R v Alcantara, 2012 ABQB 225

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 225 Date: 20120403 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment Regarding Expert Evidence of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Introduction [ 1 ] Alcantara and Knapczyk are jointly charged with conspiracy to traffic in cocaine contrary to s 5(1) of the CDSA and s 465(1) (

c) of the Criminal Code , RSC 1985, c C-46 and substantive trafficking contrary to s 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19. In addition, they are charged with a criminal organization offence contrary to s 467.12 of the Code , specifically that they: Between the 22 nd day of August, 2005, and the 14 th day of February, 2006, both dates inclusive, at or near the City of Fort McMurray, at or near the City of Edmonton and elsewhere in the Province of Alberta, did commit the indictable offence of conspiracy, contrary to Section 465(1) (

c) of the Criminal Code and the indictable offence of unlawfully trafficking in a controlled substance, To Wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act , for the benefit of, at the direction of, or in association with a criminal organization of at least three of the following persons: Jeffrey Mark Caines, Aaron Patrick McDonald, Michael Frances Marche, Cal Gregoire, Jeremy Cardinal, Charles Weston Flight, Mark Andrew Hoskins and persons unknown and did thereby commit an offence contrary to

Section 467.12 of the Criminal Code . [ 2 ] The Crown seeks to qualify retired Staff Sergeant Jacques Lemieux as an expert witness on the nature and characteristics of the Hells Angels Motorcycle Club (HAMC) and the main purpose and activities of the HAMC. It proposed that his testimony cover

areas relating to the HAMC’s structure and size, the meaning of patches and jargon, the reputation of the HAMC in the criminal milieu and the involvement of the HAMC in the drug business. [ 3 ] Alcantara and Knapczyk dispute his qualifications and the ambit of the proposed evidence. II. Mr. Lemieux ’s Education and Experience [ 4 ] Mr. Lemieux retired as a Staff Sergeant with the RCMP in 2008. He testified at the preliminary inquiry in this matter. It is the last remaining case from his time as an active member of the RCMP. A. Education and Courses Taken [ 5 ] Mr.

Lemieux does not have a university degree or any post-secondary courses or diplomas. He has no formal education in sociology, anthropology, statistics, or science. He does not subscribe to academic journals, nor has he pursued academic study in the area of what he refers to as outlaw motorcycle gangs (OMGs), which he distinguishes from “biker enthusiast clubs.” He is a career law enforcement officer, having worked 33 years with the RCMP. [ 6 ] Mr.

Lemieux’s relevant post-secondary training is comprised, in part, of courses taken at the Canadian Police College, including the following: Drug Investigative Techniques (2/3 week in 1979); Police Studies (one week in 1979); Proceeds of Crime Investigative Techniques - focus on money laundering (one week in 1985); Criminal Intelligence - gathering and use of information and intelligence (two weeks in 1988); and Major Case Management - how to investigate major cases (one week in 2003).

He also took a course entitled Operation Drug Techniques in Vancouver, British Columbia for three weeks in September 1980, as well as several courses at RCMP Headquarters in Ottawa, including: Effective Presentations - training to teach (1992); Intelligence Analysts - organized crime focus (one week in 1993); and Police Managers - for development of managerial skills (1994). [ 7 ] Mr. Lemieux acknowledged that the courses referred to above were developed and presented by police officers for police officers; that is, for law enforcement personal, and were not open to the public. [ 8 ] In July 2006, Mr.

Lemieux attended a course on expert witnesses. March 1975 to November 1978 [ 9 ] Mr. Lemieux worked at the Sault Ste Marie Airport in airport security as a special constable with the RCMP from 1975 to 1978. [ 10 ] From February 1978 to November 1978, he was a federal statutes investigator with the Gaspé detachment, working on drug investigations. December of 1978 to February 1981 [ 11 ] From December 1978 to February 1981, Mr. Lemieux was an investigator and did undercover work with the Drug

Section of the Chicoutimi detachment of the RCMP. During that time frame, he investigated a motorcycle club called the Missiles of Jonquiere. He conducted surveillance on members of the club on a weekly basis over the course of several months. Mr. Lemieux testified that this provided him with the opportunity to observe first-hand how those involved in the club conducted themselves and interacted with each other, and the patches they wore.

[ 12 ] Mr. Lemieux testified that he participated in the search of the clubhouse during the investigation of the club. Drugs were seized, as well as club decals, photographs of members, and phone lists. In correlating the information from the investigation, he learned about the club membership and structure, and the meaning of the patches worn. [ 13 ] Mr. Lemieux also investigated a motorcycle club called the Conquatcheros, operating in Chicoutimi, Quebec. This drug investigation lasted six months and included wiretaps of the clubhouse and members, as well as surveillance.

He said that he and another officer listened to thousands of hours of wiretap conversations. He testified that this permitted him to understand the structure of the club membership, the type of tasks assumed by those at particular levels in the hierarchy and the jargon and coded or guarded language used by members of the club in their telephone conversations. He learned that members of the club obtained income from drug trafficking. He said the Conquatcheros had the same structure and use of patches as the Missiles Jonquiere. [ 14 ] Mr.

Lemieux testified that he also participated in undercover operations in the area of St. Jerome, Quebec. As an undercover officer, he made drug purchases from members of the Black Spiders. He noted that members of the Black Spiders used a cell structure for the sale of drugs. He learned of measures they took to protect against infiltration. He participated in the arrest of Louis Roy, who later became involved with the HAMC. [ 15 ] Although the three clubs were not connected, Mr.

Lemieux observed they all had the same structure or hierarchy, the same patch configuration (although the logos were different), and all were involved in drug trafficking, had clubhouses, and had the same form of identification and security. March 1981 to September 1987 [ 16 ] Mr. Lemieux testified that from 1981 to 1987, he was with the RCMP Drug

Section in Quebec City. During that time, he was involved in drug investigations and dealt with several OMGs, including the Viking of Matane, which later became the Quebec City

Chapter of the HAMC; Les Pacific Rebels of Quebec; and Les Z’Beers of St-Hyacinthe. [ 17 ] While he served as second-in-command of an undercover operation in the Province of Quebec, he observed and debriefed an undercover officer who bought drugs from members of the Viking. He arrested members of the Viking for drug offences, of which they later were convicted. [ 18 ] Mr. Lemieux worked undercover and gained entry to the clubhouse of the Z’Beers, where he made a number of drug buys from members. He said this investigation permitted him to see the inner workings of the club. Mr.

Lemieux also testified that he dealt with several informants who operated inside the organization, but were not actual members. [ 19 ] Mr. Lemieux testified that, during this time period, he also dealt with members of the Pacific Rebels, who were charged and convicted of drug offences. [ 20 ] He observed similarities between these three clubs and the others he had investigated in terms of their structure or hierarchy, the use of patches, the jargon or code used, and their involvement in drug trafficking. September 1987 to May 1991 [ 21 ] In the period September 1987 to May 1991, Mr.

