[July 14, 2023] Appellate Review of Jury Instructions, Criminal Organisation Definition [Reasons by Rowe J. with Wagner C.J., Karakatsanis, Martin, Kasirer, Jamal and O'Bonsawin JJ. concurring and Côté dissenting]
AUTHOR’S NOTE: This case provides a new lens through which to assess sufficiency or accuracy of jury instructions going forward. It will be the reference case for all appeals suggesting problems with jury instructions and is mandatory reading for all trial lawyers that deal with juries either at trial or appeal level. Trial lawyers should remember that closing arguments to the jury is not everything in a criminal jury trial - the pre-charge conference is the most important legal argument you will make because it influences what the judge will tell the jury. The SCC herein reinforces that this is meant to be a meaningful exchange - if it becomes not meaningful due to the judge, your job as trial counsel is to preserve the chance for appeal. Arguments on appeal are usually more persuasive when trial counsel pushed the point first. This case also reinforces the need to distinguish any form of organization amongst criminals from a criminal organization. The need for structure and continuity distinguishes criminal organizations from groups of criminals coming together opportunistically for a crime.
 This appeal presents an opportunity to provide guidance on two issues: (1) the approach to appellate review for legal error in jury instructions and (2) the definition of a “criminal organization” under the Criminal Code, R.S.C. 1985, c. C-46.
 This Court has indicated that appellate courts should adopt a “functional approach” to the review of jury instructions for legal error. This respects the jury’s role as the trier of fact while enabling effective review of the trial judge’s duty to ensure the jury understands the law that it is to apply. The approach supports the function of jury instructions: to equip the jury properly to decide the case according to the law and the evidence. The meaning of “properly” equipping a jury is therefore essential to understanding the appellate court’s task of identifying legal error in jury instructions. Such errors have been described using a variety of terms in the jurisprudence, notably “misdirection” and “non-direction”. In these reasons, I will explain why it is helpful to understand the concept of “misdirection” in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, it is helpful to understand the concept of “non-direction” in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. These concepts direct the appellate court’s focus to the function of the instructions and the overall understanding of a given issue in the mind of the jury. Thus, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed to decide the case.
 Applying the foregoing, I conclude that the trial judge erred in law in his instructions to the jury by failing to explain that a criminal organization is one that by virtue of its structure and continuity poses an enhanced threat to society. This requirement distinguishes criminal organizations from other groups of offenders who act in concert; it also helps guard against improper reasoning, notably reliance on stereotypes, as a basis for identifying a criminal organization. Without an explanation of this requirement in the judge’s instructions, the jury was not sufficiently instructed on the legal standard to apply to the evidence in concluding that a criminal organization existed….
 I would therefore allow the appeal, set aside the appellant’s conviction for participation in the activities of a criminal organization, and order a new trial on that count.
 The charges against the appellant revolved around an incident on March 31, 2013. Based on wiretap information, police believed the appellant and his associates were transporting five illegal firearms from Windsor to Toronto in a rental vehicle. Police followed what they believed was the vehicle and, when it began driving erratically, pursued it to an apartment complex on Dixon Road in Toronto. There, they found the vehicle abandoned in the parking garage. A grocery bag was found in the front passenger seat containing three illegal firearms. The other two firearms were never recovered.
 In the following days, the wiretaps captured discussions alluding to the police pursuit. One individual referred to himself as Ahmed Abdullahi; his voice was heard in other calls, where he was referred to as “H” and “HNI”. Discussions between other individuals referred to “HNIC”.
 The appellant was tried jointly with a co-accused before a judge and jury. The primary issue was identity — namely, whether the appellant was one of those heard in the intercepts, and whether the appellant was in the rental vehicle on March 31, 2013. Circumstantial evidence identifying the appellant included forensic evidence and the wiretap intercepts. One task for the jury was to identify who was speaking or referred to in the intercepts. The Crown alleged that the appellant was the person referred to as “H”, “HNI”, or “HNIC”.
