Court read the wordingof the offence of having care or control of a motor vehicle while impaired under s. 253(1) of the Criminal Code (since repealed) asrequiring a realistic risk of danger to persons or property.

In such circumstances, merely reciting the text of the provision to the jurywould be insufficient. [53] Like accuracy, the sufficiency of an instruction must be assessed in the context of the charge as a whole. Aninstruction may be insufficiently detailed in one part of the charge, but can be supplemented by another part of the charge such that thejury was equipped with a sufficient understanding of the law to decide the case (Calnen, at para. 6; Daley, at para. 31; Jacquard, atparas. 14 and 20). [54] There is no strict rule to determine the level of detail for an instruction to be sufficient.

The level of detail that isrequired depends on the circumstances of each case (Rodgerson, at para. 30; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 50;Daley, at paras. 57 and 76). Moreover, judges are not required to adhere to specific wording; what counts is the substance of theinstruction, not its adherence to or departure from a prescriptive formula (Daley, at paras. 30 and 53; Mack, at para. 48). [55] Model jury instructions serve as important guides, but they are not decisive of the sufficiency of an instruction.

Onone hand, the judge is not required to give a formulaic instruction, and a less detailed instruction may be sufficient if the circumstancesof the case do not require as much detail as the model instruction sets out. On the other hand, the circumstances of the case may requirean instruction with greater detail than a model instruction provides. This Court has cautioned against overreliance on model instructions;they are a valuable tool, not the final product (R. v.

R.V., 2021 SCC 10, at para. 64; Rodgerson, at paras. 51 and 54). [56] Appellate courts should also be mindful that brevity is a virtue in jury instructions (Daley, at para. 56). The judgehas a duty to “decant and simplify” the law (Jacquard, at para. 13). If the charge sufficiently equips the jury with what it needs toconsider, the failure to say all that could have been said does not constitute an error of law (Mack, at para. 59). (

c) Consideration of the Charge in Light of the Circumstances of the Trial [57] The central inquiry on appellate review is whether the instructions properly equipped the jury to decide the case. Inanswering this question, a functional approach requires that appellate courts consider the instructions not in isolation, but rather in thecontext of the trial. Every trial is different. An instruction that properly equips the jury in one trial will not do so in another trial.

A juryneeds to be equipped with only that which is necessary to decide the case before it. [58] Although instructions need to be considered in the context of the trial, appellate courts should carefully consider howthose circumstances are relevant to the central inquiry on appellate review: whether the judge’s instructions properly equipped the jury todecide the case. Again, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed. Thecircumstances of the trial must be directed to this inquiry and not be used to replace the instructions.

To do so would subvert the trialjudge’s duty to instruct the jury accurately and sufficiently. [59] With the foregoing in mind, I turn to the three considerations from the “trial as a whole” relied on by the majority inconcluding that the instructions disclosed no legal error: (

i) the evidence; (ii) the closing arguments of counsel; and (iii) the lack ofobjection by defence counsel. This is not an exhaustive list of the considerations that may be relevant in light of the jurisprudence of thisCourt; rather, these are the ones that have been placed in issue in this appeal. (

i) Evidence [60] The evidence at trial informs what the jury needs to understand in order to be equipped properly to decide the case.Thus, the evidence at trial can inform the sufficiency of certain instructions. For example, whether a Vetrovec instruction is required willdepend on the witnesses; if there are no unsavoury witnesses, then it is not an error of law to omit a Vetrovec instruction. In Rodgerson, amore specific instruction was required due to the nature of the evidence adduced at trial.

For these types of instructions, whether theinstruction is required and its level of detail depend on the evidence. [61] The evidence does not inform the sufficiency of every instruction. For example, a sufficiently detailed instruction onthe standard of proof must explain the phrase “beyond a reasonable doubt” in accordance with the jurisprudence, regardless of theevidence. The jury needs to understand the law that it is called on to apply to the evidence. The existence of evidence relevant to a givenissue cannot replace an accurate and sufficient instruction on the law.

If a jury is equipped with an inaccurate understanding of the law,one can expect that the jury will apply that inaccurate legal framework to the evidence, whatever that evidence may be. If the instructionis insufficient, the appellate court cannot ascertain whether the jury undertook its task within the required framework. [62] The overall strength of the Crown’s case is not a relevant consideration in the review of a jury instruction for legalerror. The weight of the evidence is a factual matter for the jury.