Lemieux worked with the Quebec City Criminal Intelligence Unit of the RCMP as a criminal intelligence investigator of organized crime. [ 22 ] He assisted in a four year long drug investigation of the HAMC Quebec City Chapter, called Project Joey/Jaggy, during which he conducted thousands of hours of surveillance, listened to thousands of hours of intercepted communications, and spoke with informants and undercover officers who had dealt with HAMC members.

[ 23 ] Mr. Lemieux testified that during Project Joey/Jaggy, he participated in a search of the HAMC

chapter clubhouse, where he observed the security measures taken by the club, photographs of local members of the HAMC and of national and international chapters, congratulatory anniversary plaques from other chapters, and phone lists identifying members, prospects and hang-arounds of HAMC chapters in Quebec, as well as those of their puppet club. [ 24 ] He said this investigation provided him with the opportunity to see the level of sophistication of the HAMC, as well as to observe the structure, hierarchy, executive titles, weekly meetings (“church night”), coded language used in telephone calls, extensive security measures, and operations of the chapter, as well as to ascertain the meaning of their tattoos and the patches they wore.

He noted the criminal activities they engaged in and how they conducted their business. [ 25 ] Mr. Lemieux indicated that while it had been relatively easy to infiltrate other groups, the RCMP tried to do so with this

chapter of the HAMC through undercover drug purchases, but was unsuccessful. [ 26 ] Mr. Lemieux testified that in 1993, as a result of this investigation, five members of the HAMC and twelve members of the Italian mafia were charged with importation of 740 kilograms of cocaine, and all pleaded guilty. May 1991 to May 1992 [ 27 ] Mr. Lemieux testified that from May 1991 to May 1992, he worked with the Quebec City Federal Enforcement

Section of the RCMP. During that time period, his main focus was the Quebec City HAMC. Although he was not actively investigating them, he was called on at times to assist other investigators doing so. May 1992 to October 2000 [ 28 ] From May 1992 to October 2000, Mr. Lemieux worked with the Criminal Intelligence Service of Canada (CISC), a national police organization, as one of two national co-ordinators for the Outlaw Motorcycle Gang Project.

He testified that in that capacity, he received, correlated and analyzed information from municipal, provincial and federal law enforcement agencies across Canada and the world regarding OMGs, and in particular the HAMC. He then disseminated that information to law enforcement agencies across Canada. He said that his focus became more national and international with this job. [ 29 ] Mr. Lemieux’s evidence was that when he received information during the course of his work on this project, he would call the source to verify the information before disseminating it.

He said that as national co-ordinator, he was sent copies of documents and information seized in the course of investigations across Canada, including Alberta, and the world (minutes of HAMC meetings at local, regional, national and international levels, photographs of HAMC members, club rules, phone lists, membership lists, details of runs (organized rides); details of investigations in the provinces; intelligence reports from agents and informants; and reports from law enforcement agencies across the Canada, the United States and Europe, as well as Canada Customs. [ 30 ] Mr.

Lemieux said that while he was working on this project, he attended national and international conferences and talked to investigators from Europe, Australia, and the United States about OMGs and the HAMC, including the HAMC in Alberta. [ 31 ] Mr. Lemieux testified that he spoke with a former member of the HAMC, Gilles LaChance, who was in witness protection. LaChance confirmed information Mr.

Lemieux previously had about the HAMC, including its structure, the hierarchy, tattoos, patches, graduation within the organization, its business of drug importation and trafficking, and the meaning of the “filthy few” patch. [ 32 ] Mr. Lemieux also testified that he reviewed the sworn evidence and debriefing reports of Yves Trudeau, a former member of the Laval

Chapter of the HAMC, who testified in court concerning details of the organization. Mr. Lemieux said the information from Trudeau confirmed other information Mr. Lemieux had gathered over the years about the HAMC.

[ 33 ] Mr. Lemieux also spoke to Anthony Tait, a full member of the Anchorage, Alaska

Chapter of the HAMC, who was an agent of the FBI. Mr. Lemieux reviewed FBI debriefing reports and interviewed Tait on a number of occasions. According to Mr. Lemieux, this opportunity too provided confirmatory information. Tait spoke of the HAMC organization, structure, club business, executive role and criminal activities. [ 34 ] Mr. Lemieux also searched the clubhouse of the Jokers, a puppet club of the HAMC in St Jean Sur le Richelieu, Quebec.

He testified that the search provided him with information relating to the HAMC membership structure, the executive across Quebec, the steps to be taken for full membership, and security measures taken by the club. [ 35 ] Mr. Lemieux testified that in 1998, he observed HAMC members at a 50 th anniversary HAMC run in San Bernadino, California, and he spoke with members from the United States, Canada and Europe. He also attended the world run at Ventura, California. [ 36 ] Mr.

Lemieux said that while he worked at CISC, which had a bureau in each province, he received monthly updates of the OMG situation in each province. As a result, he expanded his knowledge base of the HAMC beyond Quebec to the whole of Canada. October 2000 to August 2003 [ 37 ] Mr. Lemieux testified that from October 2000 to August 2003, he worked as an investigator for the Integrated Proceeds of Crime

Section (“IPOC”) of A Division in Ottawa. In that capacity, he worked with the Ontario Provincial Police and the Ottawa City Police, assisting with the prosecution of people charged with proceeds of crime offences. [ 38 ] During that time, members of the Sherbrooke

Chapter of the HAMC were investigated and subsequently charged with GST fraud. This investigation involved surveillance, interviewing witnesses and compiling reports, but did not involve a wire component. Mr. Lemieux had the opportunity to brief and debrief the undercover agent involved. August 2003 to August 2004 [ 39 ] From August 2003 to August 2004, Mr. Lemieux worked with the Combined Forces Special Enforcement Unit of the RCMP. This is a multi-agency unit based in the Ottawa region that is involved in the investigation of organized crime.

His role was to investigate an Asian group not related to motorcycle clubs, but he continued attending conferences and lecturing at the police college about OMGs. August 2004 to April 2008 [ 40 ] Between August 2004 and April 2008, Mr. Lemieux was in charge of the Ottawa Drug

Section of the RCMP. He supervised 40 drug investigators, some of whom were seconded to investigations involving the HAMC. They reported to him on a weekly basis. April 2008 to Present [ 41 ] Mr. Lemieux retired in April 2008. Since January 2009, he has been a temporary civilian employee with the RCMP, working on average three to four days a week. He is in the process of developing a National Expert Witness Program respecting the roles and responsibilities of expert witnesses. [ 42 ] Mr. Lemieux testified that in October 2009, he read the handler’s debriefing notes and watched a videotape of an interview with Steven Gault, a former member of the Oshawa, Ontario

Chapter of the HAMC. Gault was an agent for the Ontario Provincial

Police. Conferences and Workshops [ 43 ] Mr. Lemieux testified that from September 1993 through November 2011, he attended, either as a presenter or as a delegate, 24 national and international conferences focussed on OMGs. These conferences were held across Canada, the United States and, on one occasion, in Germany. According to Mr. Lemieux’ curriculum vitae , the topics of discussion at these sessions were new trends, information regarding motorcycle gang involvement in criminal activity, the meaning of patches and tattoos, updates on gang membership, and overviews of gangs from investigators around the world.

