R v Wilson, 2021 SKCA 87

Restriction onPublication An order has been made in accordance with s. 486.5 of the Criminal Code directing that anyinformation identifying youth witnesses shall not be published. Court of Appeal for Saskatchewan Docket: CACR2994, CACR2995, and CACR2999 Citation: R v Wilson,2021 SKCA 87Date: 2021-06-09Between:Joshua Duane Wilson, Dennis Calvin Thompson, and Johnathan Nelson PeepeetchAppellantsAndHer Majesty the QueenRespondentBefore: Ottenbreit, Schwann and Tholl JJ.A.Disposition: Appeals dismissedWritten reasons by: The Honourable Mr. Justice ThollIn concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice SchwannOn appeal from: CRM 112 of 2015 (QB), ReginaAppeal heard: March 12, 2021Counsel: Brian Pfefferle for Joshua Wilson Kathy Hodgson-Smith for Dennis Thompson Thomas Hynes for Johnathan Peepeetch Dean Sinclair, Q.C., for the Respondent Tholl J.A. I. INTRODUCTION [1] A group of individuals killed Shawn Douglas on August 7, 2014. After a trial by jury, Joshua Wilson, Dennis Thompson andJohnathon Peepeetch were convicted of the first degree murder of Mr. Douglas. Each of them appeals from their conviction and seeks anew trial.

This judgment addresses the admission of gang-related evidence, jury instructions on propensity reasoning, the treatment ofpost-offence conduct evidence, warnings in accordance with R v Vetrovec, (SCC), [1982] 1 SCR 811 [Vetrovec], and theavailability of the lesser included offence of attempted murder in circumstances where the victim died. [2] For the reasons that follow, it is my view that all three appeals should be dismissed. II. BACKGROUND [3] Messrs. Wilson, Thompson and Peepeetch were convicted of first degree murder by a jury and received mandatory lifesentences.

Accordingly, there were no recorded findings of fact from trial. The following provides only an outline of the basiccircumstances of the matter, and is not intended to be an exhaustive

summary of the evidence. The testimony of the witnesses containssignificantly more detail about the actions of each of the three appellants and the other participants than is set out below. There was alsosubstantial video evidence, DNA evidence and other forensic evidence tendered at trial. I will address the details of the evidence asnecessary within my analysis of the issues to which it relates. [4] There are publication bans in place with regard to the names and the identifying information of many of the witnesses in thismatter.

As a result, all of the civilian witnesses are referred to by their initials. [5] On the late evening of August 6, 2014, Mr. Douglas attended Triple 8 Pizza in Regina. There, by chance, he met with awoman he knew, Ms. B.F., who was with her cousin, Ms. S.R. The three of them sat together and had some drinks. Ms. S.R.’s brother,Mr. V.M., waited outside in a car. Around the same time, Mr. Wilson, Mr. Thompson, Mr. A.A. and Mr. T.R. were rummaging throughcars in another neighbourhood in Regina when Mr. A.A. came across a Honda Civic with its keys inside. He stole the car and picked uphis three companions. Mr.

Wilson took over driving from Mr. A.A. and, after making at least one stop, drove to Triple 8 Pizza. Atapproximately 2:00 a.m. on August 7, 2014, Mr. Thompson entered the restaurant and bought a bottle of alcohol. While it was not clearhow the invitation arose, Mr. Douglas, Ms. B.F. and Ms. S.R. were invited to a party at a house on Toronto Street [House] and theyaccepted. Mr. Douglas bought some alcohol and food and they went to the House. Mr. V.M. went to the party as well. [6] Mr. D.S. was sleeping on a couch at the House when Mr. Douglas and the others arrived. Ms.

B.D. lived at the House and waspresent during the relevant events that occurred there. Mr. Wilson, Mr. Thompson and Mr. M.M. each arrived at the House at some point.In total, at least 14 people were present in the House for at least part of the events that occurred on August 7, 2014.

[ 7 ] The party was non-eventful for a little over an hour. [ 8 ] Ms. B.F. wanted some cocaine so, around 3:20 a.m., Mr. Douglas went to an ATM with Ms. B.F. and Mr. Wilson. Mr. Douglas withdrew some money, which he gave to Ms. B.F. to buy cocaine. From the ATM video, it does not appear that Mr. Douglas was in any distress at that time. However, shortly thereafter, Mr. Douglas was beaten, robbed of his debit card and confined at the House. Ms. B.F. testified that Mr. Wilson held a knife to Mr. Douglas’s throat to force him to provide the PIN for his debit card. Mr. Wilson and Ms.

B.F. then used that card to withdraw $400 from Mr. Douglas’s bank account around 4:00 a.m. and to buy items at a 7-Eleven convenience store around 5:00 a.m. [ 9 ] Mr. D.S. and Mr. A.A. testified that Mr. Douglas attempted to escape and had left the House, but that Mr. Wilson pursued him and brought him back inside at knifepoint. [ 10 ] Mr. D.S. and Mr. A.A. testified that Mr. Peepeetch and some other men arrived at the House shortly after Mr. Douglas had been robbed. It appears Mr. Thompson was one of those men. Several witnesses testified that Mr.

Peepeetch took charge as soon as he entered the House, was upset that Mr. Douglas was still conscious and immediately started to beat him by punching and kicking him in the face. Ms. S.R. testified that she heard the three appellants talking and saying “we got to get rid of this guy”. [ 11 ] Mr. D.S. and Mr. A.A. each testified that they saw Mr. Peepeetch, Mr. Thompson and Mr. Wilson go to the backyard where they were observed to be talking. At that point, Mr. V.M., fearing for his own safety, fled the House and broke into a home several blocks away where he asked the occupants to call the police. When Mr.

D.S. went outside to look for Mr. V.M. he heard a woman yell that she was going to phone the police. Mr. D.S. returned to the House and told everyone present that the police were coming. Mr. Douglas, with a pillowcase now over his head, was led out the back door of the House to the alley where his SUV and the stolen Honda were waiting. Mr. D.S., Mr. A.A. and Mr. T.R. got into the Honda with Mr. Douglas, with Mr. T.R. driving. Mr. Wilson drove the SUV. Mr. Peepeetch, Mr. Thompson, Ms. S.R., Ms. B.F. and Mr.

M.M. were the passengers in that vehicle. [ 12 ] The two vehicles drove through the city with the SUV in the lead. On Quebec Street, the vehicles pulled over because Mr. Peepeetch wanted Mr. Douglas to be placed in the trunk of the Honda. When he was removed from the back seat, Mr. Douglas attempted to escape. Mr. Douglas was pursued and caught by Mr. A.A., but he was unable to subdue him. Mr. D.S. and Mr. A.A. testified that Mr. Peepeetch then beat Mr. Douglas into a state of unconsciousness and he was then put into the trunk of the Honda. Mr. Peepeetch punched Mr.

M.M. in the face for refusing to get into the trunk with Mr. Douglas when there was difficulty getting the trunk to stay closed. The two vehicles then drove outside of the city limits to an area where some bushes were located. Mr. D.S. testified that the three appellants threatened the other occupants of the SUV in relation to snitching as they drove. [ 13 ] Mr. D.S. testified that when the vehicles stopped at the treed area, Mr. Peepeetch removed Mr. Douglas from the trunk, used some zip ties to bind him and then led him into the bushes. Mr.

Peepeetch briefly returned to the road where the vehicles were parked, spoke to Mr. Thompson and Mr. Wilson and they told everyone to get ready to go into the bushes. Mr. M.M., Ms. S.R. and Ms. B.F. remained in the SUV while all of the others followed Mr. Peepeetch into the bushes. Mr. Thompson had retrieved several tools from the SUV and passed them out once they stopped walking. [ 14 ] Mr. D.S. testified that Mr. Peepeetch asked him for a cigarette. Mr. Peepeetch then gave the cigarette to Mr. Douglas and told him to start praying. Mr. A.A. testified that Mr. Peepeetch told Mr. Douglas that he was going to die.

Mr. Peepeetch said his own prayer and, when he finished his prayer, swung a sledgehammer striking Mr. Douglas in the head. Mr. Douglas fell towards Mr. Wilson and then to the ground. Mr. D.S. and Mr. A.A. testified that Mr. Wilson immediately, or within seconds, started striking at Mr. Douglas’s chest with a small knife. Mr. D.S. and Mr. A.A., testified that they saw Mr. Thompson strike Mr. Douglas with an object that Mr. D.S. said was a prybar. Mr. D.S. testified that Mr. Peepeetch, Mr. Wilson and Mr. Thompson all wanted the three other men present to participate because they did not trust them. As a result, Mr.