The strength of the Crown’s case may be a relevant consideration underthe curative proviso, but that is a different question (Araya, at para. 53). (ii) Closing Arguments of Counsel [63] Like the evidence, the closing arguments of counsel form part of the overall circumstances of the trial; in somecircumstances, these can inform the sufficiency of the judge’s instructions. Notably, the closing arguments of counsel can be relevant towhether a contingent instruction was required. For example, in Khill, defence counsel’s repeated emphasis on the final “split second” of

the incident supported the need for the trial judge to provide a specific instruction on the accused’s “role in the incident” in hisinstruction on self-defence (paras. 134-35). Or, if counsel makes a problematic statement in closing argument, it can be incumbent on thejudge to correct this and to admonish the jury to disregard counsel’s statements; a failure to do so may amount to an error (R. v.

Rose, (SCC), [1998] 3 S.C.R. 262, at paras. 63 and 126-27). [64] This Court has stated that counsel’s closing arguments may “fill gaps” in the judge’s charge (Daley, at para. 58).However, this statement must be understood in light of the nature of the alleged error. Appellate courts have viewed counsel’s closingarguments as capable of filling gaps in the judge’s review of the evidence (see, e.g., R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R.179, at para. 15; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145, at paras. 41 and 46; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d)236, at para. 81).

This is because judges are not required to review in detail the whole of the evidence; they are required only to reviewcritical parts of the evidence and to ensure that the jury understands the significance of the evidence having regard to the issues in thecase (Daley, at paras. 56-57; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 47). [65] I agree with the intervener, the Criminal Lawyers’ Association of Ontario, that counsel’s closing arguments cannotreplace an accurate and sufficient instruction on the law.

The fact that counsel might have explained a legal principle properly will notcorrect the trial judge’s failure to do so (Avetysan, at paras. 23-24; R. v. Gray, 2012 ABCA 51, 522 A.R. 374, at para. 19). Juries areinvariably told to take the law from the judge and not from counsel or other sources. Such an instruction reflects the trial judge’s duty toinstruct the jury on the law. It also prevents the jury from cobbling together disparate and potentially inconsistent explanations of thelaw.

Reliance on multiple sources might well not only confuse juries but also frustrate appellate review of a jury instruction for legalerror, as appellate courts would not know which legal principles the jury applied. (iii) Silence of Counsel [66] Trial judges often convene a pre-charge conference, as provided for under s. 650.1 of the Criminal Code. In thisproceeding, the judge will usually provide counsel with a draft of the jury charge and invite comments on it. This is intended to be ameaningful exchange.

Counsel should lay their cards on the table, and the judge should be mindful of what counsel says, bearing in mindthat it is an adversarial process. After the judge has instructed the jury, counsel have an opportunity to raise objections to the charge or torequest clarifications or additional instructions before the jury commences its deliberations. As with the pre-charge conference, this ismeant to be a meaningful exchange where counsel lay their cards on the table.

Finally, when juries raise questions during theirdeliberations, counsel have the opportunity to provide submissions to the judge as to how to answer the questions. Where counsel fails atthese various opportunities to request the inclusion of an instruction or fails to raise an objection to the charge as delivered, appellatecourts have often turned to counsel’s silence as an important consideration. [67] Although the silence of counsel can be a relevant consideration, it should be recalled that the responsibility for thejury charge lies with the trial judge, not counsel.

This Court has on several occasions stated that the silence of counsel, while relevant, isnot determinative (see, e.g., Thériault v. The Queen, (SCC), [1981] 1 S.C.R. 336, at pp. 343-44; Daley, at para. 58;Mack, at para. 60). To hold otherwise would “unequivocally prejudice an accused’s right of appeal in cases where counsel isinexperienced with jury trials” (Jacquard, at para. 37). The silence of counsel is simply one of many considerations under a functionalapproach. [68] Counsel’s silence may be particularly relevant as to whether a contingent instruction was required.

For example, thelack of a request by defence counsel for the inclusion of a limiting instruction against general propensity reasoning may reinforce theconclusion that such an instruction was not required in the circumstances of the case (Calnen, at para. 41). Counsel’s silence may alsosuggest that an instruction that was given was sufficiently detailed. For example, the lack of objection may indicate the sufficiency of ajudge’s Vetrovec instruction (Khela) or instructions on advanced intoxication (Daley).

Counsel’s silence could also support a conclusionthat the charge read as a whole accurately set out the law relevant to a given issue. For example, in Goforth, the lack of objection bydefence counsel did not make the jury charge accurate, but it supported the conclusion that the overall effect of the charge accuratelyinstructed the jury with the foreseeability standard for the offence (para. 39). One can take the view that an instruction good enough forcounsel was likely good enough for the jury (see, e.g., Jaw, at para. 36).

But, the impressions of the moment can be mistaken, especiallyin complex cases with multiple legal issues. [69] Counsel’s silence may be particularly significant where there are indications that it was a tactical decision. If theabsence of an instruction at trial could have benefited the party who argues on appeal that it was required, then the appellate court mightask whether counsel made the tactical decision not to seek the instruction at trial (Calnen, at para. 41; see also R. v. Royz, 2009 SCC 13,[2009] 1 S.C.R. 423, at para. 3). This can be a significant consideration.