Mr. Lemieux testified that, at some of the conferences, former members of gangs spoke on subjects including club structure, activities, tattoos, patches and business. These conferences provided opportunities for sharing of information that investigators obtained through search warrants and investigations of gangs in their own regions. [ 44 ] From 1992 on, Mr. Lemieux has lectured at workshops at various locations in Canada, the United States, as well as in Slovakia, Spain and France, on the topics of OMGs and their club structure, business, criminal activities, organization and identification of membership.

The majority of these lectures have been for law enforcement groups. He said that he would ask that those attending correct him if they felt his information was not accurate and that they provide him with any additional information they might have. He has not published his material. [ 45 ] Mr. Lemieux continues to teach at the Drug Investigation Course of the Canadian Police College on OMGs, with a particular emphasis on their involvement in the drug trade.

He also has published articles and reports on the subject of OMGs for the RCMP and CISC, and has read a number of books on the subject of OMGs, in particular the HAMC. [ 46 ] In October 2005, in response to a request from CISC, he gave a course on being an expert witness. [ 47 ] Mr. Lemieux says that since his retirement in 2008, he has continued to attend conferences, exchange information, and connect with investigators to stay up-to-date on OMGs. III. Previous Qualification as an Expert Witness [ 48 ] Mr. Lemieux has been qualified as an expert in the following cases and on the following topics: (

a) R v Violette , 2008 BCSC 920 - the nature and characteristics of the HAMC. The main purpose of the HAMC. (

b) R v Caines, Alcantara, Knapczyk (ABPC, 2008) - the nature and characteristics of the HAMC and the main purpose and activities of the HAMC. (

c) R v Cluney , 2008 SKQB 240 , 319 Sask R 23 - the organization, structure, and criminal activities of the HAMC and its puppet clubs. (

d) R v Giles , 2008 BCSC 367 - the nature and characteristics of the HAMC, its main purposes and activities, and whether those activities constitute the facilitation or commission of serious offences that afford a material benefit to its members; (

e) R v Grant , 2007 MBQB 135 , 216 Man R (2d) 219 - the nature and characteristics of outlaw motorcycle gangs; the nature and characteristics of the HAMC, including its history, organization, structure, practices and criminal activities both in Canada and

internationally; and the main purposes and activities of the HAMC, and whether those activities constitute facilitation or commission ofserious criminal offences that afford a material benefit to its members. (

d) R v Riopel (MBPC, 2006) - the organization, structure and criminal activities of the HAMC and its puppet clubs. (

e) R v Tokarchuk (MBQB, 2004) - the organization, structure, practices and criminal activities of the HAMC and its puppet clubs,such as the Zigzag Crew; (

f) R v Lindsay, (ON SC), [2004] OJ No 4097 (SCJ) (QL); (ON SC), [2005] O.T.C. 583 -the nature and characteristics of the HAMC, the main purposes and activities of the HAMC and whether they constitute the facilitationor commission of serious criminal offences that afford a material benefit to its members; (

g) R v Wolf (MBQB, 2003) - the general nature and characteristics of the HAMC and its puppet clubs, and their main purposes andactivities; (

h) R v Bonner (ONCJ, 2002) - qualified at the preliminary inquiry as an expert with respect to the main purposes, activities, generalnature and characteristics of the HAMC; (

i) R v Boucher (QCSC, 2001) - the organization, structure and activities of the HAMC; (

j) R v Cantrill (ABQB, 2001) - the general nature and operation of the HAMC, both nationally and internationally; theorganization, structure and general activities of the HAMC, both nationally and internationally; the national characteristics of theHAMC; the nature of the HAMC’s operations within Quebec; organization and criminal activities within Quebec; and (

k) Vincent Pelat (Immigration and Refugee Board, Adjudication Division, 2000) - the structure and organization of the HAMC. IV. Formulating Expert Opinion [49] Mr. Lemieux agreed that the process he has employed in forming his opinion on the HAMC has included talking to otherpolice officers, informants and agents; reading magazines, books, intelligence reports from provincial, national and international sourcesand investigative reports from different parts of Canada, including Alberta; and from his first-hand knowledge through surveillance,participation in searches and listening to wiretap interceptions.

He reviewed the minutes of HAMC meetings identifying guidelines fordispute resolution. [50] He acknowledged that he had no formal process for testing his information, but said that he would make sure the informationwas factual by calling sources to confirm the information before he disseminated it. If it was information from investigations, he wouldwait until the investigations were complete or court decisions rendered. Mr. Lemieux said that sources used by the RCMP wereclassified as “believed to be” reliable, reliable or confirmed.

Reliable sources are those who have provided information in the past thathas been corroborated by other means. Agents were former members of the HAMC that were part of the organization or worked withthem buying or selling drugs. Informants received information from members or other agents within the criminal milieu. [51] Mr. Lemieux acknowledged that it would have been better had he kept notes of the various debriefing sessions that he wasinvolved in, but said that he was not an investigator at the time but rather an intelligence officer and did not anticipate being an expertwitness.

[ 52 ] As to peer review, Mr. Lemieux indicated that his report on the HAMC has been circulated among law enforcement agencies and he has heard nothing about it being inaccurate, except the issue of the hang-around patch. He agreed that it was not his practice to do blind or double blind testing. [ 53 ] He acknowledged that he has not been involved in investigating OMGS or the HAMC in Alberta. [ 54 ] He said that he has read the 1991 book by Daniel R Wolf entitled The Rebels: A Brotherhood of Outlaw Bikers (Toronto: University of Toronto Press, 1991).

He testified there was no HAMC in Alberta at the time that book was written, but the Rebels subsequently patched over or converted, as he learned through documents he received while at CISC. [ 55 ] Mr. Lemieux acknowledged that the author of Hells Angels: Taking Care of Business (Ballantine Books, 1994), Yves Lavigne, a reporter from Toronto, was criticized for reaching for the shock factor. He said that he found some parts of the book authoritative while others were sensationalist. Mr. Lemieux takes the view that Lavigne likes to romanticize to sell books. As to reliability of the book, Mr.

Lemieux testified that this would depend on whether he could confirm the source of Lavigne’s information. [ 56 ] Mr. Lemieux testified that he does not accept some of the views expressed by Sonny Barger, Keith Zimmerman, and Kent Zimmerman in Hell's Angels: The Life and Times of Sonny Barger and the Hells Angels Motorcycle Club (Harper Collins). He notes that Barger is a full fledged member of the HAMC and is bound by the rules governing the club, which means that he will not admit to anything that will permit law enforcement officers to have recourse to any information. [ 57 ] Mr.

Lemieux has not read Hell's Angels: The Strange and Terrible Saga of the Outlaw Motorcycle Gangs (New York: Random House, 1966; Ballantine Books, 1996) by Hunter S Thompson, nor Organized Crime , 8 th ed. (Nelson Education Ltd., 2006) by Howard Abadinsky, a professor of criminal justice at New York University, who was declared an expert in Lindsay . Nor has Mr. Lemieux read any book about OMGs that is more recent than the 2004 book by Julian Sher and William Marsden, The Road to Hell: How the Biker Gangs are Conquering Canada (Random House). [ 58 ] In cross-examination, Mr.