 In order to obtain a conviction on the count of participation in the activities of a criminal organization, the Crown first had to prove that a “criminal organization” existed. Section 467.1(1) of the Criminal Code defines a “criminal organization” as follows:
criminal organization means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
 The Crown alleged that the individuals heard in the intercepts, including the appellant, were members of an “urban street gang” whose “turf” was an area of apartment buildings on Dixon Road. In closing argument, the Crown pointed to the group’s organized strategies to conceal their criminal activity, which reflected “a cohesiveness that is characteristic of urban street gangs” and “a continuous enterprise” (A.R., vol. XXXI, at pp. 94-95). The Crown suggested, for example, that the group had lookouts near apartment buildings, escape routes to avoid arrest, places to conceal contraband, and assigned roles; the co-accused, for example, was alleged to be a “courier”. The Crown also alleged that the members of the group hid their criminal activities by speaking Somali and by using gang terminology.
 On cross-examination, Detective Kerr acknowledged that individuals will often mimic gang culture for social — but not criminal — reasons. He agreed that the terms he described are also regularly used by people who are not members of a gang and that wearing red does not necessarily indicate Bloods association. He also agreed that the alleged Bloods hand sign could be interpreted as simply an “A-Okay” sign.
 After closing arguments, the judge held a pre-charge conference. The defence repeated its argument that the alleged criminal organization lacked structure and continuity, citing this Court’s decision in Venneri. The judge provided counsel with a draft of his final jury instructions. Changes were discussed and made, but defence counsel raised no concern regarding the judge’s explanation of what constitutes a criminal organization within the meaning of the offence.
 …The judge dealt with the required elements of the offence toward the end of his charge. He told the jury that there are three required elements: (1) the existence of a criminal organization; (2) knowing participation in or contribution to any activity of the criminal organization by the accused; and (3) the intention of the accused to enhance the ability of the criminal organization to facilitate or commit an indictable offence. On the first element, the judge explained:
The first element is the existence of a criminal organization. A criminal organization is
(a) a group, however organized, that is composed of three or more persons in or outside Canada; and that
(b) has, as one of its main purposes or activities, the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit including a financial benefit by the group or any one of the persons who constitute the group.
It is necessary to elaborate upon each of the components of that definition. A requirement of a group of three or more persons is not met if the group of three or more persons was formed randomly for the immediate commission of a single offence. The formation must not be random. The formation must not be for the purpose of committing an offence.
(A.R., vol. I, at pp. 203-4)
 The balance of the judge’s charge on the elements of the criminal organization offence related to the second and third elements: whether the accused participated in the activities of the organization and the purpose of that participation.
 The issue in this appeal is whether the trial judge erred in law in his instructions to the jury on the count of participation in the activities of a criminal organization, such that a new trial should be ordered on that count.
IV . Analysis
A. Legal Framework for Appellate Review of Jury Instructions
(1) The Role of Appellate Courts in Reviewing Jury Instructions
 When reviewing a trial judge’s instructions to the jury for legal error, appellate courts need to be mindful of the division of duties in a jury trial. The jury is the sole trier of fact. But a jury is not presumed to know the law that it must apply when reaching its verdict. The judge regulates and orders the proceedings, including any legal rulings needed during the trial, and instructs the jury as to the law. Counsel for the Crown and the defence place evidence before the jury, argue what facts the jury should find based on the evidence, and advocate for a given verdict (see R. v. Daley, 2007 SCC 53,  3 S.C.R. 523, at paras. 27-28; R. v. Rodgerson, 2015 SCC 38,  2 S.C.R. 760, at para. 30).
 …appellate courts need also to be mindful that the trial judge bears the responsibility to instruct the jury on the law (R. v. Jacquard,  1 S.C.R. 314, at para. 37; R. v. Khill, 2021 SCC 37, at para. 144). In addition, juries do not have the benefit of judicial experience on certain issues; for example, a Vetrovec caution may be required “to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses” (R. v. Khela, 2009 SCC 4,  1 S.C.R. 104, at para. 4; see also Rodgerson, at para. 34; White 2011, at paras. 44 and 55-56). The trial judge needs to ensure that the jury understands its task and is properly equipped to make its decision. The appellate court ensures that the trial judge has fulfilled their role to properly instruct the jury (Jacquard, at paras. 14, 32 and 62; R. v. Ménard,  2 S.C.R. 109, at para. 27; R. v. Cooper,  1 S.C.R. 146, at p. 163).