Counsel cannot withhold an objection at trial and save it for anappeal. Appellate courts are also rightly hesitant to second-guess the tactical decisions of counsel, save to prevent a miscarriage ofjustice (Calnen, at para. 67; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34). Conversely, if the omission of an instructionwould have had no apparent benefit for the appealing party, this may suggest that the error was an oversight rather than a tacticaldecision (Khill, at para. 144; R. v.

Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 48). [70] Appellate courts may also be called on to consider whether counsel’s silence is relevant to the curative proviso.Counsel’s silence may suggest, for example, that while an omission in the judge’s instructions was an error of law, the error washarmless in the circumstances (R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129, at p. 143; Jaw, at para. 44).

As notedbefore, this is a distinct inquiry. (iv) Sentencing Submissions and Reasons [71] Counsel’s sentencing submissions and the judge’s reasons for sentence are necessarily given after the jury hasrendered a verdict of guilt. Thus, matters to be considered for the first time at sentencing cannot be relevant to whether the jury wasproperly equipped to decide whether the accused should be found guilty or not guilty.

(3) Summary [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. B.

Definition of a Criminal Organization [ 73 ] I turn now to the instruction to the jury at issue in this appeal and to the definition of a criminal organization. [ 74 ] In order to obtain a conviction for a criminal organization offence, the Crown must first prove the existence of a criminal organization (see Venneri , at para. 25 ). This is common to all criminal organization offences. Sections 467.11 to 467.13 of the Criminal Code set out four substantive offences targeting escalating degrees of involvement with a criminal organization.

In addition to these offences, pursuant to s. 2 , any other serious offence committed for the benefit of, at the direction of, or in association with a criminal organization is also considered a “criminal organization offence”. Other provisions of the Criminal Code distinguish the (ordinary) commission of certain offences from their commission in relation to a criminal organization, e.g., possession of an explosive ( s. 82(2) ) and various offences involving a firearm ( ss. 239(1) (a), 244(2) (a), 244.2(3) (a), 279(1.1) (a), 279.1(2) (a), 344(1) (

a) and 346(1.1) (a)). [ 75 ] Understanding the definition of a criminal organization is necessary in order to determine whether the judge’s instruction properly equipped the jury to decide whether the appellant participated in the activities of a criminal organization.

(1) Distinguishing Qualities of a Criminal Organization [ 76 ] Not every group of three or more persons that facilitates or commits a serious offence for a material benefit is a criminal organization.

This Court in Venneri interpreted Parliament’s direction in s. 467.1(1) of the Criminal Code 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 (para. 29). [ 77 ] The appellant says that the trial judge erred by failing to instruct the jury on the requirement for a “criminal organization” to have structure and continuity.

In Venneri , this Court took a purposive approach and set out the underlying rationale for the requirement of structure and continuity. It is helpful to review that rationale, which informs what a jury needs to understand in order to be properly equipped to decide whether a criminal organization exists. [ 78 ] The purpose of the Criminal Code ’s criminal organization regime is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity ( Venneri , at para. 40 ).

Structured and continuous criminal entities offer advantages to their members by consolidating and retaining knowledge; sharing customers and resources; developing specializations; dividing labour; fostering trust and loyalty; and developing reputations in the community, including for violence (para. 36).

These same advantages enable criminal organizations to elude law enforcement more effectively. [ 79 ] To counteract these advantages, Parliament has enacted not only substantive criminal organization offences but also heightened investigative, procedural and penal consequences where a criminal organization is involved or alleged to be involved in an offence. These include greater police powers for certain authorizations and warrants (ss. 185(1.1), 186(1.1), 186.1, 492.1(6)(

a) and (

b) and 492.2(5)(

a) and (b)) and a reverse onus for bail (s. 515(6)(a)(ii)). At sentencing, involvement in a criminal organization is an aggravating factor (s. 718.2(a)(iv)), conditional sentences are unavailable (s. 742.1(d)), and parole ineligibility can be delayed (s. 743.6(1.1)). Sentences for certain criminal organization offences must be served consecutively to other sentences arising from the same event (s. 467.14).

Murder is elevated to first degree murder where the death is caused for the benefit of, at the direction of, or in association with a criminal organization (s. 231(6.1)). [ 80 ] The enhanced threat to society posed by criminal organizations by virtue of their structure and continuity explains why the criminal organization regime is considered exceptional. Groups of individuals acting in concert, where they lack structure and continuity, do not pose the same enhanced threat to society constituted by criminal organizations ( Venneri , at paras. 27, 29 and 40 ).

As Fish J. explained in Venneri : Stripped of the features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for a material benefit.