Lemieux acknowledged that he is familiar with R v McCurrach , 2000 ABPC 127 , 270 AR 207, in which certain members of the HAMC successfully brought a constitutional challenge to quash motor vehicle infractions on the basis that the detentions were arbitrary. Mr. Lemieux read some of the testimony from the case but did not attend. Mr. Lemieux’s colleague, another national coordinator, Mr. Levesque, testified in that case. Mr. Lemieux said that Mr. Levesque was senior to him and his background did not include as much first-hand knowledge as that of Mr. Lemieux. [ 59 ] Mr. Lemieux confirmed that he is aware of R v.

Sandham , [2009] OJ No 4602 (SCJ) (QL) , in which Heeney J ruled that an expert witness was not to use the term “outlaw” or “gang” to refer to the Banditos since they chose to call themselves a “club.” V. Issue [ 60 ] The issue to be determined is whether Mr. Lemieux is qualified to give expert evidence as to the nature and characteristics of the HAMC, and the main purpose and activities of the HAMC. VI. Arguments of the Parties A. The Crown

[61] The Crown argues that expert evidence may be called at trial if it is shown, on a balance of probabilities, that it meets thefollowing criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; and (

d) a properlyqualified expert (R v Mohan, (SCC), [1994] 2 SCR 9 at para 17). [62] The Crown says that to qualify the witness as an expert, he must be shown, on a balance of probabilities, to have acquiredspecial or peculiar knowledge with respect to the matters on which he is to opine (Mohan at para 17). It submits that Lemieux’sexperience while employed by the RCMP has provided him with sufficient knowledge and experience in regard to outlaw motorcyclegangs and the Hells Angels to be qualified as an expert in that regard. [63] The Crown submits that Mr.

Lemieux’s evidence is relevant on the issue of Alcantara and Knapczyk’s involvement and rolein the conspiracy. It is the Crown’s theory they became co-conspirators in the Caines cocaine trafficking operation by assuming controlover a protection agreement that provided Caines with the exclusive right to traffic cocaine in Fort McMurray and by using theirmembership in the HAMC and its reputation to justify and enforce the agreement.

The Crown says that a factual basis for the Crown’stheory has been laid in terms of the Caines cocaine trafficking conspiracy and through Walker and by Marche’s direct examination interms of the protection agreement. It contends that surveillance, seizures and intercepted calls are consistent with the Accused being partof the HAMC. It argues the intercepted calls are consistent with the Accused taking over control of a protection agreement from a groupwhich included Lee LePoidvin and Neil Cantrill. [64] The Crown suggests that Mr.

Lemieux’s evidence will provide the Court with the proper context in which to view the otherevidence in the trial. Also, he can offer opinions on the evidence, which will assist in interpreting the meaning and significance of calls,surveillance and seized items. [65] The Crown contends that Mr.

Lemieux’s evidence as to the HAMC’s structure and executive, its size and scope nationally andinternationally, the meaning of its patches, its involvement in the drug business, its means of resolving internal disputes, jargon used, themanner in which its members communicate and its reputation in the criminal milieu are outside of the experience and knowledge of thetrier of fact. As a result, expert evidence is necessary. [66] The Crown submits that there is no exclusionary rule that would prohibit admission of Mr. Lemieux’s evidence.

It suggeststhat the probative value of the evidence as to reputation of the HAMC in the criminal milieu outweighs its prejudicial effect. B. Alcantara [67] Alcantara agrees that the criteria that must be met before expert evidence will be admitted were set out by Sopinka J inMohan at para 17. [68] Alcantara maintains that the proffered evidence is not relevant and its probative value is outweighed by its prejudicial effect. [69] He notes that the HAMC is not alleged to be a criminal organization in this case and the testimony the Crown intends toproffer from Mr.

Lemieux ordinarily would fall within the prohibition against evidence of bad character (Sopinka, Lederman and Bryant,The Law of Evidence in Canada (Markham: Butterworths Canada Ltd, 1992) at pp 454-455). [70] Alcantara refers to R v Terezakis, 2007 BCCA 384 at para 46, 223 CCC (3d) 344, leave to appeal to SCC ref’d [2007] SCCANo 487, in which the appellant, who was alleged to be the leader of a criminal organization involved in drug trafficking, argued that hisright to a fair trial was impaired by admission of evidence of his past criminal behaviour introduced to establish his connection to thealleged organization.

He notes the court in that case recognized that the concern about unfair prejudice is real. He points to the followingcomment of MacKenzie JA at para 46: Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded asprejudicial. No doubt such evidence will present challenges for jury instruction in trials of criminal organization offences. The balance

between probative value and prejudice was discussed in depth by Binnie J. in the context of similar fact evidence in R. v. Handy, 2002SCC 56 , [2002] 2 S.C.R. 908 at paras. 31-55 and later considered by Major J. in R. v. Perrier, 2004 SCC 56 , [2004] 3S.C.R. 228 at paras. 31-34 in the context of an identity issue. While the concern about unfair prejudice is real, I am not persuaded that itis so compelling as to preclude a fair trial and fatally compromise the constitutional legitimacy of the criminal organization offences.

TheAttorney General of British Columbia accepts that a trial judge retains a residual discretion to exclude evidence where the prejudicialeffect outweighs its probative value and the scope for the exercise of this discretion may be more extensive in the context of criminalorganization offences. The fair trial submission was not strongly pressed in argument by counsel for Mr.

Terezakis and if the issue is tobe revisited in a later case, in my view, it would be helpful to do so in the context of particular facts. [71] Alcantara asserts that the exception to the prohibition against admission of evidence of bad character does not apply unless itis alleged the accused is a member of the alleged criminal organization which is the subject of the charge. Here, there is no allegationthat he is a member of the alleged organization operated by Caines.

Nor is the HAMC alleged in the Indictment to be a criminalorganization. [72] In any event, Alcantara says there is support in the case law for the proposition that the court may take judicial notice of thereputation of the HAMC, citing McCurrach at para 3. [73] Alcantara contends that expert opinion based on second-hand evidence may be admissible, if relevant, but it should beaccorded no weight if the facts on which the opinion is based are not proved (R v Abbey, (SCC), [1982] 2 SCR 24 atpara 17; R v JJ, 2000 SCC 51, [2000] 2 SCR 600 at para 59). [74] He maintains that if Mr.

Lemieux is qualified, he should be limited to giving opinion evidence based on his personalexperience together with other evidence admitted in the trial. Alcantara asserts that the basis for Mr.

Lemieux’s opinion regarding otheraspects of the nature and characteristics of the HAMC and its main purpose and activities is based on hearsay from informants, civilianagents, ex-members of the HAMC, debriefing reports and reports of other police officers. [75] Alcantara points out that experts are not entitled to usurp the functions of the trier of fact (R v Parrott, 2001 SCC 3, [2001] 1SCR 178 at para 58; Mohan at p 24). The expert is not to give testimony tending to establish facts asserted by the Crown and then wrap that testimony in an opinion.