D.S., Mr. A.A., and Mr. T.R. also struck Mr. Douglas with a tool as he lay on the ground. Mr. A.A. testified that he initially thought they were letting Mr. Douglas go in the bushes and that everyone, except the three appellants, was shocked when he was killed. Mr. D.S. testified he did not know Mr. Douglas was going to be killed until Mr. Peepeetch told him to say a prayer. Mr. Douglas died where he fell in the bushes. [ 15 ] The men abandoned Mr. Douglas’s body and went back to the road where the SUV and the Honda were parked. Mr.

D.S. testified that the three appellants told the other males not to say anything about the murder. They drove back into Regina; but, by the time of their return, the police had arrived at the House. As a result, they decided to go to Ms. S.R.’s house in Saskatoon and drove there in the Honda and the SUV. Later that same night, the police attempted to stop the SUV in Saskatoon and a high speed chase ensued, which ended with the SUV crashing. Ms. B.F. and Ms. S.R. remained in the vehicle while Mr. Peepeetch, Mr. Wilson and Mr. T.R. ran. The police caught Mr.

Peepeetch at the scene and, based on information provided by Ms. S.R., located Mr. Wilson, Mr. Thompson, Mr. T.R., Mr. A.A., Mr. D.S. and Mr. M.M., along with Mr. Douglas’s debit card and the Honda, at Ms. S.R.’s Saskatoon home. [ 16 ] Ms. S.R. led the police to the general area where Mr. Douglas’s body was located. III. TRIAL IN THE COURT OF QUEEN’S BENCH A. Voir dire on the admissibility of gang-related evidence [ 17 ] The Crown intended to rely on evidence about the purported connection between the appellants and the Native Syndicate gang [NS] as part of its case. Mr.

Wilson had applied for an order requiring the Crown to particularize the evidence it intended to lead with regard to his relationship and involvement with the NS. He sought an order requiring the Crown to identify the witnesses and the evidence it planned to tender that related to gang membership, gang participation, gang motive and gang planning [Gang Evidence]. He asked for a voir dire for the purpose of limiting the Crown’s ability to lead such evidence. The Crown opposed Mr. Wilson’s application.

The trial judge decided that a voir dire should be held for the purposes of determining the admissibility of the Gang Evidence: that decision is reported ( R v Wilson , 2016 SKQB 262 ).

[18] A voir dire was held in advance of the trial to determine whether the Crown would be permitted to lead the Gang Evidence: R vWilson, 2016 SKQB 308 [Evidence Fiat]. The evidence filed by the Crown on the voir dire consisted of a

summary and several witnessstatements, with the Crown asserting that the evidence at trial may or may not accord with those statements. The Crown submitted that thejury would not be able to understand why the events unfolded in the manner that they did without evidence of the following: (

a) the appellants were members of the NS; (

b) there was a hierarchical structure in the NS that placed the appellants at the top and above the other participants in the murder; (

c) the hierarchical structure allowed higher-ups to give orders to the other participants; and (

d) the participants were afraid to disobey the higher-ups. [19] The Crown also sought to tender this evidence in support of its contention that the homicide was first degree murder, pursuantto s. 231(6.1) of the Criminal Code, because it was committed to benefit the NS. The trial judge determined that the Crown could not leadthe Gang Evidence for this purpose, finding as follows (Evidence Fiat): [26] Here, the Crown has signalled an intention to lead evidence of the existence of the gang, but not of its purpose and activities.

On thebasis of the statements, there is evidence that an organization exists, of three or more persons, which is called NS. The evidence is verythin, however, of the purpose of the organization. There also is very little, or no, evidence thus far that the commission of certain offencesby members of NS might result in material benefit to the gang. … [28] The Crown seeks to tender evidence of the accused’s membership in NS and participation in NS activities.

To date, however, I am notaware that the Crown intends to lead evidence of the accused’s participation in other offences at the direction of, or in association with NS.In any event, it is difficult to see how the Crown will show that the circumstances leading to this death were set in motion for the purposeof, or had the effect of, materially benefitting NS or a member. … [37] Here, the evidence tying a gang motive to the killing is far more tenuous: a black cloth found in the victim’s SUV; and instruction onthe gang life by senior NS members to new recruits.

I do not find the gang evidence probative at this time to the Crown theory that theaccused committed the offence “for the benefit of, at the direction of, or in association with the criminal organization”. [20] With regard to the Crown’s ability to lead the Gang Evidence for purposes of the narrative or motivation of the participants, thetrial judge determined as follows: [38] However, the witnesses describe several events occurring during the evening of August 6, 2014 and the morning of August 7, 2014,which led to the death of Douglas.

These events occurred in circumstances where separating the gang activity from the event will riskproviding the jury with an “artificially crafted, antiseptic version of the case”. … [42] The Crown asserts that the witnesses co-operated with the accused because the accused were “higher-ups” within NS. Some of thewitnesses were self-described members of NS who stated they would be disciplined if they did not co-operate. Some of the witnesses werenot members. They too stated that they were afraid of the consequences of not co-operating.

The evidence supports the Crown’s theory. … [44] At this point, the Crown has not led evidence of the significance of the gang symbols, or gang rules. However, it is the impact of thesymbols and rules on the witnesses that is significant. This is not to say that any witness may discuss their beliefs about NS. The usualrules with respect to hearsay will still apply. However, as stated by Dambrot J. in Riley [ (Ont Sup Ct J)], some opinionevidence will be permitted … . [45] Some witnesses in this case profess knowledge of NS rules and hierarchy that they are not in a position to know.

Their evidence willbe fairly the subject of objection. Other witnesses are on a stronger footing. [46] The Crown will be entitled to lead evidence of the existence of NS; the membership of the accused in NS; the accused’s roles in NS;the roles of [Mr. A.A.], [Mr. D.S.] and [Mr. T.R.] in NS; the rules of discipline in NS; and the significance of the wearing of bandanas toNS members. [21] The trial judge concluded her reasons by commenting on the need for a strong caution to be given to the jury about the GangEvidence, but noted this matter would be subject to review during the trial: [47] A few concluding matters.

I agree with Dambrot J. in Riley [ (Ont Sup Ct J)] that a “strong instruction be given tothe jury about how to use the evidence that is admitted” (para 38). Further, the Crown indicated in argument its intention to tread lightly inthe area of gang evidence. This is wise.

In Riley, Dambrot J. referred to a decision of the Ontario Court of Appeal in R v Walker (1994), (ON CA), 90 CCC (3d) 144 (Ont CA)), for the purpose of demonstrating the danger of overreaching: [60] I say that this case is instructive because it makes clear that the Crown is entitled to lead narrative evidence, that is, evidence that tellsthe story of a crime in a manner that makes it possible for the jury to properly carry out its fact-finding function. At the same time the casesounds a note of caution. It warns against going too far.

What is particularly important, in my view, is the lesson that evidence of badcharacter that is relevant, and bears a probative value that outweighs its prejudicial effect, can become more prejudicial than probative if itis abused. This lesson has application in this case in determining the limits that must be placed on the evidence that the Crown wants to

adduce. Mr. Midanik rightly warned me in his submissions of the danger that flows from the cumulative effect of a great volume of otherwise admissible bad character evidence. [48] As I stated at the outset, I expect the matters discussed in this decision will be the subject of review as the evidence is tendered before the jury. B.

Trial [ 22 ] There were other applications and voir dires in advance of trial, as well as mid-trial applications, but they have no relevance to the issues raised in this appeal. [ 23 ] The presentation of the Crown’s evidence consumed 20 trial days and consisted of testimony from 35 witnesses. In addition to Mr. Douglas’s wife, police witnesses, DNA and forensics witnesses, a forensic pathologist, and other civilian witnesses, the Crown called numerous witnesses who were in the House on the night in question.