 Finally, the appellate court’s role in reviewing the jury instructions for legal error needs to be distinguished from the operation of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. The approach described in these reasons is used to determine whether there is an error of law in a judge’s instructions to the jury. The curative proviso, on the other hand, is to be considered only where an error of law has already been identified; it deals with whether such an error can be “cured” such that it is not warranted for the appellate court to set aside the verdict and order a new trial....
(2) A Functional Approach to Appellate Review of Jury Instructions
 Let me reiterate principles underlying this functional approach. The accused is entitled to a jury that is properly, not perfectly, instructed (Jacquard, at paras. 2 and 62; Daley, at para. 31; Araya, at para. 39; R. v. Calnen, 2019 SCC 6,  1 S.C.R. 301, at para. 9). The charge must be read as a whole (Cooper, at p. 163; Daley, at paras. 31 and 53; Calnen, at para. 8). It is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence (Daley, at paras. 30 and 53; Calnen, at para. 8). The charge must be considered not in isolation but in the context of the trial as a whole (Daley, at para. 58; R. v. Jaw, 2009 SCC 42,  3 S.C.R. 26, at para. 32). The overriding question is whether the jury understood or was “properly equipped” with the law to apply to the evidence (Calnen, at para. 9; Jacquard, at para. 14). Each of the foregoing captures an aspect of a functional approach. How appellate courts have given effect to this guidance on occasion has lacked consistency.
 The appellate court’s task needs to be directed toward the ultimate “function” of jury instructions: to properly equip the jury to decide the case. In other words, when reviewing a charge to a jury for potential legal error, appellate courts need to read the charge as a whole and determine whether the overall effect of the charge properly equipped the jury in the circumstances of the trial to decide the case according to the law and the evidence. [PJM Emphasis]
 What does it mean for a jury to be “properly” equipped? Many terms have been used in the jurisprudence to describe errors in jury instructions that render a jury improperly equipped, notably “misdirection” and “non-direction”. In my view, the concept of “misdirection” is better understood in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, the concept of “non-direction” is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. Thus, it is helpful to view a properly equipped jury as one that is both (a) accurately and (b) sufficiently instructed….
(a) Whether the Jury Was Accurately Instructed
 These sorts of errors have typically been referred to as “misdirection” (see, e.g., Rodgerson, at para. 37; Ménard, at paras. 29-30; R. v. Lifchus,  3 S.C.R. 320, at para. 9; R. v. Morin,  2 S.C.R. 345, at pp. 354-55; Boucher v. The Queen,  S.C.R. 16). As I have explained, they are better understood in terms of whether the jury was equipped with an accurate understanding of the law to decide the case. This focuses the inquiry on the overall understanding of a given issue in the mind of the jury.
 …The question is whether the jury was accurately instructed to decide the case according to the law and the evidence (Jacquard, at para. 32).
 The charge must be read as a whole. As this Court has stated, “the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury” (Jacquard, at para. 32). A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue (R. v. Goforth, 2022 SCC 25, at paras. 35 and 40; Jaw, at para. 32; Cooper, at pp. 163-64). One misstatement might be compensated for by an accurate statement elsewhere in the charge, provided the jury would have accurately understood the law it must apply (White 2011, at paras. 82 and 84; Ménard, at para. 30; Jacquard, at para. 20).
 The organization of the charge and the placement of alleged inaccuracies within it will inform the overall accuracy of the charge (Jaw, at para. 33). For example, a problematic statement at one part of the charge may be less likely to undermine a proper statement of the law in a more material part of it (see, e.g., Khela, at para. 55; R. v. Athwal, 2017 ONCA 222, at paras. 2-3 (CanLII)). Conversely, it may be more likely for a jury to have been misled where the judge states the law correctly in a more generic part of the charge but then inaccurately states the same issue in a more material or significant part of the charge (see, e.g., R. v. Subramaniam, 2022 BCCA 141, 413 C.C.C. (3d) 56, at paras. 73-77; R. v. Bryce (2001), 140 O.A.C. 126, at paras. 13-15 and 20). There is a greater risk that the jury has an inaccurate understanding of the law where an inaccurate statement is made in a recharge in response to a question from the jury (Brydon, at para. 19; R. v. Naglik,  3 S.C.R. 122, at p. 139); this may well compound and thereby make more serious such an error.
