WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a
    case where the information relates to a young person who has received an adult
    sentence;

(b) in a
    case where the information relates to a young person who has received a youth
    sentence for a violent offence and the youth justice court has ordered a
    lifting of the publication ban under subsection 75(2); and

(c) in a
    case where the publication of the information is made in the course of the
    administration of justice, if it is not the purpose of the publication to make
    the information known in the community.

(3) A
    young person referred to in subsection (1) may, after he or she attains the age
    of eighteen years, publish or cause to be published information that would
    identify him or her as having been dealt with under this Act or the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,
    provided that he or she is not in custody pursuant to either Act at the time of
    the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order prohibiting disclosure of a witness identify
    has been made in this proceeding pursuant to s. 486.31 of the
Criminal
    Code
and shall continue.  This section of the
Criminal Code
provides that:

486.31 (1) In any
    proceedings against an accused, the judge or justice may, on application of the
    prosecutor in respect of a witness, or on application of a witness, make an
    order directing that any information that could identify the witness not be
    disclosed in the course of the proceedings if the judge or justice is of the
    opinion that the order is in the interest of the proper administration of
    justice.

(2) The judge or
    justice may hold a hearing to determine whether the order should be made, and
    the hearing may be in private.

(3) In
    determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to
    protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone
    known to the witness;

(e) whether the order is needed to protect the identity of a
    peace officer who has acted, is acting or will be acting in an undercover
    capacity, or of a person who has acted, is acting or will be acting covertly
    under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness's
    identity if they have had, have or will have responsibilities relating to
    national security or intelligence;

(f) society's interest in encouraging the reporting of offences
    and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness' testimony to the case;

(h) whether effective alternatives to the making of the proposed
    order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order;
    and

(j) any other factor that the judge or justice considers
    relevant.

(4) No adverse
    inference may be drawn from the fact that an order is, or is not, made under
    this section.

S.C. 2015, c.
    20, s. 38(3).

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Skeete, 2017 ONCA 926

DATE: 20171130

DOCKET: C55872

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lamar Skeete

Appellant

Timothy E. Breen, for the appellant

John Corelli and Kathleen Farrell, for the respondent

Heard: March 28, 2017

On appeal from the conviction entered on March 30, 2012 by
    Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a
    jury.

Watt J.A.:

[1]

Kenneth Mark was a gentle giant. He worked hard. He tried to be a
    positive influence in his community.

[2]

In the summer of 2008, Kenneth Mark confronted a youth, J.B., who had
    reportedly shown a handgun to several young children in a housing complex.
    Among the children were Kenneth Marks nephews and nieces.

[3]

Early in September of the same year, two masked men accosted Kenneth
    Mark. One of the men, armed with a shotgun, shot Mark in the back. Kenneth Mark
    survived.

[4]

About two months later, Kenneth Mark provided a
K.G.B.
statement
    to police about the attempt on his life. He identified the shooter as J.B., the
    youth he had previously confronted about showing a handgun to children in the
    housing complex. And Mark identified the shooters accomplice as Lamar Skeete.

[5]

Police arrested J.B. and Lamar Skeete. Each was charged with attempted murder,
    as well as several firearms offences. Both were detained in custody.

[6]

Kenneth Mark testified at the preliminary inquiry of J.B. and Lamar
    Skeete. The presiding judge ordered both J.B. and Lamar Skeete to stand trial.

[7]

On the trial date in December, 2009, Crown counsel (not Mr. Corelli or
    Ms. Farrell) withdrew the charges against Lamar Skeete on the basis that the
    evidence provided no reasonable prospect of conviction. The Crown proceeded
    against J.B. Kenneth Mark testified as a witness for the Crown. The trial judge
    found J.B. not guilty.

[8]

Lamar Skeete and J.B. were released from custody when proceedings
    against them ended.

[9]

About two weeks later, as he left his local pizza shop, a man came up
    behind Kenneth Mark and shot him once in the back of the head. This time,
    Kenneth Mark died from his wound.

[10]

A
    jury found Lamar Skeete guilty of first degree murder. He appeals. These
    reasons explain why I would dismiss the appeal and affirm the conviction.

the background facts

[11]

The
    grounds of appeal advanced on Lamar Skeetes behalf require reference not only
    to the circumstances of the shooting, but also to others that preceded and
    followed Kenneth Marks death. To the extent that further detail is required,
    it accompanies the ground of appeal to which it relates.

The Handgun Display

[12]

Kenneth
    Mark lived and worked in the west end of Toronto. He lived not far from a housing
    complex where his brother lived with his family, including Marks nephews and
    nieces.

[13]

During
    the summer of 2008, Kenneth Mark learned that Lamar Skeete and J.B., a youth,
    had come to the housing complex and shown a handgun to several children,
    including Marks nephews and nieces.

[14]

Later
    that same summer, Mark confronted and draped J.B., aggressively manhandling
    him. J.B. ran away, leaving his bicycle behind. Mark brought the bicycle back
    to the housing complex where others vandalized it.

The Shooting of Kenneth Mark

[15]

On
    September 2, 2008, while Kenneth Mark was sitting outside the complex, two
    masked men approached him from behind. One of them was carrying a shotgun. He
    shot Mark in the back, causing injuries to his shoulder, neck and face. Mark
    ran from the scene. He was found by emergency personnel and taken to the
    hospital.

Mark Identifies His Assailants

[16]

Kenneth
    Mark initially described the clothing worn by the shooter. Later, he elaborated
    on his early description, but did not identify either man. About two months
    later, when police sought community assistance in connection with another
    shooting, Kenneth Mark identified his assailants.

[17]

In
    a
K.G.B.
statement he provided to police, Kenneth Mark identified J.B.
    as the shooter and Lamar Skeete as the second assailant. He also recounted
    several visits by both men to the complex as they sought him (Mark) out after
    the initial shooting.

[18]

Police
    arrested both J.B. and Lamar Skeete on charges of attempted murder and related
    firearms offences. The arrests took place in November, 2008. Both J.B. and
    Lamar Skeete were detained in custody prior to trial.

The Preliminary Inquiry

[19]

Kenneth
    Mark testified at the joint preliminary inquiry of J.B. and Lamar Skeete. Mark
    gave evidence that was consistent with his
K.G.B.
statement
    implicating both men in the shooting. Both J.B. and Skeete were ordered to
    stand trial.

The Trial of the Attempted Murder Charges

[20]

Prior
    to trial, Kenneth Mark told a co-worker that he had been subpoenaed to testify
    at trial but was afraid to do so for fear of being labelled a snitch. Mark
    was concerned that if he testified, something would happen to him for having
    done so.

[21]

On
    December 14, 2009, the date scheduled for the trial of the attempted murder
    charges, Crown counsel (not Mr. Corelli or Ms. Farrell) withdrew the charges
    against Lamar Skeete on the basis that there was no reasonable prospect of
    conviction. Lamar Skeete was released from custody.

[22]

The
    Crown proceeded against J.B. Kenneth Mark testified as a witness for the Crown.
    He identified J.B. as the shooter and Lamar Skeete as his accomplice. The trial
    judge found J.B. not guilty. J.B. was released from custody.

[23]

Once
    again, Kenneth Mark expressed fear of retaliation for having given evidence
    about the attack. He tried to avoid places where he was apt to meet J.B. or
    Lamar Skeete.

The Murder of Kenneth Mark

[24]

Around
    9:30 p.m. on December 29, 2009, Kenneth Mark entered a pizza shop to pick up
    some food on his way to work. Another customer saw two men walking back and
    forth on the street outside the shop. One of the men was wearing a white
    jacket.

[25]

Kenneth
    Mark walked out of the pizza shop onto the adjacent street. The man in the
    white jacket came up behind Mark and shot him in the back of the head with a
    handgun. The shooting occurred around 9:35 p.m.

[26]

Video
    surveillance at nearby businesses recorded some of the events that occurred around
    the time of the shooting.

[27]

Kenneth
    Mark was shot and died within about two weeks of the Crowns withdrawal of
    charges against Lamar Skeete and about one week after J.B.s acquittal.

[28]

Lamar
    Skeete was arrested and charged with the murder of Kenneth Mark.

The Whereabouts of Lamar Skeete on the Night of Marks Murder

[29]

Lamar
    Skeete testified at the murder trial.

[30]

It
    was the evidence of Lamar Skeete that around 7:40 p.m. on December 29, 2009,
    S.M. picked him and D.L.K. up near the Islington subway station and dropped
    them off at a tattoo parlour around Keele and Dundas. Skeete planned to get a
    new tattoo.

[31]

Lamar
    Skeete signed a release at the tattoo parlour, which was filed as an exhibit at
    trial. The release is dated December 29, 2009, but contains no reference to
    time. Skeete testified that at 8:30 p.m., the owner of the tattoo parlour told
    him that there was not enough time before closing for him to get a new tattoo.
    Skeete settled for a touch-up by another tattoo artist of an existing image.

[32]

The
    owner of the tattoo parlour contradicted Lamar Skeetes evidence about the time
    at which the business, which was then in a temporary location, closed on
    December 29, 2009. Without the assistance of any business records, the owner
    said that the business closed at 7:00 p.m. at the latest. The owner did not
    have any records of when freelance artists were in the shop, or the precise
    time at which this temporary location closed on that evening.

[33]

Lamar
    Skeete testified that he left the tattoo parlour at 9:00 p.m. He walked across
    the street to Galaxy Donuts to wait for S.M., who was to drive him home to
    ensure that he met his 10:00 p.m. curfew.

[34]

S.M.,
    a drug dealer, was in the same area to conclude a drug purchase. He became
    somewhat apprehensive about being robbed when three or four men approached him.
    S.M. moved to a position in front of the pizza outlet. At trial, he acknowledged
    that video from a nearby bakery showed a person wearing the same clothes as he
    was wearing that night. Although S.M. would not identify himself, he accepted
    that the person shown in the video must be him. Someone ran by him. S.M. heard
    a gunshot, then saw the deceased lying on the roadway. He ran to his car and
    drove home alone.

[35]

Lamar
    Skeete testified that his cellphone died at 9:29 p.m. on December 29, 2009 as
    he waited for S.M. to give him a ride home. Around 9:40 p.m., he left the donut
    shop with D.L.K. to hail a cab so that he could be home prior to his 10:00 p.m.
    curfew. He saw S.M. walking fast or running down the street. S.M. told him that
    he had just seen someone get shot. Skeete and D.L.K. got into S.M.s car and
    left the area.

[36]

The
    first time Lamar Skeete said that he was at Galaxy Donuts at the time Kenneth
    Mark was shot and killed was in giving evidence at trial.

The Cellphone Records

[37]

Cellphone
    records entered as exhibits at trial revealed that between 8:40 p.m. and 9:29
    p.m. on December 29, 2009, Lamar Skeetes cellphone was in an area that
    included not only Galaxy Donuts, but also the place where Kenneth Mark was shot
    and killed. The next call made on the phone was at 9:59 p.m., transmitted by
    the nearest tower to Skeetes home.