None of the appellants testified at trial or called any defence evidence. [ 24 ] The jurors deliberated over the course of four days and returned with several questions during their deliberations. In the end, the jury found each of the three appellants guilty of first degree murder. They were each sentenced to the mandatory sentence of life in prison. IV. ISSUES [ 25 ] The issues in Mr. Wilson’s appeal are as follows: (

a) Did the trial judge err by admitting the Gang Evidence? (

b) Did the trial judge err by failing to give a specific instruction on the jury’s use of the Gang Evidence? (

c) Did the trial judge err by failing to provide Vetrovec warnings in relation to three specific Crown witnesses? (

d) Did the trial judge err by not putting the lesser included offence of attempted murder to the jury? [ 26 ] The issues raised by Mr. Thompson’s appeal are these: (

a) Did the trial judge err by admitting the Gang Evidence? (

b) Did the trial judge err by failing to give a specific instruction on the jury’s use of the Gang Evidence? (

c) Did the trial judge err by not providing a sufficient instruction on the jury’s use of post-offence conduct evidence? (

d) Did the trial judge err by not putting the lesser included offence of attempted murder to the jury? [ 27 ] The issue in Mr. Peepeetch’s appeal is as follows: (

a) Did the trial judge err by failing to give a specific instruction on the jury’s use of the Gang Evidence? [ 28 ] There is significant overlap among the grounds of appeal raised by each individual appellant. As a result, I have structured my analysis on an issue by issue basis as opposed to addressing each of the appellants’ grounds of appeal separately. V. ANALYSIS A. Admission of the Gang Evidence [ 29 ] Although the main argument of all three appellants relates to the necessity of a limiting instruction for the use of the Gang Evidence, Mr. Wilson and Mr.

Thompson also challenge the trial judge’s voir dire decision to admit the evidence. Both Mr. Wilson and Mr. Thompson argue that the admission of the evidence could reasonably have led to propensity reasoning by the jury. Mr. Wilson submits there was almost no doubt that the jury would use it as evidence of bad character and determine that he was a violent person who lived in a dysfunctional world and that Mr. Douglas’s murder happened for no apparent reason. Mr.

Thompson characterizes the Gang Evidence as evidence of bad character that should not have been admitted because it produced a large risk of creating “natural parties” to the offence in the eyes of the jury. These submissions overlap with their main argument that I will consider further when I examine the need for a specific jury instruction on the use of the Gang Evidence. [ 30 ] Mr.

Peepeetch, while not conceding that the Gang Evidence was admissible, proceeds with his appeal on the assumption that it was admissible but required a limiting instruction. [ 31 ] The Crown submits the Gang Evidence was properly admissible to assist the jury in understanding the narrative of events and was also admissible on the issue of motive. The Crown further asserts that, in any event, Mr. Thompson and Mr. Peepeetch relied heavily on the Gang Evidence as supporting the theories of their defences. 1.

Nature of the Gang Evidence tendered at trial [ 32 ] All of the Gang Evidence called at trial was led through the Crown witnesses. While much of it was provided in examination-

in-chief, a substantial portion of the evidence was elicited through cross-examination of those witnesses by defence counsel. It is not myintention to summarize the testimony of the individual witnesses, but simply to provide a brief description of the nature of the GangEvidence. [33] The gang involved in this matter was the NS. The Crown did not lead expert evidence regarding its nature or a description ofthe general activities engaged in by that gang.

Instead, the civilian witnesses who observed or participated in the events on the night inquestion described their respective roles in NS and their understanding of other people’s roles in the gang. Some of the witnesses usedgang involvement to explain why they did what they did. [34] The two main witnesses from whom the Gang Evidence was elicited were Mr. A.A. and Mr. D.S. They both testified thatMr. Wilson had recently recruited them as members of the NS. In examination-in-chief, Mr. A.A. testified that he had taken a beating toget into the gang the week before the killing of Mr.

Douglas and was a prospect; however, in cross-examination, he agreed that he hadbeen a member of NS for five weeks and had graduated to the rank of striker because he had committed a petty crime. Mr. A.A. testifiedthat Mr. Wilson was also a striker, which, he said, is the first rung in the gang hierarchy. As Mr. Wilson was Mr. A.A.’s recruiter, he wasMr. A.A.’s higher-up and had authority over him. Mr. A.A. testified he had to follow the instructions of his higher-ups. Mr.

D.S., in cross-examination, testified that he was a striker and that he had to follow orders from the person who brought him into the gang or there wouldbe consequences. [35] Mr. A.A. and Mr. D.S., among other witnesses, testified that Mr. Peepeetch and some companions, one of whom appears tohave been Mr. Thompson, rushed the House at some point after Mr. Douglas had been robbed. The atmosphere in the House becamesignificantly more tense after they arrived. The witnesses testified that, in their view, Mr. Peepeetch had taken control and was issuingcommands to everyone in the House, including to Mr. Wilson.

It is within this context of control and the requirement to follow orders thatthe Gang Evidence fits. [36] Neither Mr. A.A. nor Mr. D.S. knew Mr. Thompson or Mr. Peepeetch very well. Mr. A.A. testified that Mr. Peepeetch had saidthat he used to be a member of the NS and further testified that Mr. Peepeetch had been beaten out of the gang. Mr. D.S. testified thatMr. Peepeetch was claiming to be a higher-up in the NS on the night of the killing. Mr. A.A. testified that Mr. Thompson was not amember of the NS. There was no other evidence that Mr.

Thompson was a member of the NS. [37] It is significant that the majority of the Gang Evidence was elicited through the cross-examination of Mr. A.A. and Mr. D.S. byMr. Peepeetch’s counsel and, to a lesser extent, Mr. Thompson’s counsel. Mr. Wilson’s counsel only asked Mr. D.S. some limitedquestions about Mr. Wilson’s background and how Mr. Wilson came to become a gang member. [38] Mr. Peepeetch’s counsel began his cross-examination of Mr. A.A. by asking questions about the NS. A substantial portion ofthis cross-examination related to the Gang Evidence.

He did not merely challenge or clarify the Gang Evidence the Crown had led, butdelved deeply into areas of the Gang Evidence that had been introduced by the Crown. He also asked numerous questions of Mr. D.S.about aspects of the Gang Evidence that were not led by the Crown. [39] During his examination-in-chief, Mr. A.A. stated that he did not know the rules of the NS regarding following orders orinstructions. Despite this subject not being pursued by the Crown, Mr. Thompson’s counsel led Mr.

A.A. into providing the followingtestimony regarding the NS rule about killing a robbery victim once they see your face: Q Okay. You told police in one of your statements that you were okay with robbing Shawn Douglas. Do youremember that?A Yes.Q Okay. And you also told them about some rule about -- NS rule about, you know, if you have somebody andyou rob them, you know, and they’ve seen your face, might have to kill them or something. You -- you saidthat that was in your head, [Mr.

A.A.].A In my head?Q Yes, that’s what you told police, that you were aware of some rule?A I was aware of that rule, after I heard the words come out of Johnathon’s mouth.Q No, actually, you were just talking about what you understood about robbing people.A After I heard the words come out of Johnathon’s mouth.Q No, not about the bush, about robbery?A No, about after the words coming out of Johnathon’s mouth. [40] A careful review of the transcript reveals that the cross-examination resulted in much more detailed testimony about the natureof the NS in general and the participants’ specific gang involvement than was introduced by the Crown.

There were no objections by anycounsel when this supplemental Gang Evidence was elicited by Mr. Peepeetch and Mr. Thompson. 2. Analysis of the admissibility of the Gang Evidence [41] As noted above, the voir dire on the admissibility of the Gang Evidence proceeded on the basis of a Crown

summary andwitness statements, not viva voce testimony. At the conclusion of the voir dire, the trial judge determined that the Crown would bepermitted to lead the Gang Evidence to assist the jury in understanding why the events unfolded as they did. There were no objections tothe admission of any of the Gang Evidence at the trial itself and no further rulings with regard to its admissibility were made. [42] Mr. Thompson and Mr.

Wilson assert the Gang Evidence was evidence of bad character, which could lead to propensityreasoning by the jury, and should have been excluded. [43] Evidence is admissible in a criminal trial if it is relevant and material to an issue in dispute and its probative value outweighs itsprejudicial effect, unless some rule of exclusion applies: R v Mohan, (SCC), [1994] 2 SCR 9 at 20–21; R v Handy, 2002SCC 56 at para 41, [2002] 2 SCR 908 [Handy]; R v Goldfinch, 2019 SCC 38 at para 30, 435 DLR (4th) 1; and R v Dirksen, 2021 SKCA 6at paras 68–69 [Dirksen].

Evidence of bad character is generally not admissible because it creates a risk of propensity reasoning; however,

evidence that tends to show the accused’s character in a bad light can be tendered by the Crown when it is relevant to a material issue inthe case, subject, of course, to an assessment of its probative value versus its prejudicial effect: R v G.(S.G.), (SCC),[1997] 2 SCR 716 at paras 63–65; Handy at paras 31–36 and 41; R v Woods, 2019 SKCA 84 at paras 96–97, 379 CCC (3d) 356 [Woods];R v Faucher, 2020 SKCA 27 at paras 36–38; Dirksen at para 68; and R v Z.W.C., 2021 ONCA 116 at paras 96–97.