He refers to the following comment of Hall J in United States v Mejia, 545 Fed 3d 178 (2nd Cir 2008) at pp190-191, a case involving an alleged racketeering enterprise: Our decision to permit such expert testimony reflects our understanding that, just as an anthropologist might be equipped by educationand fieldwork to testify to the cultural mores of a particular social group... law enforcement officers may be equipped by experience andtraining to speak to the operation, symbols, jargon, and internal structure of criminal organizations.

Yet despite the utility of, and need for, expertise of this sort, its use must be limited to those issues where sociological knowledge isappropriate. An increasingly thin line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate anorganization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.

If theofficer expert strays beyond the bounds of appropriately “expert” matters, that officer becomes, rather than a sociologist describing theinner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charges offense serveas shortcuts to proving guilt.... [76] Alcantara suggests the danger is that the expert may not provide an expert opinion so much as assess the evidence and drawan inference, which is the task reserved for the trier of fact ( Sandham at paras 23-24). [77] He says that Mr. Lemieux’s formal training is minimal and dated.

Therefore, his purported expertise must be grounded in hisexperience. His experience has mostly been as an investigator involved in surveillance, general investigations and as an undercoveroperator. Alcantara contends Mr. Lemieux’s experience with CISC is dated and he acted primarily as an administrator. He points out thatMr. Lemieux lacks certain hallmarks of an expert, including having published in the proffered field of expertise, having a file ofdocuments on which he relies as forming the basis for his opinions regarding the HAMC and having a thorough knowledge of publishedliterature in his field.

C. Knapczyk [ 78 ] Knapczyk, like Alcantara, argues that Mr. Lemieux’s evidence faces a number of reliability concerns. He points out that Mr. Lemieux has no post-secondary education and no training independent of law enforcement. His secondhand information comes from other members of the law enforcement community. He is not trained in impartial information gathering and analysis. He has not read academic literature on the HAMC and has not shared his opinion with academics. He has not recorded where he obtained certain information. Knapczyk contends that some of the information provided by Mr.

Lemieux is hearsay or double and triple hearsay, and he appears to be interested only in incriminating information regarding the HAMC. Further, he notes that Mr. Lemieux has no recent experience with the HAMC and none at all in Alberta. [ 79 ] Knapczyk argues that the Court must act as a gatekeeper to assess the probative value of proposed expert evidence in comparison to its likely prejudicial effect and to draw the line between the role of the expert and the trier of fact ( Mohan at para 18 ; JJ at para 28; R v DD , 2000 SCC 43 at paras 51-56 , [2000] 2 S.C.R. 275).

He says that there is some divergence as to whether probative value and prejudicial effect are to be balanced as part of the relevance criteria or at a separate second stage. In either event, there must be an assessment of whether the reliability and relevance of the opinion justifies its cost. [ 80 ] Knapczyk contends the Court is to set limits on the expert evidence in a voir dire .

For example, in R v Abbey , 2009 ONCA 624 , 97 OR (3d) 330, leave to appeal to SCC ref’d [2010] SCCA No 125, the Court of Appeal excluded opinion evidence sought to be admitted by the Crown from a sociologist to the effect that as the only member of a street gang to get a tear drop tattoo, which signifies that person has killed someone, the accused likely was guilty of the murder charged.

Knapczyk says that it has become common for courts to prohibit experts from using words like “outlaw” and “gang” in their evidence or resume ( R v Sandham , [2009] OJ No 4602 at paras 49-50 (SCJ) (QL) ; R v CM , 2010 ONSC 4819 at para 15 ). [ 81 ] Knapczyk submits that the opinion of Mr.

Lemieux is likely to fall with the exclusionary rules relating to evidence of bad character and hearsay. [ 82 ] He says evidence of bad character may only be introduced if the accused puts his character in issue or it is relevant to an issue at trial apart from showing the accused is the type of person who is likely to have committed the offence in question and its probative value outweighs its prejudicial effect.

He notes that trials involving criminal organization offences may involve some character evidence because an element of the offence is that the relevant group of people have organized for the purpose of committing crimes ( Terezakis at para 46 ). He maintains that what the Crown is seeking to tender through Mr. Lemieux concerns the HAMC, which is not the alleged criminal organization in this case. He claims that the only relevance of the HAMC is with respect to the Crown’s allegation the accused are members of the HAMC and able to use their status as such to assist the alleged criminal organization.

Relying on Abbey , he says that the “reputation” of the HAMC in the “criminal milieu” is inadmissible hearsay. [ 83 ] Knapczyk argues that Mr.

Lemieux has no expertise or experience with respect to the criminal milieu of Alberta or Fort McMurray and that such evidence would be hearsay in any event. [ 84 ] Knapczyk contends that the Court must be vigilant in guarding against prohibited forms of reasoning, such as: ∙ attributing the crimes of individual members to the HAMC as an organization ( LBS v ST , 2000 BCSC 952 ); ∙ inferring from criminal acts of some members of the HAMC that the accused are more likely to have committed the offences charged ( Sandham at paras 40-44); ∙ inferring a

chapter of the HAMC is a criminal organization because a different one was found to be ( R v Kirton , 2007 MBCA 38 at paras 17-18 , 219 CCC (3d) 485). [ 85 ] Knapczyk submits that the opinions that a sponsor would be involved in a prospect’s criminal activity and that the HAMC is

involved in criminal activity and protection agreements amount to character evidence. [86] Knapczyk contends that Mr.

Lemieux’s intended evidence does not meet the test for reliability set out in Abbey at para 19. [87] He maintains that an expert is entitled to rely on second-hand information that is generally accepted within the field ofexpertise only if there are circumstantial guarantees of its trustworthiness (Sandham at paras 31-34). [88] Knapczyk submits that an expert oversteps the proper bounds of expert testimony when interpreting whole conversationsrather than words or phrases as the trier of fact could draw her own inferences if appropriate and the expert likely is relying oninformation gathered in the investigation which may not have been admitted at trial (Sandham at paras 22-24).

He says the same occurswhen the expert interprets words or phrases that appear logical and coherent in the absence of a proper foundation establishing a basis tobelieve they have a coded meaning (R v Hillier (1993), (NL SC), 109 Nfld & PEIR 92 at paras 45-46 (Nfld SCTD); Rv Connolly, 2001 NLCA 31 , 2001 NFCA 31 at para 27, 226 Nfld & PEIR 87; R v Duguay, 2009 QCCA 1130 at para 270, leave to appeal to SCC ref’d [2009] SCCA No 348; US v Garcia, 291 F 3d 127 at paras 141-142 (2nd Circ 2002); US v Dukagjini, 326 F 3d 45 at 55 (2nd Circ 2003)). VII.