[38]

S.M.s
    cellphone was in the same area from 8:37 p.m. to 9:27 p.m. and inactive between
    9:27 p.m. and 9:59 p.m. that same day.

The Murder Weapon

[39]

While
    in custody on a charge of robbery a few months before the fatal shooting of
    Kenneth Mark, Lamar Skeete met B.I. During the two weeks immediately prior to
    Marks death, Skeete and B.I. were in very frequent contact by cellphone.

[40]

On
    December 31, 2009, two days after Kenneth Mark was shot to death, police surveillance
    officers saw Skeete and J.B. meet with B.I. in a west end alley. The men shook
    hands. B.I. denied having received a handgun from Lamar Skeete during this
    meeting.

[41]

B.I.
    testified that he bought a handgun and a silencer from two different people after
    he was released from custody in November, 2009. He purchased the gun from
    Kush, a man he met at a bus stop. He bought the silencer from Flex, a guy
    who lived in the same neighbourhood. B.I. hid the gun and silencer in the cold
    air return on the main floor of his home.

[42]

At
    trial, the parties agreed that Kush and Flex were fictional characters
    invented by B.I.

[43]

Police
    searched B.I.s home on January 22, 2010. In a cold air return on the main
    floor, officers found and seized a .22 calibre handgun, a silencer, some
    ammunition and a magazine. The bullet that killed Kenneth Mark was fired from
    this gun.

[44]

B.I.
    testified at the preliminary inquiry. There, he denied that he knew Lamar
    Skeete. At trial, he acknowledged that he spoke to Skeete as Skeete was being
    escorted from the courtroom at the preliminary inquiry. B.I. said Im gonna
    talk to that kid. Skeete replied Yeah, yeah, talk to him. B.I. then told
    Skeete Stay tight and keep your head up. Skeete responded Yeah, yeah.

[45]

A
    few days later, B.I. posted a message to his Facebook page that read: Freee Da
    Niggs Pullin On Da Triggs. He agreed at trial that he intended this message to
    offer support for his friends, including Lamar Skeete, who had been arrested
    and were in custody on the murder charge. Days later he removed the message.

The White Jacket

[46]

On
    December 31, 2009, two days after Kenneth Mark was fatally shot, police
    recovered a white jacket with the name Avirex on the back. The jacket was
    recovered from the basement of Skeetes home. It was folded up on top of two
    stacked chairs.

[47]

Scientific
    testing of the jacket revealed gunshot residue on the external front pockets
    consistent with someone, who had handled a firearm, putting their hands or the firearm
    in the pockets of the jacket. A mixture of DNA from at least three people was
    detected on the jacket. At least one of the donors was male, but forensic examiners
    were unable to generate a profile suitable for comparison.

The Grounds of Appeal

[48]

Lamar
    Skeete (the appellant) advances three grounds of appeal. As I would paraphrase
    his complaints, he says that the trial judge erred:

i.

in admitting evidence of the details of the attempted murder charge
    ultimately withdrawn against the appellant and then failing to adequately
    instruct the jury about its limited use;

ii.

in admitting evidence of the lyrics of a rap composition authored by the
    appellant; and

iii.

in failing to correct the closing submissions of the trial Crown, which
    invited the jury to use the appellants silence and inaction following the
    killing, and the false testimony of some of his associates, as circumstantial
    evidence of guilt.

Ground #1: Evidence about the Attempted Murder of Kenneth Mark

[49]

The
    first ground of appeal raises two issues in connection with the evidence
    adduced at trial about the attempted murder of Kenneth Mark about 15 months
    before he was shot to death. The first has to do with the admissibility of the
    evidence, the second, which assumes it was properly admitted, contests the
    trial judges instructions about the use jurors could make of this evidence in
    reaching their verdict.

The Additional Background

[50]

Prior
    to jury selection, the trial Crown sought a ruling to permit the introduction
    of evidence about the nature of the relationship between J.B. and the
    appellant, on the one hand, and the deceased, on the other.

[51]

Among
    the sources of evidence the Crown sought to invoke to establish the nature of
    the relationship were:

i.

prior statements of the deceased to his brother and co-workers
    expressing his (the deceaseds) fear of retaliation for his implication of J.B.
    and the appellant in the attempted murder;

ii.

prior statements of the deceased to investigators, including a
K.G.B.
statement and the deceaseds evidence at the preliminary inquiry into the
    attempt murder charge, implicating the appellant and J.B. in the prior
    shooting; and

iii.

evidence from other sources about the procedural history of the attempt
    murder charge, including the incarceration of both J.B. and the appellant
    pending trial and the ultimate disposition of the charges.

The Admissibility Hearing

[52]

The
    trial Crown advanced her case for the admissibility of what I will designate
    the attempted murder evidence on two grounds:

i.

narrative; and

ii.

motive.

To the extent that the evidence was hearsay, whether
    statements by the deceased to investigators about the circumstances of the
    shooting, or to others expressing fear of retaliation, the Crown invoked the
    principled exception to the hearsay rule.

[53]

The
    principal ground upon which the attempted murder evidence was tendered was that
    it tended to establish a motive on the part of the appellant to kill Kenneth
    Mark: retaliation. After all, Mark had breached the code of silence (about
    which there was expert evidence) and this caused both the appellant and J.B. to
    spend time in custody.

[54]

The
    trial Crown emphasized that she was not trying to re-litigate the result of the
    attempt murder proceedings. She pointed out that the motive alleged did not
    depend on the truth of Kenneth Marks allegations about the earlier shooting.
    The motive  retaliation for breach of the code of silence  applied just as
    much, perhaps even more, if Marks allegations were false as it did if they
    were true. Accordingly, the Crown said, there was no need to inquire into the
    truth of Marks allegations about the attempted murder, thus no compromise of
    issue estoppel principles.

[55]

Trial
    counsel for the appellant (not Mr. Breen) resisted the Crowns application to
    adduce the attempted murder evidence upon three principal bases.

[56]

First,
    in light of the failed prosecution of the appellant and J.B., evidence about
    the attempted murder of Kenneth Mark and its disposition would offend the
    principle of issue estoppel as explained in
R. v. Mahalingan,
2008 SCC
    63, [2008] 3 S.C.R. 316.

[57]

Second,
    the admission of the attempted murder evidence would constitute an abuse of
    process and thus contravene s. 7 of the
Charter
.

[58]

Third,
    and in the alternative, if evidence about the attempted murder were to be admitted
    at trial it should be closely confined due to its highly prejudicial nature.
    The relevance of the evidence rested on the fact that Kenneth Mark cooperated
    with the police, thus breached the code of silence. It followed, according to
    trial counsel, that there was no need to elicit the details of the shooting or
    the offence with which the appellant had been charged. It was enough to say
    that he had been detained in custody as a result of the charge and to describe
    Marks conduct after the disposition of the charges.

The Ruling of the Trial Judge

[59]

The
    trial judge was satisfied that the evidence about the prior attempted murder
    was relevant to establish motive, which in turn was relevant to proof of
    identity and of the state of mind that accompanied the shooting. The motive
    arose from Kenneth Marks breach of the code of silence by providing statements
    and evidence against the appellant and J.B. The trial judge was satisfied that
    introduction of the evidence did not involve re-litigation of the attempted murder
    charge in contravention of the principles of issue estoppel as elucidated in
Mahalingan.
This was so because the truth of the allegations was beside the point.

[60]

To
    guard against any prejudice arising from the introduction of this evidence, the
    trial judge directed the Crown to elicit the evidence in summary form from an
    investigating officer. The trial judge also allowed the Crown to adduce,
    through the deceaseds brother and a co-worker, statements allegedly made by
    the deceased to them expressing his (the deceaseds) fear of retaliation after
    the prior trial proceedings and the release of the appellant and J.B. from
    custody.

The Appellants Response

[61]

The
    appellant, then 21 years old, testified at trial. He denied ever having flashed
    a gun to children in the housing complex and said he knew nothing about the
    draping incident involving J.B. and Kenneth Mark. He disclaimed any
    involvement in the prior shooting of Mark.

[62]

The
    appellant gave evidence that he knew that Mark had implicated him in the attempted
    murder. He was confused by Marks having done so, but not angry with Mark. The
    appellant acknowledged that there was a code of silence in the community.
    Although he subscribed to the code and recognized that Kenneth Mark had
    breached it in speaking to the police about the previous shooting, the
    appellant said that he did
not
enforce the code.

The Arguments on Appeal

[63]

The
    appellant says that the trial judge erred in admitting evidence, even in
    summary form, of the details of the prior shooting, including a description of
    the offences charged. The relevance of this evidence, which was presented
    through a summary of the police statements and testimony of Kenneth Mark,
    rested on the simple fact that Mark cooperated with the authorities in breach
    of the code of silence. Thus, the details of the shooting and the charges that
    resulted had no probative value. What is more, the prejudicial effect of this
    evidence was considerable. It portrayed the appellant as a person who had ready
    access to firearms and a disposition to plot the use of deadly force to right a
    perceived wrong.

[64]

The
    appellant contends that, to the extent of its relevance, the evidence about the
    prior shooting should have been presented as an agreed statement of facts
    describing an assault on Mark by two masked men; Marks identification of J.B.
    as the shooter and the appellant as his accomplice; the arrests and detention
    in custody of J.B. and the appellant; and the procedural steps followed until
    both J.B. and the appellant appeared for trial and were released from custody.

[65]

The
    appellant also challenges the admissibility of the evidence recounting Marks
    fear of retribution from the appellant. This evidence added little to the
    motive established by the prior inculpation and prosecution of the appellant,
    yet was highly prejudicial since it reflected Marks certainty that the
    appellant had been involved in the earlier shooting. This encouraged
    disposition-based reasoning.

[66]

In
    the alternative, the appellant says that the trial judges instructions about
    the use jurors could make of this evidence were seriously deficient. The
    instructions failed:

i.

to identify how the evidence was relevant to proof of motive;

ii.

to make clear what the evidence could
not
be used for;

iii.

to direct the jury that they should proceed on the basis that the
    appellant was factually innocent of the prior charges;

iv.

to limit the motive evidence to the fact that Mark cooperated with the
    police; that the appellant was arrested and detained in custody and that Mark
    testified against both the appellant and J.B.; and

v.

to instruct the jury not to rely on Marks identification of the
    appellant to conclude that he had participated in the attempted murder, thus
    had demonstrated an intention to kill Mark or shown himself to be a person
    deserving of punishment or the kind of person likely to commit murder.

[67]

The
    respondent rejects the appellants submissions of error. The evidence was
    properly admitted, its introduction tailored to curtail any scent of prejudice
    and its use properly explained to the jury.