Gang-related evidence,although also evidence of bad character, can be an essential part of the narrative: R v Lamirande, 2002 MBCA 41, [2002] 9 WWR 17. [44] Here, while the Gang Evidence was undoubtably evidence of bad character, it was not tendered and admitted for the purposesof demonstrating that the three appellants were bad people who were more likely to have done bad things. In the words of the trial judgefrom the Evidence Fiat, it was admitted because “separating the gang activity from the event will risk providing the jury with an‘artificially crafted, antiseptic version of the case’” (at para 38).

It provided an essential narrative to the circumstances of the offence andassisted the jury in understanding why some of the participants behaved in the manner that they did. [45] Additionally, the Gang Evidence formed the backbone of Mr. Thompson’s defence, and a significant portion ofMr. Peepeetch’s defence. Mr. Thompson argued that he was not a member of the gang and that he was being implicated by the falsetestimony of those who were. Some excerpts from his counsel’s closing address to the jury are instructive on the pivotal role the GangEvidence played in his defence.

After a few brief introductory comments, Mr. Thompson’s counsel told the jury the following: This case is a story of gangs. It’s a story of gang violence. It’s about how gangs operate here in Regina. It’s a chilling case. This is aboutwhere people who are not in the gang can find themselves when they cross paths with a gang. This is also a case about how gangs operatewhen they get caught. We ask you to find that Shawn Douglas died as a result of Native Syndicate gang violence. Dennis Thompson, [Mr. M.M.], [Ms. S.R.], [Ms. B.F.], [Mr.

V.M.], they, in their own way, are also victims of this gang violence to amuch, much lesser degree, of course, than Shawn Douglas. We suggest the reason that Dennis Thompson is sitting in that box is becausethe gang has put him there, that they’re pointing fingers at him. It’s amazing how easy it is to do. What happened to Shawn Douglas is deplorable, and as much as we need an explanation that makes sense, that allows the family to haveclosure, that allows us to have hope that gangs are not the wave of the future or the situation of the present here in Regina.

We havewitnesses here to the reality of that gang violence that common people can never really understand. We are left with a senseless death, themotive of which lies, we respectfully submit, somewhere inside the N.S. gang. We ask you to make these findings and inferences. The Native Syndicate gang does not operate by the rules of society. It has its own rules of authority and obedience, its own system ofjustice and consequence. The Native Syndicate has now come into this courtroom and, I respectfully submit, attempts to make a mockeryof this institution.

It’s sent its soldiers and its strikers to speak to you and spin a lie. Those witnesses are towing the line, repeating whatthey are instructed to repeat to this Court as subordinates within the hierarchy of the gang’s organization. We ask that you so find. This case is actually very simple. It’s a story of loyalty, love, and lies. It’s a story of a Regina gang of which Dennis Thompson is not amember. That’s the evidence we heard, and we ask you to find that. That fact alone makes him the perfect patsy. We ask you to make thatultimate finding. [46] The remainder of Mr.

Thompson’s final argument to the jury was replete with references to the Gang Evidence as supportive ofhis defence, urging the jurors to reject the evidence of the known gang members and accept the evidence of non-gang members such asMr. M.M., Mr. V.M. and Ms. S.R. Some further examples of his references to the Gang Evidence include as follows: The gang members further suggest that Dennis Thompson, the non-gang member, takes control of Shawn Douglas, orders everyone in thebush, brings and distributes the tools, walks Shawn Douglas into the bush, and -- and participates in the beating.

Then the gang memberssuggest that he orders all of them to beat Shawn Douglas. We respectfully submit that you do not make those findings of fact. There is nosuch motive and that Dennis Thompson did no such thing. … We ask you, the jury, to consider the absence of motive that Dennis Thompson would have had, consider the role of Dennis Thompsonwithin the gang hierarchy, including his inability to order around strikers, not having anything to prove to the gang members in exchangefor membership, not having anyone ready to defend him when the gang’s activities become known to police.

When you combine thestatements of the non-gang members with the physical evidence and the DNA, the absence of a motive to lie, we respectfully request thatyou acquit Dennis Thompson. Find him not guilty of participating in or masterminding this murder. … In

summary, the idea that the four gang members were shocked and afraid, coerced into participating in violence, perpetrated by two non-gang members, or at least by Dennis Thompson, we ask you to find that unfathomable. This version of events is not in keeping the motiveto lie. It is in keeping with the motive to lie, the allegiance to family and friends and the gang, allegiances that don’t expand to DennisThompson. In closing, the N.S. has come to this house, this courtroom, to make a mockery of this justice system, to bring their gang affiliation intoplay in this courtroom.

This courtroom is the last vestige in relation to gang violence. And I ask that you protect this sanctuary, that youturn this gang and their lies and their loyalty away and bring justice to the death of Shawn Douglas. And in so doing, we submit DennisThompson to be appropriately acquitted. Thank you. [47] In his closing submissions, counsel for Mr. Peepeetch argued that Mr. Peepeetch was no longer a member of the NS and theother participants were not taking orders from him. Mr. Peepeetch submitted to the jury that, because he was no longer a member of theNS, the gang wanted him to take the blame for the murder.

The following portions of his final submissions illustrate this point: [Mr. D.S.] provided evidence that he rolled up on him in the Victoria Park the week before the murder with two others, one of which had aknife. He claims that this was

an act of intimidation. He admits that this was

an act of violence. The key point being that [Mr. D.S.] was astriker, and strikers do what they’re told from their higher-up. So that act of intimidation was something that we can infer that he was told

to go and do. There was no way that this striker was taking any orders from the likes of Johnathon Peepeetch. After this incident, thestriker, along with his higher-up, came up with a story to avoid being caught for the murder of Shawn Douglas. [Mr. A.A.], [Mr. D.S.], and Josh Wilson are sending a message to you. Blame Johnathon Peepeetch, the guy that turned his back on theirgang, that turned his back on their higher-up, their beliefs, by leaving the gang. Blame Johnathon Peepeetch. Make up a story that includesa prayer, either in English or in Cree. It doesn’t really matter. It really makes no difference.

Throw in the native culture, tradition, theceremonial spin. Include a part that says, “Pray to whoever you pray to because that’s where you’re going now”. Everyone will want tobuy that story. And remember, don’t let them draw you in. … I ask you to find that Josh Wilson did not run from the bush in fear. I ask that you find he was there ensuring his strikers were followinghis orders as he is the higher-up and those are his strikers and he is responsible for those strikers, and they are there to do what they aretold. [Mr.

A.A.] gave evidence that Josh Wilson is his higher-up gang member in the Native Syndicate, and he’s the older brother of[Mr. D.S.], as I said earlier. And that [Mr. D.S.], [Mr. A.A.], and [Mr. T.R.] are all childhood friends. Now, we do know that [Mr. A.A.] talked about his -- his family members that are in the gang. He was recruited by and jumped into theNative Syndicate by Josh Wilson in the summer of 2014. He provided evidence that his bros, including [Mr. T.R.], [Mr. D.S.], and Josh,be advised that Josh had just been released from the penitentiary, that he looked up to Josh. He thought he was cool. [Mr.

A.A.] says in2014 he was a striker in the gang which meant doing what he was told, and as a striker he was given orders by his higher-up, and hishigher-up, of course, being Josh Wilson. Now, [Mr. A.A.] also says that [Mr. T.R.] was also a striker in the N.S. gang and that Josh wasalso his higher-up which meant doing what he was told. [Mr. D.S.] advises that he also was a striker in the N.S. gang which meant doing what he was told, and as a striker he was given orders byhis higher-up. Now, [Mr. D.S.] advised the Court that he had met L.J. [Mr.

Peepeetch] the week before the murder of Shawn Douglas.And I think my friend had referred to that earlier today. And that’s where [Mr. D.S.] gave evidence that he and two other people from theN.S. gang, one of which had a knife, rolled up on Johnathon while at Victoria Park. And he also explained that this was

an act ofintimidation and that he also advised upon questions that he normally carries a knife, but on this occasion was not carrying one. … The Native Syndicate is a street gang, and I ask that you find [Mr. D.S.], [Mr. A.A.], and Josh to be gang members in the N.S., and thesegang members had motive to lie. … I ask you not to let this Native Syndicate gang fool you. They can have no control in the administration of justice. Johnathon Peepeetchused to be a gang member in the Native Syndicate. He is no long[er] a gang member. He lived through a beating to get out of the gang.Both [Mr. A.A.] and [Mr.