Analysis [89] The burden of persuasion as to admissibility of proposed expert opinion evidence is on the proponent of the evidence. The burden of proof is on the balance of probabilities (McWilliams’ Canadian Criminal Evidence, 4th ed (Aurora, Ont: Canada Law Book,2003) p 12 - 110). [90] There is common ground between the Crown and Defence that, if I accept Mr. Lemieux’s credentials as an expert in the areassought, any permitted evidence from him should not address the following topics: ∙ the criminality of any alleged members of the HAMC; ∙ whether or not any given

chapter of the HAMC is a criminal organization; ∙ whether or not the HAMC as a whole is a criminal organization; ∙

interpretation of entire conversations rather than individual words or phrases in communications; ∙ words or phrases which are not commonly used as code language among drug traffickers unless a proper foundation is establishedin the evidence at the trial (although the Crown says that it may disagree with what words are code). [91] The Crown and the Accused disagree on whether Mr. Lemieux should be allowed to give evidence in which he uses the word“outlaw” or “gang,” or which relates to: ∙ the reputation of the HAMC in the community, including in the criminal milieu; ∙ dispute resolution among the HAMC;

∙ “limitations” in involving HAMC in certain criminal activity, such as protection agreements, based on their status as a prospect; ∙ HAMC involvement in the drug business and protection agreements; ∙ interpreting calls relating to the alleged protection agreement. [ 92 ] Four preconditions to admission of expert evidence were identified by the court in Mohan at para 17 . These are: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert who has acquired special or peculiar knowledge through study or experience about the matters to be addressed that the average trier of fact does not already have. A. Relevance [ 93 ] Expert evidence is relevant if it assists the trier of fact in addressing an issue at trial. [ 94 ] In my view, Mr.

Lemieux’s evidence on the nature and characteristics of the HAMC (including the meaning of various HAMC patches and tattoos, HAMC structure and hierarchy, rules on progression through the hierarchy, “limitations” based on an individual’s status in the hierarchy in involving or committing the HAMC in certain activity, dispute resolution within the HAMC, code and jargon); and the reputation of the HAMC in the community, including in the criminal milieu, is relevant to the Crown’s theory that Alcantara and Knapczyk became co-conspirators in the Caines cocaine trafficking operation by assuming control from another

chapter of the HAMC over a protection agreement that provided Caines with the exclusive right to traffic cocaine in Fort McMurray and by using their membership in the HAMC and its reputation to justify and enforce the agreement. [ 95 ] As noted above, the Crown is not seeking to prove that any given

chapter of the HAMC is a criminal organization, or that the HAMC as a whole is a criminal organization. Therefore, evidence as to the main purpose and activities of the HAMC, to the extent it deals with the involvement of the HAMC in drug trafficking and protection or enforcement agreements, appears to be of marginal relevance to the charges before the Court.

The Crown asserts that evidence of the existence of protection agreements involving the HAMC, how they operate and in what situations they are employed will assist the Court in interpreting some of the intercepted communications in which code or guarded language is used. To that extent, I will accept at this stage that this evidence may have some relevance. B. Necessity [ 96 ] I agree with the Crown that the proposed opinion evidence of Mr.

Lemieux is outside the experience and knowledge of the Court and, in that regard, is necessary. [ 97 ] I am aware that Judge Fradsham of the Alberta Provincial Court in McCurrach at para 3 took judicial notice that the HAMC has an unsavoury reputation in North American society. However, I prefer to rest any findings in regard to the reputation of the HAMC

on expert evidence. In my view, such evidence is necessary. C. Absence of Exclusionary Rule 1. Bad character or propensity [ 98 ] The Accused argue that opinion evidence about the reputation of the HAMC, including in the criminal milieu, essentially is character or propensity evidence which can lead to prohibited reasoning, and that the circumstances of this case do not fit into one of the exceptional categories whereby such evidence is admissible; for example, the similar fact evidence exception.

They argue that in Lindsay and Terezakis , the charges against the accused involved the HAMC as a criminal organization so that the Crown was required to prove the reputation of the HAMC as an element of the offence. [ 99 ] Further, they argue that in cases where the charge is under s 467.11 of the Code , the Crown may lead reputation evidence because s 467.11(3) itself creates an exception to the general rule against character evidence.

Section 467.11(3) sets out factors the Court may consider in determining whether an accused participates in or contributes to any activity of a criminal organization, including whether the accused uses a name, word, symbol or other representation that identifies or is associated with the criminal organization; frequently associates with any of the persons who constitute the criminal organization; receives any benefit from the criminal organization; or repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

They say there is no such exception created in the Code for charges under s 467.12. [ 100 ] Alcantara asserts that the Terezakis exception to the rule against character evidence applies in circumstances where an accused is alleged to be a member of the criminal organization in the charge, the Crown must prove it is a criminal organization; and so evidence of the criminal propensity or character of the organization is admissible in such a case.

He says that to allow its admission in this case, where the HAMC is not the criminal organization at issue in the charge, would be to extend the Terezakis rule beyond what is now the law. [ 101 ] In Terezakis , the accused was charged under s 467.13 of the Code . The Crown alleged that the accused was the leader of a criminal organization involved in drug trafficking.

He was charged with what is described as the “instruction offence;” that is, that he was one of the persons constituting a criminal organization who did knowingly instruct any person including any member of that criminal organization to commit the indictable offence of trafficking for the benefit of the criminal organization. The trial judge concluded that s 467.13 was constitutionally vague and overly broad because of difficulties with the meaning of “criminal organization,” a term defined by s 467.1(1) and linked to essential elements of the offence.

She quashed count one of the indictment. [ 102 ] On appeal, the court concluded that the instruction offence is not constitutionally flawed, and vacated the order quashing the count in question.

The court observed at para 46 that criminal organization offences make evidence of general propensity and bad character probative that otherwise would be excluded as prejudicial. [ 103 ] I do not read Terezakis at paras 44-46 as limiting the relevance of reputation evidence to proving the criminal organization only when it is an essential ingredient of the instruction offence (s 467.13), the participation offence (s 467.11 with the specific factors to be considered set out in s 467.11(3)), or the commission offence (s 467.12). [ 104 ] In some circumstances, such as in Lindsay , evidence of reputation may be relevant to the criminal organization referred to in the charge.

In others, it may be relevant to a different issue in the trial. Here, the Accused are alleged to be members of the HAMC. The Crown seeks to prove the reputation of that organization, since it alleges the Accused brought that reputation to their role in the conspiracy and trafficking activities “... for the benefit of, at the direction of, or in association with...” the alleged Caines criminal organization. [ 105 ] Knapczyk takes the argument one step further.

He says that reputation evidence, a form of character evidence, is never inadmissible in any case unless it falls within an exception, such as s 467.11(3) of the Code or the similar fact evidence exception. Even where an exception does applies, he argues that the last stage of inquiry is to determine whether the probative value outweighs the prejudicial effect of the evidence.

[106] Knapczyk’s argument inverts the proper approach to the admissibility of evidence. The fundamental principle is that evidenceis admissible if it is relevant to an issue in the trial. Character or propensity evidence may or may not be relevant. However, generally itis more prejudicial than probative of the guilt of an accused since the fact that he or she is of bad character or previously has committed acrime does not prove he or she committed the offence charged.

It is dangerous reasoning and prohibited unless the evidence meets thecriteria under the similar fact rule. [107] The character evidence rule is discussed in The Law of Evidence in Canada at p 454: The general rule is that the Crown is not permitted to adduce evidence of the accused’s bad character either by evidence of reputation orspecific acts unless the accused has put character in issue or the evidence is otherwise relevant to an issue, as for instance as evidence ofsimilar acts.