[68]

The
    respondent says that the ultimate issue for the jury to resolve was whether the
    Crown had proven beyond a reasonable doubt the appellants participation in the
    murder of Kenneth Mark. To identify a person as responsible for a killing, the
    Crown may adduce evidence of that persons motive to do so. Here, the evidence
    of motive emerged from the state of the relationship between the appellant and
    Kenneth Mark over a period of 15 months prior to the killing. Among the
    predicate or foundational facts providing objective support for the motive of
    retaliation was Marks breach of the code of silence. This entailed the
    introduction of evidence about the circumstances of the prior shooting and the
    nature of the offence charged.

[69]

The
    respondent acknowledges that the introduction of evidence about the attempted
    murder raised concerns about prior discreditable conduct on the appellants
    part. This required the trial judge to determine where the balance settled as
    between probative value and prejudicial effect. The trial judge did so and made
    no error in this analysis. His determination of the issue is entitled to
    deference on appeal.

[70]

In
    a similar way, the respondent continues, the trial judge adopted a solution
    that limited not only the scope, but also the manner in which evidence about
    the attempted murder would be elicited before the jury. This solution
    minimized, or at least curtailed any tendency towards propensity or
    disposition-based reasoning that might be inherent in the evidence.

[71]

As
    for the appellants submission that an agreed statement of facts should have
    been created and filed to eliminate any potential prejudice, the respondent
    invites us to recall that no such submission was ever advanced by experienced
    trial counsel. What is more, the respondent continues, such a suggestion is
    inconsistent with the defence position at trial, which was to establish that
    the appellant had nothing to do with the prior shooting, thus had no motive as
    alleged by the Crown. To now suggest an agreed statement of facts as a method
    of proof implicitly accepts the existence of a motive, a position diametrically
    opposed to that advanced at trial.

[72]

In
    connection with the hearsay statements of the deceased, the respondent says
    that
ante mortem
statements of the deceased, which reveal the nature
    of the relationship between the deceased and an accused charged with his murder,
    may support an inference of
animus
, a common antecedent of motive. And
    evidence of motive is relevant and admissible to establish an accuseds
    participation in an unlawful killing, as well as his state of mind. It may also
    rebut participation by a third party.

[73]

In
    this case, the respondent continues, the reception of these
ante mortem
statements was established under the principled exception to the hearsay rule.
    Necessity was established because of the death of the declarant. Nor was there
    any serious controversy about reliability. The only point of controversy was whether
    the prejudicial effect of the evidence exceeded its probative value. The trial
    judges determination that probative value predominated was not infected by
    error and is entitled to deference. Besides, the trial judge gave thorough
    limiting instructions when the evidence was introduced and later in his charge
    to the jury. These prophylactics, the nature of the evidence and the manner in
    which it was presented ensured that the jury fully appreciated the limitations
    the law imposed on their use of this evidence.

[74]

The
    respondent submits that a functional evaluation of the trial judges
    instructions to the jury, both mid-trial and final, about the permitted and
    prohibited use of the evidence relating to the prior shooting and the
    deceaseds fear of retaliation were free of error. Those instructions enjoined
    propensity reasoning and the use of the deceaseds statements about his state
    of mind as evidence of the appellants mental state. Indicative of the adequacy
    of these instructions to delineate proper jury use and abjure prohibited
    reasoning is the lack of objection by experienced trial counsel, who had ample
    opportunity to review drafts of the proposed instructions before they were
    delivered.

The Governing Principles

[75]

As
    with many if not most of the issues concerning the reception of evidence and
    its use by the trier of fact in determining whether the Crown has proven guilt
    beyond a reasonable doubt, the issues raised by this ground of appeal can be
    decided by the application of general principles. At work in this case are the
    principles that govern the admissibility of evidence of motive, in particular,
    those that permit the reception of hearsay and evidence of extrinsic misconduct
    in proof of motive. Further, there is the question of whether the doctrine of
    issue estoppel intercedes to bar the reception of evidence about the prior
    shooting on account of the outcome of the prior proceedings against the
    appellant and J.B.

Evidence of Motive

[76]

The
    principles that govern the reception of evidence of motive are largely
    uncontroversial, although their application to the singular circumstances of
    individual cases often provokes disagreement.

[77]

As
    a circumstance ulterior to the
actus reus
and
mens rea
of a
    crime, motive is no part of the definition of a crime, thus irrelevant to
    criminal responsibility. A person may be lawfully convicted of a crime whatever
    his motive may have been, or even if he had no motive:
Lewis v. The Queen
,
    [1979] 2 S.C.R. 821, at pp. 833-835.

[78]

On
    the other hand, the mere fact that motive is not part of the definition of a
    crime does not mean that evidence of motive is not relevant to or admissible in
    proof of guilt. For the existence of a motive to commit an offence, as a matter
    of common sense and everyday experience, renders it more likely that a person
    with the motive committed it than a person who lacked that motive. And so it is
    that evidence of motive is relevant to and admissible in proof not only of an
    accuseds commission of an offence, but also of the state of mind with which
    the offence was committed:
Plomp v. The Queen
(1963), 110 C.L.R. 234 (Austl.
    H.C.), at pp. 242-243 and 249-250;
R. v. Griffin
, 2009 SCC 28, [2009]
    2 S.C.R. 42, at paras. 59-60;
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C.
    (3d) 16, at para. 113.

[79]

No
    special evidentiary rule governs the reception of evidence of motive when it is
    tendered in a criminal trial. The evidence must be relevant, material and
    compliant with the governing rules of admissibility.

[80]

Evidence
    of motive is a species of circumstantial evidence which invokes a prospectant
    chain of reasoning. In other words, the path of reasoning is that the previous
    occurrence of an act, state of mind or state of affairs justifies the inference
    that another act was done, or state of mind or state of affairs existed at some
    time afterwards that is material to proof of guilt: Peter Tillers, ed.,
Wigmore
    on Evidence
, vol. 1A (Toronto: Little, Brown and Company, 1983), at § 43,
    pp. 1138-1142 and § 117, p. 1696;
R. v. Salah
, 2015 ONCA 23, 319
    C.C.C. (3d) 373, at para. 64.

[81]

Just
    as no special rule of evidence governs the admissibility of evidence of motive,
    so it is that we recognize that there is not, nor can there be, a closed list
    of circumstances that may serve as a motive for conduct. Indeed, the
    circumstances that may excite a motive are as innumerable as the dispositions
    of humankind:
Salah
, at para. 64. That said, some motives tend to
    occur with greater frequency than others. Among those is retaliation, a desire
    of revenging some real or perceived wrong: Sir Alfred Wills, ed.,
Wills on
    Circumstantial Evidence
, 5th edition

(London: Butterworth &
    Co., 1902), at p. 49. See, as an example,
R. v. Blackman
, 2008 SCC 37,
    [2008] 2 S.C.R. 298, at para. 2.

[82]

In
    prosecutions for unlawful homicide, especially those charged as murder,
    evidence of motive or
animus
is relevant to establish the identity of
    the responsible party, as well as the state of mind with which the unlawful
    killing was done:
Salah
, at para. 65;
R. v. Candir
, 2009 ONCA
    915, 250 C.C.C. (3d) 139, at para. 51.

[83]

Sometimes,
    motive is evidenced by human acts. The law of evidence, which chiefly consists
    of exclusionary rules, imposes limits on the extent to which human acts may be
    introduced by the Crown to establish that an accused had a motive to commit the
    crime(s) charged:
Lewis
, at p. 833. See also,
The King v. Barbour
,
    [1938] S.C.R. 465, at p. 470.

[84]

On
    other occasions
animus
or motive may be evidenced by things said,
    either alone or in addition to things done. This includes things said by the
    deceased, reflecting the deceaseds state of mind. These statements may afford
    evidence of the nature of the relationship between a deceased and an accused.
    And the deceaseds state of mind is an item of evidence that may be relevant to
    an accuseds motive:
R. v. Pasqualino
, 2008 ONCA 554, 233 C.C.C. (3d)
    319, at para. 31;
Griffin
, at para. 63. But, once again, the law of
    evidence imposes an admissibility rule which must be satisfied to permit the
    introduction of this evidence.

Evidence of Extrinsic Misconduct

[85]

As
    a general rule, evidence of extrinsic misconduct beyond what is alleged in the
    indictment, which does no more than tarnish the reputation of the person
    charged, is inadmissible. This rule prohibits the use of evidence of (bad)
    character as circumstantial proof of guilt:
R. v. Handy
, 2002 SCC 56,
    [2002] 2 S.C.R. 908, at para. 31;
R. v. G.(S.G.)
, [1997] 2 S.C.R. 716,
    at para. 63. In other words, we do not permit an inference from extrinsic
    misconduct that an accused has a propensity or disposition to do the type of
    acts charged and therefore is guilty of the offence(s) charged. Inherent in admitting
    this evidence is the danger that the jury:

i.

might be confused by a multiplicity of incidents and put more weight
    than is justified on the evidence of extrinsic misconduct (
reasoning
prejudice); or

ii.

might convict on the basis of bad personhood (
moral
prejudice).

See,
Handy
, at para. 31.

[86]

As
    with other rules of admissibility, at its core, this rule is exclusionary.
    Despite its chief work as a rule that keeps evidence out, this canon of
    exclusion yields on occasion to permit the introduction of evidence of
    extrinsic misconduct that is so highly relevant and cogent that its probative
    value in the search for the truth outweighs any potential for misuse:
Handy
,
    at para. 41.

[87]

Evidence
    of extrinsic misconduct may be relevant to an issue in the case:
G.(S.G.)
,
    at para. 63. And among the issues to which evidence of extrinsic misconduct
    which incidentally demonstrates bad character may be relevant is motive:
G.(S.G.)
,
    at para. 64. To gain entry by exception to the general rule of exclusion, the
    law requires something more of the evidence of extrinsic misconduct than mere
    relevance to an issue at trial, such as motive. What it requires is that the
    probative value of the proposed evidence outweigh its prejudicial effect:
Handy
,
    at para. 49;
G.(S.G.)
, at para. 65.

[88]

The
    balancing of probative value, on the one hand, and prejudicial effect, on the
    other, is a task for which trial judges are pre-eminently suited. In the
    absence of any error in law or in principle, any misapprehension of material
    evidence or a decision that is plainly unreasonable, their determination of
    where the balance settles between probative value and prejudicial effect is
    entitled to significant deference on appeal:
R. v. Araya
, 2015 SCC 11,
    [2015] 1 S.C.R. 581, at paras. 31 and 38;
R. v. Shearing
, 2002 SCC 58,
    [2002] 3 S.C.R. 33, at para. 73.

[89]

A
    final point concerns the obligation of a trial judge to provide instructions to
    the jury warning them against the improper use of evidence of extrinsic
    misconduct. No such obligation arises where the basis upon which this evidence
    is received is as evidence relevant to motive:
Salah
, at para. 88;
R.
    v. Holtam
, 2002 BCCA 339, 165 C.C.C. (3d) 502, at paras. 44-45.