D.S.] confirmed that Johnathon was not in the gang at the time of the murder. He is not a higher-up. He is not agang member. He is dispensable. He can be disposed of. He can no longer be protected. He is nobody when it comes to the NativeSyndicate. Remember, he turned his back on the Native Syndicate, on his bros. Don’t let the Native Syndicate use you for theirretribution. [48] The Gang Evidence was properly admitted for the Crown’s purpose of providing narrative to help the jurors understand howand why the situation unfolded as it did and, additionally, to explain why each participant acted as they did.

It was an essential part of thenarrative and relevant to motive. In my view, it was admissible for these purposes. Additionally, as I will detail below, it served to providethe foundation for two of the appellants’ defences. While Mr. Thompson argues that he was stuck with using the Gang Evidence once itwas admitted, it is my view that this is a circular argument and is illogical. His defence heavily depended on the impugned evidence,relying on it to explain why the Crown witnesses would testify as they did. Without it, his theory had no basis. [49] This ground of appeal cannot succeed. B.

Jury instruction on the use of the Gang Evidence [50] As set out above, at the conclusion of the voir dire, the trial judge, relying on R v Riley, (Ont Sup Ct J),indicated that a strong instruction should be given in relation to the jury’s use of the Gang Evidence. However, in the course of her chargeto the jury, she did not give this type of instruction. All three appellants assert the trial judge erred by failing to give a specific instructionto the jury on the use of the Gang Evidence because of its potential to lead the jury into impermissible propensity reasoning. Mr.

Wilsonasserts that the trial judge erred by not informing the jury that the fact he was in a gang did not mean he is a bad person who was morelikely to have committed the crime. Mr. Peepeetch submits that the jury should have been instructed to avoid propensity reasoning andfurther cautioned that his lifestyle was not on trial. Mr.

Thompson argues the Gang Evidence was highly prejudicial to him and, in thecontext of this type of evidence, there is a strong tendency towards propensity thinking that could have drawn all of the appellants in asparties to the offence. [51] The Crown asserts that, when the charge to the jury is examined using a functional approach, there is no room to conclude thejury was not properly instructed.

It argues that a limited instruction was not mandatory because the Gang Evidence was admissible on theissue of motive and, further, that it would have made no sense to provide that instruction as it might confuse the jury by suggesting theyignore otherwise relevant and probative evidence. Additionally, it argues that Mr. Thompson and Mr. Peepeetch each made a tacticaldecision to rely on the Gang Evidence as the principal basis for their defence and that such an instruction would have undermined theirdefences. Lastly, it contends that Mr.

Wilson also made a tactical decision not to request such an instruction because it would haveundercut his assertion that he was simply a low-level member of the NS who was merely following orders of higher-ranking gangmembers.

1. Pre-charge meetings [ 52 ] The trial judge provided all counsel with a copy of her draft jury charge and they were given time to review it. A robust, open and lengthy discussion occurred among counsel and the trial judge with regard to numerous issues about the charge over the course of two days. The draft charge did not contain a specific instruction about the Gang Evidence or a general instruction about propensity reasoning. Each defence counsel raised multiple issues related to the draft instructions that led to changes being made by the trial judge.

There was an active discussion regarding several aspects of the Gang Evidence. However, none of the appellants’ counsel said anything that can be construed as having registered any concern about the absence of a limiting instruction in relation to the use of the Gang Evidence or propensity reasoning. 2. Closing arguments [ 53 ] As noted above, Mr. Thompson and Mr. Peepeetch made the Gang Evidence a central focus of their closing submissions. Both suggested that the Gang Evidence, and the other participants’ association with the NS, explained why those witnesses were lying about their involvement in the murder.

The theory of their defence was that Mr. Douglas’s murder was a gang-orchestrated affair directed by Mr. Wilson on behalf of the NS, and that Mr. D.S. and Mr. A.A., who were junior members of the NS at the time, gave inculpatory testimony against them to protect Mr. Wilson. Mr. Wilson, on the other hand, took the position that he did not want Mr. Douglas murdered but, because Mr. Peepeetch and Mr. Thompson were higher-ups, and he was but a mere foot soldier, he was forced to comply with their direction. None of the appellants objected to the closing arguments of their co-accused.

These closing submissions did not elicit any entreaties to the trial judge by any of the appellants to include a limiting instruction regarding the Gang Evidence or their co-accused’s submissions in relation to it. 3. Relevant portions of the charge to the jury [ 54 ] The charge to the jury consumed an afternoon, the entirety of the following morning and a portion of the next afternoon. The charge addressed all of the standard requirements regarding the presumption of innocence, burden of proof and other topics.

There was a significant amount of evidence to review, three accused and multiple routes to a finding of liability. The trial judge gave several limiting instructions, including Vetrovec warnings. The possibility of conviction for the lesser included offences of second degree murder and manslaughter for each appellant had to be explained. At the outset, the trial judge provided, among others, the following standard cautions to the jury: You have heard all the evidence that you will hear in this case. There will be no more.

You must make your decision based on all the evidence presented to you in the courtroom and only on that evidence. If I comment on or express an opinion about the evidence, you do not have to agree with me. You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. Your duties as jurors is to assess the evidence impartially. … The first and most important principle of law applicable to every criminal case is the presumption of innocence.

Joshua Wilson, Johnathon Peepeetch and Dennis Thompson enter the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence put before you, satisfies you beyond a reasonable doubt that he is guilty. Two rules flow from the presumption of innocence. One is that the Crown bears the burden of proving guilt. The other is that guilt must be proved beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted. … To explain the expression “beyond a reasonable doubt”.

A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for, or prejudice against, anyone involved in the proceedings. Rather, it is a doubt based on reason and common sense.

It is a doubt that arises logically from the evidence or from the absence of evidence. … In short: The presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied, after considering the whole of the evidence, that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt. … You must also consider whether a witness is biased or prejudiced, or whether the witness has a particular interest in the outcome of the case.

There is always the possibility that a witness is biased, or prejudiced, or giving a slanted account of what he or she saw or heard. You should also keep in mind that an honest witness may make a mistake, and that sometimes a witness may testify dishonestly about some things, and truthfully about others. [ 55 ] In the course of her charge, the trial judge did not refer to propensity reasoning in general or with specific reference to the Gang Evidence or lifestyle choices.

However, she did provide the following instructions with regard to motive: Later, I’m going to explain the essential elements that the Crown must prove for the offence with which Joshua Wilson, Johnathon Peepeetch and Dennis Thompson are charged. Motive is not one of those elements. In deciding whether people are guilty of an offence, what matters is what they did and whether they did it intentionally. It does not [matter] what the reasons were for doing it.

You need not find a motive for Joshua Wilson, Johnathon Peepeetch or Dennis Thompson’s actions in order to find them -- him or themguilty of an offence. But motive can be relevant. If a person had a reason for doing a certain thing, then you might conclude that it is more likely that he, in fact,did that thing and did so intentionally. Conversely, if you find that a person had no reason to do a certain thing, that might cause you todoubt whether he did that thing or did it intentionally. In this case, it is difficult to discern a motive for the death of Shawn Douglas.

It is for you to decide what weight, if any, you will give tothe evidence of motive, or lack of motive, in this case. And, of course, yesterday you heard from counsel for Mr. Peepeetch andMr. Thompson about what the motive might have been for [Mr. A.A.] and [Mr. D.S.] and Mr. Wilson to be involved. But motive, as I havesaid, is for you to decide, if you are going to give it any weight at all, and it is not evidence of intention. [56] Immediately following this instruction, the trial judge provided Vetrovec warnings in relation to Mr. A.A., Mr. D.S. andMs.

B.F. [57] The trial judge also emphasized the need to consider the guilt of each accused individually at several points during the charge,with the following being one example: Now, as you know, there are three accused people charged with one single count of first degree murder. It is perfectly proper to chargemore than one person together, and to try them together. But just because they are charged together and are being tried together does notmean that you have to make the same decision for each accused person.

It may be, after considering all the evidence, that you reach thesame verdict for each of them, but it does not have to turn out that way. Each person is to be treated as a separate individual who cannot be found guilty unless he personally is shown to have been guilty of theoffence being considered. The fact that three people are charged together in a single count does not warrant the conviction of any accusedunless the individual guilt of that person is established. As you will see from the verdict sheets that you will have in the jury room, you must give a separate verdict for each person charged.