Parliament has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the “common intention” provisions of the Code (see, e.g., ss. 21 and 465(1)). [para. 35] Identifying 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 (paras. 31 and 35). [ 81 ] The Crown and the majority of the Court of Appeal do not dispute that a criminal organization must have structure and continuity.

However, they stress that the definition of a criminal organization must be applied “flexibly” and must not be limited to stereotypical models of organized crime. With respect, the Crown and the majority of the Court of Appeal conflate the legal requirement for a criminal organization to be structured and continuous with the flexibility needed to conduct the factual assessment of the circumstances in each case. [ 82 ] Criminal organizations are opportunistic and adaptive. They vary based on which “business model” proves

successful. They can take forms that do not fit stereotypical models of organized crime but nonetheless can pose the type of enhancedthreat to society contemplated by Parliament. Thus, the definition of a criminal organization must be applied flexibly (see Venneri, atparas. 28 and 36-41; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344, at para. 34; Beauchamp, at paras. 145-48). [83] However, flexibility in the acceptable forms of structure and degree of continuity does not mean that structure andcontinuity are optional (Venneri, at paras. 27-31).

Rather, the group must have structure and continuity to give rise to the sort ofenhanced threat to society that Parliament has sought to combat, bearing in mind the differences from other groups of offenders such asconspirators.

(2) Improper Reasoning [84] I agree with the appellant and the intervener, the Criminal Lawyers’ Association of Ontario, that carefulconsideration of a group’s structure and continuity is needed to guard against improper reasoning in identifying a criminal organization.This is needed to avoid the risk that police, lawyers, juries, and judges could identify a group as a criminal organization based on sharedcharacteristics such as ethnicity, cultural background, neighbourhood, religion, language, or dialect.

While such characteristics mayindicate a common social or cultural identity among persons who commit offences, they are irrelevant in identifying the existence of acriminal organization. To view such characteristics as indicative of organized crime is to depart from Parliament’s intention and to do soin a way that undercuts a key goal of Canadian society, cultural diversity. [85] The flexibility with which the definition of a criminal organization is applied must not become an invitation forirrelevant considerations or improper reasoning.

The risk of improper reasoning is especially acute where an accused is a member of amarginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices maywell be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passingjudgment. The courts have recognized the risks of racial bias or stereotypical reasoning, including subconscious biases, in the criminaljustice system (see, e.g., R. v. Williams, (SCC), [1998] 1 S.C.R. 1128, at paras. 21-22; Barton, at paras. 195-97).

Just asthe definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not toidentify a criminal organization merely because the group appears to satisfy some stereotypical model.

The trier of fact’s focus whentasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possessesthe distinguishing qualities of a criminal organization, i.e., structure and continuity. [86] Trial judges play an important role in combatting biases, prejudices, and stereotypes in the courtroom (Barton, atpara. 197). A suitable instruction on the requirements for a criminal organization is part of this.

Under the general rules of evidence,courts can exclude evidence that is not relevant to this inquiry or where the prejudicial effect of the evidence would outweigh itsprobative value. Trial judges should provide a warning to juries of the risks of subconscious bias or improper reasoning where thecircumstances warrant such a caution (para. 200). C. Application to the Circumstances of This Case [87] The appellant alleges that the jury was not properly equipped to decide the case because the judge did not saysomething that he was required to say.

This is an allegation of insufficient instruction. [88] The existence of a criminal organization is a required element of the offence of participation in the activities of acriminal organization. An instruction on this element is therefore mandatory. The alleged criminal organization must have structure andcontinuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat.

Therefore, in order for the jury to besufficiently equipped to decide whether a criminal organization existed, the instruction must include an explanation of structure andcontinuity. [89] The trial judge’s instructions in this case did not sufficiently equip the jury to determine whether a criminalorganization existed. Rather, the judge merely recited the definition in s. 467.1(1) of the Criminal Code. This would not have equippedthe jury with an understanding that a criminal organization must pose an enhanced threat to society by virtue of its structure andcontinuity.

This requirement is not apparent from the bare text of the definition. To the contrary, in Venneri, Fish J. surveyed thejurisprudence where some trial courts had incorrectly found that very little or no organization was required (para. 27). Jurors cannot beexpected to divine an

interpretation of the statutory text that even judges could not ascertain before this Court’s guidance. In so saying, Istress that there is no magic to the words “structure” and “continuity”; Fish J. in Venneri referred to other terms such as “cohesiveness”and “endurance” (para. 41).

While it is better to use a consistent formulation (structure and continuity), whatever words are used, thejudge needs to make clear to the jury the distinguishing qualities of a criminal organization. [90] The majority relied on portions of the evidence at trial, closing arguments of counsel, and the lack of objection fromdefence counsel as indicating that the instructions were sufficient. With respect, the majority’s reliance on these considerations wasmisplaced. The majority’s focus strayed from the u

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