The Hearsay Rule

[90]

It
    is commonplace that evidence of the relationship between an accused and the
    deceased in a prosecution for a crime of unlawful homicide may be relevant to
    establish an
animus
or motive on the part of the accused to kill the
    deceased. As we have already seen, evidence of
animus
or motive is
    circumstantial evidence relevant to the issues of identity or participation and
    the mental state that accompanied the killing:
Griffin
, at para. 61;
Candir
,
    at para. 51;
R. v. Moo
, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para.
    98.

[91]

In
    prosecutions for unlawful homicide, motive or
animus
has to do with
    the state of mind of the person charged, not the deceased. But evidence of a
    deceaseds state of mind, contemporaneous with the unlawful killing, may
    provide a link in a chain of reasoning that could support an inference that the
    accused bore the deceased some
animus
or had a motive to kill the
    deceased:
Candir
, at para. 52;
R. v. Foreman
(2002), 62 O.R.
    (3d) 204 (C.A.), at para. 30;
Griffin
, at paras. 65 and 66.

[92]

One
    method of establishing the contemporaneous state of mind of the deceased, and
    thus the
animus
or motive of an accused, is by the introduction
    through a recipient of
ante mortem
statements of the deceased:
Blackman
,
    at para. 31;
Candir
, at para. 55. These statements are evidence of the
    deceaseds state of mind, not that of the accused, and a trial judge should
    instruct the jury accordingly:
Griffin
, at para. 71. That said, the
    connection between a deceaseds state of mind and that of an accused arises by
    virtue of a pre-existing relationship between the two principals. That the
    relationship was acrimonious or that the principals had been involved in a
    dispute in the period leading up to an unlawful killing afford evidence
    relevant to the issue of motive, because such information may afford evidence
    of an accuseds
animus
or intention to act against the deceased:
Griffin
,
    at para. 63.

[93]

It
    is beyond controversy that even where hearsay evidence satisfies the
    requirements of a common law exception or qualifies for reception as necessary
    and reliable, a trial judge retains a discretion to exclude it where its
    prejudicial effect exceeds its probative value:
R. v. Khelawon
, 2006
    SCC 57, [2006] 2 S.C.R. 787, at para. 3. See also,
R. v. Mohan
, [1994]
    2 S.C.R. 9, at pp. 20-21.

Issue Estoppel and the Decision in
Mahalingan

[94]

In
R. v. Mahalingan
, 2008 SCC 63, [2008] 3 S.C.R. 316, Mahalingan was
    charged with attempted murder. A jury convicted him of aggravated assault. The
    central issue at trial was identity. At trial, the principal witness for the
    Crown testified, among other things, that Mahalingan had called him after his
    arrest, apologized and asked him (the witness) not to testify. After the
    attempted murder trial had concluded, Mahalingan was charged with attempting to
    obstruct justice as a result of the telephone call. He was acquitted.

[95]

Mahalingan
    appealed his conviction of aggravated assault. He applied to have this court
    receive evidence of his later acquittal of attempting to obstruct justice as fresh
    evidence. This court allowed the application to introduce fresh evidence,
    allowed the appeal and ordered a new trial. The court concluded that issue
    estoppel operated retrospectively to render the phone call evidence
    inadmissible at the appellants trial on the charge of attempted murder. The
    Supreme Court of Canada dismissed the appeal by the Crown and affirmed the
    order for a new trial.

[96]

The
    Supreme Court of Canada made it clear that not every factual issue resulting in
    an acquittal results in an estoppel at a subsequent trial, but only those
    issues which were expressly resolved or, in light of how the case was argued,
    had to be resolved for an acquittal to result. Provided a particular issue was
    decided in favour of an accused at a previous trial, even if the issue was
    decided on the basis of reasonable doubt, issue estoppel applies:
Mahalingan
,
    at para. 23.

[97]

Issue
    estoppel applies only to
findings
made on a prior trial. In each case,
    the determination of whether an issue was decided at the first trial will be a
    factual issue at the second trial. It follows that, absent the operation of
    some other exclusionary rule, the Crown may lead evidence in a subsequent trial
    relating to issues litigated at an earlier proceeding in two instances:

i.

if the issue was not decided in the accuseds favour in the previous
    proceeding; and

ii.

if the issue
was
decided in the earlier proceeding, but the
    Crown is not seeking to use the evidence to contradict the factual finding on
    that issue at the previous trial.

See,
Mahalingan
, at para. 26.

[98]

In
    each case, the relevant question that requires response is whether the Crown is
    adducing evidence at a second trial which is inconsistent with the factual
    findings in the first trial:
Mahalingan
, at para. 65.

[99]

One
    further point warrants brief mention. The doctrine of issue estoppel does
not
prevent the Crown from leading evidence underlying a prior acquittal to
    establish an accuseds state of mind in connection with another charge, as long
    as the Crown does not seek to contradict the original acquittal:
Mahalingan
,
    at para. 63.

The Principles Applied

[100]

As I will
    explain, I would reject this ground of appeal.

[101]

First, the
    evidence about the attempted murder of Kenneth Mark was relevant and
prima
    facie
admissible at the appellants trial.

[102]

This evidence was
    relevant to proof of motive. The Crowns theory at trial was that the appellant
    shot and killed the deceased in retaliation for the deceaseds having accused
    him of the prior shooting, in breach of the code of silence. Evidence that the
    deceased reported the shooting and that the appellant participated in it
    resulted in the appellant being charged with attempted murder and detained in
    custody prior to trial. This evidence was relevant to show the existence of
animus
between them.
Animus
is a precursor to motive. And in its turn,
    evidence of motive is relevant to help to establish the identity of the
    deceaseds killer and the state of mind with which the killing was done.

[103]

Evidence of
    motive is relevant and thus admissible unless barred by some exclusionary rule.
    The appellant enlists the hearsay and bad character rules and the principle of
    issue estoppel in support of his claim that the evidence about the attempted
    murder should have been excluded. None is availing.

[104]

As I read the
    record, the appellant did not mount a serious challenge to the admissibility of
    various
ante mortem
statements of the deceased when tendered through their
    recipients. The death of the declarant established the necessity requirement.
    And the circumstances in which the statements were made established their
    substantive reliability.

[105]

It is well-established
    that the
ante mortem
statements of a deceased reflective of his or her
    state of mind can assist in proof of a motive on the part of an accused to
    cause the death of the deceased. The connection between the deceaseds state of
    mind evidenced by his
ante mortem
statements and that of the appellant
    arises because of the pre-existing relationship between the two men. That the
    relationship between them was acrimonious, or that they had engaged in a
    dispute in the period leading up to the murder, is relevant to the issue of
    motive because this information may afford evidence of the appellants
animus
or intention to act against the deceased in retaliation. To the extent that a
    deceaseds
ante mortem
statements afford evidence of the nature of the
    relationship between the principals, the deceaseds state of mind is an item of
    evidence relevant to proof of motive.

[106]

Nor do I
    consider that the bad character rule warranted exclusion of the evidence about
    the attempted murder.

[107]

The trial judge
    was cognizant of the potential prejudice of the evidence about the attempted
    murder: its tendency to promote propensity reasoning. His assessment of
    probative value, on the one hand, and prejudicial effect, on the other, is
    entitled to deference. As is his determination of where the balance settled between
    these competing interests.

[108]

In this case,
    the jury knew that the Crown had withdrawn the attempted murder charge on the
    ground that there was no reasonable prospect of conviction. The jurors were
    also instructed that they were not to try or retry the attempted murder charge.
    The trial judge provided clear mid-trial and final instructions explaining the
    purposes for which the evidence about the attempted murder and the deceaseds
ante
    mortem
statements could be, and must not be used in determining the adequacy
    of the Crowns proof. Experienced trial counsel, provided with a draft of the
    proposed instructions in advance of their delivery, never suggested that the
    directives were inadequate to stifle the tendency to propensity reasoning.

[109]

I would not give
    effect to the argument first advanced in this court that the trial judge should
    have directed that the attempt murder evidence be reduced to an agreed
    statement of facts to minimize any inherent prejudice caused by its
    introduction.

[110]

The solution
    adopted by the trial judge  to have the evidence given in summary form, rather
    than in painstaking detail  was practical and designed to keep the issues the
    jury was required to decide in focus. It ensured that the sideshow did not take
    over the main stage.

[111]

It is worthy of
    reminder that not only was this proposed manner of proof not suggested by
    experienced trial counsel, but also that it is inconsistent with the position
    advanced at trial. There, the appellant sought to demonstrate, by his own
    testimony, that he had no part in the previous shooting of Kenneth Mark and had
    been wrongly accused of it.

[112]

Further, the
    doctrine of issue estoppel created no bar to the admissibility of the evidence
    of the attempted murder. I reach this conclusion for essentially three reasons.

[113]

First, the
    doctrine prevents the Crown from leading evidence which is inconsistent with
    findings made in a previous trial, whether those findings were expressly made
    in an accuseds favour or resolved on the basis of reasonable doubt. Issue
    estoppel applies only to
findings
made on a prior trial.

[114]

Findings are
    made by triers of fact. The stuff of which findings are made is evidence. But
    the appellant had no trial. There was no evidence. There was no trier of fact,
    hence no findings of fact because the charge was withdrawn.

[115]

Second, issue
    estoppel requires that the parties in both proceedings be the same. This
    forecloses the appellants alternative reliance on the proceedings against J.B.
    as a basis upon which to invoke the doctrine.

[116]

Third, the evidence
    was not adduced to re-litigate or contradict the factual findings at the first
    trial, rather as relevant to the appellants state of mind at the time of the
    second offence. The relevance of the evidence to establish motive was not
    dependent on contradiction of any factual finding that could be teased out of
    the withdrawal at the first trial.

[117]

The first ground
    of appeal fails.

Ground #2: The Admissibility of Live from the Don

[118]

This ground of
    appeal contests the admissibility of a single rap lyric selected by the Crown
    from a composition authored by the appellant entitled Live from the Don,
    referring to the Don Jail in Toronto. Some additional background is essential
    to an understanding of how the rap lyric came to be tendered and admitted as
    evidence at trial.

The Additional Background

[119]

While in custody
    after the preliminary inquiry, the appellant recorded a four-part rap on the
    telephone, then uploaded it to a website. The post was accompanied by the
    heading: Listen: Ammo  Live from the Don PT.1. The introduction described
    it as a poetic presentation of some of the raw realities within the don jail.
    It was posted to the website after the preliminary inquiry but prior to the
    trial.

The Admissibility Hearing

[120]

Partway through
    the trial, the Crown became aware of the posting of Live from the Don on the
    website and sought a ruling on the admissibility of a single lyric from the
    composition: Real niggaz dont crack to the coppers, muthafucka.