Youmust make your decision about how each -- about each person charged on the basis of evidence and the legal principles that apply to thatperson, as I will explain later. As I’ve told you before, each person charged is presumed innocent. It is for you to say for each of them whether the Crown has proven hisguilt beyond a reasonable doubt on the evidence and according to the legal principles that apply to that person. [58] At the conclusion of her charge to the jury, the trial judge inquired of counsel if they had any concerns regarding her charge, towhich each individually replied in the negative. 4.

Standard of review for jury instructions [59] An appellate court reviewing a jury charge must take a functional approach, and examine whether the charge, read as a whole,allowed the jury to decide the case according to the law and the evidence.

An accused person is entitled to a properly, not perfectly,instructed jury: R v Jacquard, (SCC), [1997] 1 SCR 314 at para 62; R v Calnen, 2019 SCC 6 at para 8, [2019] 1 SCR301 [Calnen]; and R v Theodore, 2020 SKCA 131 at para 122, leave to appeal to SCC refused, [Theodore]. [60] In R v Naistus, 2019 SKCA 4, Caldwell J.A. described the functional approach to appellate review of a jury charge in thefollowing terms: [21] … Acting on this foundational principle, appellate courts must examine the whole of the jury’s instructions to assess whether theyachieve their purpose, namely, to equip the trier of fact with the tools necessary to make the findings required in the case at hand.

As thissuggests, the Court cannot examine a single piece of a jury charge in isolation from the rest of the charge or from what has occurred in thetrial.

Matters such as the evidence adduced by the parties, the theories and submissions of the parties, and the parties’ suggestions andobjections, if any, about the content of the jury charge are all material to the question of whether a jury charge functionally achieved itspurpose … . [61] The Supreme Court recently reiterated this same standard of review when dealing with jury instructions in the context oflimiting instructions on propensity reasoning in Calnen: [8] An appellate court undertakes a functional approach in reviewing a jury charge, asking whether the charge as a whole enabled the trierof fact to decide the case according to the law and the evidence: R. v.

Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49; R. v. Jaw, 2009SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30: [30] … The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jurythat matters, and not whether a particular formula was recited by the judge.

The particular words used, or the sequence followed, is amatter within the discretion of the trial judge and will depend on the particular circumstances of the case. [9] In short, the test is whether the jury was properly, not perfectly, instructed: R. v. Jacquard, (SCC), [1997] 1 S.C.R.314, at para. 62.

At the end of the day, the overriding question is whether the jury was properly equipped to decide the case absent alimiting instruction against general propensity reasoning. [62] While a warning is usually given when there is evidence of extrinsic bad conduct, there is no requirement that such a warningbe provided to the jury about the dangers of general propensity reasoning: Calnen at para 5.

When analyzing the necessity or adequacy ofa limiting instruction on propensity reasoning, a reviewing court must examine the specific evidence and consider the use to which it isbeing put along with its potential improper uses by the jury. This proposition was discussed by Watt J.A. in R v M.T., 2012 ONCA 511,289 CCC (3d) 115:

[88] Second, limiting instructions about evidence of extrinsic misconduct are not necessary in every case in which evidence of extrinsicmisconduct has been introduced: Beausoleil, [2011 ONCA 471] at para. 20; R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 35.

Therequirement of a limiting instruction depends on a variety of circumstances including, but not limited to, the nature and extent of theevidence of extrinsic misconduct, the likelihood the limiting instruction may unnecessarily draw attention to the discreditable conduct,and the extent of the risk that the evidence may be used improperly: Beausoleil, at para. 20. [63] Further, as noted by Kalmakoff J.A. in Wolfe, 2021 SKCA 39 [Wolfe], “Where a trial judge makes an error in the jury charge,the question for the appeal court to consider is whether, in the context of the whole charge, there is a reasonable possibility that theerroneous instruction may have misled the jury” (at para 47). 5.

Adequacy of the charge to the jury on the use of the Gang Evidence [64] As a starting point, it is significant that none of the three appellants – despite being alerted at the end of the voir dire to the trialjudge’s predisposition towards a strong limiting instruction on the use of the Gang Evidence – raised any objection to the absence of sucha warning when presented with the draft charge.

While the absence of a defence objection is not determinative, it is an important factor inreviewing the significance of an alleged deficiency in the charge: R v Theriault, (SCC), [1981] 1 SCR 336 at 343; R vKociuk, 2011 MBCA 85 at para 86, 346 DLR (4th) 195, aff’d 2012 SCC 15, [2012] 1 SCR 529; and R v Minor, 2013 ONCA 557 atpara 89, 303 CCC (3d) 382. [65] The Ontario Court of Appeal, in R v Polimac, 2010 ONCA 346, 254 CCC (3d) 359, addressed the significance of the absenceof an objection when counsel had been given an opportunity to see and comment on the jury charge in advance: [96] It is becoming much more common for trial judges to provide counsel with copies of their proposed instructions and to give counselan opportunity to comment on those instructions before they are delivered.

In that context, counsel is in a much different position thancounsel who is called upon to object after hearing the instructions for the first time as they are delivered to the jury. It is hardly accurate todescribe the position of trial counsel who makes no objection after being given a full opportunity to vet and comment on the juryinstructions before they are delivered as a “failure to object”. Counsel’s duty to assist the court in fulfilling its obligation to properlyinstruct the jury, referred to by Fish J. in R. v.

Khela, 2009 SCC 4 , [2009] 1 S.C.R. 104 at para. 49, takes on added significancewhere counsel has been given a full copy of the proposed instructions and an ample opportunity to vet them, and has engaged in a detailedpre-trial dialogue with the trial judge.

In those circumstances, counsel’s position at trial becomes very important when evaluatingcomplaints, raised for the first time on appeal, that matters crucial to the defence were not properly addressed by the trial judge in herinstructions. [97] Counsel’s position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legalerror remains a legal error even if counsel does not object or even supports the erroneous instruction: see R. v. Wright (2009), 2009 ONCA623 , 98 O.R. (3d) 665 (Ont. C.A.) at para. 27; R. v.

Van, 2009 SCC 22 , [2009] 1 S.C.R. 716 at para. 43. Juryinstructions, particularly about the manner in which juries may consider parts of the evidence, are not, however, designed to formulatelegal principles for the jury or offer abstract verbalizations of those principles. Jury instructions about the evidence must ensure thefollowing: first, that the jury understands how the evidence can and cannot be used in the context of the particular case; and second, thatthe jury understands the positions taken by the defence and Crown with respect to that evidence.

Counsel’s considered position afterexamining the proposed instruction sheds valuable light on whether that proposed instruction met those two goals. [66] In Calnen, Moldaver J., speaking for the majority, discussed the effect of the absence of an objection by defence counsel to afailure to provide a propensity warning as follows: [17] Second, experienced defence counsel, well aware of the issue of potential propensity reasoning, did not raise that issue, much lessseek a limiting instruction, during the pre-charge conference while vetting the proposed final jury instructions.

In short, he signed off onthe trial judge’s charge knowing full well that it did not contain the kind of limiting instruction that my colleague now says was bothobvious and crucial – and indeed fatal to sustaining Mr. Calnen’s conviction for second degree murder. [18] In these circumstances, I consider it fair to ask: Why did defence counsel not raise the issue of general propensity reasoning with thetrial judge and seek a limiting instruction of the kind that my colleague now says was essential?

The answer, as I will explain, is that in alllikelihood defence counsel made a deliberate and conscious tactical decision to marshal the discreditable conduct evidence in an attemptto bolster the truthfulness of Mr. Calnen’s out-of-court statement and re-enactment, upon which his defence rested. In thesecircumstances, while it would have been open to the trial judge to provide a limiting instruction against impermissible propensityreasoning, such an instruction would have had the potential to undermine Mr.

Calnen’s credibility and thereby undercut his defence. … [41] With these principles in mind, in the circumstances of the present case, defence counsel’s failure to object on the basis that the trialjudge was required to provide a limiting instruction against general propensity reasoning may reasonably be taken as an indication that thedefence considered the charge to be satisfactory and that a limiting instruction would not be in his client’s interests.

Indeed, the record inthis case strongly supports a finding that in all likelihood, defence counsel’s silence on the matter was no accident – it was instead adeliberate tactical decision. [67] The failure of any of the appellants’ counsel to object to the absence of a limiting instruction, after having been alerted to theissue in the Evidence Fiat, is significant. They had seen the draft of the charge in advance, had a significant period of time to review it, andhad been given an opportunity to have a frank and open discussion about its content with the trial judge.

While the trial judge wasultimately responsible for delivering a proper set of instructions to the jury, the fact that not one of the appellants’ counsel raised this issueprovides substantial weight to the Crown’s argument that such a limiting instruction was not required. It was open to trial judge to includeone, but she knew tactical choices had been made by the appellants and, with those choices having been made – as evidenced by the cross-examination and the defence theories – the trial judge would have been exposed to criticism for providing an instruction that might be seenas interfering with those choices.