The reason for this prohibition is not that the evidence is not logically relevant, but that its reception would cause undueprejudice to the accused and would result in investigation into tangential issues resulting in lengthy trials. [108] In R v Handy, 2002 SCC 56 at para 37, [2002] 2 SCR 908, Binnie J, for the court, explained that: The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capturethe attention of the trier of fact to an unwarranted degree.

Its potential for prejudice, distraction and time consumption is very great andthese disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused iscalled on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38;Robertson, supra, at p. 941; Morris, supra, at pp. 201-2; R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577, at p. 613.[Emphasis added.] [109] Binnie J’s reasons in that case emphasized the importance of issue identification. [110] As I understand it, the Crown in the present case wishes to adduce evidence that the HAMC has a reputation for violence andintimidation in carrying out its various activities, to show, in part, what Alcantara and Knapczyk, alleged to be members of the HAMC,brought to the alleged conspiracy and/or criminal organization by virtue of that membership. The Lemieux’s evidence of the reputationof the HAMC is relevant to this issue.

It is not being adduced to show that because Knapczyk and Alcantara are alleged members of theHAMC, with its reputation for violence and intimidation, it is likely they committed the offences charged. [111] The Crown must still prove whether the Accused actually participated in the alleged conspiracy or aided the alleged criminalorganization. [112] A similar issue arose in R v Desjarlais, 2012 ABCA 43. In that case, the trial judge admitted evidence that all of severalparticipants in an assault were or had been connected with a gang called the Alberta Warriors.

The Court of Appeal held that the trialjudge did not use this evidence for propensity of the appellant to commit violence, but rather to suggest a motive on the part of the othergang members to participate in an attack on the complainant, a former member.

In other words, the evidence was relevant to an issue inthe trial, and was not excluded as running afoul of the character evidence rule. [113] In Desjarlais at para 12, the court stated: In the circumstances, the appellant's affiliation with the Alberta Warriors was used only to establish a possible motive, not to suggest hewas therefore a bad man and more likely to have engaged in criminal conduct, or someone deserving of punishment in any event. Theconcern with admitting evidence of bad character is that it may be used only for those forbidden purposes.

That was not the case here,and it is clear that the trial judge did not use the evidence for any prohibited reason. [114] The danger of predisposition evidence is that it may lead the trier of fact to convict based on character rather than actual proof

of the crime. However, as noted by the Crown, where the evidence is relevant beyond establishing the character of the accused, it maybe admitted if it is more probative than prejudicial. [115] I find that the proposed evidence from Mr. Lemieux relating to the main purpose and activities of the HAMC and its reputationin the community, including in the criminal milieu, is relevant and more probative than prejudicial to the issue for which it is sought tobe adduced, which is not to establish that the Accused have the propensity to commit the crimes alleged. [116] The Accused submit that Mr.

Lemieux should be precluded from using terms such as “outlaw” or “gang,” as these arepejorative and conclusory. [117] The court in Sandham commented at paras 49-50: The final area of controversy deals with labeling. Officer Pulfrey's preferred terminology for the Bandidos is an OMG. This carries withit two pejorative terms: "outlaw" and "gang". I have already indicated that the outlaw nature of the motorcycle club subculture is amatter of historical fact that is necessary for context, but that evidence of any current criminal activity (i.e. "outlaw" activity), is notadmissible.

To refer to the Bandidos as "outlaws" is prejudicial and unnecessary. Similarly, the word "gang" has pejorative connotations that are neither necessary nor relevant. The Bandidos call themselves a "club",and there is no reason Officer Pulfrey should not do the same. [118] I will not restrict Mr. Lemieux’s use of such language since this is a judge alone trial, but I will bear in mind that this languagecan be pejorative and conclusory. 2. Hearsay [119] The Accused contend that expert opinion based on hearsay should not be admitted or should be accorded no weight. Theysuggest that much of Mr.

Lemieux’s opinion has been formed on the basis of hearsay. [120] In Lavallee at paras 82-84, Sopinka J discussed the issue of an expert’s reliance on hearsay and clarified that there is a practicaldistinction between evidence that an expert obtains and acts on within the scope of his or her expertise and evidence that an expertobtains from a party to litigation touching a matter directly in issue: In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means of decisionwithin that expertise.

A physician, for example, daily determines questions of immense importance on the basis of the observations ofcolleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professionaljudgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees oftrustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsayevidence in general, exemplified in Ares v. Venner, (SCC), [1970] S.C.R. 608. In R. v.

Jordan (1984), (BC CA), 39 C.R. (3d) 50 (B.C.C.A.), a case concerning an expert's evaluation of the chemical composition of an alleged heroinspecimen, Anderson J.A. held, and I respectfully agree, that Abbey does not apply in such circumstances. (See also R. v. Zundel (1987), (ON CA), 56 C.R. (3d) 1 (Ont.

C.A.), at p. 52, where the court recognized an expert opinion based upon evidence "...of a general nature which is widely used and acknowledged as reliable by experts in that field.") Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, orfrom any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proofwill, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point.

But it must berecognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof ofany of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to beproved, the matter is purely one of weight. In this respect, I agree with the statement of Wilson J. at p. 896, as applied to circumstancessuch as those in the present case:

... as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequentlyinstruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts notproved in evidence the less weight the jury may attribute to the opinion. [121] In Lindsay at paras 22-23, Fuerst J interpreted this to mean: It is clear, as a result of the majority decision in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97 (S.C.C.),that an expert opinion is admissible, even if based on hearsay.

The hearsay is admissible to show the information on which the expertopinion is based, and not as proof of the facts stated. Before any weight can be given to an expert opinion based on hearsay, the facts onwhich the opinion is based must be proven by admissible evidence. This does not mean that each specific fact must be proven in evidencebefore any weight can be accorded the opinion, but the more the expert relies on unproven information, the less weight may be giventhat opinion.

To put it another way, in assessing the weight to be given to an expert opinion, the trier of fact is required to take intoaccount that it is based in part on hearsay: see R. v. Burns, (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193 (S.C.C). The Supreme Court of Canada further emphasized in Burns that the "ultimate issue rule", once considered to bar expert testimony on thevery matter before the court, is no longer strictly applied.

McLachlin J. (as she then was) observed at page 201 that, "While care must betaken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted thatexpert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of thedispute before the court". See also R. v. Mohan, supra, and R. v. Bryan (2003), (ON CA), 175 C.C.C. (3d) 285 (Ont.C.A.). [122] Mr.

Lemieux has based his opinion on the HAMC on first-hand experience as an investigator, including thousands of hours ofsurveillance on members of the HAMC and HAMC clubhouses, thousands of hours of listening to intercepted communications involvingHAMC members, searches of HAMC clubhouses and reviewing documents seized from the search of the clubhouses. [123] He also has based his opinion on information he has acquired from other sources.