[121]

The trial Crown
    argued that this lyric was relevant to and probative of a motive for murder. It
    demonstrated that the appellant subscribed to the code of silence. Kenneth Mark
    broke the code of silence when he identified J.B. and the appellant as the
    persons responsible for his earlier shooting. In retaliation for this breach,
    the appellant shot and killed the deceased to enforce the code of silence.

[122]

Trial counsel
    for the appellant resisted the admission of the evidence. The lyric, he
    submitted, was evidence of bad character, thus
prima facie
inadmissible
    at the instance of the Crown. To gain entry the probative value of the evidence
    had to exceed its prejudicial effect, but failed to do so. Even if one were to
    accept that the lyric was relevant and could not be considered evidence of bad
    character, its prejudicial effect outweighed its probative value and thus
    required its exclusion.

The Ruling of the Trial Judge

[123]

The trial judge
    was satisfied that the evidence of the lyric was relevant since it tended to
    establish motive by its reference to the code of silence and supported an
    inference that the appellant believed in that code. This dovetailed with the
    theory of the Crown that the killing was in retaliation for Kenneth Marks
    breach of the code of silence. The lyric demonstrated the possible belief of
    the appellant in that code which, in turn, rendered it more likely that he
    would enforce it in the manner alleged. What is more, there was a close
    temporal nexus between the lyric and the killing.

[124]

The trial judge
    then balanced the probative value of the evidence against its prejudicial
    effect. Its probative value resided in its relevance to proof of motive. As for
    prejudicial effect, the trial judge did not consider the lyric to be evidence
    of bad character. At all events, any drift towards propensity reasoning could
    be curtailed by an injunction against it in mid-trial and final jury
    instructions. Probative value predominated and warranted admission of the
    evidence.

[125]

The trial judge
    invited further submissions from counsel about the manner in which the evidence
    could be presented to the jury.

The Post-Ruling Approach at Trial

[126]

In her
    case-in-chief, the trial Crown adduced the single lyric that the trial judge
    had ruled admissible on the
voir dire.
In addition, the Crown elicited
    evidence from a police officer who was qualified as an expert in the
    interpretation of urban street language and the prevalence of the code of
    silence in various communities.

[127]

After the trial
    judge had ruled the single lyric proposed for reception by the Crown
    admissible, defence counsel took the position that the first three parts of
    Live from the Don should be played for the jury and filed as an exhibit to
    provide essential context for the lyric on which the Crown relied. The trial
    judge acceded to this request.

The Appellants Response

[128]

The appellant
    testified that he had been involved in rap music since he was ten years old. He
    was 21 when he gave evidence at trial. He adopted the nickname Ammo because
    of his lyrical ammunition and used it as his stage name. He had been involved
    in rap programs and workshops in different Canadian cities. He described
    himself as a talented performer, a real rapper who took his music seriously and
    considered rap his career.

[129]

During his examination-in-chief,
    defence counsel took the appellant through the lyrics in detail. The appellant
    explained their meaning. He told the jury that Live from the Don was not
    about his feelings, rather painted a vivid picture of the Don Jail environment.
    The appellant said the lyric Real niggaz dont crack to the coppers, muthafucka
    did not refer to the code of silence. Rather, it meant that real inmates dont
    open up to correctional officers and ask to leave the unit to which they may
    have been assigned.

[130]

During his
    testimony, the appellant agreed that the code of silence existed both in jail
    and in his community. He acknowledged that Kenneth Mark breached the code of
    silence by telling the police about the prior shooting. The appellant admitted
    that he followed the code of silence, but denied that he enforced it.

The Arguments on Appeal

[131]

The appellant
    contends that the trial judge erred in admitting as evidence the lyric tendered
    by the Crown. The error consisted of a flawed assessment and balancing of the
    probative value and prejudicial effect of the evidence.

[132]

The appellant submits
    that the trial judge erred in his assessment of probative value in three
    respects.

[133]

The trial judge,
    the appellant says, gave insufficient consideration to the context in which the
    words were spoken. These words were an artistic expression, not an admission,
    and should not have been treated as if they were a statement made to or in the
    presence of another.

[134]

Further, while
    it is true that the trial judge recognized that the words may not have
    reflected the appellants personal views, the judge characterized this
    possibility as an issue for the jury to consider, rather than, as it should
    have been, a circumstance undermining the probative value of the evidence.

[135]

In addition, the
    appellant continues, the trial judge erred in failing to consider the probative
    value of the single lyric in light of the record as a whole. This evidence was
    largely redundant. After all, the history between the principals and the expert
    evidence supported a ready inference that the appellant subscribed to the code
    of silence. But, more importantly, this evidence lacked probative value on the
    essential issue, which was
not
whether the appellant believed in the
    code of silence, but whether he enforced it.

[136]

Further, the
    appellant contends, the trial judge undervalued the prejudicial effect of the
    evidence. The lyric encouraged a positive response to the question of whether
    the appellant enforced the code of silence through violence and did so by
    disposition reasoning informed by racial stereotypes. The trial judge wholly
    failed to appreciate the substantial risk that the jury would give effect to
    the bias that rap is the language of young black criminals. The risk was accentuated
    by the prominence of rap in the evidence of the appellant and the emphasis upon
    it in the closing address of the trial Crown.

[137]

The appellant
    concludes with a submission that evidence of rap lyrics should only be admitted
    where there is a concrete nexus between the specific details of the lyrics and
    those of the crime.

[138]

The respondent
    rejects the claims of error advanced by the appellant. The trial judge
    appreciated and properly analysed the essential components of the balancing
    exercise in which he was engaged: probative value, on the one hand, and
    prejudicial effect on the other. In balancing these interests, the trial judge
    applied the proper principles and took into account the concerns now said to
    have been left out of his analysis.

[139]

At the outset,
    the respondent reminds us that the trial judges assessment of probative value
    and prejudicial effect, as well his determination of where the balance settled
    between them, is entitled to significant deference in this court, absent any
    error of law or of principle, any misapprehension of the evidence or a
    conclusion that is plainly unreasonable, factors absent here.

[140]

In his
    assessment of the probative value of the evidence, the respondent says, the
    trial judge appreciated that the rap lyric upon which the Crown relied may not
    represent the appellants views. But that was an inference for the jury to draw,
    if they wished to do so, not something that extinguished or diminished the
    probative value of the evidence in the first place.

[141]

According to
    the respondent, the trial judges approach to an assessment of probative value
    was consistent with his gatekeeper role to ensure that evidence introduced
    before the jury was worthwhile for them to consider in reaching their verdict. Among
    other things, the trial judge considered the content of the lyrics and their reference
    to the code of silence, as well as their temporal and causal nexus to the
    appellants custody and that the appellant was their sole author. The probative
    value of the evidence was not diminished simply because other evidence tended
    to show the appellants adherence to the code of silence and supported an inference
    that subscribers tend to enforce a code to which they subscribe. Besides, at
    the time of the admissibility ruling there was no direct evidence that the
    appellant subscribed to the code.

[142]

The respondent
    also supports the trial judges assessment of the prejudicial effect of this
    evidence. The lyrics themselves do not reflect badly on the appellants
    character. After all, for the most part at least, the lyrics were about
    conditions at the Don Jail  none of which were the responsibility of the
    appellant. The trial judge considered the risk that the evidence would foster
    impermissible propensity reasoning and concluded, as he was entitled to do,
    that mid-trial and final instructions warning jurors of this impermissible use
    of the evidence would curtail any prohibited reasoning. This conclusion was
    consistent with prevailing authority.

[143]

In the
    alternative, the respondent urges us to dismiss the appeal on the basis that,
    even if the lyrics were wrongly admitted into evidence, their reception caused
    the appellant no substantial wrong or miscarriage of justice.

The Governing Principles

[144]

In the absence
    of any specific rule of admissibility governing the reception of evidence of
    rap lyrics in a criminal trial, as well as any argument inviting the creation
    of such a bright-line rule, its reception at trial depends upon its relevance,
    materiality and compliance with any applicable rule of admissibility.

[145]

The threshold
    for relevance is not rigorous. To decide whether an item of evidence is
    relevant, a judge must determine whether, as a matter of human experience and
    logic, the existence of particular fact, directly or indirectly, makes the
    existence (or non-existence) of a material fact more probable than it would be
    without the evidence. That a single item of evidence may give rise to different
    or competing inferences does not warrant its exclusion for want of relevance:
Candir
,
    at para. 48.

[146]

The governing
    substantive and procedural law, together with the allegations contained in the
    indictment, determine whether evidence is material:
Candir
, at para.
    49. As we saw in connection in with the first ground of appeal, evidence of
    motive is material.

[147]

Among the rules
    of admissibility is the rule that excludes evidence tendered by the Crown of an
    accuseds extrinsic misconduct, bad character or disposition as circumstantial
    evidence of guilt. This rule of presumptive inadmissibility prevails unless the
    Crown is able to demonstrate, on a balance of probabilities, that the probative
    value of the evidence exceeds its prejudicial effect:
R. v. Hart
,

2014
    SCC 52, [2014] 2 S.C.R. 544, at para. 73;
Handy
, at para. 41.

[148]

A second
    admissibility rule  the hearsay rule  excludes out-of-court statements
    offered to prove their truth:
R. v. Bradshaw
, 2017 SCC 35, 349 C.C.C.
    (3d) 429, at paras. 1 and 20. But like other rules of admissibility, the hearsay
    rule also permits the introduction of what is presumptively inadmissible by
    exception, as for example where the evidence meets the requirements of a
    defined exception, or where the evidence is both necessary and reliable:
Bradshaw
,
    at paras. 22-23.

[149]

Among the list
    of exceptions to the hearsay rule are admissions made by a party. These are
    received as an incident or product of the adversary system when tendered by the
    opposite party. Reception of admissions is rooted in the belief that what a
    party has previously stated can be admitted against the party in whose mouth it
    ill lies to complain of the unreliability of his or her own statement:
Hart
,
    at para. 63;
R. v. Evans
, [1993] 3 S.C.R. 653, at p. 664.

[150]

Although not one
    of the great exclusionary canons of the law of evidence, like hearsay, opinion
    and bad character, it is well-established that a trial judge has a discretion
    to exclude evidence which would, if admitted, cause an unfair trial. This is so
    because as a matter of general principle, not to mention constitutional
    entitlement, every person accused of a crime is entitled to a fair trial. This
    entitlement cannot be entirely reduced to specific rules:
Hart
, at para.
    88;
R. v. Harrer
, [1995] 3 S.C.R. 562, at para. 23. As a result, trial
    fairness may require exclusion of evidence in an exceptional case even where no
    specific exclusionary rule would do so.