(b) Whether the Jury Was Sufficiently Instructed
 In some cases, it is alleged that the judge did not say something that needed to have been said in order for the jury to be properly equipped to decide the case. It is thus alleged that the jury was not sufficiently instructed. In some instances, a failure to give an instruction, either with sufficient detail or at all, will be an error of law.
 These situations have typically been referred to as “non-direction” (see, e.g., Khill, at para. 145; Lifchus, at para. 9; R. v. Bevan,  2 S.C.R. 599, at p. 619). As I have explained, “non-direction” is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. This directs the appellate court to the function of the instructions.
 The sufficiency of an instruction may be understood as involving two related questions: (i) whether an instruction was required and (ii) whether an instruction that was required was given with sufficient detail.
(i) Whether an Instruction Was Required
 Some instructions must be given in every jury trial. Other instructions are required in certain circumstances, but not in others. When faced with an allegation of insufficient instruction, an appellate court should consider whether the impugned instruction was mandatory or if its requirement was contingent on the circumstances of the case.
 Mandatory instructions that must be dealt with in every case include, for example, an explanation of the standard of proof beyond a reasonable doubt (Lifchus, at para. 22). The instructions must also include, inter alia, an explanation of the charges faced by the accused, including the required elements of each offence to be left with the jury; an explanation of the theories of each side; a review of the evidence relating to the law; the possible verdicts open to the jury; and the requirement of unanimity for reaching a verdict (Daley, at para. 29). The omission of a mandatory instruction will necessarily be an error of law.
 Contingent instructions are those that may be required in some cases but not others. They may include, for example, a Vetrovec warning where there is unsupported evidence by unsavoury witnesses (Khela, at para. 11), or a limiting instruction against general propensity reasoning (Calnen, at para. 5). Defences and included offences are put to the jury only where they bear an air of reality on the evidence (R. v. Cinous, 2002 SCC 29,  2 S.C.R. 3, at para. 50; R. v. Aalders,  2 S.C.R. 482, at pp. 504-5)….
(ii) Whether the Instruction Was Given With Sufficient Detail
 When an instruction is required (whether it is mandatory or contingent), appellate courts need to determine whether the instruction was given with sufficient detail to equip the jury to decide the case.
 For example, an explanation of the standard of proof will require more than simply stating the phrase “beyond a reasonable doubt” (Lifchus, at para. 22). This is mandatory in every case. Or, the evidence may require a specific instruction. An example is Rodgerson, where the evidence of concealment and clean-up could be relevant to two issues: the accused’s self-defence claim and his intent to commit murder. The trial judge instructed the jury to consider this post-offence conduct evidence along with all the other evidence at trial. This Court concluded that a more specific instruction was required on the limited use of the evidence for the issue of intent, as the evidence could not be used in the same manner as for the claim of self- defence. The failure to give this more specific instruction constituted an error of law (paras. 27-29; see also Khill, at paras. 125-27 and 129-30). The need for this instruction was contingent on the circumstances of the case.
 Where a jury is asked to apply provisions that have been interpreted by the courts, it will often be insufficient for a judge to simply recite the relevant provisions to the jury without explaining the meaning given to them in the jurisprudence (C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at p. 246; see, e.g., R. v. Maxwell (1975), 26 C.C.C. (2d) 322 (Ont. C.A.)). It is not unusual for courts to read in requirements or qualifications to Criminal Code provisions that are not apparent from the text of the provision. For example, in R. v. Boudreault, 2012 SCC 56,  3 S.C.R. 157, this Court read the wording of the offence of having care or control of a motor vehicle while impaired under s. 253(1) of the Criminal Code (since repealed) as requiring a realistic risk of danger to persons or property. In such circumstances, merely reciting the text of the provision to the jury would be insufficient.
 Like accuracy, the sufficiency of an instruction must be assessed in the context of the charge as a whole….
 There is no strict rule to determine the level of detail for an instruction to be sufficient. The level of detail that is required depends on the circumstances of each case (Rodgerson, at para. 30; R. v. Mack, 2014 SCC 58,  3 S.C.R. 3, at para. 50; Daley, at paras. 57 and 76). Moreover, judges are not required to adhere to specific wording; what counts is the substance of the instruction, not its adherence to or departure from a prescriptive formula (Daley, at paras. 30 and 53; Mack, at para. 48).