[68] It is also not generally necessary for a limiting instruction to be provided when evidence of discreditable conduct is tendered asmotive evidence. This legal principle was described by Moldaver J.A. (as he then was) in R v Krugel (2000), (ON CA),129 OAC 182: [85] That said, the law in this province is clear that where evidence of disreputable conduct relating directly to the victim is admissible asevidence of motive, the need to give the usual limiting instruction does not arise. Two authorities from this court are directly on point, thefirst being R. v. Jackson (1980), (ON CA), 57 C.C.C. (2d) 154 (Ont.

C.A.), the second R. v. Merz (H.J.), (ON CA), [1999] O.J. No. 4039; (ON CA), 127 O.A.C. 1 (C.A.). [69] The lack of a requirement for a limiting instruction with regard to discreditable conduct evidence, when tendered as motiveevidence, was further discussed in Woods at paragraphs 106–108. There, Whitmore J.A. noted that “[a]s the October Messages wereintroduced to show motive, and given the whole of the circumstances here, no special jury instruction was required” (at para 108).

Seealso R v Holtam, 2002 BCCA 339 at paras 39–45, 165 CCC (3d) 502, leave to appeal to SCC refused, [2002] SCCA No 310 (QL)[Holtam], and R v Salah, 2015 ONCA 23 at para 88, 319 CCC (3d) 373. [70] The trial judge was well attuned to the limited purposes for which she had admitted the Gang Evidence on behalf of the Crown,including the issue of the motive of the various participants. To illustrate this point, I note that during an objection by the Crown to aquestion asked by Mr. Wilson’s counsel during the cross-examination of Mr.

D.S., the trial judge stated as follows: THE COURT: But again, that -- and that was -- you backed away from it. And there wasn’t an opportunity to fully go through it. But it --it -- the issue of gang activity has to do with, and why it’s been permitted to a limited extent, is to show motivations of the peopleinvolved. The witnesses, as well as the accused. That’s completely different from previous acts of bad behaviour. And so, the Crowndidn’t go further and didn’t ask to -- to deal with [Mr.

D.S.’s] views of hierarchy and -- and being required to do something, as opposed tomaking his own decision about doing something. And, if in the end, there appears to be what you call an unlevel playing field, then wecan address it in re-examination. But -- but the evidence that I hear [Mr. Wilson’s counsel] calling, is trying to put into context the gangevidence that has already gone in. And I think that that is fair. Now, if it strays into character evidence, then -- then I’m sure [Mr. Wilson’s counsel] knows not to do that unless he intends -- unless it’sintentional.

But this is -- I -- I see the relevance for putting the -- the gang evidence into context, and for that reason, I’ll allow[Mr.

Wilson’s counsel] to continue. [71] Providing a limiting instruction on the use of the Gang Evidence, when it was relied upon for explaining the motivation of thevarious participants, would have had the potential to create confusion in the minds of the jury as to the use to which the evidence couldhave been put. [72] As a final observation, as noted earlier in this judgment, the landscape regarding the use of the Gang Evidence significantlyshifted between the trial judge’s ruling on its admissibility and the trial proper.

As she forewarned in the final paragraph of the EvidenceFiat, “the matters discussed in this decision will be the subject of review as the evidence is tendered before the jury” (at para 48). Trialjudges are required to consider the need for limiting instructions as the evidence unfolds. The heavy reliance by two of the threeappellants on the Gang Evidence as the foundation for their defences represented a significant change from the time the trial judge hadmade her comments at the conclusion of the Evidence Fiat. Mr. Peepeetch and Mr.

Thompson made tactical decisions to attempt to usethe Gang Evidence to their advantage. Mr. Wilson also relied on the Gang Evidence to argue that he was a low-level member of the NSand was merely an observer of the murder that was committed by a higher-ranking member. Clearly, the Gang Evidence issue had evolvedand matured since the voir dire decision. All three appellants relied on it at trial, two of them heavily. An instruction that diminished theuse of the Gang Evidence ran a substantial risk of undermining all of the appellants’ defences.

The absence of such an instruction was,arguably, to their benefit. [73] In my view, while a carefully-worded warning regarding lifestyle and propensity reasoning may have been appropriate, in thecircumstances at hand it was not an error for the trial judge to have not provided one.

It is not surprising – given the limited Crownintroduction of the Gang Evidence, the lack of the need for a specific instruction when discreditable conduct is used as evidence ofmotive, and the use of the Gang Evidence as the cornerstone of the defences for two of the three appellants and a portion of his defence bythe third – that the trial judge changed her mind about providing a strong warning about its use. The absence of any objection or concernby the three defence counsel, despite being alerted to the issue by the written Evidence Fiat, buttresses her decision not to provide such alimiting instruction.

Taking a functional approach to the jury instructions as a whole, it is my opinion that this jury was properly equippedto decide this case according to the law and the evidence. This ground of appeal cannot succeed. [74] Given my determinations on this issue, it is not necessary to address the parties’ arguments regarding the curative proviso setout in s. 686(1)(b)(iii) of the Criminal Code. C. Post-offence conduct [75] Mr. Thompson alludes to the impropriety of admitting evidence of the actions taken by the participants after Mr.

Douglas waskilled, but mainly contends that the trial judge erred by not providing a sufficient warning to the jury on the use of such evidence. Ingeneral, he is concerned about the jury’s use of the evidence regarding what occurred after the group left the scene and travelled toSaskatoon. His most significant concern relates to Mr. D.S.’s testimony that Mr. Thompson was worried about Mr. M.M.’s ability to keepquiet about what had transpired with Mr. Douglas and was considering killing Mr. M.M. in Saskatoon to prevent him from talking to thepolice. Mr.

Thompson asserts the admission of this evidence required the trial judge to provide a specific instruction to the jury about itsuse. The Crown argues that the post-offence conduct evidence was admissible and the instructions to the jury were adequate. 1. Admission of post-offence conduct evidence [76] Evidence of post-offence conduct of an accused person may be admissible as circumstantial evidence to provide a full narrativeof the events and to assist the Crown in proving guilt. This includes the narrow category of the accused’s actions after the commission of

the offence, demonstrating that they behaved in a manner in which a guilty person would behave. This subset of post-offence conductassists in proving guilt by showing that a person attempted to evade detection of the crime, or their involvement in it, or to escape captureand prosecution. Examples of such actions include destruction or concealment of evidence, fleeing the scene, and lying or encouragingother people to lie about the events in question. Historically speaking, this small category of after-the-fact actions by an accused personwas referred to as consciousness of guilt evidence.

However, the broader category of post-offence conduct now refers to anything done byan accused after the commission of the offence: R v White, 2011 SCC 13 at paras 17–21, [2011] 1 SCR 433 [White]. [77] There is no special rule for the admission of evidence that refers to post-offence conduct. This type of evidence is generallyadmissible as part of the narrative or to demonstrate, to use the old term, consciousness of guilt.

Its admission remains subject to therequirements of relevance and materiality and a balancing of its probative value versus prejudicial effect: White at paras 22 and 31, R vMoffit, 2015 ONCA 412 at para 41, 326 CCC (3d) 66, leave to appeal to SCC refused, , and Calnen at paras 107–109. [78] Mr. Thompson did not object to the admission of any of the post-offence conduct evidence at trial.

As mentioned above, whilea failure to object is not fatal to a challenge to admissibility on appeal, it does present a significant hurdle: R v Dirksen, 2021 SKCA 6 atpara 74. [79] In my view, the trial judge did not err in admitting the evidence that described the travel to Saskatoon, the car chase, the flightfrom the vehicle after the crash and the location of the remaining individuals at Ms. S.R.’s house with the Honda and Mr. Douglas’s debitcard.

The three appellants immediately leaving Regina when the police were seen at the House, and going to Saskatoon, could be viewedas evidence of a desire to avoid detection or apprehension. For Mr. Peepeetch and Mr. Wilson, their flight from the car after it crashed atthe end of the police chase was also admissible for this reason. The evidence that Mr. Thompson continued to associate with theindividuals involved in the murder after its commission was admissible because it tended to show that the participants continued to act inconcert after Mr. Douglas had been killed. [80] Mr. D.S.’s evidence regarding Mr.

Thompson’s consideration of killing Mr. M.M. was admissible as circumstantial evidencethat was demonstrative of the actions of a person who is seeking to avoid detection and prosecution.