[151]

We also recognize
    that a trial judge has a discretion to exclude evidence that is relevant,
    material and otherwise admissible where the impact of the evidence on the trial
    process  the
cost
of introducing the evidence  exceeds the value of
    the evidence  the
benefit
of introducing the evidence  to the
    correct disposal of the litigation. The prejudicial effect of the evidence may
    overwhelm its probative value. Introduction of the evidence may involve a
    significant expenditure of time, not commensurate with the value of the
    evidence. The evidence may mislead because its effect on the trier of fact,
    especially a jury, may be disproportionate to its reliability:
Candir
,
    at para. 59;
R. v. Mohan
, [1994] 2 S.C.R. 9, at pp. 20-21;
Khelawon
,
    at para. 3.

[152]

Consideration of
    this exclusionary discretion involves the exercise of a gatekeeper function,
    the purpose of which is to ensure that any evidence that is introduced before
    the trier of fact is sufficiently reliable to warrant consideration in the
    determination of guilt:
White Burgess Langille Inman v. Abbott and
    Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24.

[153]

An assessment of
    the probative value of evidence tendered for reception involves more than a
    routine inquiry into its relevance. Some weighing of the evidence is involved.
    Since the term probative means tending to prove an issue, a trial judge
    engaged in a determination of probative value cannot ignore defects in the
    evidence during this assessment. As a general rule, what this weighing exercise
    requires will vary according to the specific inferences sought to be drawn from
    the piece of evidence:
Hart
, at para. 95.

[154]

It is worthy of
    emphasis that in conducting this weighing exercise, a trial judge is only
    deciding the threshold question of whether the evidence is worthy of being
    heard by the jury, not the ultimate question of whether the evidence should be
    accepted and acted upon by the jury:
Hart
, at para. 98. In this
    respect, the probative value analysis has parallels to the reliability analysis
    conducted under the principled exception to the hearsay rule. In some
    circumstances, as with the substantive reliability analysis under the principled
    exception to the hearsay rule, the circumstances in which a statement was made
    may be a relevant consideration in an assessment of its probative value:
Hart
,
    at paras. 101-102.

[155]

An assessment of
    the prejudicial effect of an item of evidence may involve consideration of
    factors such as whether the proposed evidence can be adequately tested in the
    trial process and whether, if admitted, it would threaten or compromise trial
    fairness, create a real risk of jury misuse or elude an informed assessment of
    its probative worth:
R. v. Frimpong
, 2013 ONCA 243, 1 C.R. (7th) 242,
    at para. 18.

[156]

For the most
    part, judicial experience in assessing probative value and prejudicial effect,
    and determining where the balance settles when one is counterpoised against the
    other, involves evidence of things done or said from which something about the
    actors or speakers state of mind can be reasonably inferred. But artistic
    expression is different in the sense that simply because an author has chosen
    to write about certain topics, it may not be reasonable to infer that he or she
    holds or acts in accordance with those views:
State v. Skinner
, 218
    N.J. 496, at pp. 520-521 (2014). It logically follows that we ought not to be
    too ready to embrace lyrics as a basis upon which to infer a particular state
    of mind in their author.

[157]

In
Skinner
,
    the New Jersey Supreme Court held that violent, profane and disturbing rap
    lyrics written by the accused prior to his indictment on a charge of attempted
    murder constituted highly prejudicial and thus inadmissible evidence. The
    decision in
Skinner
points out the difficulty in identifying probative
    value in fictional or other forms of artistic self-expression.

[158]

In
R. v.
    Simard
(2000), 151 C.C.C. (3d) 290 (Que. C.A.), a compact disc was filed
    as an exhibit at trial. The cover of the disc displayed a photo of the
    appellant. The Crown sought to use the cover, including the photo, to contradict
    two defence witnesses, one of whom was the appellant, on certain statements
    each had made. Either during the trial or later before rendering judgment, the
    trial judge listened to the disc and, in some manner or other, made use of
    lyrics he heard about violence and attacks on women in concluding that the
    Crown had proven the appellants guilt beyond a reasonable doubt.

[159]

A majority of
    the Quebec Court of Appeal found that the trial judge made an unusual use of
    the [lyrics of violence] and attacks against women uttered by the appellant in
    his songs, but was satisfied that this use did not play a conclusive role in
    the finding of guilt. The majority dismissed the appeal. Fish J.A., as he then
    was, dissented. He pointed out that the compact disc was not filed for the
    purpose for which the judge used it. Further, the content of the disc was not
    subject to cross-examination or the submissions of either party. He considered
    the lyrics propensity evidence that was patently inadmissible. As a result,
    Fish J.A. would have allowed the appeal, set aside the conviction and ordered a
    new trial.

[160]

A further appeal
    to the Supreme Court of Canada was dismissed substantially for the reasons of
    the majority in the Quebec Court of Appeal:
R. v. Simard
, 2000 SCC 61,
    151 C.C.C. (3d) 289.

The Principles Applied

[161]

As I will
    explain, I would reject this ground of appeal.

[162]

I approach my
    determination of this issue in a series of steps relying on well-established
    principles of the law of evidence.

[163]

First,
relevance
.

[164]

The case for the
    Crown was that the fatal shooting of Kenneth Mark was a retaliatory killing.
    Kenneth Mark was killed because he told police that J.B. and the appellant were
    the persons responsible for his prior shooting. This violated the code of
    silence and resulted in the arrest, incarceration and prosecution of J.B. and
    the appellant. When proceedings terminated favourably for both J.B. and the
    appellant, it was their turn to enforce the code of silence.

[165]

The relevance of
    an item of evidence is determined by reference to the context of the entire
    case and the positions of the parties. This standard is a modest one: whether,
    as a matter of human experience and logic, the existence of a particular fact
    directly or indirectly makes the existence of a material fact slightly more
    probable than it would otherwise be.

[166]

In this case,
    the specific lyric proposed for reception could be interpreted as describing
    the code of silence. As the sole author of the lyric, it was a reasonable
    inference that the appellant was aware of the code of silence. Knowledge may
    support an inference of belief, and belief, of enforcement. This evidence complements
    the more general evidence of the expert witness and brings it to the
    appellants doorstep.

[167]

A final point
    about relevance. Experienced counsel who appeared for the appellant at trial
    did not suggest that the lyric should be excluded on the basis of lack of
    relevance.

[168]

Second,
materiality.

[169]

Retaliation for
    a perceived wrong may provide a motive for a crime. Evidence of motive assists
    in proof of authorship of a crime, as well as of the mental state that
    accompanied it. In this case, evidence of the rap lyrics assisted in proof of
    the appellants retaliatory motive for killing Kenneth Mark. As a result, the
    evidence was material.

[170]

Third,
admissibility.

[171]

In the absence
    of any deficits in relevance and materiality, it becomes necessary to consider
    whether any exclusionary rule is engaged and requires satisfaction of an
    exception to permit reception of the evidence.

[172]

At trial,
    counsel for the appellant took the position that the lyrics were evidence of
    bad character, thus
prima facie
inadmissible when tendered by the
    Crown in proof of guilt. The trial judge rejected this submission. And so would
    I.

[173]

The rap lyrics
    did not reveal the appellant as a person who had committed other crimes, or who
    had participated in other disreputable conduct apt to support a conclusion that
    he had a propensity or disposition to do the type of acts charged and was
    therefore guilty of the offence charged. Nor did the lyrics refer to other
    incidents likely to cause confusion in the minds of jurors. The lyrics reflected
    a state of mind, not an unrelated course of conduct. They were largely
    concerned with conditions in a detention centre and the conduct of the persons
    confined there.

[174]

To the extent
    that the lyrics are considered an out-of-court statement tendered to prove the
    truth of its contents, it becomes necessary to consider whether evidence of the
    lyrics falls within the exclusionary reach of the hearsay rule or qualifies for
    admission under a listed or the principled exception.

[175]

The trial judge
    was satisfied that the lyrics fell within the admissions against interest
[1]
exception to the hearsay rule. As is well known, that exception is a function
    of the adversary system. The admissibility of admissions rests on the theory of
    the adversary system that what a party has previously stated can be admitted
    against the party in whose mouth it does not lie to complain of the
    unreliability of his or her own statements:
Evans
,

at p. 664.

[176]

I agree with the
    trial judge that the admissions exception can provide a basis upon which to
    remove the hearsay rule as a bar to the admissibility of the lyrics contained
    in Live from the Don.

[177]

In the end, the
    admissibility of the rap lyrics fell to be determined by a balancing of their
    probative value against their prejudicial effect. The trial judge undertook
    this analysis. He concluded that probative value prevailed over prejudicial
    effect and admitted the evidence.

[178]

As a general
    rule, a trial judges assessment of probative value, prejudicial effect and
    where the balance settles between them is entitled to deference when challenged
    on appeal. But deference gives way when it is made to appear that the judge
    erred in principle, considered an irrelevant factor, failed to consider a relevant
    factor or reached a conclusion that was plainly unreasonable.

[179]

After thorough consideration,
    I am satisfied that the trial judges probative value versus prejudicial effect
    analysis is flawed such that his conclusion is not entitled to deference in this
    court.

[180]

First, the trial
    judge failed to consider the nature of the evidence as a factor in assessing
    its probative value, thus its admissibility.

[181]

The evidence the
    Crown tendered for admission was a lyric, a single lyric in a lengthy musical
    composition. The composition focused on inmate life in a pre-trial detention
    facility. Leaving aside the lyric on which the Crown proposed to rely, the rest
    of the composition was irrelevant as far as the issues at trial were concerned.
    It was not a typical admission, something said to or in the presence of another
    called as a witness to repeat it for the jury as evidence of its truth.

[182]

The lyric was also
    a form of artistic self-expression. Unlike the typical case involving
    admissions, we cannot infer, much less presume, that simply because an author
    has chosen to write or speak about a certain topic, she or he has acted in
    accordance with its terms. And so it is that, in my respectful view, the nature
    of the evidence  a form of artistic self-expression  is a factor a trial
    judge should consider in assessing its probative value.

[183]

In this case,
    the trial judge considered that the nature of the evidence was a factor for the
    jury to consider in assessing the weight it would assign to the evidence. I do
    not gainsay that conclusion. But that it may be a relevant factor for the trier
    of fact to consider in assessing the weight it will assign to the evidence, as
    we have seen elsewhere, does not deny it a place in the determination of
    admissibility: see
White Burgess
, at para. 45.

[184]

Second, in
    assessing the prejudicial effect of the evidence, the trial judge considered
    that the appellant could counter the inference that he believed in and would
    enforce the code of silence by testifying to that effect in his own defence. I
    am not persuaded that the availability of a testimonial response from an
    accused is a proper consideration in assessing the prejudicial effect of
    evidence tendered by the prosecution. The same response could be offered in
    respect of other evidence with a potential for significant prejudice, such as
    evidence of similar acts or other extrinsic misconduct, but has played no role
    in the admissibility determination in those cases.

[185]

Given these
    errors, it falls to this court to consider afresh the issue of admissibility based
    on the same record that was before the trial judge.

[186]

Turning first to
    the probative value of the evidence. Recall that experienced trial counsel for
    the appellant acknowledged that this evidence had probative value on the basis
    advanced by Crown counsel.