He testified that the informants he spoke withwere considered reliable by the RCMP (they previously had provided information that later was corroborated), and they obtained theirinformation from members of the HAMC. The agents he debriefed also obtained their information from members of the HAMC. Hespoke with former members of the HAMC and reviewed the transcript of interviews with other former members. According to Mr.Lemieux, where the information was new, he took steps to confirm it. [124] In my view, as in Lavallee, Mr.

Lemieux has arrived at his general opinions “on the basis of forms of enquiry and practice thatare accepted means of decision within that expertise.” [125] I agree with the Crown that his partial reliance on hearsay goes to weight rather than admissibility and that the assessment ofweight will be influenced by the other evidence called at trial that corroborates his opinion (Violette at para 75). 3. Bias [126] Alcantara and Knapczyk have suggested that Mr. Lemieux should be prevented from giving expert evidence because of hispolice officer bias.

They argue that to be qualified to give expert evidence, the proffered witness must be truly independent and free ofbias. The authors of McWilliams are champions of this view, as is Professor Paciocco, described as a widely recognized evidence scholar(McWilliams at pp 12 - 59 to 12 - 61). [127] A requirement for absolute impartiality of the expert witness is, of course, an ideal.

Sometimes, an expert witness is presentedwho is of a purely academic bent, demonstrating icy impartiality on the question about which an opinion is sought, with a backgroundand education that have not required him or her to formulate a view on the particular problem in issue prior to the matter arising in thecase in which they are to testify.

[ 128 ] Sometimes, the expert witness has professional qualifications that permit him or her to assess and analyze the facts before the Court afresh each time the specific problem presents itself; as for example, when a psychiatrist is asked to speak to the question of fitness to stand trial or insanity.

Many times, the opinion of an expert will require the application of professional qualifications to the facts of the case and the opinion will be a function of the particular facts. [ 129 ] On occasion, the opinion proffered is that of a person whose qualifications are wholly experiential, and who has formed certain opinions prior to the case before the court. [ 130 ] The law does not yet require the gold standard: that to qualify as an expert for the purposes of providing opinion evidence, the person must be free of predisposition on the issue before the court. [ 131 ] Mr.

Lemieux holds certain opinions on the question of the nature and characteristics of the HAMC, and the main purposes and activities of the HAMC.

He has formed those opinions on the basis of a career-long study of motorcycle clubs that engage in activities that are outside the law; through his work as a police officer in various capacities, involving street work and investigation; his review of reports and documents touching on these issues from law enforcement agencies across Canada, the United States and Europe; and from his study of information provided through his professional positions within law enforcement. [ 132 ] Mr. Lemieux undoubtedly is influenced by the calling he has chosen and by his experiences as a law enforcement official.

However, it has not been established that he is biased. D. Qualified Expert with Special Knowledge [ 133 ] As the court stated in Mohan at para 27 , expert opinion evidence must be given by a properly qualified witness "who is shown to have acquired special or peculiar knowledge through study or experience" about the matters to be addressed. [ 134 ] I am of the view that Mr.

Lemieux has been shown to have acquired special knowledge on the nature and characteristics of the HAMC (including the meaning of various HAMC patches and tattoos, HAMC structure and hierarchy, rules on progression through the hierarchy, dispute resolution within the HAMC, code and jargon); the main purpose and activities of the HAMC; and the reputation of the HAMC in the community, including in the criminal milieu. [ 135 ] Mr.

Lemieux has gleaned this special knowledge through his work from 1978 to 1981 as an investigator in the RCMP Chicoutimi Drug Section, and from March 1981 to September 1987 in the RCMP Quebec City Drug Section, where he gleaned information about the HAMC while participating in drug investigations and being involved in stationary and mobile surveillance, wiretaps, searches, and undercover work.

He gained his special knowledge during the years he spent as one of two national co-ordinators responsible for the Outlaw Motorcycle Gang Project with CISC, where he collected, analysed, stored and distributed information and intelligence on that topic from across Canada, the United States and Europe.

He further developed his knowledge and understanding of this field by interviews with agents and informants, by confirming the information received, by attending conferences and lectures, and by maintaining a flow of information with law enforcement agencies at home and abroad. [ 136 ] He has lectured and taught in his chosen field of expertise. His credentials have been accepted and he has testified as an expert witness at both the provincial court and superior court levels in several provinces.

He was qualified as an expert witness in the Lindsay case, and his evidence was quoted extensively by a judge widely recognized as a criminal law expert. He has made a study of what he terms “outlaw motorcycle gangs” and his knowledge and experience are extensive. [ 137 ] Mr. Lemieux was examined and cross-examined about his credentials and experience over most of three days in this voir dire . He identified the sources and bases of his opinion in an articulate, forthright and clear fashion and he acknowledged gaps in his information. [ 138 ] I am unable to assess at this point whether Mr.

Lemieux has special knowledge relating to “limitations” based on an individual’s

status in the HAMC hierarchy in involving or committing the HAMC to certain activity. However, the Crown may lead evidence to establish that he does have that special knowledge. [ 139 ] As to “interpreting calls relating to the alleged protection agreement,” I accept that Mr. Lemieux has special knowledge on code and jargon used by the HAMC. The Crown has agreed that he will not give expert evidence interpreting entire conversations rather than individual words or phrases in communications. [ 140 ] I disagree with Alcantara’s submission that Mr. Lemieux’s expertise is dated.

This trial concerns the 2005-2006 time frame. Mr. Lemieux had then recently worked with the CISC, IPOC, the Combined Forces Special Enforcement Unit, and the Ottawa Drug

Section of the RCMP. VIII. Conclusion [ 141 ] I have concluded that Mr.

Lemieux is qualified to provide this Court with expert evidence as to the nature and characteristics of the HAMC, including, but not necessarily limited to: ∙ the meaning of various HAMC patches and tattoos; ∙ HAMC structure and hierarchy; ∙ rules on progression through the hierarchy; ∙ dispute resolution within the HAMC; and ∙ code and jargon. [ 142 ] He also is qualified to provide this Court with expert evidence as to the main purposes and activities of the HAMC, and the reputation of the HAMC in the community, including in the criminal milieu. [ 143 ] Since I am unable to assess at this point whether Mr.

Lemieux has special knowledge relating to “limitations” based on an individual’s status in the HAMC hierarchy in involving or committing the HAMC to certain activity, the Crown may lead evidence to establish that he does have that special knowledge. [ 144 ] I will not restrict Mr. Lemieux’s use of the terms “outlaw” and “gang” since this is not a jury trial. [ 145 ] Concerns about Mr.

Lemieux’s predisposition to a conclusion, or lack of independence because of his history with the RCMP will be dealt with as matters of weight to be given his evidence, as will any questions concerning his knowledge or lack thereof of the Alberta context. Heard on the 12 th day of March to the 15 th day of March, 2012.

Dated at the City of Edmonton, Alberta this 3 rd day of April, 2012. S.J. Greckol J.C.Q.B.A. Appearances: Dennis Hrabcak Public Prosecution Service of Canada for the Crown A. Clayton Rice Ouellette Rice for the Accused John Alcantara Simon Renouf, Q.C. for the Accused Alan Knapczyk