 Model jury instructions serve as important guides, but they are not decisive of the sufficiency of an instruction….
….This Court has cautioned against overreliance on model instructions; they are a valuable tool, not the final product (R. v. R.V., 2021 SCC 10, at para. 64; Rodgerson, at paras. 51 and 54).
 Appellate courts should also be mindful that brevity is a virtue in jury instructions (Daley, at para. 56). The judge has a duty to “decant and simplify” the law (Jacquard, at para. 13)….
(c) Consideration of the Charge in Light of the Circumstances of the Trial
 The central inquiry on appellate review is whether the instructions properly equipped the jury to decide the case. In answering this question, a functional approach requires that appellate courts consider the instructions not in isolation, but rather in the context of the trial. Every trial is different. An instruction that properly equips the jury in one trial will not do so in another trial.
 ….Again, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed. The circumstances of the trial must be directed to this inquiry and not be used to replace the instructions. To do so would subvert the trial judge’s duty to instruct the jury accurately and sufficiently.
 With the foregoing in mind, I turn to the three considerations from the “trial as a whole” relied on by the majority in concluding that the instructions disclosed no legal error: (i) the evidence; (ii) the closing arguments of counsel; and (iii) the lack of objection by defence counsel….
 The evidence at trial informs what the jury needs to understand in order to be equipped properly to decide the case. Thus, the evidence at trial can inform the sufficiency of certain instructions. For example, whether a Vetrovec instruction is required will depend on the witnesses; if there are no unsavoury witnesses, then it is not an error of law to omit a Vetrovec instruction….
 The evidence does not inform the sufficiency of every instruction. For example, a sufficiently detailed instruction on the standard of proof must explain the phrase “beyond a reasonable doubt” in accordance with the jurisprudence, regardless of the evidence….
(ii) Closing Arguments of Counsel
 …Notably, the closing arguments of counsel can be relevant to whether a contingent instruction was required. For example, in Khill, defence counsel’s repeated emphasis on the final “split second” of the incident supported the need for the trial judge to provide a specific instruction on the accused’s “role in the incident” in his instruction on self-defence (paras. 134-35). Or, if counsel makes a problematic statement in closing argument, it can be incumbent on the judge to correct this and to admonish the jury to disregard counsel’s statements; a failure to do so may amount to an error (R. v. Rose,  3 S.C.R. 262, at paras. 63 and 126-27).
 This Court has stated that counsel’s closing arguments may “fill gaps” in the judge’s charge (Daley, at para. 58). However, this statement must be understood in light of the nature of the alleged error. Appellate courts have viewed counsel’s closing arguments as capable of filling gaps in the judge’s review of the evidence (see, e.g., R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R. 179, at para. 15; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145, at paras. 41 and 46; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 81). This is because judges are not required to review in detail the whole of the evidence; they are required only to review critical parts of the evidence and to ensure that the jury understands the significance of the evidence having regard to the issues in the case (Daley, at paras. 56-57; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 47).
 I agree with the intervener, the Criminal Lawyers’ Association of Ontario, that counsel’s closing arguments cannot replace an accurate and sufficient instruction on the law. The fact that counsel might have explained a legal principle properly will not correct the trial judge’s failure to do so (Avetysan, at paras. 23-24; R. v. Gray, 2012 ABCA 51, 522 A.R. 374, at para. 19). Juries are invariably told to take the law from the judge and not from counsel or other sources….
….Reliance on multiple sources might well not only confuse juries but also frustrate appellate review of a jury instruction for legal error, as appellate courts would not know which legal principles the jury applied. [Emphasis by PJM]
(iii) Silence of Counsel
 …This is intended to be a meaningful exchange. Counsel should lay their cards on the table, and the judge should be mindful of what counsel says, bearing in mind that it is an adversarial process. After the judge has instructed the jury, counsel have an opportunity to raise objections to the charge or to request clarifications or additional instructions before the jury commences its deliberations. As with the pre-charge conference, this is meant to be a meaningful exchange where counsel lay their cards on the table. Finally, when juries raise questions during their deliberations, counsel have the opportunity to provide submissions to the judge as to how to answer the questions. Where counsel fails at these various opportunities to request the inclusion of an instruction or fails to raise an objection to the charge as delivered, appellate courts have often turned to counsel’s silence as an important consideration. [Emphasis by PJM]
 Although the silence of counsel can be a relevant consideration, it should be recalled that the responsibility for the jury charge lies with the trial judge, not counsel. This Court has on several occasions stated that the silence of counsel, while relevant, is not determinative (see, e.g., Thériault v. The Queen,  1 S.C.R. 336, at pp. 343-44; Daley, at para. 58; Mack, at para. 60). To hold otherwise would “unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials” (Jacquard, at para. 37). The silence of counsel is simply one of many considerations under a functional approach.