[187]

In this case,
    there was a significant nexus between the lyrics tendered for admission and the
    offence with which the appellant was charged.

[188]

Temporally, the
    composition was recorded and uploaded while the appellant was in custody
    awaiting trial. The preliminary inquiry had concluded. It is a reasonable
    inference that the appellant learned there, if not before, that the Crown
    alleged that he murdered Kenneth Mark in retaliation for Marks implication of
    him and J.B. in the prior shooting.

[189]

But the nexus was
    not simply a matter of timing. There was also a causal link. The lyric
    expressed the code of silence. It was open to an inference that the appellant,
    as its composer, knew about the code. Knowledge of the code may support an
    inference of belief in it, and belief may support an inference of enforcement
    in response to a breach. These need not be the only inferences available for
    the evidence to have probative value.

[190]

As a matter of
    artistic expression, Live from the Don was neither autobiographical nor fictional.
    It was a biographical description of inmate life in the Don Jail. That the
    overwhelming majority of the entire composition discussed subjects that were
    irrelevant to the issues at trial does not diminish or otherwise sully the
    probative value of the lyric relied upon by the Crown.

[191]

In evaluating
    the prejudicial effect of this evidence, it is significant that the lyric does
    not describe or otherwise support an inference of extrinsic misconduct by its
    author. In other words, it does not lug into the minds of jurors the commission
    of other crimes or engagement in disreputable conduct apt to foster moral and
    reasoning prejudice.

[192]

In addition, as
    a prophylactic against any incidental prejudice, the trial judge provided
    careful limiting instructions. He reminded jurors that the lyrics were a form
    of artistic expression and may not represent the belief of the appellant.

[193]

The trial judge
    instructed the jury:

The Crown relies on one particular line of lyrics from this rap
    song in an effort to show that Mr. Skeete was aware of and believed in the code
    of silence. Mr. Skeete has told you those lyrics have nothing to do with the
    code of silence but describe how real inmates do not move to different ranges
    just because they may have an issue on the range where they are housed.

You should consider these lyrics in the context of the rap song
    as a whole. The whole of the recording is given to you so that you can
    understand how the lyrics that the Crown identifies fit within the overall
    recording.

You may be offended by some of the contents of the rap song,
    but you must not let that influence your consideration of this evidence nor
    should you use the rest of the contents of the rap song to decide, or help you
    decide, that Mr. Skeete is the sort of person who would commit the offence
    charged.

You should also consider the significance of these lyrics in
    the context of how they were made, that is, this is not a normal statement made
    by one person to another but rather is a performance in Mr. Skeetes role as a
    rap artist. You may decide that Mr. Skeete is advocating a particular point of
    view or you may accept his explanation for the meaning of the lyrics or you may
    conclude that the lyrics do not assist you one way or the other. It is entirely
    up to you to decide.

You may give anything that Mr. Skeete said in this rap song as
    much or as little importance as you think it deserves in deciding this case. It
    is for you to say. Anything that Mr. Skeete said, however, is only part of the
    evidence in this case. You should consider it along with and in the same way as
    all of the other evidence.

[194]

The trial judge
    also explained that the jurys decision must be founded on evidence, not bias
    or prejudice. Experienced trial counsel, provided with an advance copy of the
    proposed charge, did not seek any amplification of the draft instructions.

[195]

In the result, I
    am satisfied that the trial judge properly admitted the evidence of the rap
    lyric.

Ground #3: Errors in the
    Closing Address of the Crown

[196]

The third ground
    of appeal alleges errors in the closing address of the trial Crown and further
    error by the trial judge in failing to correct these errors in his charge to
    the jury. The alleged errors have to do with the evidentiary significance of
    the appellants late disclosure of his alibi for the time of the shooting and
    of lies told by two Crown witnesses at trial.

[197]

Some further
    background is necessary to situate these complaints in their proper setting.

The Alibi Issue

[198]

In giving
    evidence at trial, the appellant testified that S.M. picked up him and D.L.K.
    near the Islington subway at about 7:40 p.m. on December 29, 2009 and dropped
    them off at a tattoo parlour near Keele and Dundas. The appellant entered the
    shop around 8:30 p.m. and spoke to the owner about getting a new tattoo.
    Meanwhile, S.M., who was a drug dealer, drove off to purchase more drugs from
    his supplier.

[199]

According to the
    appellant, the owner of the tattoo parlour told him that there was not enough
    time before closing for a new tattoo. The appellant settled for a touch-up of
    an existing tattoo by another artist and signed a waiver which he produced at
    trial. The waiver was dated December 29, 2009, but contained no entry about
    when it was signed on that day.

[200]

The owner of the
    tattoo parlour contradicted the evidence of the appellant. He explained that
    this was a temporary location for his business and would have closed at 7 p.m.
    on that day. The owner gave this evidence from memory without the assistance of
    business records, and was unable to say whether a freelance artist had been on
    the premises later that evening.

[201]

The appellant
    testified that he and D.L.K. left the tattoo parlour at about 9 p.m. They
    walked across the street to Galaxy Donuts where they waited for S.M. to return
    from his drug purchase to pick them up so that the appellant could be home in
    time for his 10 p.m. curfew. The appellant claimed that his cellphone died at
    9:29 p.m. while he was waiting for S.M. at Galaxy Donuts.

[202]

At around 9:40
    p.m., with no sign of S.M., the appellant and D.L.K. went outside to call a
    cab. S.M. came by, running. He said he had seen someone get shot. All three got
    into S.M.s car and left the area.

[203]

Cellphone
    records filed at trial confirmed that the appellants cellphone was in an area
    that included both Galaxy Donuts and the place where Kenneth Mark was shot to
    death from 8:40 to 9:29 p.m. on December 29, 2009. The appellants phone was in
    the area of his home at 9:59 p.m.

[204]

S.M. testified
    that he drove home alone from the area of Keele and Dundas.

The Jury Addresses on Alibi

[205]

Defence counsel
    addressed the jury first. He acknowledged that prior to giving evidence at
    trial, the appellant had not disclosed his presence at Galaxy Donuts to the
    police or to the Crown. Counsel submitted that the appellant was then 19 years
    old and did not think his presence at the tattoo parlour or Galaxy Donuts were
    important events, so he told nobody about them.

[206]

The trial Crown
    invited the jury to find that the appellant had not been at the tattoo parlour
    because the owner had testified that the business closed at 7 p.m. The Crown
    argued that the alibi was advanced to account for the presence of the
    appellants cellphone in the area where the murder occurred. The alibi was not corroborated
    by any other witness or evidence. If it were true, the appellant would have
    disclosed it and collected evidence in support of his claim. Earlier disclosure
    would have permitted police to collect video surveillance evidence and
    interview the tattoo shop owner to confirm or refute the claim. The Crown urged
    the jury to reject the alibi and find that the appellant was at the murder
    scene as the cellphone records confirmed.

The Charge to the Jury

[207]

In his charge to
    the jury, the trial judge characterized the alibi as involving the appellants
    presence at Galaxy Donuts at the time of the shooting. He instructed the jury
    in accordance with the principles laid down in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742 and
R. v. Parrington
(1985), 20 C.C.C. (3d) 184 (Ont.
    C.A.). On the evidentiary significance of late disclosure of the alibi the
    trial judge said:

In considering Mr. Skeetes evidence on this point, you will
    want to consider that Mr. Skeete did not, by his own admission, tell anyone
    about being in the doughnut shop until very recently. You will remember that he
    said that he did not view it as important, and that is why he did not tell
    anyone. As a consequence, Mr. Skeetes explanation could not be investigated by
    the police. You may conclude that there was not much by way of an investigation
    that the police could have undertaken, even if the explanation had been
    disclosed at an early time. Nevertheless, you are entitled to consider the
    failure to disclose this explanation at an early stage in assessing Mr. Skeetes
    evidence in this regard.

The Lying Witnesses/False Evidence Issue

[208]

This complaint
    relates to the testimony of two witnesses, B.I. and S.M. Each testified on
    behalf of the Crown. In each case, their credibility and the reliability of
    their evidence was challenged on various grounds. Both parties sought to distance
    themselves from the evidence of B.I. and S.M., albeit for different reasons.

[209]

B.I. gave
    evidence about obtaining the gun that was used to kill Kenneth Mark along with
    a silencer for the weapon. He claimed that when he was 15 years old he bought
    the gun from a man he knew as Kush at a bus stop as he made his way to school
    one day. He got the silencer from Flex. Two days after the murder, the gun
    and the silencer were found in the cold air return at B.I.s home. He denied
    having received the gun and silencer from the appellant during a brief meeting
    in an alley shortly after the deceased was killed.

[210]

Shortly after
    the appellants arrest, B.I. posted on his Facebook page Freee Da Niggs Pullin
    On Da Triggs. The same page contains a reference to Free Tha S.T. Famolay - Ammo,Dego,Retro.

[211]

S.M. described
    the appellants whereabouts on the night of December 29, 2009. He contradicted
    the appellants claim that he (S.M.) drove him (the appellant) and D.L.K. home
    after he (S.M.) had seen the shooting.

The Addresses of Counsel

[212]

Defence counsel
    told the jury that B.I. lied about buying the gun and silencer from Kush and
    Flex. They were fictitious characters invented by B.I., who did not want to
    identify his source. This was part of the culture or code of silence. Counsel
    reminded the jury that their rejection of B.I.s evidence about the source of
    the firearm and silencer afforded no evidence and did not permit them to
    conclude that B.I. got the gun from the appellant and hid it to prevent its
    discovery by the police and connection to the appellant.

[213]

Defence counsel
    acknowledged that S.M. was an admitted liar whose falsehoods seriously
    compromised his credibility. That said, counsel submitted, these deficiencies
    were in no way evidence of the appellants guilt.

[214]

The trial Crown
    argued that B.I. lied about the circumstances in which he came into possession
    of the gun and silencer. Kush and Flex did not exist. B.I. hid the gun and
    silencer to protect his friends, as evidenced by his Facebook posts referring
    to Ammo (the appellants rap name) as Famolay and his statement Freee Da
    Niggs Pullin On Da Triggs.

[215]

The trial Crown
    agreed that S.M.s credibility was seriously compromised, but invited the jury
    to find that he had told the truth when he claimed not to have picked up the
    appellant and D.L.K. after the shooting. This statement was true because, as
    the Crown argued, no such rendez-vous occurred.

The Instructions of the Trial Judge

[216]

The trial judge
    gave what has become a standard instruction to jurors about how to assess
    evidence in their fact-finding exercise. Among other factors jurors were told
    to consider, in determining whether to believe some, none or all of a witness
    evidence, were the honesty of the witness and whether the witness had any
    reason to favour one side or the other in his or her testimony.