Killing a witness to a murder to avoidthat person going to the police is the most severe and reprehensible form of destruction of evidence and falls squarely within the categoryof admissible, post-offence conduct evidence. [81] The evidence regarding other more benign conversations or actions – for example, attending the gas station in Davidson,laughing and joking and continuing to party – was admissible as part of the narrative. [82] I can see no error in the admission of any of the impugned evidence. However, once admitted, the question remained as to theneed for a limiting instruction on its use. 2.

Jury instruction on post-offence conduct [83] There is no special rule for the admission of post-offence conduct evidence but, as discussed by Rothstein J. in White, suchevidence carries a risk that the jury may place too great of a weight on the accused’s post-conduct actions: [22] … Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed bythe same principles as for all other circumstantial evidence.

Thus, while the term “consciousness of guilt” may have fallen out of use, it isstill permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behavedas a person who is guilty of the offence alleged – provided that, as with all circumstantial evidence, its relevance to that inference can bedemonstrated. [23] That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long beenrecognized that the introduction of post-offence conduct for the purpose of establishing the accused’s “consciousness of guilt” carries withit a substantial risk of jury error (Gudmondson v.

The King (1933), (SCC), 60 C.C.C. 332).

Jurors may be tempted to“jump too quickly from evidence of post-offence conduct to an inference of guilt” (White (1998), at para. 57) without giving properconsideration to alternate explanations for the conduct in question. [24] In most cases, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for theaccused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all theevidence has been considered in the normal course of their deliberations.

Beyond such a cautionary instruction, the members of juryshould be left to draw whatever inferences they choose from the evidence at the end of the day. [Emphasis added by Rothstein J.; White(1998), at para. 57.] [84] In Calnen, Moldaver J. further described the risks associated with post-offence conduct evidence and the role that limitinginstructions play to counter that risk: [25] The record reveals that the trial judge was alive to the “substantial risk of jury error” from after-the-fact conduct evidence and thetemptation to “jump too quickly from evidence of post-offence conduct to an inference of guilt” without proper consideration of alternateexplanations: R. v.

White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 23, citing R. v. White, (SCC), [1998] 2 S.C.R. 72,at para. 57. The trial judge’s detailed limiting instructions on after-the-fact conduct evidence and his caution against drawing speculativeinferences from circumstantial evidence are significant factors when assessing the risk that the jury would engage in general propensityreasoning. [85] In the matter at hand, the issue of post-offence conduct was discussed at length during the meeting among counsel and the trialjudge to review the draft charge to the jury.

A long discussion took place regarding the potential instruction about the significance of theparticipants immediately going to Saskatoon, the car chase in Saskatoon, the flight from the car after it crashed and Mr. D.S.’s evidenceregarding the alleged threat by Mr. Thompson to kill Mr. M.M. to keep him from going to the police. That discussion concluded with the

following exchange: THE COURT: Yeah, he said -- [Mr. D.S.] said that [Mr. M.M.] was very upset about the death, and he wouldn’t be quiet about it, and there was concern expressed by Dennis Thompson, in particular, that he was going to go to the police. That’s what I remember. [MR. THOMPSON’S COUNSEL]: Well, that’s so bizarre -- [MR. WILSON’S COUNSEL]: Well, I think it -- [MR. THOMPSON’S COUNSEL]: -- ’cause [Mr. M.M.] testified that he slept through the whole thing. So I’m just saying how -- what -- how -- you raise that to the jury as an example of post-offence conduct and skew.

You know, it’s very -- THE COURT: That wasn’t -- that wasn’t -- oh, you’re saying it was nothing. [Mr. M.M.] -- it’s not his evidence, but that they -- that he was upset when he was actually sleeping. [MR. WILSON’S COUNSEL]: Well -- [MR. THOMPSON’s COUNSEL]: He said he woke up in the morning and Mr. Thompson and he were laughing and getting along. [MR. WILSON’S COUNSEL]: Yeah. [MR. THOMPSON’S COUNSEL]: That’s his evidence, and that he didn’t -- he wasn’t even -- he slept through the death. He didn’t know there was a death. [MR. WILSON’S COUNSEL]: I think what [Mr.

Thompson’s counsel] is saying is I don’t think it should be highlighted necessarily -- [MR. THOMPSON’S COUNSEL] I don’t -- [MR. WILSON’S COUNSEL]: -- because there’s contrary evidence that may undermine whether that happened or not. [MR. THOMPSON’S COUNSEL]: Well, but, I mean -- [MR. WILSON’S COUNSEL]: I think the -- the broader question is, is what to do with them leaving for Saskatoon, (a), and, you know, I - - we -- we sort of worked our way through that, to some extent, I think. But what I -- what I’m leading up to is, I’m a bit more concerned about what about the -- the car chase business.

I don’t -- I think there’s limited, if any, meaning about that as post-offence conduct indicating much of anything because it’s too isolated. There’s the -- the potential for it to be isolated in terms of, you know, they may have been escaping liability, but not from 15 hours ago; from 15 minutes ago. [MR PEEPEETCH’S COUNSEL]: Right. [MR. THOMPSON’S COUNSEL]: M-hm. [MR. PEEPEETCH’S COUNSEL]: That’s exactly true. [MR.

WILSON’S COUNSEL]: So -- and that’s -- I would just suggest that they should be cautious of using the entirety of it because it can -- you know, the close -- the further away it gets, the harder to draw any connections at all to, you know, its meaning as it relates to the incident in question. [MR. THOMPSON’S COUNSEL]: So, like, part of what -- what makes it complicated, too, is that -- and I think we have to speak to the post-offence conduct because you never know otherwise what -- what use they’ll make of it.

THE COURT: Well, and that’s what I said before is that I think it has to be addressed so that these concerns can be given to the jury because there is a chance, otherwise, they -- that they will go right to murder for the reason why people were fleeing to Saskatoon. [ 86 ] During her charge to the jury, the trial judge addressed the evidence regarding the alleged threat to Mr. M.M. as follows: [Mr. D.S.] testified that at the house in Saskatoon, Mr. Thompson talked about killing [Mr. M.M.] because the latter was very upset when told about the death of Shawn Douglas. [Mr. D.S.] said he and [Mr.

A.A.] vouched for [Mr. M.M.] and the idea was dropped. … … You also heard the testimony of [Mr. D.S.] who claimed to have heard Dennis Thompson say something about killing [Mr. M.M.] while in Saskatoon. You have to decide whether you believe Dennis Thompson made the statement, or any part of it. And regardless of who the witness is, it is still up to you to decide whether you believe that witness’s evidence. In deciding whether Mr. Thompson actually said these things, use your common sense. Take into account the condition of Mr. Thompson and [Mr. D.S.] at the time of the conversation.

Consider the circumstances in which the conversation took place. Consider that [Mr. D.S.] had slept little in the previous 24 hours and had consumed many intoxicants. Consider that [Mr. M.M.] did not testify that he was threatened. He said he was sleeping while in Saskatoon. And, in fact, he said that he -- or he testified that Mr. Thompson was joking with him when they both woke up. If you decide that Mr. Thompson did make made the remark, you must not use it -- I’m sorry. If you decide that Mr. Thompson did not make the remark, you must not use it against him in deciding this case.

[87] The trial judge gave a specific limiting instruction on the use of the post-offence conduct, including a reference to the allegedthreat to Mr. M.M.: I want to talk to you about what we call after-the-fact conduct. You’ve heard evidence about certain things that the accused are alleged tohave said or have done after the incident charged in the Indictment. For convenience, I call this “after-the-fact conduct”. In this case, it isalleged that the accused fled the scene of the offence and drove to Saskatoon and were arrested after a police pursuit.

Certain things arealleged to have been said in the hours after the incident. After-the-fact conduct is simply a type of circumstantial evidence. And you will recall I’d described what circumstantial and directevidence is yesterday. As with all circumstantial evidence, you must consider what inference, if any, or what conclusion, if any, is properto draw from this evidence. You may use the evidence, along with all the other evidence in the case, in deciding whether the Crown hasproved the guilt of the accused beyond a reasonable doubt.

However, you must not infer or [conclude] that an accused person’s -- thataccused person is guilty from this evidence unless, when you consider the after-the-fact evidence, along with the other evidence, you aresatisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion. Keep in mind that evidence of after-the-fact conduct has only an indirect bearing on the issue of an accused person’s guilt. You must becareful about inferring guilt from the evidence of after-the-fact conduct because there might be other explanations for this conduct.

Youmay use evidence of after-the-fact conduct to support an inference of guilt only if you hav

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