 Counsel’s silence may be particularly relevant as to whether a contingent instruction was required. For example, the lack of a request by defence counsel for the inclusion of a limiting instruction against general propensity reasoning may reinforce the conclusion that such an instruction was not required in the circumstances of the case (Calnen, at para. 41). Counsel’s silence may also suggest that an instruction that was given was sufficiently detailed. For example, the lack of objection may indicate the sufficiency of a judge’s Vetrovec instruction (Khela) or instructions on advanced intoxication (Daley)….
 Counsel’s silence may be particularly significant where there are indications that it was a tactical decision. If the absence of an instruction at trial could have benefited the party who argues on appeal that it was required, then the appellate court might ask whether counsel made the tactical decision not to seek the instruction at trial (Calnen, at para. 41; see also R. v. Royz, 2009 SCC 13,  1 S.C.R. 423, at para. 3). This can be a significant consideration. Counsel cannot withhold an objection at trial and save it for an appeal…
…Conversely, if the omission of an instruction would have had no apparent benefit for the appealing party, this may suggest that the error was an oversight rather than a tactical decision (Khill, at para. 144; R. v. Barton, 2019 SCC 33,  2 S.C.R. 579, at para. 48).
 Appellate courts may also be called on to consider whether counsel’s silence is relevant to the curative proviso. Counsel’s silence may suggest, for example, that while an omission in the judge’s instructions was an error of law, the error was harmless in the circumstances (R. v. Arcangioli,  1 S.C.R. 129, at p. 143; Jaw, at para. 44). As noted before, this is a distinct inquiry.
 In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court’s task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge’s duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case.
B. Definition of a Criminal Organization
 I turn now to the instruction to the jury at issue in this appeal and to the definition of a criminal organization.
 …Sections 467.11 to 467.13 of the Criminal Code set out four substantive offences targeting escalating degrees of involvement with a criminal organization. In addition to these offences, pursuant to s. 2, any other serious offence committed for the benefit of, at the direction of, or in association with a criminal organization is also considered a “criminal organization offence”. Other provisions of the Criminal Code distinguish the (ordinary) commission of certain offences from their commission in relation to a criminal organization, e.g., possession of an explosive (s. 82(2)) and various offences involving a firearm (ss. 239(1)(a), 244(2)(a), 244.2(3)(a), 279(1.1)(a), 279.1(2)(a), 344(1)(a) and 346(1.1)(a)).
(1) Distinguishing Qualities of a Criminal Organization
 Not every group of three or more persons that facilitates or commits a serious offence for a material benefit is a criminal organization. This Court in Venneri interpreted Parliament’s direction in s. 467.1(1) of the Criminal Code that a criminal organization be “organized” in some fashion as requiring the group to have “some form of structure and degree of continuity” before the “exceptional regime” of the organized crime provisions of the Criminal Code is engaged (para. 29).
 The purpose of the Criminal Code’s criminal organization regime is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity (Venneri, at para. 40). Structured and continuous criminal entities offer advantages to their members by consolidating and retaining knowledge; sharing customers and resources; developing specializations; dividing labour; fostering trust and loyalty; and developing reputations in the community, including for violence (para. 36). These same advantages enable criminal organizations to elude law enforcement more effectively.
 The enhanced threat to society posed by criminal organizations by virtue of their structure and continuity explains why the criminal organization regime is considered exceptional. Groups of individuals acting in concert, where they lack structure and continuity, do not pose the same enhanced threat to society constituted by criminal organizations (Venneri, at paras. 27, 29 and 40). As Fish J. explained in Venneri:
Stripped of the features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for a material benefit. Parliament has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the “common intention” provisions of the Code (see, e.g., ss. 21 and 465(1)). [para. 35]
Identifying a group as a criminal organization when it lacks the requisite qualities of structure and continuity “would cast a net broader than that intended by Parliament” and subject the group to the exceptional procedural and substantive consequences of the criminal organization regime (paras. 31 and 35).