[217]

Defence counsel
    sought an instruction that put some distance between the falsehoods of B.I. and
    S.M. and the credibility of the appellant. The trial judge included the
    following instructions:

Members of the jury, you know that [B.I.] was questioned on the
    contents of his Facebook page. In particular, he was questioned about the
    appearance of the nicknames Ammo, Dego and Retro that appeared on his page.
    He was also questioned about a specific phrase, Free da Niggs that pulled da
    Trigs. [B.I.] said that this was a rap lyric that he liked, and that is why he
    put it on his Facebook page.

You may use the contents of the Facebook page in your
    evaluation of [B.I.]s evidence and which parts of it you may believe or not
    believe. You must not, however, use the comments that [B.I.] put on his
    Facebook page as evidence that Mr. Skeete is guilty of the offence with which
    he is charged. Mr. Skeete cannot be held responsible for what someone else
    posts on a Facebook page over which he has no control.

Before concluding my instructions, I want to say one other
    thing about the evidence in this case. As frequently happens in criminal
    proceedings, you have heard evidence about events that would naturally disturb
    all of you. You have heard that Kenneth Mark was killed, by a single gunshot to
    the back of the head, possibly only as a result of him cooperating with the
    police in investigating his own earlier shooting. You have also heard from some
    witnesses who were not particularly cooperative and who you may conclude were
    not willing to be honest and open with us by telling us what they really did
    and saw. It would be a natural reaction for each of you to be both troubled and
    saddened at the violent and tragic death of Kenneth Mark and perhaps to be
    frustrated at the manner in which some witnesses conducted themselves at this
    trial.

Nevertheless, I want to repeat what I said to you before, and
    that is that you must approach your deliberations objectively and
    dispassionately. Your function is not to express forgiveness or condemnation in
    this case. You must not visit any frustration you may have with the conduct of
    some of the witnesses on Mr. Skeete or use it to decide, or help you decide,
    that Mr. Skeete is guilty of the offence.

Rather, your task is to determine the facts in this case and,
    based on the facts as you find them and the law as I have explained it to you,
    to determine whether the Crown has proven the guilt of Lamar Skeete beyond a
    reasonable doubt with respect to the offence with which he is charged. It is
    only in that way that you will be assured of arriving at a fair and just
    verdict in this case.

The Arguments on Appeal

[218]

The appellant
    says that the trial Crowns closing address cast the accuseds failure to
    disclose his alibi in sufficient time to permit its investigation as after-the-fact
    conduct supporting an inference of guilt. This imposed an obligation on the
    trial judge to correct this misstatement of the law. The failure of the trial
    judge to do so constitutes a legal error. The late alibi instruction was
    generally unobjectionable on its face, but may have left the jury with the
    mistaken impression that they were entitled to infer the appellants guilt from
    his silence about his alibi.

[219]

According to the
    appellant, the trial judge further erred in failing to correct the trial
    Crowns submission that B.I. and S.M. lied to protect the appellant. There was
    no evidence upon which the jury could find a connection between the appellant
    and the admittedly false testimony of the Crown witnesses, B.I. and S.M.

[220]

The respondent
    denies that the trial Crown invited the jury to draw an inference of guilt from
    late disclosure of the alibi. For his part, the trial judge properly charged
    the jury on the relevance of late disclosure to their assessment of the alibi
    evidence advanced on the appellants behalf.

[221]

The respondent
    says that the trial Crown relied upon late disclosure as a factor that tended
    to undermine the
veracity
of the alibi. The Crown advanced no argument
    directly or by necessary implication that the jury could or should infer guilt
    because of late disclosure of the alibi. The Crown was entitled to suggest that
    the appellant told nobody about the alibi because he knew full well that the
    video at Galaxy Donuts would not have shown him there with D.L.K. as he
    testified at trial. It was open to the Crown to contend that the late-blooming
    alibi was false and urge that the balance of the evidence established the
    appellants guilt beyond a reasonable doubt.

[222]

The respondent
    adds that experienced trial counsel did not object to the closing address of
    the Crown, seek any remedial instruction or contend that the instruction given
    about the relevance of late disclosure was deficient or prejudicial to the appellant
    in any way.

[223]

In connection
    with the lying witnesses, the respondent says that the trial Crown did not
    invite the jury to infer guilt from the fact that each had lied. The Crown
    grounded her submission that the witnesses should not be believed on the
    inconsistencies in their evidence, their close relationship to the appellant
    and their own involvement in the commission of the offence or assisting the
    appellant to escape detection. Even the appellant acknowledged the falsehoods
    in their evidence and their desire to help out his cause.

[224]

The respondent
    pointed out that none of the trial participants suggested collusion among the
    appellant, B.I. and S.M. or suggested that guilt could be inferred as a result.
    Trial counsel sought an instruction to enjoin any unfavourable inferences and
    made no complaint about the correctness or completeness of the instruction that
    the trial judge provided.

The Governing Principles

[225]

The parties do
    not differ on the principles that control our decision on this ground of appeal.
    Lengthy recital would achieve little return. A few brief points about alibi and
    the differential treatment afforded disbelieved evidence, on the one hand, and
    fabricated or concocted evidence, on the other, will suffice.

[226]

First, a general
    instruction on evidence of alibi incorporates the formula proposed by Cory J.
    in
W.(D.)
:
R. v. Parrington
(1985), 20 C.C.C. (3d) 184 (Ont.
    C.A.), at pp. 186-187.

[227]

Second, for
    evidentiary purposes, the law distinguishes between an alibi which is
    disbelieved and therefore rejected and an alibi which is proven to be false,
    thus concocted. A disbelieved alibi is an evidentiary naught: it has no
    evidentiary value. But an alibi that is proven to be false, thus concocted, may
    provide circumstantial evidence of guilt:
R. v. OConnor
(2002), 170
    C.C.C. (3d) 365 (Ont. C.A.), at para. 17;
R. v. Wittwer
(1996), 105 C.C.C.
    (3d) 44 (Ont. C.A.), at pp. 52-53.

[228]

Third, before an
    inference of guilt may be drawn, there must be evidence from which a reasonable
    jury could find:

i.

that the alibi was deliberately fabricated or concocted; and

ii.

that the accused was a party to the fabrication or concoction.

See,
Wittwer
, at p. 53. Mere rejection of the
    alibi evidence as untruthful or unreliable does not constitute affirmative
    evidence of guilt:
Wittwer
,

at p. 53;
R. v. Davison, DeRosie
    and

MacArthur
(1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 430.

[229]

Fourth, if an
    accused fails to make timely disclosure to the prosecution of the substance of
    an alibi, the trier of fact may, but is not required to, draw an adverse
    inference against the defence because of that failure:
R. v. Wright
,
    2009 ONCA 623, 247 C.C.C. (3d) 1, at paras. 18 and 20. A trier of fact may find
    that the alibi is untrue because it was not disclosed when it is reasonable to
    assume an innocent person would have disclosed it:
R. v. Hill
(1995),
    102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 477-479.

[230]

Further, by
    parity of reasoning, a disbelieved explanation for some other piece of
    inculpatory evidence is of no evidentiary value. But if there is evidence upon
    which the trier of fact could find that explanation was concocted and that the
    accused was a party to that concoction, the trier of fact may draw an adverse
    inference from the evidence: see, James H. Chadbourn,

ed.,
Wigmore
    on Evidence
, vol. II (Toronto: Little, Brown and Company, 1979), at

§
    278, pp. 133-141.

The Principles Applied

[231]

As I will
    briefly explain, I would not give effect to this ground of appeal.

[232]

To take first,
    the alibi issue.

[233]

In her closing
    address, the trial Crown did not invite the jury, in express terms or by
    necessary implication, to use their rejection of the appellants alibi as
    positive evidence of the appellants guilt.

[234]

The trial Crown
    argued, as she was entitled to do, that the jury should conclude that the
    appellants alibi was untrue. It was unsupported by any evidence beyond his own
    say so. The Galaxy Donuts story was fabricated to account for the evidence that
    his cellphone was in the area of the killing and uncustomarily inactive at
    about the time of the killing.

[235]

The trial Crown
    pointed to other evidence that contradicted the appellants claim that he
    walked to Galaxy Donuts from a tattoo parlour where he had an existing tattoo
    touched up. The owner of the tattoo shop testified, albeit without the
    assistance of business records, that the shop would have been closed before the
    time the appellant claimed to have arrived there.

[236]

In her closing
    address, the trial Crown invited the jury to reject the appellants alibi
    because it was first advanced at trial. Its late emergence deprived the police
    of the opportunity to view surveillance videos from the business establishments
    in the area of Galaxy Donuts and to interview the tattoo shop operator in a
    timely way when his memory was more likely to be fresh and records may have been
    available for him to consult.

[237]

It is also worth
    mention that experienced trial counsel did not suggest that the closing address
    of the Crown invited the jury to use their disbelief of the appellants alibi
    as an item of evidence from which, along with other evidence, they could find guilt
    established beyond a reasonable doubt.

[238]

In his
    instructions to the jury, the trial judge properly charged them on the defence
    of alibi and made it clear that late disclosure of the alibi was only a factor
    for them to consider in assessing the weight they would assign to the alibi
    evidence. This instruction was balanced by a reference to the appellants
    reasons for not having disclosed his alibi earlier.

[239]

In connection
    with the evidence of B.I. and S.M., the trial Crown urged jurors to reject
    their evidence as unworthy of belief (except S.M.s testimony that he did not
    drive the appellant home after the shooting) on several grounds.
    Inconsistencies in their accounts. Implausibilities, such as the gun and
    silencer vendors, Kush and Flex. Their own involvement in the offence.

[240]

The Crown was
    also entitled to argue that the relationship among B.I., S.M. and the appellant,
    as evidenced, for example, by B.I.s Facebook post, and adherence to the code
    of silence, favoured rejection of their evidence. Indeed, the appellant himself
    recognized the falsity of their evidence and what animated it, although he
    considered it more a burden than a benefit to his defence.

[241]

Trial counsel
    for the appellant was keenly aware of the danger that the jury may visit the
    lies of B.I. and S.M. on the appellant. Yet he raised no complaint about the
    Crowns closing. Nor did counsel seek any specific or additional instructions
    to the jury on this issue, apparently satisfied that the trial judges
    injunction to jurors not to visit any frustration they might have with the
    conduct of certain witnesses on the appellant, or use it to decide or help them
    decide that the appellant was guilty of murder was sufficient.

conclusion

[242]

For these
    reasons, I would dismiss the appeal.

Released: DW Nov 30, 2017

David Watt J.A.
I agree. K. van Rensburg J.A.
I agree. G. Pardu J.A.

[1]
Although most admissions are against interest when made, no such requirement
    applies to the exception. The common phrase admissions against interest,
    invites confusion of two separate measures for admitting hearsay and
    erroneously engrafts an against interest requirement on admissions: Kenneth
    S. Broun, ed.,
McCormick

on Evidence
, 7th ed., vol. 2
    (Thomson Reuters, 2013), at § 254, pp. 263-264.