 Criminal organizations are opportunistic and adaptive. They vary based on which “business model” proves successful. They can take forms that do not fit stereotypical models of organized crime but nonetheless can pose the type of enhanced threat to society contemplated by Parliament. Thus, the definition of a criminal organization must be applied flexibly (see Venneri, at paras. 28 and 36-41; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344, at para. 34; Beauchamp, at paras. 145-48).
 However, flexibility in the acceptable forms of structure and degree of continuity does not mean that structure and continuity are optional (Venneri, at paras. 27-31). Rather, the group must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat, bearing in mind the differences from other groups of offenders such as conspirators.
(2) Improper Reasoning
 I agree with the appellant and the intervener, the Criminal Lawyers’ Association of Ontario, that careful consideration of a group’s structure and continuity is needed to guard against improper reasoning in identifying a criminal organization. This is needed to avoid the risk that police, lawyers, juries, and judges could identify a group as a criminal organization based on shared characteristics such as ethnicity, cultural background, neighbourhood, religion, language, or dialect. While such characteristics may indicate a common social or cultural identity among persons who commit offences, they are irrelevant in identifying the existence of a criminal organization. To view such characteristics as indicative of organized crime is to depart from Parliament’s intention and to do so in a way that undercuts a key goal of Canadian society, cultural diversity.
 The flexibility with which the definition of a criminal organization is applied must not become an invitation for irrelevant considerations or improper reasoning. The risk of improper reasoning is especially acute where an accused is a member of a marginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices may well be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passing judgment….
C. Application to the Circumstances of This Case
 The appellant alleges that the jury was not properly equipped to decide the case because the judge did not say something that he was required to say. This is an allegation of insufficient instruction.
 The existence of a criminal organization is a required element of the offence of participation in the activities of a criminal organization. An instruction on this element is therefore mandatory. The alleged criminal organization must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat. Therefore, in order for the jury to be sufficiently equipped to decide whether a criminal organization existed, the instruction must include an explanation of structure and continuity.
 The trial judge’s instructions in this case did not sufficiently equip the jury to determine whether a criminal organization existed. Rather, the judge merely recited the definition in s. 467.1(1) of the Criminal Code. This would not have equipped the jury with an understanding that a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity. This requirement is not apparent from the bare text of the definition. To the contrary, in Venneri, Fish J. surveyed the jurisprudence where some trial courts had incorrectly found that very little or no organization was required (para. 27). Jurors cannot be expected to divine an interpretation of the statutory text that even judges could not ascertain before this Court’s guidance….
 The two aspects of the evidence at trial relied on by the majority warrant further comment. The evidence of Detective Kerr was, in my respectful view, the sort of evidence that risked inviting improper reasoning by the jury. His evidence did not relate to the structure or continuity of any particular criminal organization but referred generically to “the nature, customs, culture, characteristics, identifiers, terminology, behaviour, and activities of urban street gangs” (C.A. reasons, at para. 73). He agreed in cross-examination that many of these alleged “indicia” of organized criminality could just as easily indicate social bonding or participation in “urban culture”. The generic nature of this evidence posed a risk that the jury would find the existence of a criminal organization based on a stereotypical model of an “urban street gang” whose characteristics and practices may in some ways mirror the cultural norms of racialized communities in Toronto, or worse, may be the subject of biases, prejudices, and stereotypes. This aspect of the evidence, rather than indicating the sufficiency of the judge’s instructions, reinforces the importance of a clear instruction on structure and continuity as a guard against improper reasoning.
 In light of the foregoing, the trial judge erred in law in his instruction to the jury on the count of participation in the activities of a criminal organization. In this case, the circumstances of the trial relied on by the majority of the Court of Appeal could only have been relevant, if at all, to the curative proviso. However, the Crown has not sought to rely on the curative proviso in this case, and I therefore make no further comment on its potential application.
V . Conclusion
 I would allow the appeal, set aside the appellant’s conviction for participation in the activities of a criminal organization, and order a new trial on that count.